Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1489 (GUJ)

Patel Rakeshkumar Dharamdas v. State of Gujarat

2016-07-26

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. Rule. Ms. Snusha Joshi, learned Assistant Government Pleader waives service of notice of Rule for respondents Nos. 1 and 2. Ms. R.V. Acharya, learned advocate waives service of notice of Rule for respondent No. 3. 2. This application has been preferred by the applicant who had earlier filed Special Civil Application No. 1282/2011, that has been allowed by this Court by the judgment dated 06.05.2011. The prayers made in the application are for modifying the judgment dated 06.05.2011, passed by this Court, by directing the respondents to give appointment to the petitioner with all consequential benefits, as if he was appointed along with other candidates. Copies of the present application have been served upon the respondents long back. Respondents Nos. 2 and 3 have filed their respective affidavits-in-reply. 2.1 The litigation has a chequered history. The applicant is a physically handicapped candidate. He had applied for appointment to the post of Vidhya Sahayak/Primary Teacher, in response to the advertisement dated 21.04.2007, issued by respondent No. 3, wherein nineteen vacancies were for Higher Secondary Certificate (HSC)/Art Teacher Diploma (ATD) candidates and one of them was reserved for a physically handicapped (PH) candidate. The petitioner was the highest in merit in the category of PH candidate, having the merit of 76.642. However, one Mr. Dhandhla Dineshkumar Labhshankar, whose merit was 77.892, but who was not physically handicapped, committed fraud by producing a fake and forged Certificate of disability. He was placed above the petitioner. The fraud was detected by the authorities before giving him appointment, therefore, his name was cancelled from the merit-list. Even then, the petitioner was not given appointment for a long period of time, in spite of repeated representations. 2.2 The petitioner preferred Special Civil Application No. 1282/2011, with the following prayers: "(a) to direct the respondents and particularly the respondent No. 3 to forthwith give appointment to the petitioner as Vidya-sahayak as Physically Handicapped ATD candidate pursuant to the Advertisement dtd. 21.04.2007 as per Annexure-A, with all the consequential benefit as if the appointment was given along with other candidates; (b) to quash and set aside the illegal action of the respondents in delaying and thereby denying appointment to the petitioner as vidya-sahayak as Physically Handicapped ATD candidate pursuant to the Advertisement dtd. 21.04.2007 as per Annexure-A, with all the consequential benefit as if the appointment was given along with other candidates; (b) to quash and set aside the illegal action of the respondents in delaying and thereby denying appointment to the petitioner as vidya-sahayak as Physically Handicapped ATD candidate pursuant to the Advertisement dtd. 21.04.2007 as per Annexure-A; (c) Pending the hearing and final disposal of this petition, be pleased to direct the respondents and particularly the respondent No. 3 to forthwith give appointment to the petitioner as vidya-sahayak as Physically Handicapped ATD candidate pursuant to the Advertisement dtd. 21.04.2007 as per Annexure-A subject to the final outcome of this petition; (d) to grant any other appropriate and just reliefs;" (emphasis supplied) 3. After hearing the parties and considering the pleadings, this Court, vide the judgment dated 06.05.2011, allowed the petition and directed the respondents to offer appointment to the petitioner as Vidhya Sahayak in the Physically Disabled category, pursuant to the advertisement dated 21.04.2007, within a period of one month from the date of receipt of the Writ of the Court. 4. The necessity for filing the present application has arisen for the reason that, pursuant to the judgment of this Court, though the applicant was issued an appointment order dated 03.06.2011, however, the appointment was not given from the date when it was given to other candidates, as prayed for by the applicant. It is stated in the present application that one Rashmikaben Dahyabhai Patel and other HSC/ATD candidates, who were appointed pursuant to the said advertisement, were issued appointment orders in fixed pay on 16.01.2008 and have been placed in the regular pay-scale with effect from 17.01.2013, by an order dated 21.02.2014. The applicant is also entitled to similar treatment as the applicant was not at fault for the delay in his appointment. However, the applicant has not been granted similar treatment in the matter of seniority and regular pay-scale with effect from 17.01.2013, as has been granted to other candidates. 5. The applicant had preferred another petition, being Special Civil Application No.1109/2015. The said petition was permitted to be withdrawn with a view to taking recourse to the appropriate remedy, by the order dated 20.04.2015, of this Court (Coram: Ms. Sonia Gokani, J.), in Special Civil Application No. 1109/2015. 5. The applicant had preferred another petition, being Special Civil Application No.1109/2015. The said petition was permitted to be withdrawn with a view to taking recourse to the appropriate remedy, by the order dated 20.04.2015, of this Court (Coram: Ms. Sonia Gokani, J.), in Special Civil Application No. 1109/2015. Accordingly, the petitioner has availed of the remedy of filing the present application for review/modification of the judgment of this Court. 