IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8626 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DEVJI DESABHAI BAGADA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MRS SUMAN KHARE for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3, MR YN RAVANI for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/8/2012 CAV JUDGMENT
1. By way of this petition under Article-226 of the Constitution of India, the petitioner–a retired Teacher has prayed for a declaration that he is entitled to the benefits of pension from the date of superannuation and further has prayed for appropriate directions on the respondent authorities to extend the benefits of pension with other retirement benefits as may be computed in terms of money from the date of his retirement. The petitioner has also prayed for a declaration that the action of respondent authorities in not issuing the posting order from 2/8/1968 till his retirement is illegal, arbitrary, unconstitutional and it may be declared that the service of the petitioner should be construed as continuous service from 2/8/1968 till the date of retirement.
2. The case as made-out by the petitioner in this petition may be summarized as under:
2.1) The petitioner belong to Scheduled Caste and was born on 9/2/1936. The petitioner’s qualification is Non- Matric with 2 years PTC. He was appointed as Primary Teacher on 21/9/1954 in School No.12 at Savarkundla. It is the case of the petitioner that the said school where he was appointed was under the District Panchayat. Government decided to hand-over the Primary Schools to Nagarpalika Education Committee from District Panchayat and before handing-over, the District Panchayat had sought the consent from the employees by filling-up a form giving an option as to whether they wanted to stay with the District Panchayat or Nagarpalika. The petitioner had given his consent for Nagarpalika and finally the Primary Schools were handed-over to Nagarpalika Education Committee on 1/5/1966. It is the case of the petitioner that before handing-over of school, petitioner was transferred to Thordi Village on 24/4/1966 and was relieved on 28/4/1966. It is the case of the petitioner that when he had gone to Thordi village to join service, the Principal of Thordi School did not permit the petitioner to join because the petitioner had no order of transfer. The petitioner came back and represented requesting the Chairman of the Nagarpalika Education Committee, Savarkundla to permit him to join the service. The Nagarpalika Education Committee considered the representation of the petitioner and permitted him to join Nagarpalika Primary School. Accordingly, the petitioner joined Nagarpalika Schook on 1/5/1966. For the interregnum period i.e. between 28/4/1966 to 1/5/1966 the petitioner gave an application for leave. It is the case of the petitioner that the respondents were in knowledge of the change-over of the school and had transferred the petitioner from Savarkundla to Thordi village but failed to send a transfer order to Thordi. It is the case of the petitioner that the action on the part of the authorities was malafide. The Administrative Officer, District Education Committee, Bhavnagar, vide letter dated 5/6/1968 informed the Administrative Officer of the District Primary Education Committee, Savarkundla to immediately discharge the petitioner from service as, in spite of transfer, the petitioner failed to report at the place of transfer. Vide letter dated 15/7/1968 the Administrative Officer, District Education Committee, Bhavnagar also asked the Administrative Officer of the District Panchayat Education Committee to call upon the petitioner to show cause as to why Departmental Proceedings may not be initiated for the misconduct. It is also the case of the petitioner that he had worked in Nagarpalika Primary School, Savarkundla for 2 years i.e. for the period from 1/5/1966 to 21/7/1968. During this period of work, the Administrative Officer, District Education Committee, Bhavangar had no complaints against the petitioner. According to the petitioner he had not violated any of the rules and his removal was illegal and arbitrary. According to him he preferred number of representations to the different authorities for posting and payment of salary but no heed was paid to any of his representations. It is his case that the petitioner was neither suspended nor terminated from service, no show cause notice or charge-sheet was ever issued. It is his case that therefore, his service be treated as continuous till his date of retirement.
3. The petition was admitted by issuance of Rule vide Order dated 16/7/2002. The respondents were served with Notice of Rule and they have appeared and opposed this petition by filing Affidavit-in-Reply.
