SCA/26523/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 26523 of 2006 For Approval and Signature: 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 ? ========================================================= M.R.PARIKH - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : PARTY-IN-PERSON for Petitioner(s) : 1, MS VARSHA BRAHMBHATT, AGP for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/01/2008 ORAL JUDGMENT 1. The petitioner in this petition under Article 226 of the Constitution of India has challenged the notice dated 28.04.06 issued by the concerned SCA/26523/2006 2/6 JUDGMENT Mamlatdar calling upon him to make payment of Rs. 138000/- to the State or else he would be proceeded against and the same will be recovered by way of land revenue on the ground that the said notice was not in consonance with law and therefore the same deserves to be quashed and set aside. 2. The facts in brief deserve to be set out as under: 2.1 The petitioner at the relevant time was serving as Assistant Director of Animal Husbandry and he came to be retired by way of penalty of compulsory retirement on 14.02.2002. The petitioner was granted permission for M.V.Sc course and the same was cancelled by order dated 23.03.89 by the Gujarat Agricultural University. This order was challenged by the petitioner by preferring Special Civil Application No. 2932 of 1989 before this Court. The said petition came to be dismissed by this Court vide order dated 11.01.2002. It deserves to be noted that the petitioner was required to file an undertaking in the same petition being SCA No. 2932 of 1989 which reads as under: “I, Dr. Mahesh R. Parikh, do hereby undertake to pay back the salary and other benefits born by the Governments and as may be directed by the Court at the final hearing in case I fail in the above special Civil Application.” SCA/26523/2006 3/6 JUDGMENT 2.2 The Court while rejecting the matter passed an order dated 11.01.2002. The petitioner being aggrieved by the said order passed in SCA No. 2932/89 preferred Letters Patent Appeal No. 780 of 2002 wherein the Division Bench of this Court permitted the petitioner to withdraw the same vide order dated 13.10.03. However, it was observed in the order that the petitioner was granted liberty to make representations to the government for extension of time to enable him to submit the thesis and also to approach the university for submitting the thesis. It was directed that the State as well the University shall consider the same sympathetically and in accordance with law and the decision thereof was ordered to be taken expeditiously. Pursuant to the said order, the petitioner moved the concerned authority i.e. the Additional Chief Secretary, Agriculture and Co-operation Department, Gandhinagar by a representation dated 07.11.03 making request for extension of time. As it appears from the record, this representation has remained undecided till date and the petitioner was called upon to make the payment. Being aggrieved by the same, the petitioner has preferred this petition challenging the inaction on the part of the respondents. 3. Mr. M.R. Parikh, party-in-person submitted that till date when the representation has not been decided, it was not open to the respondents to effect recovery and therefore the order of recovery deserves to be quashed and set aside. He submitted that the SCA/26523/2006 4/6 JUDGMENT recovery is infact essentially sought to be effected on account of his undertaking given to the Court and therefore when the Division Bench of this Court directed the respondent State as well as the University to consider his representation it was not open to the respondent to straightaway order recovery without disposing of the representation. In other words the direction issued by this Court in Letters Patent Appeal has remained non-complied. 4. Ms. Brahmbhatt, learned AGP has submitted that the undertaking given by the petitioner before this Court in Special Civil Application No. 2932 of 1989 is unequivocally clear and in terms of the undertaking, this Court infact passed an order which deserves to be taken into consideration. The LPA filed by the petitioner challenging the said order also was withdrawn. While the LPA was withdrawn it can well be said that the order of the Single Judge was not set at nought nor can it be said that the operative portion of the order is in any way whittled down. The order has remained intact and therefore the State was well within its jurisdiction to order recovery. The conduct of the petitioner in not submitting the thesis in time and the communication with the University indicate that the recovery is rightly being effected. However, she could not controvert the submission of the petitioner that the order of the Division Bench directing the University and the State to decide the representation is not complied with as neither the representation made by SCA/26523/2006 5/6 JUDGMENT the petitioner is disposed of nor any reply is communicated to the petitioner. 5. Heard learned counsel for the parties and perused the papers on record. This Court need not go into any other aspect of the matter at this stage. Suffice it to say for disposing of this petition that the petitioner has infact filed an undertaking which is placed on record at page 46. In view of this undertaking the learned Single Judge of this Court passed the following order: “...As per Undertaking given by the petitioner he shall have to pay back the salary and other benefit borne by the State Government within one month from today, failing which the respondent Government will be at liberty to recover the same, including the deduction from his salary in instalment.” 5.1 In view of this, it was incumbent upon the petitioner to make the payment in terms of the order. However, the petitioner preferred LPA wherein also the Division Bench did not disturb the order. However liberty was reserved to the petitioner to consult the authorities namely the Gujarat Agricultural University and the State which the petitioner appears to have done by making a representation to the State with a copy to the University. The respondents have not decided the same therefore the resultant recovery would not be justified as the direction of this Court passed in SCA/26523/2006 6/6 JUDGMENT order dated 13.10.2003 in LPA No. 780 of 2002 has remained uncomplied with. In view of this, this petition deserves to be disposed of with some suitable direction. 6. The representation of the petitioner dated 07.11.2003 placed on record admittedly has remained unanswered and therefore the impugned order of recovery would not be justified. Therefore, the state is directed to give appropriate reply in accordance with law to the petitioner on the representation dated 07.11.2003 and only after communicating the reply to the petitioner the recovery, if any, be proceeded with in accordance with law. With the aforesaid direction, this petition is disposed of. Rule is discharged. (S.R.BRAHMBHATT, J.) Divya//