Allowed

Mustafakhan Ajimkhan Makrani v. State of Gujarat

Gujarat HC1 Nov 2018SCA/1682/2018

Case brief

AI extract

What is this about?

The High Court quashed the orders removing a police officer from service for allegedly showing an equivalent qualification as graduation. Relying on a prior judgment, the Court held there was no material to prove dishonesty or immorality, directing reinstatement.

What did the court decide?

Orders quashing removal from service were set aside; petitioner to be reinstated with all consequential benefits within eight weeks along with exemplary costs.

Mustafakhan Ajimkhan Makrani Vs State of… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/1682/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 1682 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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========================================================== MUSTAFAKHAN AJIMKHAN MAKRANI

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Versus STATE OF GUJARAT

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==========================================================

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Appearance: MR GM JOSHI(370) for the PETITIONER(s) No. 1 MR KANVA ANTANI, ASST GOVERNMENT PLEADER/PP(99) for the RESPONDENT(s) No. 1

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RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 01/11/2018

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ORAL JUDGMENT

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The present petition has been filed by the petitioner praying that the order dated 21.03.2017 passed by the disciplinary authority and confirmed in appeal by the State

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vide order dated 28.12.2017 removing the petitioner from service be quashed and set aside.

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2. The facts are as under:

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2.1 The petitioner had passed Hindi Examination “Sahitya Sudhakar” from Bombay Vidyapith. Based on such qualification, the petitioner applied for the post of Platoon Commander in the year 1994. After having undergone the selection process and having cleared written as well as physical examinations, the petitioner was appointed as a Platoon Commander and posted at Godhra on 30.04.1994. In the year 2007, the petitioner was promoted as Police Inspector.

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2.2 On 12.06.2012, the petitioner received a charge-sheet wherein the charge against the petitioner was that he had shown his qualification as “Sahitya Sudhakar” and that by showing such qualification the petitioner had obtained appointment though he was not so qualified to hold the post. It is the case of the respondent authority that by such conduct of showing the qualification of “Sahitya Sudharkar” as equivalent to graduation, the petitioner had demonstrated immorality. After submitting his defence and after conducting departmental inquiry where the charge was found to be proved, the petitioner was issued a show-cause notice on 27.01.2016 asking to show cause as to why he should not be dismissed from service.

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2.3 On 07.03.2016, the petitioner replied to the show-cause notice. In such reply, the petitioner pointed out the case of

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one Mr. H.S. Rabari on whom similar charges were levelled and who was thereafter exonerated. The defence of the petitioner was not accepted and by an order dated 21.03.2017, the services of petitioner was terminated by passing the order of removal from service. On an appeal filed, the order of dismissal stood confirmed by the appellate authority on 28.12.2017. Both these orders have been challenged in the present petition.

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Mr. G.M. Joshi, learned advocate appearing on behalf of the petitioner has challenged these orders on various grounds. Primarily, Mr. Joshi has contended that there was no dishonesty demonstrated by the delinquent or any attempt to mislead the selection committee. He was holding a qualification equivalent to that of graduation. There was no suppression of material fact so as to warrant disciplinary action. He has strongly relied on the case of Mr. H.S. Rabari, who was though so charged, exonerated in the inquiry and after his case was taken up in review, his services were terminated.

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3.1 Mr. Joshi submitted that said Mr. Rabari had to approach this Court by filing Special Civil Application No. 16377 of 2015 challenging the order of his removal. By judgement and order dated 13.06.2017, in similar set of facts where Mr. Rabari had been issued a charge akin to that of the petitioner, this Court after extensive submissions made by the respective parties allowed the petition. Mr. Joshi has drawn my attention to paragraphs no. 18 & 19 of the said judgement which read as under:

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“18. This Court found no material worth the name

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for initiating the disciplinary proceedings against the petitioner. It could not even satisfy itself with other factual details contended by the State for such initiation of inquiry. Again the Inquiry Officer found the petitioner not guilty. Conclusion of the Disciplinary Authority also was sound and legal. Even while not agreeing to equalising his certificate with the degree, it rightly had exonerated the petitioner and dropped the charges against him by holding that it was not feasible to find fault with the petitioner nor was it possible to question Committee's or Board's decision. Even if the petitioner did not possess the equivalent degree, it is unthinkable that in a recruitment process conducted by the Competent Authority, which culminated into an oral interview by five very senior police officers of the State and when there is no concealment or forgery of any document, how a candidate would be said to have acted immorally or illegally in getting the post of Platoon Commander ? The respondent-state has thoroughly failed to prove their stand. Again the Reviewing Authority with the very material chose to take matter in suo motu review and held him guilty of acting dishonestly and immorally though having produced a correct and genuine document/ certificate for getting appointment where he had no say and that too, without this document having been proved as forged or defective in any manner.