6. Mr. K.B. Pujara, learned counsel for the applicant has submitted that, there is sufficient cause for reviewing/modifying the judgment dated 06.05.2011, passed by this Court in Special Civil Application No.1282/2011 as the respondents are required to give all consequential benefits to the applicant, as if he was given appointment along with other candidates in the interest of justice, especially as this Court has allowed the petition. 6.1 It is further submitted that in the judgment dated 06.05.2011, this Court has noted the prayers made by the applicant in paragraph-2. In several places in the said judgment, the intention of the Court can be garnered, that the applicant was to be offered appointment at the relevant period of time. Learned counsel for the applicant has drawn the attention of the Court to paragraph-15 of the said judgment, wherein it is stated thus: "15. ***** It was at this stage that the waiting list was to be operated. Respondent No. 3 being competent in this regard, there was no reason, whatsoever, not to offer appointment to the petitioner after the candidature of the merit-listed candidate was cancelled. Once it was found that the Disability Certificate of the said candidate, was indeed fraudulent and forged, and a criminal complaint was lodged against the said candidate, there was all the more reason to offer appointment to the petitioner. No explanation, whatsoever, is forthcoming from respondents why appointment was not offered to the petitioner at the relevant period of time, and why the waiting list was not operated in spite of the clear stipulations in Government Resolution dated 18.09.2007. ***** There was no occasion, therefore, to deny appointment to the petitioner who is No. 1 in the waiting list, in the category of physically disabled persons. The claim of the petitioner for appointment came into existence at the time of cancellation of the candidature of the merit-listed candidate. ***** There was no occasion, therefore, to deny appointment to the petitioner who is No. 1 in the waiting list, in the category of physically disabled persons. The claim of the petitioner for appointment came into existence at the time of cancellation of the candidature of the merit-listed candidate. The respondents have omitted to adhere to the provisions of the said Government Resolution at the relevant point of time and their inaction in delaying appointment has resulted in a situation that the petitioner is being deprived of this legitimate claim for appointment on the ground of delay, which is solely attributable to the respondents. In such a situation, the respondents cannot be permitted to derive advantage from their own acts of omission and commission, thereby causing injustice to the petitioner." (emphasis supplied) 6.2 Learned counsel for the applicant has further invited attention to the observations made by this Court in paragraph-18 of the judgment, which are as under: "18. ***** The principles of law laid down in the above case are instantly applicable to the facts of the case in hand. Having failed to offer appointment to the petitioner at the relevant point of time, despite the fact that he was eligible and entitled thereto, the respondents cannot be permitted to take shelter behind the technical stand that the validity of the waiting list has expired, when they themselves are responsible for the delay." 6.3 In paragraphs-20 and 21, other observations of this Court have been highlighted by learned counsel for the applicant, as under: "20. ***** This post should rightly have been offered to the petitioner who was first in the waiting list, when the candidature of the merit-listed candidate was cancelled. ***** 21. As already discussed hereinabove, the provisions of Government Resolution dated 18.09.2007 which stipulates that in case of ineligibility of the merit-listed candidate the waiting list should be operated, would come into effect first in point of time, than the provision regarding the time period of validity of the waiting list. The entitlement of the petitioner for the post in question came into being prior in point of time when the waiting list was valid and operable." (emphasis supplied) 6.4 In paragraph-22 of the said judgment, the following observations have been made: "22. The entitlement of the petitioner for the post in question came into being prior in point of time when the waiting list was valid and operable." (emphasis supplied) 6.4 In paragraph-22 of the said judgment, the following observations have been made: "22. When the legitimate entitlement of the petitioner arose at the time of interview itself, and as the appointment has been delayed by the respondents for untenable and unexplainable reasons which cannot be attributed to the petitioner, the ground of expiry of the waiting list cannot be sustained. Respondent No. 3 was competent to offer appointment to the petitioner as per provisions of Government Resolution dated 18.09.2007, and there was no occasion to await sanction of respondent No. 2. The petitioner, cannot, therefore, be penalized for the acts of omission of the concerned respondent." 6.5 It is submitted that in paragraph-24, which is the operative part of the judgment, this Court has allowed the petition. The prayers made by the petitioner have been allowed in toto. No prayer has been rejected or even partly-allowed. It is, therefore, incumbent upon the respondents to give the benefits of the judgment, as intended by the Court, to the applicant. This has not been done by the respondents, therefore, the applicant is constrained to file the present application for the modification/review of the said judgment. 