SCA/6315/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6315 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= NAVENDUKUMAR HARSHADBHAI BRAHMBHATT - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR VC VAGHELA for Petitioner(s) : 1, Mr. S.P. Hasurkar, AGP, for Respondent(s) : 1 - 2. MR DILIP B RANA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 01/05/2008 ORAL JUDGMENT The present petition is moved to get the order of termination set aside. The petitioner joined the service of SCA/6315/2008 2/4 JUDGMENT Agriculture Produce Market Committee as clerk when his father was the Chairman of the Committee. Admittedly, it was only an application moved by the petitioner to his father that the order of appointment was made. 2. No public notice or any kind of advertisement was issued calling public at large to compete for the post. This speaks of bias inherent in the selection because father was the Chairman and son was the applicant. 3. There are Rules of the Committee which require that for any appointment to be made, public notice is necessary. The learned counsel for the petitioner submitted that in the Committee there are employees employed who are relations of the Chairman/Member of the Board. This speaks of sorry state of affairs happening in the Market Committee which is required to be dealt with sternly and an obvious instance has come to this Court that the Chairman of the Market Committee has appointed his son as clerk of the Committee and this Court has observed that no procedure as prescribed in the Rules has been followed. The Court is required to sternly observe that such practice should henceforth be stopped and all offers of public employment should be made to the public at large. No direct recruitment be made from the category of relations of the Members/Chairman of the Market Committee without observing the procedure prescribed by law. All such appointments should be put to the public by a public notice or an advertisement so that unbiased selection can take place. In that background, this petition is not liable to be entertained against an order which sets aside an illegal order. This is settled law that an order perpetuating illegality is not passed SCA/6315/2008 3/4 JUDGMENT by a Court. 4. As regards the case of the petitioner, he was issued notice and the requirement of natural justice was not violated. The petitioner instead of replying to the notice, asked for certain documents. They were not supplied to him and therefore the petitioner claims that there was violation of natural justice. This was not denied that father was the employer and son was the applicant. No public notice was issued. In this background, the termination is ordered and the defence of violation of natural justice is taken. In this background, it can safely be said that the Hon'ble Supreme Court has not approved such events in the case of MOHD. SARTAJ AND ANOTHER VS. STATE OF U.P. & OTHERS reported in (2006) 2 SCC 315 where at paragraph No. 14 the Hon'ble Supreme Court has observed as under: “14. However, in S.L. KAPOOR V. JAGMOHAN [(1980) 4 SCC 379] this Court has observed as under: (SCC p. 395, para 24): In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one SCA/6315/2008 4/4 JUDGMENT conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.” 5. In that background it would be a mere formality when on the pronounced facts it stands out boldly that father being employer and the son being applicant the appointment is made. There cannot be a better case than the one where it can be said that there is violation of natural justice in the form of pronounced bias. Any infringement if at all has to be overlooked and the order has to be upheld where the appointment has been set aside. In that background, the petition is not liable to be entertained. 6. The learned counsel for the petitioner brings to the notice of this Court that there are many others who are still in service of the Market Committees who are similarly placed. The State Government may look into such irregularities and make appropriate amendments. (BHAGWATI PRASAD, J) (pkn)