LPA/11819/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 118 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ================================================= SPECIAL OFFICER, DIRECTOR OF HIGHER EDUICATION & 1 - Appellants Versus VIKAS EDUCATION TRUST - Respondent ================================================= Appearance : MR. S.P. HASURKAR, LD. AGP for Appellants : 1 - 2. MR ADIL MEHTA for Respondent : ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/10/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. The State has preferred this Letters Patent Appeal challenging the order dated 28/8/1986 passed by learned LPA/11819/1987 2/5 JUDGMENT Single Judge of this Court in Special Civil Application No. 2598 of 1986, where under Learned Single Judge has allowed the petition of the respondent trust to the extent mentioned thereunder and directed the respondents to make payment of the amount mentioned thereunder within a reasonable time, preferably eight weeks. 2. Facts in brief deserve to be set out as under. 2.1 For the sake of brevity the parties are referred to their original nomenclature in this appeal as they stood in the petition. The petitioner in Special Civil Application No. 2598 of 1986 – Respondent herein preferred aforesaid petition challenging the decision of the present appellants – original respondents for denying grant payable to the trust. The grant which was refused was admissible as per the say of the original petitioner in respect of three subjects, i.e. (1) The State refused to sanction the grant for the charge allowance to one professor who was paid charge allowance during the period he worked in place of one Maheshchandra Patel who was appointed as Principal in the year 1977 and was dismissed in the year 1978 and was not reinstated; (2) Another item of dispute was purchase of furniture in the year 1977 for Rs.16,000/- but the vouchers could not be submitted in time; (3) The third item of dispute was with regard to grant of salary to peon Shri Vasava who was appointed on the sanctioned post after getting necessary sanction from the department. 2.2 Learned Single Judge allowed the petition vide impugned order dated 28/8/1986 and being aggrieved and dissatisfied with the same present Letters Patent Appeal is filed by the State. LPA/11819/1987 3/5 JUDGMENT 3. Shri. S.P. Hasurkar, Learned AGP for the appellant has submitted that the decision of the State in not allowing the grant was absolutely proper and just. Learned Single Judge ought to have appreciated the fact that one Shri Maheshchandra Patel was appointed as Principal in year 1977 and as he was dismissed in year 1978, more precisely in December 1978 and he was only reinstated after the order of the Court. During this period one another professor Mr. Surti was requested to hold charge of the post of principal and he was paid charge allowance. The Government had in fact ordered reinstatement of said Maheshchandra Patel but the trust had not reinstated him and therefore the salary was straightway paid to said Shri Patel, therefore the grant can not be permitted on that count. Learned AGP has further submitted that Learned Single Judge ought to have appreciated that the vouchers were not submitted in time for purchasing furniture and therefore on that count also the grant was not admissible, and in respect of third denial, the post of peon was not to be filled in yet the grant was sought for and the trust continued the peon in service. In view of these it is submitted that the petition ought to have been dismissed. 4. Shri Adil Mehta, learned counsel for the respondent trust submitted that the order of the learned Single Judge is absolutely just & proper and does not call for any interference under Letters Patent Appeal. He submitted that the affidavit in reply is absolutely silent so far as the contentions raised by the present petitioner are concerned. He took this Court through the entire order wherein even learned Single Judge has also recorded that there was no answer to the effect in the said affidavit and respondents can not have best of both. If the salary grant was not given in LPA/11819/1987 4/5 JUDGMENT case of Shri Maheshchandra Patel then atleast the charge allowance ought to have been given and accordingly the same is held to be admissible and it was rightly treated to be unfair & unjust. About the late submission of vouchers, there was justification found because of lis between said Mahenchandra Patel and Education department, and said principal Shri Maheshchandra Patel had taken away papers of vouchers and therefore as they were in his custody same were not produced. As soon as the vouchers were made available same were produced. Thus on this count also the grant should not have been denied. With regard to the peon Shri Vasava, the Section Officer of Education Department written letter to the Director of Education where also Director of Education has categorically directed to pay up the unpaid amount of grant excepting the grant on account of salary and allowance to the principal. Thus in this view of the matter the Letters Patent Appeal deserves to be dismissed. 5. This Court has heard learned counsels of the parties and perused records & proceedings of the matter. The fact remains to be noted that learned Single Judge has categorically observed that, if the grant to Shri Maheshchandra Patel was not permissible then during the period of his absence said Shri Patel's charge was held by another person namely Shri Surti and he in fact was paid charge allowance, and that allowance could not have been denied by the State, as it is observed that the State can not have best of both, and accordingly same was rightly allowed. Similarly findings with regard to the salary payable to the peon Shri Vasava, it is recorded that even the department had instructed Director of Education to release the entire grant excepting the grant payable to the principal and in view thereof, there was no justification for withholding grant so far LPA/11819/1987 5/5 JUDGMENT as salary of peon Shri Vasava is concerned. More over it deserve to be noted that except a bare submission and denial in the affidavit in reply no factual aspect is covered in order to show that Shri Vasava's appointment was not sanctioned. Similarly with regard to late submission of vouchers for the furniture purchased, a justiciable reason was put forward and therefore the same also could not have been denied by the State. In view of the aforesaid discussions, this Court is of the considered view that the order of the learned Single Judge impugned in this Letters Patent Appeal does not suffer from any infirmity so as to call for interference by this Court. The Letters Patent Appeal therefore deserve to be dismissed and is accordingly dismissed. However there shall be no order as to costs. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn