Ishwarbhai Marghabhai Patel vs State of Gujarat and Others

Arguments in this case were heard on 28th October 1999 and the judgment was kept C.A.V. On the basis of a news report in daily ''Gujarat Vaibhav'' dated 26th October 1999, a suo motu writ was drawn on 29th October 1999. In the order of drawing suo motu writ petition, in that matter, this Court has observed that the corruption amongst the officers and employees of the Government, which is said to be rampant is a systematic corruption, i.e. from lower to higher and that is the reason that deliberately, wilfully and purposefully the timely departmental are not being taken against the corrupt so that they may continue in services and get all service benefits and extra service benefits and even if ultimately any charge is proved, only penalty would have been of cut in pension.

Present is a case of that nature where as per the case of the respondents, the integrity of the petitioner an Engineer of Roads and Building Department was doubtful as in the work which was carried out under his supervision of construction of bridge and building at Baroda, timely actions were not taken and as a result thereof he has not only been promoted to the next higher post but continued in service for long time and though he was later on ordered to be prematurely retired but on proof of misconduct he was punished with only cut in pension. Not only this, I find that in the case where it was taken to be a doubtful integrity of the petitioner in connection with the work which he undertook of construction of buildings at Baroda, no action has been taken till the work is completed and thereafter for a considerable period. From these facts, prima facie it comes out that in this department, systematic corruption is there and as a result thereof naturally even if sometimes some thing has been found serious, paper proceedings are drawn and not the substantial proceedings against the corrupt officers. As a result thereof, though on proved misconduct they could have been dismissed from services they enjoy all the service and extra service benefits.

The petitioner, a Superintending Engineer of the Roads and Building Department, since retired, by this petition under Art. 226 of the Constitution prays for the following reliefs.

(a) Be pleased to admit this petition :

(b) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions in the nature of mandamus quashing and setting aside the order of compulsory retirement passed against the petitioner and or to direct the respondents to reinstate the petitioner with continuity of service and with full backwages and all other consequential benefits;

(c) Be pleased to issue a writ of certiorari of any other appropriate writ, order or directions in the nature of certiorari quashing and setting aside the order of compulsory retirement passed against the petitioner and/or to direct the respondent to reinstate the petitioner with continuity of service and with full backwages and all consequential benefits;

(d) Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions in the nature of mandamus quashing and setting aside Rule 161(a)(c-1) of the Bombay Civil Services Rules as ultra vires the provisions of Arts. 14 and 16;

(e) Be pleased to issue a writ of certiorari or any other appropriate writ, order or directions in the nature of certiorari quashing and setting aside the Rule 161(a)(c-1) of the Bombay Civil Services Rules as ultra vires the provisions of Arts. 14 and 16;

(f) Pending admission, hearing and final disposal of this petition, be pleased to stay the operation of the order of compulsory retirement and/or to suspend its, execution, implementation and enforcement and to direct the respondent not to disturb the petitioner from discharging his duties as Superintending Engineer and/or to maintain status quo as prevailed a day before the petitioner proceeded on leave;

(g) Be pleased to pass such oder and further orders as may be deemed fit in the interest of justice.

During the course of arguments, learned counsel for the petitioner has not raised any contention and in fact has not prayed for the relief of quashing and setting aside the Rule 161 (a)(c-1) of the Bombay Civil Services Rules, 1959. His contentions are only confined to prayers made in para 13(a), a (b) and (c).

