IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11322 of 2000 with CIVIL APPLIICATION NO. 11008 OF 2000 AND SPECIAL CIVIL APPLICATION NO. 11323 OF 2000 WITH CIVIL APPLICATION NO. 11009 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SA ZALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PARESH UPADHYAY for Petitioners Ms. Manisha Lavkumar, AGP for Respondent No. 1 MR JR NANAVATI for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 19/12/2000 COMMON CAV JUDGEMENT "THERE IS AN ESSENTIAL DISTINCTION BETWEEN THE COURT AND AN ADMINISTRATIVE TRIBUNAL. A JUDGE IS TRAINED TO LOOK AT THINGS OBJECTIVELY UNINFLUENCED BY CONSIDERATION OF POLICY OR EXPEDIENCY BUT AN EXECUTIVE OFFICER GENERALLY LOOKS AT THINGS FROM THE STAND POINT OF POLICY AND EXPEDIENCY. THE HABIT OF MIND OF AN EXECUTIVE OFFICER SO FORMED CANNOT BE EXPECTED TO CHANGE FROM FUNCTION TO FUNCTION OR FROM ACT TO ACT. SO IT IS ESSENTIAL THAT SOME RESTRICTIONS SHALL BE IMPOSED ON TRIBUNALS IN THE MATTER OF PASSING ORDERS AFFECTING THE RIGHTS OF THE PARTIES." "IT WAS NOT "LAW OF NATURE" IN THE SENSE OF THE LAW OF JUNGLE, WHERE THE LION DEVOURS THE LAMB AND THE TIGER FEEDS UPON THE ANTELOPE BECAUSE THE LION IS HUNGRY AND THE TIGER IS FAMISHED BUT THE HIGHER LAW OF NATURE OR THE NATURAL LAW WHERE THE LION AND THE LAMB LIE DOWN TOGETHER AND THE TIGER FRISKS WITH THE ANTELOPE." "WHAT IS A CIVIL CONSEQUENCES LET US ASK OURSELVES BY PASSING VERBAL BOOBY TRAPES ? CIVIL CONSEQUENCES UNDOUBTEDLY COVER INFRACTION AND NOT MERELY PROPERTY OR PERSONAL RIGHTS BUT OF CIVIL LIBERTIES MATERIAL DEPRIVATION AND NON PECUNIARY DAMAGES. IN ITS COMPREHENSIVE CONNOTATION, EVERYTHING THAT AFFECTS A CITIZEN IN HIS CIVIL LIFE INFLICTS A CIVIL CONSEQUENCES." Learned advocate Mr. Paresh Upadhyay is appearing for the petitioners in these petitions. Learned Assistant Government Ms. Manisha Lavkumar is appearing for respondent No. 1 State. Learned advocate Mr. J.R. Nanavaty is appearing for respondent NO. 2. Brief facts of special civil application No. 11322 of 2000 are as under: The petitioners in this petition were initially appointed as Class IV Employees in the respondent corporation. The petitioners were confirmed as Class IV employees in due course. The petitioners were possessing necessary educational qualifications of SSC and had also passed GCC Examination (for typing). Thus, the petitioners were possessing all the requisite qualifications for being considered for promotion from the cadre of Class IV to the post of lower division clerk cum typist. On 29th May, 1997, the petitioners were promoted to the post of lower division clerk cum typist as approved by the Board of Directors of the respondent Corporation. The petitioners were kept on probation for a period of one year. On 17.6.1998, their period of probation was extended by one year. On 29th September, 1999, all the petitioners were confirmed on the post of lower division clerk cum typist. Thereafter, the respondent corporation has passed the reversion orders of all the petitioners, on the ground that the Government has objected to the said promotion. Said orders of reversion of the petitioner have been passed by respondent NO.2 without giving any opportunity of hearing to the petitioners and in violation of the principles of natural justice and, therefore, the petitioners have challenged the reversion orders from the post of lower division clerk cum typist to their substantive post in class IV cadre. In the present petition, there is also a challenge by way of draft amendment to set aside the communication of the Government dated 27th September, 2000 on which reliance was made and the reversion orders of the petitioners had been passed by the respondents. The government communication dated 27th September, 2000 is also under challenge on the ground that the Government has decided to cancel the promotion of the petitioners and directed respondent No. 2 to cancel such promotion orders of the petitioners without giving any opportunity of hearing to the petitioners. Against the petition, the respondent No. 2 has filed affidavit in reply on 6th November, 2000 and has also annexed copy of the recruitment rules as well as letter dated 27th September, 2000 issued by the Government. Respondent No.1 has also filed reply against the petition and the petitioners have also filed affidavit in rejoinder. Aforesaid civil application in this petition has been filed by the petitioners with a prayer to take up the main matter for final hearing at the earliest or to grant mandatory injunction against the impugned orders of reversion dated 24th October, 2000. In the main petition, rule has been issued by this court on 8th November, 2000 and it was made