Dismissed

Patel Rakeshkumar Mafatlal v. State of Gujarat

Gujarat HC11 Feb 2021SCA/2804/2021

Case brief

AI extract

What is this about?

The High Court dismissed a special civil application seeking regularization of services as an Assistant Teacher. The court rejected the petition due to lack of required qualifications at the time of application, substantial delay over four years, and lack of merit.

What did the court decide?

Petition dismissed at the threshold for lack of merit, withdrawal of qualifications, and substantial delay.

Patel Rakeshkumar Mafatlal Vs State of Gujarat — Pension and Retirement Benefits | Gujarat HC (2021)

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C/SCA/2804/2021 ORDER DATED: 11/02/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 2804 of 2021

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PATEL RAKESHKUMAR MAFATLAL

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Versus STATE OF GUJARAT

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Appearance:

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MR GUNVANT R THAKAR(3801) for the Petitioner(s) No. 1 MS BHARGAVI G THAKAR(5015) for the Petitioner(s) No. 1 for the Respondent(s) No. 2,3,4,5,6

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ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

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Date : 11/02/2021

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ORAL ORDER

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1. Heard Ms.Thakkar, learned advocate for the petitioner.

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The petitioner has preferred this petition under Article 226 of the Constitution of India for the following substantial reliefs in paragraph 7.

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(b) to quash and set aside order no.UMSH-1108-1596-G.1 dated 11/10/2012 (Annexure-D) and order No.UMSH-11081596-G1 dated 31/07/2020 (Annexure-A Colly.) issued by the respondent no.1 – Education Department and order dated 30/11/2016 (Annexure-A Colly.) passed by the Ld.Gujarat Educational Services Tribunal, Ahmedabad in Appeal No.325/2014 (Old No.50/2013); and/or

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C/SCA/2804/2021 ORDER DATED: 11/02/2021

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considering G.R.No.UMSH-1207-EM-15-G1 dated 08/03/2007 and G.R.No.UMSH-1207-EM-15-G.1 dated 19/06/2007 on the basis of the proposal made by respondent no.4 – District Education Officer, Patan vide letter no.K-1/SEC.20457 dated 21/09/2007 addressed to respondent no.6; and/or

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(d) direct respondent authorities to regularize services of the petitioner w.e.f. academic year 2007 i.e. from June, 2007 and pay regular salary with all admissible allowances w.e.f. June, 2007 to the petitioner including benefit of higher pay scale as per the Govt.Scheme; and /or

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(e) direct respondent authorities to pay arrears of regular pay and allowances to the petitioner as an Assistant Teacher w.e.f. June, 2007; and /or

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(f) pending admission and final disposal of the petition, direct respondents authorities not to terminate the services of the petitioner as an Assistant Teacher from respondent no.3 – Jyoti Vidya Vihar, Adiya managed and run by respondent no.2 – Adiya kelavani Uttejak Mandal, Adiya Tal. Harij District – Patan; and / or.

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Ms.Thakkar submits that the petitioner has applied for the vacant post of Assistant Teacher in respondent No.2 in response to advertisement in the newspaper “Nobal Mitra” dated 11.5.2005. She submits that at the time of applying for the post, the petitioner had already appeared in MA Part-II examination. She submits that the petitioner had already cleared MA Part-II examination when the appointment letter was given to him. She, therefore, submits that case of the petitioner is

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C/SCA/2804/2021 ORDER DATED: 11/02/2021

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squarely covered by the resolution of the Government and his services should be regularized in respondent No.2 school which is grant-in-aid school. She accordingly submits that the petition requires consideration.

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I have considered the submissions of learned advocate for the petitioner.

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It is not in dispute that the petitioner had applied for the post of Assistant Teacher in respondent No.2 school in response to the advertisement in daily newspaper “Nobal Mitra” dated 11.5.2005. As per the qualification required for the post of Assistant Teacher as mentioned in advertisement, a candidate should have passed MA examination as on the date of advertisement. It emerges from the impugned order, marksheet of MA Part-II of the petitioner reveals that result of MA Part-II was declared on 26.5.2005, whereas advertisement was dated 11.5.2005. Hence, it is abundantly clear that as on the date of advertisement, the petitioner was not possessing requisite qualification of MA.

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District Education Officer, after examining the original certificates, has rejected the proposal for regularizing services of the petitioner as he found that the petitioner was not possessing requisite qualification at the time of applying for the post of Assistant Teacher. The Tribunal has considered all the relevant particulars and thereafter rejected the appeal of the petitioner by the impugned judgment dated 30.11.2016 which does not warrant any interference in this petition under Article 226 of the Constitution of India.

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Another glaring issue which is involved in this petition, whether the petition under Article 226 of the Constitution of India is maintainable for the prayers made in this petition in exercise of the jurisdiction under Article 226 of the Constitution of India. The present

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C/SCA/2804/2021 ORDER DATED: 11/02/2021

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petition cannot be entertained for examining the prayers made in the present petition. Even, if the present petition is considered to be one under Article 227 of the Constitution of India, then scope of supervisory jurisdiction is very limited. This Court can interfere with the order of the lower authorities while exercising supervisory jurisdiction only if the same is found to be perverse or beyond jurisdiction. A perusal of the order of the authority below does not reveal that it is perverse or without jurisdiction. Therefore also, the present petition does not warrant consideration.

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The third aspect which is involved in this petition which is of delay. Learned advocate for the petitioner could not dispute that the impugned order of the Tribunal is dated 30.11.2016. The petitioner has assailed this decision of the Tribunal almost after more than four years after the same is passed by the Tribunal. With a view to explain the delay, it is the case of the petitioner that respondent No.2 had written a letter to the Secretary, Education Department to review the case of the petitioner for regularization. The review application is rejected on 31.7.2020 which was received by respondent No.2 on 10.8.2020. The respondent No.2, in turn, communicated the same to the petitioner. However, the petitioner has not disclosed the date on which he has received the intimation from respondent No.2.

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In my considered view, making the review application to the Government to review its decision not to regularize the petitioner cannot be considered as “sufficient reason” to explain huge delay. It is also worth while to note that it was the petitioner who has approached the Tribunal to challenge the decision of the Commissioner refusing to regularize the services of the petitioner on recommendation of respondent No.2. The petitioner, after his application was rejected by the Tribunal on 30.11.2016, did not do anything and it appears that he was fence sitter

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C/SCA/2804/2021 ORDER DATED: 11/02/2021

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waiting for decision of the review application which respondent No.2 had made to the Commissioner of Education Department. Thus, conduct of the petitioner itself disentitles him to question decision of the authority after a gap of around more than four years.

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For the foregoing reasons, I am of the view that the petition is without merits and does not warrant consideration and deserves to be dismissed at the threshold and accordingly it is dismissed.

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(A.G.URAIZEE, J)

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H.M. PATHAN

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Patel Rakeshkumar Mafatlal v. State of Gujarat

Case brief

What is this about?

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Patel Rakeshkumar Mafatlal v. State of Gujarat

Case brief

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