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Gujarat High Court · body

2019 DIGILAW 903 (GUJ)

State of Gujarat v. Kiran Dipakbhai Raj

2019-10-14

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : VIKRAM NATH, J. 1. Present appeal is filed under Clause 15 of the Letters Patent by the State authority against the order passed by learned Single Judge dated 1.11.2018 in Special Civil Application No. 9439 of 2017. 2. The opponent herein had instituted Special Civil Application No. 9439 of 2017 inter alia praying for following reliefs:- (A) Permanently restrain the respondent its officers, agents, servants, etc., from in any manner acting upon and/or undertaking the process in any manner or making appointment to any posts in pursuance of the advertisement and rules without providing for constitutional reservation as required under Article 15(4) of the Constitution of India and denies equal opportunity violative 14, 15(4) and 16; (B) Quash and set aside the advertisement published in a Daily Newspaper-Gujarat Samachar dated 15.04.2017, and also on the website, whereby the Gujarat Public Service Commission has advertised for an examination for 54 posts of Lecturer (Selection Scale) Professor Ayurveda-1, in view of not providing for reservation enunciated under Article 15(4) of the Constitution of India and the recruitment rules; (C) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to- (i) Stay the implementation, operation and execution of the advertisement and recruitment rules in any manner as the same does not provide for the Constitution reservation required to be provided reserved category more particularly, the Scheduled !Caste candidates; (ii) Restrain the respondent from disturbing, modifying or altering the service conditions of the petitioner in any manner which is/would detrimental to the interest of the petitioner; (D) Grant an ex parte ad interim relief in terms of prayer (C)(i) and (ii) above; (D) … ............ (E) … ............" 3. It was indicated in the writ petition that the opponent is a Scheduled Caste candidate, was appointed in a Government service by the respondents after following a valid recruitment process in the year 2008. A resolution was passed by the department of Health and Family Welfare on 14.7.2008 categorically indicating that despite various attempts made by the Government machinery, candidates are not available for the post of Professor-Class-I either through direct recruitment or promotion to various posts and as such it was obligatory on the part of the authority to publish an advertisement for Walk-in-Interview to fill up the said vacant posts. The advertisement came to be published in local daily newspaper-Gujarat Samachar on 16.7.2008, inviting eligible candidates for the purpose of appointment to various posts on ad-hoc basis for a period of six months. Pursuant to the advertisement, the petitioner appeared before the interview committee, consisting of 9 members and after screened by the local interview committee, the petitioner was appointed under Scheduled Caste category as Shalakya and was appointed to the post of ad-hoc Lecturer in consonance with the norms prescribed not only by the Government of Gujarat but the Central Council of Indian Medicine, New Delhi and Department of AYUSH. Nine members local interview committee, consisting of several experts, had screened the opponent-original petitioner and as such, his appointment cannot be treated as back-door entry. The appointment has been released initially for a period of 6 months and was extended vide Government Resolution dated 3.3.2009 and for further period from time to time. According to the opponent, there is no complaint with regard to his services and he is serving till date as teaching faculty in Ayurveda College. 4. It has further been the case of the opponent-original petitioner that one Dr. P.J. Yagnik came to be appointed on reserved category post and thereafter, on transfer of said Dr. P.J. Yagnik, the opponent is working on the post. However, since several years, the opponent was not extended the service benefits parallel to regular employees, the opponent was constrained to prefer Special Civil Application No. 21044 of 2016, wherein the petition is admitted vide order dated 19.12.2016 and is awaiting final adjudication. It is the further case of the opponent herein-original petitioner that despite the aforesaid situation, he came across an advertisement on 15.4.2017 in daily newspaper Gujarat Samachar given by the Gujarat Public Service Commission intimating that recruitment process shall commence from June/July 2017 without earmarking or allocating any sanctioned post to the reserved class category, more particularly to the Scheduled Caste candidates as required under the roster scheme. This, according to the opponent, was with a view to frustrate the legitimate rights of him, which ultimately led him to file a petition before this Court, which was registered as Special Civil Application No. 9439 of 2017 challenging the issuance of such advertisement and claimed incidental reliefs, as referred to above. 5. This, according to the opponent, was with a view to frustrate the legitimate rights of him, which ultimately led him to file a petition before this Court, which was registered as Special Civil Application No. 9439 of 2017 challenging the issuance of such advertisement and claimed incidental reliefs, as referred to above. 5. It appears that the said writ petition came up for consideration before learned Single Judge originally on 5.5.2017, wherein while issuing notice upon the authorities, a direction was issued to keep one post vacant and later on bi-parte hearing took place, as it seems, and learned Single Judge on 1.11.2018 was pleased to modify the said order dated 5.5.2017 and passed a reasoned order. Gist of the order contained in para 5, 6 and 7 is reproduced hereinafter:- 5. In view of the above factual position emerging, the post kept vacant as per the order dated 05th May, 2017 shall be utilised for the purpose of appointment of the petitioner when the petitioner is shown to be standing as merit position for the purpose. The order dated 05th May, 2017 shall stand modified to the aforesaid extent. 6. This order is without prejudice to the rights and contentions of the parties in any other proceedings pending between them relating to the subject. 7. Petition to be listed next on 31st January, 2019. Direct service is permitted. 6. It is this order dated 1.11.2018 which is made the subject matter of the Letters Patent Appeal by the State authority, which came up for consideration before this Court. 7. Learned Assistant Government Pleader Mr. D.M. Devnani appearing on behalf of the appellant authority has vehemently contended that learned Single Judge has granted a relief by the impugned order on 1.11.2018 which was apparently not proved, as can be seen from the prayer clause of the writ petition, and therefore, error has been committed while passing the impugned order. It has further been submitted that no-doubt, this Letters Patent Appeal is against an order of interim relief granted during the pendency of proceedings but the settled position of law ought not to have been ignored by learned Single Judge that simply because a candidate is selected, same would not confer any absolute right of seeking appointment and as such, the order which has been passed is contrary to the settled position of law. Mr. Mr. Devnani after referring to the reasons which are assigned by learned Single Judge has submitted that the reasons are not cogent enough to substantiate the ultimate conclusion of passing an interim order which is practically granting substantial relief in favour of the petitioner. As a result of this, a request is made to allow the appeal by setting aside the impugned order. 8. As against this, learned advocate Mr. Amit Panchal appearing on behalf of the contesting opponent, namely the appointee, has vehemently contended that this Letters Patent Appeal, being an intra-Court appeal, is directed mainly against an interim order and as such, the main proceedings are at large before learned Single Judge, therefore, the order may not be interfered with. It has further been submitted that learned Single Judge has passed an order after granting full opportunity to the appellant's counsel and thereafter passed a reasoned order, keeping in view the object of reservation policy as envisaged in the Constitution of India. It has further been submitted that learned Single Judge also noted the reasons as to why the matter requires consideration with granting of interim protection and further the original ex-parte order dated 5.5.2017 came to be modified and molding of relief after hearing is always permissible. Resultantly, no error is committed by learned Single Judge. Additionally, Mr. Panchal has submitted that apparent look at the impugned order would clearly indicate that considering the prevailing situation, even the main matter is directed to be placed for hearing and it was placed on 31.1.2019 but probably, under the guise of the present Letters Patent Appeal, hearing might not have been cooperated by the authority. However, any time bound schedule can be prescribed for early disposal of the writ petition for which there is absolutely no objection and the opponent will cooperate with the hearing of the main proceedings. Additionally, Mr. Panchal has submitted that there are large number of vacancies still available and as such, there is no prejudice likely to be caused if the impugned order is continued during pendency of the main proceedings. Accordingly, a request is made that no interference be made. 9. Additionally, Mr. Panchal has submitted that there are large number of vacancies still available and as such, there is no prejudice likely to be caused if the impugned order is continued during pendency of the main proceedings. Accordingly, a request is made that no interference be made. 9. Having heard learned advocates appearing for the parties and having gone through the averments which are made in the appeal as well as the contentions which have been raised, we prima facie found that learned Single Judge has taken care of the original ex-parte order which was passed on 5.5.2017 and thereafter has passed a reasoned order supporting grant of/modification of the order as an interim measure during pendency of the main proceedings. We also found that considering the situation which is prevailing on record, even the main petition was ordered to be listed for hearing on 31.1.2019. As a result of this, there seems to be no irregularity of any nature in an order impugned. 10. We also found that there was a substantive challenge to the advertisement in question which did not provide reservation and impact of the reservation policy is very much visualized in the provisions of the Constitution of India, precisely Articles 15(4) and 16(4), and as such, the apparent controversy raised in the main proceedings will have to be examined at length and having found that such is an expedient during the pendency of the petition, interim measure is provided, which cannot be said to be unjustified in any form. 11. We also found that while passing the impugned order, reasons are assigned and the observations which are made in para 3.2 onwards are sufficient enough to justify the grant of interim relief. We deem it proper to reproduce the same hereinafter:- 3.2 Name of the petitioner was placed in the wait list at Serial No. 1. The above position of wait listing of the petitioner at Serial No. 1 is clearly reflected in the final result dated 10th July, 2018 published by Gujarat Public Service Commission, copy of which figures at Page No. 83 (Annexure-IX) on record of the petition. 3.3 It was uncontrovertedly stated that four posts are to be filled-in which includes three posts to be filled-in from amongst general category whereas one post is to be manned from Socially and Economically Backward Class. 3.3 It was uncontrovertedly stated that four posts are to be filled-in which includes three posts to be filled-in from amongst general category whereas one post is to be manned from Socially and Economically Backward Class. As the petitioner is wait listed in the general category at Serial No. 1 and there are two candidates above him if appointments are recommended, having regard to the number of posts to be filled-in from amongst general category and the position at which the petitioner is placed on merits as wait listed first, petitioner stands on merit for being appointed. 3.4 The final result dated 10th July, 2018 contained a note below the result, which in paragraph 4 mentions that as per the order of this Court in the present petition, one post of general category is kept vacant. 4. Learned advocate for the petitioner submitted that though the petitioner would be within the number of appointees who would be securing appointment in the general category, because of the interim order and the recital in the note below the result as above, his appointment is halted. This factual position could not be controverted by the respondents. 5. In view of the above factual position emerging, the post kept vacant as per the order dated 05th May, 2017 shall be utilised for the purpose of appointment of the petitioner when the petitioner is shown to be standing as merit position for the purpose. The order dated 05th May, 2017 shall stand modified to the aforesaid extent. 6. This order is without prejudice to the rights and contentions of the parties in any other proceedings pending between them relating to the subject. 12. In view of the aforesaid facts and circumstances prevailing on record and in view of the fact that the main controversy is at large before learned Single Judge, we are of the considered opinion that the order in question is not satisfactorily questioned. We see no merit accordingly in the Letters Patent Appeal. Hence the same is dismissed hereby. 13. However, while parting with the present order, we request learned Single Judge to decide Special Civil Application as far as possible, preferably within a period of FOUR MONTHS from today, for which the parties are permitted to make a request before learned Single Judge. With these observations, the present Letters Patent Appeal is dismissed. 14. 13. However, while parting with the present order, we request learned Single Judge to decide Special Civil Application as far as possible, preferably within a period of FOUR MONTHS from today, for which the parties are permitted to make a request before learned Single Judge. With these observations, the present Letters Patent Appeal is dismissed. 14. Since the main Letters Patent Appeal is dismissed, the Civil Application does not survive and stands disposed of.