SHIVSHINH J GOHEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By means of this petition, the petitioner has sought for issuance of writ of certiorari for declaring the order of compulsory retirement dated 17-11-1987 as illegal, invalid and inoperative in law and to hold the action of respondents compelling the petitioner to proceed on leave and not giving any posting order as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and also for a direction to the respondents to pay the salaries of the said period.

(2.) The petitioner was working as Forester in the Limkheda range. The petitioner was transferred by the order dated 30-6-1987 of the District Forest Officer from Limkheda Range to Baria Range under D.P.A.P. Scheme. Under the said order the petitioner was relieved from Limkheda with effect from 30-6-1987. After seven days of joining period the petitioner reported to Baria Range Office by reporting letters dated 30-6-1987 and 8-7-1987 but Baria Range Officer and the Dy. Forest Officer has refused to issue any posting orders to the petitioner, as the Forester concern Mr. Parghi who was reverted and on his place the petitioner has to resume duties, has obtained the stay order from the Court against his reversion and it was not possible for the department to allow two persons to work on one and the same post. When the petitioner requested to permit him to join his duty at the relevant place the Range Forest Officer and District Forest Officer asked the petitioner to wait for some time as they were going to get the stay order vacated immediately and the petitioner will get his salary and the petitioner was directed to proceed on leave and if he will not proceed on leave then he was warned to face consequences and also to face the departmental proceedings. Hence, the petitioner was compelled to give leave report for 20 days. When the department was not able to get the stay order vacated, the petitioner attended office on 23-7-87, 1-8-87, 13-8-87 and 19-8-89 and even then the officers have not given any posting order and the petitioner was not allowed to join his duty. Under the threat of the departmental proceedings, the petitioner was compelled to submit his leave report. When the department found it difficult to get the stay order vacated, the department asked the petitioner to accept the reversion on the post of Beat Guard. If he is ready to accept the reversion he could be issued posting order on the reverted post of Beat Guard. As soon as the stay order obtained by Mr. Parghi is vacated, the petitioner's case would be considered for promotion. For that, the petitioner was not ready to accept and he did not opt to join on the reverted post of Beat Guard and the petitioner was not allowed to join his duty on the transferred post. Till the month of November, 1987 the petitioner was compelled to give leave report and by the order dated 17-11-1987 the petitioner was retired prematurely as Forester alternatively to accept the reverted post of Beat Guard. The petitioner submitted the detailed representation on 30-11-1987 stating therein that he was not given any posting order and he was compelled to submit leave report and without considering the representation of the petitioner, the respondent no. 1 confirmed the order of compulsory retirement by the order dated 8-12-1987. After receiving the order dated 8-12-1987 the petitioner gave a notice to the respondents on 12-1-1988 but all efforts in vain. It is also asserted that the petitioner initially joined service in 1955 as Beat Guard and he was promoted as Forester in the year 1972 and he was transferred from one place to another. In the year 1977 the petitioner was posted as Forester in Tunki town and he was given the charge of Tunki Range where he found that in one of beat known as Bhey Patia there was illegal cultivation and encroachment on the forest land. The local people have encroached on the forest land. The petitioner made complaint to the immediate Officer Mr. I.P. Solanki, Range Forest Officer. Said Mr. Solanki asked that the petitioner need not to worry about it and not to disturb the people as he has permitted them to cultivate the forest land and Mr. Solanki threatened the petitioner that if he would do anything against those persons or disturb them, then the petitioner will have to face consequences. The petitioner without consulting Mr. Solanki filed the criminal complaints against those persons who were illegally cultivating the forest land. The Criminal Court imposed penalty on those farmers. Mr. Solanki being aggrieved from the behaviour of the petitioner, started to harass the petitioner. When the petitioner made repeated requests, in the month of July, 1978 the petitioner was given adverse remarks that his performance is poor. When the petitioner was harassed by the Range Forest Officer and inaction on the part of the Divisional Forest Officer on his representation the petitioner addressed the letter to the Conservator of Forest on 11-1-1979 regarding adverse remarks made against him in the year 1977. The petitioner made the representation on 14-7-1988. But no action was taken against the Range Forest Officer or the District Forest Officer with regard to the representation of the petitioner dated 11-1-1979 nor any reply was given to the petitioner. There was no adverse remarks against the petitioner in the year 1978-79 and the petitioner was due for crossing the efficiency bar and hence he made representation in the year 1978. But he was informed by the department that due to adverse remarks for the year 1977-78 he was not allowed to cross Efficiency Bar. The petitioner stated that there was no complaint against him in the year 1978-79 and hence he should be allowed to cross Efficiency Bar and due to dispute between the petitioner and the Range Forest Officer, the petitioner was not allowed to cross Efficiency Bar. The petitioner made representation for releasing the increments and he was served with a letter dated 23-2-1980 whereby the petitioner was informed about the false adverse remarks in respect of the year 1978-79. He made a representation by the letter dated 29-2-1980 regarding harassment made by Mr. Solanki at the relevant time. No adverse remarks were communicated to the petitioner in the next year and he was not allowed to cross Efficiency Bar. In the year 1981, the petitioner was given award of honesty. The petitioner filed various complaints against those persons and recovered fine of Rs. 16,688.00 for the offence committed by them and various properties were also taken back. The petitioner was placed under suspension from 31-1-1981 on fictitious grounds and he remained under suspension till 20-10-1982. The Conservator of Forest found from the report of inquiry that it is not reasonable to retain the petitioner under suspension, the suspension was revoked with effect from October, 1982 and he was posted in Jadakheria village in Limkheda range. After a week, the petitioner was shifted from Limkheda range to Garbada Range and posted at Pata Dungari. After about four months, the petitioner was again transferred from Gorbada range to Baria range as Mahuda doli Forester. After about four months, the petitioner was shifted to Limkheda range in D.P.A.P. scheme. Before the petitioner took the charge, the Forester who was on leave resumed his duties. As a result of that, another order issued by the Deputy Forest Officer dated 17-8-1983 transferring the petitioner from Baria Division to the Chhotaudepur Division and posted at Chilarvat and the petitioner was posted to work in the R.F.W. scheme and he was shifted to one place to another within three to four months. In the month of April, 1983, the petitioner was served with a memo informing him about adverse remarks for four months. The petitioner made a representation requesting the Dy. Forest Officer to give specific instances for adverse remarks to enable him to give explanation. But no reply was given to the petitioner as there was no adverse remarks for the year 1980-81. Even then the petitioner was not allowed to cross Efficiency Bar. The petitioner was served with the charge sheet dated 4-10-1982 regarding negligence of the petitioner when he was at Randhikpur with malafide intention. On inquiry, the Inquiry Officer found that there was no prima-facie case against the petitioner and exonerated the petitioner from the charges levelled against him. Even then without giving any opportunity to the petitioner, the disciplinary authority awarded the punishment reducing him to the minimum scale for one year by the order dated 17-3-1983 and the petitioner was retained in the scale of Rs. 330.00/- and not posted back in original grade after one year and the petitioner has not been paid his dues for two years i.e. 1984-85 and 1985-86.

(3.) It is stated by the learned counsel for the petitioner that there was no adverse remarks against the petitioner even then he was not allowed to cross Efficiency Bar. It is mentioned that the respondents have no power to pass such orders of compulsory retirement under Rule 161 (i) (i) of the Bombay Civil Service Rules, 1971. The order of compulsory retirement is malafide, arbitrary and against the statutory provisions of law and the same is not sustainable in the eye of law.