1 S.B. Civil Writ Petition No.1320/2007 Govind Singh Vs State of Rajasthan & Ors Date of order : 12.8.2009 HON'BLE MR. PRAKASH TATIA, J. Dr. Sachin Acharaya, for the petitioner Mr. Rajesh Bhati, Asstt to AAG. <><><> Heard learned counsel for the parties. The petitioner was given appointment on the post of Lower Divisional Clerk vide order dated 10th May, 1994 on petitioner's application dated 14.1.1994. The petitioner in his application (Annex.1) stated that his mother Bhanwari Bai was in service in Women Hospital at Udaipur. She died at Ahemdabad in Civil Hospital on 14th Nov., 1980. It appears that he also sent the death certificate of his mother. The petitioner stated that he passed B.Sc in the year 1990 and he is seeking appointment as nobody has been given appointment in the Government service from his family after death of his mother. The petitioner submitted affidavit alongwith this application then the appointment order Annex.3 dated 10th May, 1994 was given to the 2 petitioner and since then the petitioner was in service. The petitioner was served with the show cause notice dated 7th July, 2004 i.e., almost 10 years after his appointment. The allegation against the petitioner is that petitioner's mother resigned from service on 14.2.1980 and his resignation was accepted on 28th April, 1980 and then she died on 14th Nov., 1980. Therefore, the petitioner's mother had not died while in service. In view of the above, the allegation has been levelled that he suppressed the material facts and obtained the appointment. Without holding any inquiry against the petitioner, after obtaining the explanation of the petitioner, the respondents straighway passed the impugned order after 3 years on 2nd March, 2007 holding that the petitioner deliberately gave wrong facts and obtained the appointment. Learned counsel for the petitioner submits that petitioner or his family members never gave any wrong facts to the respondents. The petitioner clearly stated in his application that his mother was in service and that fact is not wrong. He stated that his mother died in Ahemdabad Hospital on 14th Nov., 1980, that fact is not wrong. He stated he passed B.Sc in the year 1990, that fact is also not 3 wrong. None of the family member of the petitioner obviously of his mother has been given any appointment in the Government service and that fact is not wrong. In the appointment order Annex.3 itself it is mentioned that petitioner's mother was in service and the petitioner is eligible candidate in view of his age, his character certificate, his educational qualification and medical fitness certificate. After satisfying, the respondents gave appointment to the petitioner vide order dated 10th May, 1994. Learned counsel for the petitioner submitted that petitioner if has been given appointment by the respondents without misleading by the petitioner in any manner then the respondents cannot question their own appointment order. Learned counsel for the petitioner also submitted that once the petitioner has been given appointment, he works satisfactorily for more than 10 years by the time when the notice was given to the petitioner of show cause and by the time when petitioner was removed from service, he already served for about 13 years. It is submitted that there is no provision under any service rules governing the petitioner's services by which he can be stand straightway removed 4 from service without holding an inquiry. It is also submitted that the respondents even did not take any decision to dispense with for holding any inquiry. It is also submitted that any appointment which is given to a person who is not qualified cannot claim relief of continuation on post because of the various reasons, but in this case, the petitioner is qualified to hold the post and if he was under impression that he can get the appointment and he disclosed the fact and applied for the post and respondents gave appointment then the respondents' order removing the petitioner from the service without affording an opportunity of hearing to show that he otherwise could have been given appointment. Learned counsel for the petitioner relied upon judgment of the Hon'ble Apex Court delivered in the case of Jaswant Singh Vs. State of Punjab & Ors reported in AIR 1991 SC 385 and the judgment of the Division Bench of this Court delivered in Girdhari Singh Rajpurohit Vs. State of Rajasthan & Ors (DBSAW No.7/2002), decided on 9.4.2002. Learned counsel for the respondent vehemently submitted that the petitioner misled the authorities and obtained the appointment and, therefore, he cannot be continued in the service. It is also submitted that facts are 5 not in dispute that petitioner's mother died after she resigned from the service and petitioner's mother had not died during the service. In view of the above reasons, the petitioner was not dependent of the employee who dies while in service. It is also submitted that as per the record, the petitioner's brother also submitted affidavit that none of the petitioner's family member has been given appointment in the Government service after the death of the petitioner's mother. I considered the submissions of learned counsel for the parties and perused the record as well as the judgment referred above. So far as passing of the order Annex.6 dated 2.3.2007 without giving an opportunity of hearing to the petitioner and without holding any departmental inquiry is concerned, this fact is admitted. The petitioner though was served with the show cause notice, copy of which has been placed on record by the petitioner himself and he submitted his reply to that show cause notice verifying that he never misrepresented the authorities that he is seeking appointment because his mother died while in service and he even disclosed the date of death of his mother clearly in 6 his application seeking appointment. Be it as it may be, if by the reply, the respondents could not have satisfied they may have initiated the proceedings under the relevant rules for holding inquiry against the petitioner. It is also clear from the appointment order as well as from the order of removal of petitioner from service dated 2nd March, 2007 that petitioner has not been removed from service on account of his any disqualification at the time of his appointment or subsequent disqualification. It is a case of clear violation of principles of natural justice and in view of the above referred judgments relied upon by learned counsel for the petitioner, this writ petition is allowed. The order dated 2nd March, 2007 is set aside. However, the respondents will be free to initiate any departmental inquiry against the petitioner if it is so desirable and the petitioner will be free to take all his objections which are available to him in accordance with law. [PRAKASH TATIA], J. cpgoyal/-