Allowed

Balbhim Sureshrao Alias Suryakantrao Tapse v. the State of Mah and Ors.

Bombay HC20 Oct 2010WP/4364/2009

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an order discontinuing his service as a peon due to discrepancies in his father's name. The court held that since the discrepancy was disclosed voluntarily by an affidavit during the interview, discontinuation without a show-cause notice or inquiry violated natural justice, quashing the order. The subsequent government rectification of the father's

What did the court decide?

The impugned order dated 15.5.2009 issued by Respondent No.2 discontinuing the petitioner's services as a peon is quashed and set aside.

Balbhim Sureshrao Alias Suryakantrao Tapse Vs the… — Service and Employment | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.

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WRIT PETITION NO.4364 OF 2009

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Balbhim s/o Sureshrao alias
Suryakantrao Tapse, age 28
years, occupation : service,
r/o Dipewadgaon, Taluka Kej,
District Beed.

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Petitioner

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versus

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1. The State of Maharashtra, through Secretary,Legal Dept. Mantralaya, Mumbai.

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2. Principal District Judge, Beed. Respondents

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Shri Vivek Bhavthankar, Advocate, for the Petitioner.

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Shri V.B.Ghatge,Asstt.Govt.Pleader for Respondent No.1.

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Shri V.B.Jadhav,Advocate, holding for Shri V.D. Hon,
Advocate for Respondent No.2.

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Coram: S.B.Deshmukh and Shrihari P.Davare, JJ.
Judgment reserved on : 13th October, 2010.
Judgment pronounced on : 20th October, 2010.

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JUDGMENT (Per: Shrihari P. Davare, J.)

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01.Rule. Rule made returnable forthwith and with
the consent of learned counsel for the parties, taken
up for final hearing at the admission stage itself.

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02.Thepetitionerhasassailedthe

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communication/order dated 15.5.2009 passed by
Respondent No.2-Principal District Judge, Beed, thereby
discontinuing the services of the petitioner as a peon.

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03.The factual matrix of the present case is
that the petitioner had applied for the post of peon,
in District Court, Beed, in pursuance of the
advertisement published in newspaper. According to the
petitioner, name of his father in the village record
was recorded as "Suryakant", whereas his school record
disclosed his father's name as "Sureshrao".
Accordingly, in the application made for the post of
peon, the petitioner mentioned his father's name as
"Sureshrao" as per the school record.

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04.Thereafter, the petitioner was called for
written test by Respondent No.2, on 17.9.2006 (page
11). The petitioner appeared thereto and passed the
said written test. Accordingly, he was called for
practical test on 24.9.2006, which was also cleared by
the petitioner. Thereafter, he was called for oral

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interview, along with original documents, on 4.10.2006.
The petitioner filed death certificate of his father,
ration card and the statement of marks obtained by him
in 10th standard and the affidavit dated 3.10.2006
(Exh. B Colly.) stating that his father, namely,
`Sureshrao' was also known as `Suryakant'.

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05.Thereafter, waiting list was published by
Respondent No.2 on 12.6.2007 wherein name of the
Petitioner was at serial No.35, and thereafter
appointment orders were issued to the selected
candidate, including the petitioner, on 31.7.2008
(Exh.C, page 17). The petitioner was at serial No.12 in
the said appointment order and was posted as peon in
the court of Joint Civil Judge, Junior Division,
Patoda. Accordingly, he joined the said post on
6.8.2008. Thereafter, he was transferred to Shirur-

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Kasar Court, on 12.8.2008 and after joining the said
Court, he was further transferred to the Court of Civil
Judge, Junior Division, Patoda, and accordingly, was
relieved from the Court at Shirur-Kasar, on 4.10.2008
and he joined the new place i.e. Court at Patoda, on
5.10.2008.

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06.However, to the shock and surprise of the
petitioner, he received the impugned order dated
15.5.2009 (Exh. D, pages 20,20-A) issued by Respondent
No.2, thereby discontinuing services of the petitioner
suddenly, contending that Respondent No.2 intended to
verify the documents of the petitioner, and also
stating that there was difference in the name of father
of the petitioner in the application form and the
documents produced by him.

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07. Hence, the petitioner made representation dated
25.5.2009 (Exh. E, page 21) and invited attention of
Respondent No.2 to the fact that there was no
suppression of the fact, as he had filed affidavit
dated 3.10.2006 to the effect that his school record
disclosed the name of his father as 'Sureshrao',
whereas the village record showed name of his father as
'Suryakant' and requested to cancel the order of
discontinuation of his services and reinstate him on
the post of peon. However, since there was no response
from Respondent No.2, the petitioner again made
representation dated 29.5.2009 (Exh. F colly., pg.22)

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to Respondent No.2, annexing the copy of Govt.
Notification dated 21/27th May 2009 thereto, disclosing
therein rectification in the name of his father from
"Sureshrao" to "Suryakant". However, there was no
response from Respondent No.2 to said representation
also and hence, the petitioner has filed the present
writ petition, challenging the impugned order dated
15.5.2009 (Exh. D) and prayed for quashment thereof.

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08.Shri Bhavthankar, learned counsel for the

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petitioner canvassed that there is absolutely no
suppression on the part of petitioner in respect of
name of his father, since the village record and even
the death certificate of his father disclosed the name
of his father as "Suryakant", whereas his school record
reflected the name of his father as "Sureshrao" and the
said fact was brought to the notice of Respondent No.2
by the Petitioner, when he was called for interview on
4.10.2006, since on that very day, he had filed
affidavit dated 3.10.2006 along with other documents,
such as death certificate of his father, ration card
and the statement of marks obtained by him in 10th
Standard examination etc., specifically stating in the

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said affidavit dated 3.10.2006 that the death
certificate of his father disclosed his name as
"Suryakant",whereas the school record of the petitioner
disclosed his father's name as `Sureshrao' and further
that his father was known in the village also as
"Suryakant" and further specifically stating therein
that the names "Suryakant Tapse" and "Sureshrao Tapse"
belong to one and the same person, but in spite of
that, Respondent No.2 did not consider the said aspect,
properly.

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09.Shri Bhavthankar, learned counsel for the
petitioner, also submitted that the petitioner was
doing his duty without any complaint and to the
satisfaction of the superiors and he did not receive
any adverse remarks and even his work was appreciated
from time to time, and yet he received the impugned
order dated 15.5.2009, suddenly discontinuing his
services as a peon, which causes injustice to him.

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10.Learned Counsel Shri Bhavthankar for the
petitioner further canvassed that no show cause notice

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was issued to the petitioner and even no enquiry was
conducted and the services of the petitioner were
discontinued by Respondent No.2 without giving him any
opportunity which is against the principles of natural
justice and, therefore, learned counsel for the
petitioner urged that the impugned order dated
15.9.2009 deserves to be quashed and set aside.

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Respondent No.1 and Shri V.B.Jadhav, learned counsel,
holding for Shri V.D.Hon, learned counsel for
Respondent No.2, opposed the present petition
vehemently and submitted that the application form
submitted by the petitioner for the post of peon,
discloses his father's name as"Suryakant", whereas
school record of the petitioner i.e. school leaving
certificate, statement of marks obtained by the
petitioner in 10th standard examination (Exh. B colly.,
pgs. 12/13) disclose his father's name as "Sureshrao"
and,therefore,learned Civil Judge, Junior Divn.,Patoda,
sought guidance from Respondent No.2, by letter dated
7.5.2009, as to which name of the petitioner's

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father was to be entered into the service

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book of the petitioner and hence, consequently,
Respondent No.2 issued the impugned order dated
15.5.2009 to the petitioner, stating therein that there
was difference in the name of the petitioner's father,
in the application form submitted by him and in his
school record, which fact is required to be verified
and accordingly, his services were discontinued by the
impugned order. Thus, learned A.G.P. and learned
Counsel for Respondent Nos.1 and 2 respectively,
submitted that the impugned order dated 15.5.2009 has
been issued, rightly and no interference therein is
called for in exercise of the writ jurisdiction.

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12.Learned Counsel for the respondents also
submitted that the notification issued by the Govt.of
Maharashtra dated 21/27th May 2009, which is produced
by the petitioner along with his second representation
dated 29.5.2009 addressed to the 2nd Respondent, is
subsequent to the impugned order dated 15.5.2009 and
hence, the said notification dated 21st/27th May 2009
issued by the Government of Maharashtra, rectifying

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the name of petitioner's father, cannot be of any aid

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and assistance to the petitioner's case. Learned
Counsel for the Respondents further canvassed that the
petitioner failed to satisfy the then Principal
District Judge about the difference in the name of his
father and, therefore, the impugned order dated
15.5.2009 has been issued by Respondent No.2, rightly,
and, therefore, urged that the present petition bears
no substance and same is devoid of any merits and,
therefore, same be dismissed.