On the record of this special civil application I do not find the copy of the order under which the petitioner was ordered to be retired compulsorily/prematurely from the service. This petition is filed by the petitioner in the Court on 20th August, 1986 and along with the petition he has not filed any document, which is clearly borne out from the record of the special civil application and the index. In para 9 of the special civil application, the petitioner stated that the impugned order of compulsory retirement has not been served upon the petitioner because he was on leave from 21st July, 1986 till 24th August, 1986. From this fact also, it is clear that this copy of the order is not filed on the record of this special civil application. However, from the rejoinder to the reply filed by the petitioner I find that as per his own case this copy of the order was received by him on 2nd September, 1986 but still the petitioner has not cared to file this order on the record of this special civil application. Without the copy of the impugned order how this petition has been permitted to be presented is a matter for the concern of the registry. It is a case of compulsory/premature retirement and unless the order is received what was the hurry with the petitioner to approach this Court. Above that, the ingenuity of the petitioner deserves appreciation that without seeing the order he has made out the grounds of challenge to it, which is clearly borne out from the special civil application. The order has not been seen by the petitioner as per his case but still all the grounds have been raised against its validity. From these facts, it is borne out that the petitioner was fully aware of and known of the order of his compulsory/premature retirement from services. He would have seen this order also but deliberately avoided the service thereof or not received it. Moreover, on the day on which he filed this petition he was knowing very well that this order, has been passed then why he has not waited for receiving the copy of this order and then filed this petition, nothing has been said. In the writ petition, where the prayer has been made for quashing and setting aside of the order of the authorities filing of the same is a must. Without the impugned order the Court will set aside which order. Prayer has been made for quashing and setting aside of the order which is not on the record. Their Lordships of the Hon''ble Supreme Court in the case of Surinder Singh Vs. Central Government and Others, , in para 9 of the judgment held as follows :

The second question relates to the validity of the order of Shri Rajni Kant the officer to whom power u/s 33 was delegated, extending time to enable the appellant to deposit the auction sale money. Shri Rajni Kant by his order dated February 6, 1970 exercising the delegated powers of the Central Government u/s 33 of the Act set aside the order cancelling the auction sale held in August, 1959 and permitted the appellant to deposit the balance of the purchase money within fifteen days from the date of the order with a default clause that on his failure his petition would stand dismissed. In accordance with that order, appellant was entitled to deposit the money till February 21, 1970. It appears that on appellant''s request the office prepared a challan which was valid up to February 20, 1970. The appellant went to the State Bank on February 20, 1970 to make the deposit but due to rush he could not make the deposit. On his application Shri Rajni Kant extended the time permitting the deposit by February 28, 1970 as a result of which a fresh challan was prepared which was valid up to February 28, 1970 and within that period appellant deposited the balance purchase money. The subsequent order of Shri Rajni Kant was challenged by the respondents and the High Court has quashed that order, although that order was not before the High Court as none of the parties filed the same. The respondents who had challenged the order of Shri Rajni Kant should have filed a copy of the order. In the absence of the order under challenge the High Court could not quashed the same. Normally whenever an order of Government or some authority is impugned before the High Court under Art. 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order, it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore, improper to quash an order which is not produced before the High Court in a proceeding under Art. 226 of the Constitution. The order of the High Court could not be set aside for this reason, but we think it necessary to consider the merits also.

The copy of this order was received by the petitioner on 2-9-1986 and writ petition has also been amended by the petitioner but still he has not cared to file the same on the record of this case. I fail to see why for all these years the petitioner has not cared to file this order on the record. The petitioner is not an ordinary employee. He has retired from the post of Superintending Engineer and it is expected from him to know this basic fact that the order for quashing and setting aside of which has been prayed in the special civil application has to be filed on the record. Above this, this petition has been filed through advocate but even the advocate has not taken care to see that copy of this impugned order has to be filed on the record.

During the course of arguments, learned counsel for the petitioner raised manifold contentions on the validity of the order but all those contentions are only in air as the very order which is challenged in this special civil application and prayer has been made for quashing and setting aside of the same is not on the record. It is not the case where this copy has been filed by the other side. The other side has also not filed the copy of this order on the record but for non-filing of the same they cannot be blamed. It is the duty of the petitioner who approaches to this Court for the relief of quashing and setting of the order to file the copy of that order and unless that order is filed on the record, this prayer cannot be granted and as a result thereof no relief whatsoever leaving apart whether that order is correct or not be granted to the petitioner. It is not in dispute that the petitioner has been ordered to be compulsorily/prematurely retired but the relief of the nature as prayed for cannot be granted unless the copy of the impugned order is produced on the record.

As a result of the aforesaid discussion, the order for quashing and setting aside of which has been made in this special civil application has not been produced on the record, the relief as prayed for cannot be granted and accordingly this special civil application is dismissed. Rule discharged. Interim relief, if any granted by this Court stands vacated. No order as to costs.

Application dismissed.