SCA/2441/1990 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2441 OF 1990 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 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 ? ====================================== TARABEN NARANJI DHANAK - Petitioner(s) Versus GUJARAT EDUCATION SOCIETY & ORS. - Respondent(s) ====================================== Appearance : Mr. Nalin K. Thakker for Petitioner(s). Mr. K. V. Shelat for Respondent No. 1. Mr. H. S. Munshaw for Respondent No. 2. Mr. Dipen Desai, AGP for Respondent No. 3. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 22/01/2008 ORAL JUDGMENT By way of this petition under Article 226 of the Constitution SCA/2441/1990 2/5 JUDGMENT of India, the petitioner has prayed for an appropriate writ, direction or order quashing and setting aside the order passed by the District Primary Education Officer, Kutch, Bhuj dated 4th October, 1989 directing recovery of the amount of Rs.1,12,971/-, which was paid to the petitioner pursuant to the order passed by the very District Primary Education Officer, Kutch, Bhuj dated 21st August, 1989. 2. Shri N. K. Thakker, learned Advocate appearing on behalf of the petitioner, submitted that the impugned order dated 4th October, 1989 passed by the District Primary Education Officer, Kutch, Bhuj is against the principles of natural justice and is a non-speaking order and as such, is relying upon the communication of the Deputy Director, Primary Education, State of Gujarat dated 26th September, 1989. He submitted that there was no such order passed by the Deputy Director, Primary Education, State of Gujarat dated 26th September, 1989 ordering recovery of the amount paid. Apart from the fact that the impugned order is in breach of the principles of natural justice, he submitted that the same is arbitrary and illegal. He has drawn the attention of the Court to the communication dated 26th September, 1989, which is at page 74,along with the affidavit in reply of respondent No.1. 3. Mr. K. V. Shelat, learned Advocate appearing on behalf of SCA/2441/1990 3/5 JUDGMENT respondent No.1, on going through and considering the communication dated 26th September, 1989 of the Deputy Director, Primary Education, State of Gujarat, is not in a position to support the order of recovery passed by the District Primary Education Officer, Kutch, Bhuj dated 4th October, 1989, by admitting that on considering the communication of the Deputy Director, Primary Education dated 26th September, 1989, which is at page 74 annexed with the affidavit in reply, it cannot be said to be an order passed by the Deputy Director ordering recovery of Rs.1,12,971/- from the petitioner and on quashing and setting aside of the earlier order of the District Primary Education Officer dated 21st August, 1989. However, he has submitted that as such, against the order passed by the District Primary Education Officer dated 21st August, 1989, the appeal preferred by respondent No.1 was pending before the Deputy Director, Primary Education. 4. Heard the learned Advocates appearing on behalf of the respective parties. It appears from the records that the District Primary Education Officer, District Panchayat, Education Committee, Kutch, Bhuj passed the order dated 21/08/1989 directing to pay an amount of Rs.1,12,971/- being the amount of salary and other emoluments to the petitioner, subject to audit of the grant. It also appears from the record that against the said order dated 21/08/1989, the respondent No.1 SCA/2441/1990 4/5 JUDGMENT preferred an appeal before the Deputy Director, Primary Education, State of Gujarat and it appears that by communication dated 26/09/1989, the Deputy Director, Primary Education, State of Gujarat called the District Primary Education Officer for hearing with a copy to respondent No.1 and the District Primary Education Officer, Kutch, Bhuj considered the said communication dated 26/09/1989 as an order of recovery of Rs.1,12,971/- from the petitioner as if the earlier order dated 21/08/1989 has been set aside. Now, on going through the communication dated 26/09/1989, it cannot be said to be an order of recovery from the petitioner, as contended/submitted on behalf of the District Primary Education Officer in his communication dated 04/10/1989. Under the circumstances, the basis of the order dated 04/10/1989 itself is not well founded. Even otherwise the impugned communication dated 04/10/1989 is a non-speaking order as well as the same has been passed without giving an opportunity of hearing to the petitioner and the same is in breach of the principles of natural justice. Under the circumstances, the said order of recovery dated 04/10/1989 cannot be sustained and the same deserves to be quashed and set aside. 5. For the reasons stated above, the petition succeeds. The impugned communication of the District Primary Education Officer, Kutch, Bhuj dated 04/10/1989 directing recovery of Rs.1,12,971/- from SCA/2441/1990 5/5 JUDGMENT the petitioner is hereby quashed and set aside. It is clarified that this Court has not considered any other reliefs prayed by the petitioner in the petition. However, if at all the petitioner is not given any other benefit, it will be open for him to approach the competent authority and the competent authority shall consider the prayer of the petitioner in accordance with law on its own merits. Rule is made absolute to the aforesaid extent. No costs. [M. R. Shah, J.] kamlesh*