returnable on 23rd November, 2000. Brief facts of special civil application No. 11323 of 2000 are as under: The petitioners were initially appointed on the post of Seeds Assistant in the respondent corporation and all the petitioners were confirmed as such in due course and were promoted as seeds supervisors in the respondent corporation in due course and were also promoted to the post of seeds supervisors. On 29th May, 1997, the Board of Directors of the respondent corporation has decided to give promotion to the petitioners on the post of seeds officer by giving relaxation in the eligibility criteria and accordingly, orders of promotion were issued by the authorities of the respondent corporation. The petitioners were initially appointed on the post of seeds officers by promotion on probation of one year. On 25th June, 1998, authorities of the respondent corporation decided to extend the period of probation of the petitioners by one more year. On 30th June, 1999, 13th August, 1999 and 2nd September, 1999, by these separate orders, each petitioners were confirmed on the post of seeds officer by the respondent Corporation. On 24th October, 2000, respondent corporation has issued reversion orders to all the petitioners on the ground that the Government has objected to such promotions. It is the contention of the petitioners that the said reversion orders were passed by respondent No. 2 without giving any opportunity to the petitioners and the said orders of reversion have been challenged in this petition. In the main petition, by way of draft amendment, the petitioners have also challenged the decision of the Government dated 16th May, 2000 communicated by letter dated 22nd May, 2000 on the ground that the Government has taken decision to cancel the promotion order and to revert the petitioners without giving any opportunity of hearing to the petitioners. Against the present petition, affidavit in reply has been filed by the respondent NO.2 alongwith which, respondent No. 2 has produced rules and resolutions prescribing qualification for the post of seeds officer and the order passed by the government dated 16th May, 2000 as communicated by letter dated 22nd May, 2000. Respondent No. 1 has filed affidavit in reply to this petition alongwith which it has also produced memorandum and Articles of association of the respondent No. 2 corporation and has also placed on record certain circulars of the Government dated 18th April, 1978 and others are annexed with the affidavit in reply. The petitioners have filed rejoinder to the said reply submitted by the respondents. In this petition, aforesaid civil application has been filed by the petitioners with a prayer to fix the early date of final hearing or to grant mandatory relief against the implementation and operation of the impugned orders of reversion dated 24th October, 2000. Alongwith the said civil application, copy of the orders of reversion has also been produced. In this petition, this court issued rule on 8th November, 2000 by making it returnable on 23rd November, 2000. In both the present petitions, service of rule issued by this court has been waived by the respective advocate appearing for the respondents. Since both the petitions challenge the orders of reversion and involve identical questions of law and facts to the one issue issue that the impugned orders of reversion after the confirmation of the petitioners have been passed by the respondent NO.2 without giving any opportunity of hearing to the petitioners and the directions have been issued by the State Government to the corporation to cancel the promotion orders issued in favour of the petitioners without giving any opportunity to the petitioners and, therefore, in view of such identical challenge, both the have been heard together and are being decided by this common judgment. In special civil application no. 11322 of 2000, it is the stand of respondent No. 2 corporation that the respondent No. 2 corporation has framed rules for recruitment to the post of lower division clerk cum typist and the said rules were known as the LOWER DIVISION CLERK CUM TYPIST RECRUITMENT RULES 1993. Rule 2 of the said rules provide for promotion from the post of an employee of category "D" Class IV and that a candidate must have seven years' experience and he should have passed SSC Examination with 50% marks and also should possess speed of 30/40 w.p.m. as per examination conducted in the Gujarati/English Typewriting by an institute recognised by the Government. Respondent No.2 corporation by resolution no. 131/8 at the meeting no. 95 of 1997 dated 29th May, 1997, resolved to modify the rules and a notification was issued that a candidate should have passed SSC Board Examination only, meaning thereby, ceiling of having 50 per cent of marks in SSC Examination has been deleted. In view of such rules based on the resolution dated 29th May, 1997, the petitioners were given promotion in accordance with the amended rules. It is also mentioned in the affidavit in reply that the finance department of the State of Gujarat has, by letter dated 3rd June, 1997, informed respondent NO.2 that the aforesaid amendment can be enforced only after the amendment is sanctioned by the Finance Department/Public Undertaking Bureau and that the necessary action may be taken accordingly. The Government of Gujarat in its Agriculture and Cooperation Department by letter dated 27th September, 2000 informed the respsondent No. 2. that no previous sanction has been taken by the respondent No. 2 of the Government in respect of the amended rules and that without obtaining previous sanction,promotions have been given which is illegal and the respondent No. 2 was further informed that the amended rules made at 131st meeting are not sanctioned and that the promotions given in accordance with the said amended rules are void ab initio at the inception. It is also made clear in the reply that as per the rules of 1993, the petitioners were not qualified and eligible but because of the amended rules of 1997, the petitioners became eligible for being considered promotion to the post of lower division clerk cum typist. Therefore, according to the respondent corporation, if the amended rules have not been sanctioned by the State Government and if the same has been set aside, natural result thereof is to set aside the promotion orders of the petitioners and, there is no need to follow the prescribed procedure or to follow the principles of natural justice because their initial promotion itself is void ab initio. The respondent corporation has also passed the resolution in meeting no. 148 dated 30th September, 2000 in compliance with the Government's directions dated 27th September, 2000 wherein the decision has been taken by the respondent corporation to revert six employees who were promoted on the post of lower division clerk cum typist. The respondent No.1 State of Gujarat has also filed affidavit in reply and has submitted that as per the economy measures, prior approval of the Government is necessary for promotion and the petitioners were promoted by the corporation by order dated 29th May, 1997 without prior approval of the finance department and the amended rules have not been approved by the State Government as prior approval is not sought for by the corporation and, therefore, the promotions of the petitioners are illegal. Respondent No.1 has relied upon clause 125 of the Articles of Association of the respondent NO.2 corporation to show that the State Government has powers to give directions and instructions to the Board of Directors. It is necessary for the corporation to get the approval of the Finance Department for revising the recruitment rules as well as promotion as per economy measures. It is also mentioned by respondent No. 1 that the petitioners are not entitled to promotion as per the recruitment rules prevalent at the relevant time. It is submitted that the matters relating to service for employee is to be approved by the State Government/Finance Department and no approval of the amended rules was obtained by the respondent No. 2 corporation and, therefore, the State Government has rightly directed to the respondent No. 2 by letter dated 27th September, 2000. It is also submitted that on earlier two occasions, the State Government has directed by letter dated 3rd June, 1997 and 13th June, 1997 and various instructions were issued by the State Government but the same has not been followed by the respondent No. 2 and, therefore, initial appointments having been made contrary to the statutory rules, continuation of such appointments must be held to be totally unauthorised and no right would accrue to them on that score and, therefore, according to the first respondent, the decision has rightly been taken by the respondent No. 1 and rightly directed considering clause 125 of the Memorandum of Articles of Association passed by the respondent No. 1 against the petitioners and, therefore, there is no any need to follow the principles of natural justice. Against the two replies one filed by the respondent No.1 State and the another filed by the corporation, the petitioners have filed affidavit in rejoinder wherein it has been submitted that the respondent Government has not pointed out as pursuant to which provisions of rule, it was necessary or obligatory on the part of the respondent corporation to seek prior approval of the Government for amending the rules or for giving promotion or for taking any other decision which is administrative in nature. It is also denied that the respondent No. 2 corporation is the loss making unit and, therefore, question of applicability of economy measures has not been applicable to the case of respondent No. 2. It is also submitted that even the original rules of 1993 or the subsequent amendment prior to 1997, nothing was approved by the Government and, therefore, merely for want of approval of the Government, effect of the impugned rules have not been given is without any basis and without any authority of law. The petitioners have also pointed out that giving of relaxation in the recruitment rules is the prerogative of the competent authority of the respondent corporation and even the Government itself has recently exercised such discretion in favour of its own officers who are similarly situated to the petitioners. Copy of such order dated 26th July, 2000 has been placed on the record in respect of one employee namely MOhanbhai Naranbhai Vaghani wherein relaxation has been given in educational qualification has been given and such an employee has been promoted to Class II post. In respect of special civil application no. 11323 of 2000, facts remain same as relating to the earlier petition. Here also, answer of the respondent NO.2 is that the petitioners are not entitled to the promotion as per the recruitment rules, 1993 to the post of seeds officer and the said rules were amended as per resolution no. 131/9 in the meeting dated 9th May, 1997 and as a result of such amended rules, since the said rules were not sanctioned by the Government and ultimately the Government has taken decision on 16th May, 2000 that the petitioners are not qualified to the post of seeds officers as per the original recruitment rules, 1993 and, therefore, it was directed to the respondent No. 2 to cancel the promotion orders and to pass reversion orders against the petitioners. Same reply has been given by the first respondent excepting the dates and number of meetings. The only stand of the first respondent is that under clause 125, the State Government and the Finance Department has power to issue directions to the Director in regard to the conduct, affairs and business of the corporation and earlier also on two earlier occasions,vide letters dated 3.6.1997 and 13.6.1997, it was informed to the respondent corporation but same has not been seriously considered by the respondent corporation and ultimately the government has directed the respondent corporation to cancel such promotion orders and not approved the amended rules of 1997. Same rejoinder has been filed by the petitioners against this reply. I have heard the learned advocates for the parties. Mr. Upadhyay, learned advocate appearing for the petitioners has submitted that the impugned orders of reversion in both the cases have been passed by the respondent corporation in compliance of the directions issued by the respondent NO. 1 without giving any opportunity of hearing to the petitioners and, therefore, the impugned orders of reversion in both the cases are against the principles of natural justice and are, therefore, required to be quashed and set aside. Reliance has been placed upon the decision of the apex court in case of Gajanan L. Parnekar versus State of Goa and others reported in 2000 SCC LIS 57. As against that, learned advocate Mr. Nanavaty for respondent No. 2 corporation has relied upon three decisions of the apex court which are as under: (1) Dr. SUresh CHandra Verma versus CHanceller Nagpur University, AIR 1990 SC 2023. (2) MC Mehta versus Union of India 1999 (6) SCC page 237: 1999 AIR SCW 2754. (3) Aligarh Muslim University and others versus Mansoor Ali Khan 2000 (7) SCC 529. It is the submission of Mr. Nanavaty, learned advocate appearing for the respondent NO.2 corporation in both the petitions that the question of giving opportunity is required to be examined in light of the facts and circumstances of each incident.In the instant case, Mr. Nanavaty has submitted that the promotion in both the petitions are based on the amended rules and one fact has not been disputed that in both the cases, as per the prevailing rules of 1993, none of the petitioners were qualified for being promoted and, therefore, only because of the impugned rules of 1997, promotions were given by the respondents. Since said rules have not been approved by the Government and no prior permission or approval has been obtained, the Government has not approved the amended rules of 1997 and as a result thereof, it was directed to the respondent corporation to cancel such