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18.1 It nowhere emerges from record as to what was the cause for a fishing inquiry after a period of about 18 years of service of an employee. There was no blemish record of the petitioner and even his entire service career was blotless. If there was any other cause for initiating the departmental inquiry against the petitioner, the respondent-State is expected to initiate necessary procedure and hold inquiry for the reasons for which the officer is found defaulting instead of creating the ground which does not exist. The inquiry in question appears to be a design only to initiate action against the petitioner for some ulterior reasons as otherwise there hardly seems any cause or reason

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for initiating such an inquiry after a lapse of about two decades i.e. 18 years.

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18.2 In Special Civil Application No.10173 of 2014 in the case of Ganeshbhai Juthabhai Patel and others v. State of Gujarat and others, this Court (Coram : J.B. Pardiwala, J.), the services of the petitioners who were appointed in the quota of ExServicemen were terminated after a period of 26 years on the ground of their not falling under the definition of Ex-Servicemen. The Court while deprecating such action, made a distinction between the terms illegal appointment and irregular appointment in the following manner :

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“Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the petitioners should continue in service.

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The following facts are not in dispute :

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1.The petitioners were appointed in the year 1990.

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2.Their services came to be terminated for the first time in the year 1992.

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3.They filed the Special Civil Application No.3863 of 1992 challenging their termination and the same came to be allowed vide order dated 31^st July 2006 on the ground that no opportunity of hearing was given before terminating their services.

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4.From 1992 till 31^st July 2006 they continued in service.

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5.After succeeding before this Court in the Special Civil Application No.3863 of 1992, the respondents took almost a period of two years to afford hearing to the petitioners, and after giving the opportunity of hearing in the year 2008, once again a decision was taken after a period of six years i.e. in the year 2015, that their services should be terminated.

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6.For all these years they have worked with no complaints.

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After putting in 26 years of service, if I hold the appointments to be illegal, even then they need to be protected. There is no question of holding that the appointments were illegal because the respondents themselves realized at a very late stage as to who could be called an Ex-Serviceman. If they would have been told on day one that they do not fall within the category of Ex-Servicemen, they would have taken up any other employment for the purpose of their livelihood. Now after these many years they should not be asked to go home, and that too, on the ground that the respondents had not realized at that relevant point of time that they could not have been given appointments as Ex-Servicemen.

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I am not impressed with the submissions of Mr.Goutam, the learned AGP, that the appointments in the quota of the ExServiceman could be termed as per se illegal. The distinction between the two terms i.e. illegal appointment and irregular appointment, is apparent. In the event, the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, yet the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.

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In the case in hand, the State is not disputing the fact that the petitioners are the Ex-Servicemen, but according to the Sate, what was necessary was the minimum five years of service as the Ex-Servicemen, which the petitioners were not fulfilling. For example, the petitioner no.1 had served in the Army for 11 months and 23 days, the

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petitioner no.2 served for 2 years and 16 days, the petitioner no.3 served for 3 months and 26 days and the petitioner no.4 served for 1 year and 4 days.

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According to the State, the petitioners were discharged from their services in the Army because they were not found to be capable of becoming good soldiers.

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I may only say that the requirement, according to the advertisement, was that the candidate should be an Ex-Serviceman. The advertisement did not prescribe any further conditions for being qualified as an ExServiceman. Again at the cost of repetition I may state that the State itself was in confusion whether the petitioners would fall within the category of the Ex-Servicemen or not.

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The termination of the services of the petitioners after a period of 26 years could certainly be termed as a very harsh action on the part of the State Government because each one of them would ordinarily have got married and have had children and are overaged for any other employment and has settled down in life with the reasonable expectation that ordinarily they would have been continued in service till the age of retirement.”