6.6 In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments: "(i) State of Jammu and Kashmir and others v. Sat Pal, reported in (2013) 11 SCC 737 . (ii) Sasidhar Reddy Sura v. State of Andhra Pradesh and others, reported in (2014) 2 SCC 158 ." 7. In State of Jammu and Kashmir and others v. Sat Pal (supra), referred to by learned counsel for the applicant, the Supreme Court has held as below: "18. In view of the factual and legal position discussed by us hereinabove, we are of the view, that in the facts and circumstances of this case, it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil), Grade II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order." 8. In Sasidhar Reddy Sura v. State of Andhra Pradesh and others (supra), the Supreme Court has held as below: "23. For the reasons recorded in Sasidhar Reddy Sura v. State of A.P. in C.A. No. 10836 of 2013, the present appeal is allowed and it is directed that the High Court as well as the respondent State will do the needful for giving appointment to the appellant with retrospective effect i.e. from the date on which she ought to have been appointed, however, she shall not be paid salary for the period during which she has not worked as a District and Sessions Judge. We are sure that the respondents would do the needful for the appointment of the appellant at an early date." 9. The application has been strongly opposed by Ms. R.V. Acharya, learned advocate for respondent No. 3, District Primary Education Officer, Bhavnagar District Education Committee, by submitting that pursuant to the judgment of this Court the petitioner was given appointment within the specified period of time, on 03.06.2011. He has demanded regular pay-scale as an afterthought, at par with other candidate, namely, Patel Rashmikaben Dahyabhai. The same was declined by the authority as the applicant has not completed five years of service on 17.01.2013. 9.1 On the above grounds, it is prayed that the application be rejected. No other contentions have been raised by the learned advocate for respondent No. 3. 10. Ms. Snusha Joshi, learned Assistant Government Pleader submits that though certain averments have been made in the affidavit-in-reply filed by respondent No. 2, the only issue that she would like to highlight before the Court is that it was for respondent No. 3 to implement the order of the Court and not for respondent No. 2. This has also been stated in paragraph-15 of the judgment dated 06.05.2011. 10.1 No other submissions have been advanced by the learned Assistant Government Pleader. 11. This has also been stated in paragraph-15 of the judgment dated 06.05.2011. 10.1 No other submissions have been advanced by the learned Assistant Government Pleader. 11. This Court has heard learned counsel for the respective parties at length, perused the averments made in the application, the judgment sought to be reviewed/modified and other documents on record. 12. Though an objection has been taken in the affidavit-in-reply filed by respondent No. 3 that there is a delay of 1464 days in filing the present review application, however, the said delay has been condoned by a detailed order dated 03.12.2015, passed by this Court in Civil Application No. 7506/2015 after hearing the parties. 13. Insofar as the prayers made in the application are concerned, they are for the modification of the judgment passed by this Court. The present applicant appears to be seeking a clarification of the judgment of this Court, though it is termed as modification. It appears that the intention of the applicant is to request the Court to clarify that the reliefs claimed by him in the present application, which were also claimed in the main petition, were granted to him while deciding the petition. This has become necessary in view of the stand taken by respondent No. 3 that the respondents have given appointment to the petitioner as Vidhya Sahayak pursuant to the said judgment but not from the date when other candidates were offered appointment. The prayers made in the petition were allowed by the judgment of this Court, as the petition was allowed as a whole. No part of any of the prayers was disallowed. 14. The issue, then, revolves around the intention of the Court while granting the prayers made by the applicant in the main petition and clarification is sought whether the prayer for the grant of consequential benefits, as have been granted to other candidates, has been allowed or not. The correct implementation of the judgment of this Court would depend on its correct interpretation. Being the author of the judgment, the issue is very clear to this Court that there is not the slightest doubt that the petition has been allowed wholly, including all the prayers made by the applicant. 