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13.We have perused the contents of the petition,
its annexures, and also the contents of true copy of
the affidavit-in-reply dated 4.8.2009 filed on behalf
of Respondent No.2 which is sworn in by the then
Principal Dist.Judge Madhusudansingh Laxmansingh
Chouhan, along with its annexures and also considered
the submissions advanced by learned counsel for the
parties, anxiously.At the outset, indisputably, it may
be noted that in the village record, as well as in the
death certificate,the name of the petitioner's father
was recorded as "Suryakant", whereas in the school
record, name of father of the petitioner is recorded

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as `Sureshrao'. Pertinently, the said fact was brought

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to the notice of Respondent No.2 by the petitioner on his own, at the inception itself i.e at the time of interview held on 4.10.2006, by filing an affidavit dated 3.10.2006 along with other documents, such as death certificate of his father, statement of marks obtained by petitioner in 10th standard, by specifically stating in the said affidavit that the petitioner had submitted the application form mentioning his name as "Balbhim s/o Suryakant Tapse" as the death certificate issued by the concerned Gram Panchayat disclosed the name of his father as "Suryakant Tapse", and further specifically stating that, but the school record of the petitioner reflected his name as "Balbhim Sureshrao Tapse". It is further specifically stated by the petitioner in the said affidavit that his father was known in the village by name " Suryakant Tapse" and also categorically stating therein that "late Suryakant Tapse" and "late Sureshrao Tapse" is one and the same person, but it appears that the said affidavit dated 3.10.2006 and the facts stated therein were not considered by Respondent No.2, in proper perspective, before issuance of the impugned

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order dated 15.5.2009, thereby discontinuing the
services of the petitioner.

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14.Moreover, it is also material to note that,
no show cause notice was issued to the petitioner and
no enquiry was conducted by Respondent No.2 prior to
issuance of impugned order dated 15.5.2009,
discontinuing services of the petitioner and hence, it
is apparent that no principles of natural justice were
followed by Respondent No.2 before issuing the impugned
order dated 15.5.2009. The said fact is strengthened
by the letter dated 7.10.2010 issued by present
Principal District Judge to Advocate Shri V.D. Hon
appearing for Respondent No.2, who produced the copy
thereof during the course of arguments, which is taken

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on record and marked "X" for the purpose of
identification. The said letter discloses that prior to
discontinuation of services of the petitioner, no
opportunity of personal hearing was given to him.
Hence, it is apparently clear that neither any
explanation was called for from the petitioner in
respect of any doubt about the genuineness of the
documents submitted by him, nor any audience was given

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to the petitioner nor due process of law was followed
by Respondent No.2, before issuance of the impugned
order dated 15.5.2009, discontinuing his services and,
therefore, the impugned order deserves to be quashed
and set aside.

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15.Besides that, although the petitioner had
sent two representations dated 25.5.2009 and 29.5.2009,
clarifying therein the true position and also annexing
a copy of the notification issued by the Govt. of
Maharashtra dated 21st/27th May, 2009, thereby
rectifying his father's name from "Sureshrao Tapse" to
"Suryakant Tapse" to representation dated 29.5.2009,
and although the said notification dated 21st/27th May
2009 was later in point of time to the impugned order
dated 15.5.2009, Respondent No.2 neither took any
cognizance thereof even subsequently, nor considered
the aforesaid representations dated 25.5.2009 and
29.5.2009 respectively, and no communication in that
respect was sent to the petitioner and, therefore, the
petitioner had no alternative, but to approach this
forum.

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16.In the circumstances, we are inclined to accept
the submissions advanced by the learned counsel Shri
Bhavthankar for the petitioner, and we are of the considered
view that this is a fit case to exercise the extra-ordinary
writ jurisdiction and, therefore, the impugned order dated
15.5.2009 issued by Respondent No.2, discontinuing the
services of the petitioner from the post of peon, deserves
to be quashed and set aside.

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17.In the result, present petition succeeds and same
is, accordingly, allowed in terms of prayer clause (A)
thereof and the impugned order dated 15.5.2009 issued by
Respondent No.2 stands quashed and set aside.

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18.Rule made absolute, accordingly. In the facts and
circumstances, there shall be no order as to costs.

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sd/(SHRIHARI P. DAVARE, J.)

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sd/(S.B.DESHMUKH, J.)

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pnd/wp4364.09

Balbhim Sureshrao Alias Suryakantrao Tapse v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Balbhim Sureshrao Alias Suryakantrao Tapse v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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