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18.3 Here as discussed hereinbefore, there is no question of terming appointment of the petitioner as irregular even. Reference of the above referred matter is only with a view that even if it was an irregular appointment, the period of 22 years was a huge time for taking such a harsh step. The petitioner herein also discharged his duties diligently with nothing adverse against him.

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18.4 This Court, in fact, found the action of Reviewing Authority more arbitrary and contrary to the settled norms when it had no base to deny equalisation as was given to the certificate of

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'Rashtrabhasha Ratna' with the Bachelor's degree. Its Ostrich like attitude of not even bothering to look at other existing material, deserves strong disapproval. Hence, the present petition deserves to be allowed with costs.

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For the foregoing reasons, the present petition succeeds and the same is, accordingly, allowed. The impugned order dated September 29, 2015, passed by the respondent-authority is quashed and set aside. The respondent-authority is directed to reinstate the petitioner to his original post with all the consequential benefits flowing from such reinstatement, including all the financial benefits as if no such impugned order was passed. This exercise shall be completed by the respondent-authority within a period of eight weeks from the date of receipt of a copy of this order.

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As discussed hereinbefore, the respondentauthority is directed to pay exemplary costs of Rs.50,000/- (Rupees Fifty Thousand only) towards this petition to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.

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Disposed of accordingly. Direct Service is permitted.”

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3.2 Mr. Joshi therefore submits that the judgement in the case of Mr. Rabari clearly applies to the facts of the case of the petitioner and therefore the petition be allowed on the same terms.

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Mr. Kanva Antani, learned Assistant Government Pleader has vehemently opposed the petition. He has argued that the Court in a petition under Article 226 of the Constitution of India may not interfere in the conclusion arrived at by the disciplinary authority. According to Mr. Antani, it is not open for this Court to substitute the findings of the disciplinary authority as confirmed by the appellate authority. The

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authorities have found that the petitioner did not possess requisite qualification when taken in service. He having projected himself to be a graduate misled the department in procuring appointment and therefore the authorities have rightly removed him from service.

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Having heard the submissions of learned advocates appearing on behalf of the respective parties and perusal of the judgement dated 13.06.2017 in the case of Mr. Rabari, it is apparent that on examination of facts before that Court it was a case where the petitioner was appointed as an Armed Police Sub Inspector on clearing Rashtrabhasha Ratna Examination. A charge-sheet was issued to the petitioner therein alleging that he had demonstrated immorality by showing the qualification of “Rashtrabhasha Ratna” as equivalent to graduation. After having tendered a detailed explanation and on examination of merits of the case, this Court observed that it was not the case where the petitioner therein had submitted any certificate fraudulently, immorally or with any ulterior motive nor was there any ill-will or malice designed in seeking the employment.

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5.1 Perusal of the impugned order passed in the present petition and the reasons thereunder, make it apparent that the case of the present petitioner is squarely governed by the facts of the judgement in the case of Mr. Rabari. While passing the impugned order or removal from service, the authorities have only distinguished the case of Mr. Rabari on the ground that his case was taken in review by a communication dated 12.03.2015 and thereafter removed from service on 29.09.2015. What the respondent authorities

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have lost sight of is that even after taking the case in review, Mr. Rabari approached this Court and this Court on extensive appreciation of facts and law came to the conclusion that the order of removal from service was not warranted. In fact, the Court has clearly observed that there was no material worth the name for initiating disciplinary proceedings against the petitioner. Adopting the same analogy and reasoning as enumerated in the judgement in the case of Mr. Rabari rendered in Special Civil Application No. 16377 of 2015 on 13.06.2017 which even Mr. Kanva Antani, learned Assistant Government Pleader has not been able to dispute, this petition deserves to be allowed.

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For the foregoing reasons, petition is allowed. The orders dated 28.12.2017 passed by the appellate authority and 21.03.2017 passed by the disciplinary authority are hereby quashed and set aside. The respondent authority is directed to reinstate the petitioner to his original post with all consequential benefits flowing from such reinstatement including all the financial benefits as if no such impugned orders were passed. This exercise shall be completed by the respondent – authority within a period of eight weeks from the date of receipt of a copy of this order. Rule is made absolute accordingly.

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(BIREN VAISHNAV, J)

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DIVYA

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Mustafakhan Ajimkhan Makrani v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Mustafakhan Ajimkhan Makrani v. State of Gujarat

Case brief

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