15. The intention of the Court in granting all the prayers in the petition is amply demonstrated from a perusal of the judgment from the beginning to the end. 15. The intention of the Court in granting all the prayers in the petition is amply demonstrated from a perusal of the judgment from the beginning to the end. The petition as a whole, inclusive of the prayers, has been allowed. It is unequivocally stated by this Court in paragraph-24 of the judgment that "the petition is allowed". No prayer has been qualified or partly-allowed and no prayer has been disallowed; meaning thereby, that the intention of the Court is that whatever prayers have been made by the petitioner in the petition have been granted, including the prayer for consequential benefits, as given to other candidates. It is, therefore, incumbent upon respondent No. 3 to implement the judgment of this Court in the same letter and spirit in which it is delivered. 16. In the said judgment, the Court has taken note of the prayers made in the petition in paragraph-2 by specifically stating as under: "2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has prayed, inter-alia, for the issuance of a Writ of Mandamus or any other appropriate Writ or direction to the respondents, to give appointment to the petitioner as Vidya Sahayak as a Physically Handicapped Art Teachers Diploma (ATD) Candidate, pursuant to advertisement dated 21.04.2007, with all consequential benefits, with effect from the date on which appointment was given to other candidates and to hold the denial of the said appointment as being illegal and arbitrary." (emphasis supplied) The Court was conscious of the facts and the nature of the prayers while delivering the judgment. 17. As pointed out by Mr. K.B. Pujara, learned counsel for the applicant, the Court has observed, in paragraph-15 of the judgment, that the petitioner was to be offered appointment on 16.07.2007, the date of the interview, when the candidature of the merit-listed candidate was cancelled. It was at this stage that the waiting list was to be operated. It is specifically stated in the said paragraph that respondent No. 3, being competent in this regard, there was no reason whatsoever for him not to offer appointment to the petitioner after the candidature of the merit-listed candidate was cancelled. The main thread running through the entire judgment is that the applicant ought to have been offered appointment at the relevant period of time when the other candidates were appointed. The main thread running through the entire judgment is that the applicant ought to have been offered appointment at the relevant period of time when the other candidates were appointed. A perusal of the judgment would make this clear. However, it does not appear that respondent No. 3 has bothered to read the whole judgment. 18. This Court has stated in paragraph-18 of the judgment that respondent No. 3, having failed to offer appointment to the petitioner at the relevant point of time despite the fact that he was eligible and entitled, cannot be permitted to take shelter behind the technical stand that the validity of the waiting list has expired, when the respondents are themselves responsible for the delay. Had it been the intention of the Court to confine the appointment of the petitioner to the date of the judgment, nothing prevented the Court from stating so. The petition has been allowed in toto. This obviously means that all the prayers made in the petition have been granted. It is not open to respondent No. 3, therefore, to qualify the prayers and to misread, misinterpret and distort the judgment in order to deprive the petitioner of the relief that has been granted by the Court. 19. The applicant is a physically handicapped candidate, who has succeeded in getting appointment after protracted litigation, pursuant to the judgment of this Court dated 06.05.2011. The fruits of the judgment are not being given to him due to the faulty and wrong interpretation of the judgment by respondent No. 3. There is no justification for respondent No. 3 in granting appointment only from the date of the judgment as it has not been so stated by this Court. Respondent No. 3, therefore, has not acted in accordance with the letter and spirit of the judgment, which is very clear. 20. This Court would not countenance a situation where the applicant has to face injustice due to a wrong interpretation of its judgment. There is no hesitation on the part of the Court in clarifying its judgment, if the situation so demands, in order to prevent injustice being meted out to the petitioner. 20. This Court would not countenance a situation where the applicant has to face injustice due to a wrong interpretation of its judgment. There is no hesitation on the part of the Court in clarifying its judgment, if the situation so demands, in order to prevent injustice being meted out to the petitioner. Though there is no error apparent on the face of the judgment, this Court makes it clear once again, that in Special Civil Application No. 1282/2011, it has allowed the petition as a whole and granted all the prayers made by the applicant, including the prayer that the respondents give appointment to the petitioner with all consequential benefits as if he was appointed along with other candidates. No prayer has been declined or partly-granted. 21. In view of the above clarification, the application is allowed. Rule is made absolute, accordingly. 22. The applicant has already suffered needlessly due to the delay caused by the wrong interpretation of the judgment by respondent No. 3. It is hoped and expected that the consequential relief flowing from the judgment, as clarified by this order, shall be granted to the applicant as expeditiously as possible, and definitely within a period of three months from the date of the receipt of a copy of this judgment. 23. Direct service of this order is permitted.