4. Stand of Respondent no.3 :
Respondent No.3 submitted that the petitioner has not approached this Court with clean hands and has suppressed many material facts. The petitioner has preferred this petition at a very belated stage when, according to the petitioner, he was discharged from the service in the year 1966. Bhavnagar District Panchayat came into existence in the year 1963 under the provisions of Gujarat Panchayats Act, 1961. The petitioner joined the service of Local Board in the year 1954 but in absence of Service Book as well as any other record available, respondent no.3 is not in a position to give any details with regard to Date of Birth, Educational Qualification, Date of Appointment of the petitioner, Appointing Authority etc. It is the case of respondent no.3 that a fire took place in the Office of the District Panchayat, Primary Education Committee, Bhavnagar on 2/3/1974 and in the said fir the entire record was reduced to ashes. As soon as the District Panchayat came into existence on 1/4/1963, the petitioner became an employee of the District Panchayat Education Committee and thereafter in the year 1966 few Primary Schools within the limits of Savarkundla Municipality were handed-over to Savarkundla Municipality Education Committee w.e.f. 1/5/1966 and in all 132 Teachers and 6 Peons were transferred to Savarkundla Nagarpalika vide order dated 18/5/1966, but the petitioner was not one of those. The petitioner who was an employee of respondent no.3 was transferred to village Thordi, Ta: Savarkundla from the post of Assistant Teacher, Kundla. The petitioner was relieved on 28/4/1966. Petitioner, instead of joining at village Thordi, produced a Medical Certificate and remained absent. The medical leave was not sanctioned and the petitioner was requested to approach Civil Surgeon and obtain a certificate from the Civil Surgeon. The petitioner went to Village Thordi to report for duty, but as the Head Master of the said School had not received the order of transfer, the petitioner was not allowed to join the duty. According to respondent-3, record reveals that the petitioner worked in Savarkundla Municipality on his own without any orders of respondent no.3 w.e.f. 1/5/1966 to 31/7/1968. It is the case of respondent no.3 that the petitioner was relieved on 31/7/1968 to enable him to join Bhavnagar District Panchayat and never worked after 31/7/1968. As per the case of respondent o.3, petitioner did not report for duty after 31/7/1968, but on the other hand joined Political activities by becoming a member of Republic Party. After 31/7/1968 the petitioner did not work either with Savarkundla Municipality or with Bhavnagar District Panchayat. It is the case of respondent no.3 that the petitioner had never approached for any posting order and as such has abandoned his service. On the basis of the record available, respondent no.3 states that Office had not received any communication after 1966 and almost after a period of nearly 35 years has preferred this petition.
5. Stand of Respondent no.4 :
As per the record available, the petitioner had worked from 1/5/1966 to 31/7/1968 as the School of Primary Education Committee, Savarkundla pursuant to the Resolution passed by the District Panchayat Education Committee, Bhavnagar dated 15/7/1968, petitioner was relieved to join service of District Panchayat Education Committee, Bhavnagar. At a later stage the petitioner failed to join service at District Panchayat Education Committee, Bhavnagar. The District Collector, Bhavnagr had also issued direction to give posting to the petitioner in January, 1969. Petitioner was not continued in service. Under such circumstances the petitioner preferred a representation to the State Government for re-employment as a Teacher but the same was rejected by the State Government vide order dated 6/9/1996. It is the stand of respondent no.4 that the petitioner was not initially appointed by them and the petitioner had worked for a period of 2 years and 2 months i.e. from 1/5/1966 to 31/7/1968.
6. Having heard learned Counsel for the respective parties and having gone through the materials on record, I am of the view that no relief as prayed for in the petition could be granted to the petitioner solely on the ground of gross and inordinate delay. On the basis of relevant material on record, what I could gather is that from 1968 to 2001 i.e. till the time the petition was preferred, no steps were ever taken by the petitioner. Even after the last communication of the State Government dated 6/9/1996 no steps were taken by the petitioner. The pleadings are also very poor, lacking in material particulars. Under the circumstances, I am left with no other alternative but to reject this petition. As a result this petition is rejected with no order as to costs.
(J.B.PARDIWALA, J.) Ashish N.