promotions and, therefore, ultimately opportunity of hearing, if given to the petitioners, will not make any difference and after giving opportunity to the petitioners also, the result will be the one and the same. Therefore, in such circumstances, when technical breach, if it is rectified and followed, ultimately result will be the same and the apex court has held that there is no need to give any opportunity in such circumstances and therefore, Mr. Nanavaty has submitted that in the facts of the present case, when the impugned rules of 1997 has not been approved by the Government and promotions of the petitioners are based on such amended rules, naturally, result is that of reversion and, therefore, the present petitions are required to be dismissed. Learned advocate Ms. Manisha Lavkumar has also relied upon the same authorities which were cited Mr. Nanavaty. She has submitted that the State Government has power and control upon the respondent corporation as per clause 125 of the memorandum of Articles of Association and if no permission has been obtained before issuing promotion orders on the basis of the amended rules of 1997, then, the Government is entitled and empowered to direct the respondent corporation to cancel such promotion orders and, therefore, the action of the Government is within the power and competence and, therefore, these petitions are required to be dismissed with costs. She has further submitted that in the facts and circumstances of the case, there is no necessity to comply with the principles of natural justice. I have considered the submissions made by the learned advocates for the respective parties. I have also considered the decisions cited by Mr. Nanavaty for respondent NO.2 and Mr. Upadhyay for the petitioners. In para 9 of the decision reported in AIR 1990 SC 2023, the apex court has observed that when the services of the appellants are to be terminated in view of the change in the position of law and not on account of demerits or misdemeanor of an individual candidates, it is not necessary to hear individuals before their services are terminated. Audi Alterum Partem will not apply in such cases and, therefore, there is no breach of the principles of natural justice. In para 19 and 22 of the decision reported in 1999 SCC 237, the apex court has observed that it is, therefore, clear that if on the admitted or undisputable factual position only one conclusion is possible and permissible, the Court need not issue a writ merely because there is a violation of the principles of natural justice The reason is given by the apex court that the court may not issue its writs to compel observance of the principles of natural justice because it is not necessary to observe it but because the Courts do not issue futile writs. In case reported in 2000 (7) SCC 529, relied upon by Mr. Nanavaty for the respondent corporation, the apex court has considered the earlier decision in case of Mr. MC Mehta (supra) and has also considered other earlier decisions. In this case, the apex court has considered the useless formality/theory and considering the case of SL Kapoor versus Jag Mohan 1980 (4) SCC 379, observed that it will be sufficient for the purpose of case of Mr. Mansoorali to show that his case would fall within the exceptions stated by Chinappa Reddy, J. in case of SL Kapoor versus Jagmohan, 1980 (4) SCC 379. I have considered three decisions cited at the Bar by Mr.Nanavaty and emphasized on the facts of this case that because of the promotion orders were issued in favour of the petitioners on the basis of the amended rules, 1997 which rules have not been approved by the Government and the directions have been issued by the State Government and as a result thereof, reversion orders were passed by the corporation and, therefore, in view of such undisputed facts, according to Mr. Nanavaty, if any show cause notice is given to the petitioners, one answer or explanation will ultimately come to the same result and, therefore, there is no need to follow the principles of natural justice. There must be some real prejudice to the complainant. There is no such thing but there is mere technical breach and infringement of the principles of natural justice. Requirement of natural justice must rest on the facts and circumstances of each case. In case of State Bank of Patiyala versus SK Sharma, reported in 1996 (3) SCC 364, principles of prejudice has further been further elaborated and said principles has again been reiterated in case of Rajendra Sinh versus State of MP, 1996 (5) SCC 460. The right to life includes the right to livelihood. The Sweep of the right of life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished