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2019 DIGILAW 911 (GUJ)

Pritikaben Amrutlal Sartana v. State of Gujarat

2019-10-15

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : VIKRAM NATH, J. 1. Present Letters Patent Appeals have been filed under Clause 15 of the Letters Patent against the order passed by learned Single Judge, by which no interim relief is extended as prayed for by the appellants-original petitioners, vide order dated 24.9.2019 passed in Civil Application No. 1 of 2019 in Special Civil Application Nos. 10290 of 2018 & 12272 of 2018. 2. The background of present appeals since almost similar and identical issue has arisen in both the appeals, as per the request of learned advocate appearing for the appellants, both are requested to be dealt with conjointly. Resultantly, both these appeals are taken up for hearing and being decided by the present common judgment and order by treating Letters Patent Appeal No. 1716 of 2019 as a lead matter. 3. Letters Patent Appeal No. 1716 of 2019 is filed by some 13 appellants, who are original petitioners, who challenged the advertisement published for filling up the post of Livestock Inspector issued by the Gujarat Subordinate Service Selection Board on 26.7.2017. All these appellants are disabled persons having 40% and more disability and as per the scheduled examination, they participated in the exam as per the schedule, which was held on 24.2.2018. The gist of challenge to the main advertisement is that the marks which have been prescribed as 40% irrespective of any community, whether belong to Scheduled Caste, Scheduled Tribe, SEBC, OBC or physically handicapped, the same is impermissible, according to the appellants-petitioners, and is running counter to the guidelines issued by the Ministry of Personnel, vide Office Memorandum dated 29.12.2005. The appellants submitted that 400 posts of Livestock Inspector have been advertised, out of which 11 posts are reserved for low vision and 11 posts are reserved for hearing impaired candidates and if relaxation in the marks is not given, disabled persons cannot compete in the open test for the post of Livestock Inspector and as such, by asserting that this issuance of the advertisement is counter to the guidelines, since it does not provide relaxation in passing marks in respect of physically challenged persons and having no other remedy, the appellants- petitioners have invoked the extraordinary jurisdiction of this Court by filing the main petition, i.e. Special Civil Application No. 10290 of 2018. 4. 4. Similar is the case with respect to next Letters Patent Appeal, i.e. Letters Patent Appeal No. 1717 of 2019, arising out of Special Civil Application No. 12272 of 2018 filed by some 4 appellants-petitioners challenging the very same advertisement and aggrieved by not granting interim relief, as prayed for in the Civil Application, the present appeal is filed. But, challenge to advertisement is almost on the similar line as per the say of learned advocate. Here, in this writ petition, the appellants-original petitioners have invoked the extraordinary jurisdiction by submitting the writ petition for quashment of the advertisement in question insofar as the advertisement does not provide relaxation in passing/cut-off marks in respect of female and other reserved category candidates for the purpose of selection through competitive examination for the post of Livestock Inspector Class-III. The main ground on which the advertisement is questioned is centering around the issue that the advertisement is not prescribing the relaxation of marks to the candidates. 5. In the background of the aforesaid facts, when the appellants approach learned Single Judge for pressing the petition and the relief contained therein, on 9.8.2018, learned Single Judge after hearing the appellants has considered the case and with a view to see that the challenge contained in the petition may not become infructuous, as a part of interim measure, the order is passed by learned Single Judge. Relevant extract from the said order is reproduced hereinafter:- 4. Without going into any aspect and merits of the case of the petitioners and without expressing any opinion on merits of the case of the petitioners, it is directed that petitioners shall be allowed to appear in the Compute Proficiency Test, which is the second stage in the examination. The respondent authorities shall permit the petitioner to appear in the Computer Proficiency Test, however result of the petitioner shall not be declared and shall be kept in sealed cover and produce the same on the record of this Court. 5. However, it is clarified that permission as granted above, shall not create any right or equity in favour of the petitioners. This is only to ensure that the petition does not become infructuous at the threshold. Stand over to 11.09.2018. Direct service, today, is permitted. 6. 5. However, it is clarified that permission as granted above, shall not create any right or equity in favour of the petitioners. This is only to ensure that the petition does not become infructuous at the threshold. Stand over to 11.09.2018. Direct service, today, is permitted. 6. After passing the aforesaid order on 9.8.2018, the petition was placed for hearing on 11.9.2018 and by that time, it appears that the appellants of both the appeals have submitted Civil Applications in their respective writ petitions, seeking interim relief against the opponents by directing 13 posts to be kept vacant so that the applicants could be issued appointed orders. In Civil Application in Special Civil Application No. 10290 of 2018, 13 posts have been requested to be kept vacant, whereas in another petition, request is made to keep 4 posts vacant. These Civil Applications appeared to have been taken by learned Single Judge and after hearing learned advocates for the petitioners as well as learned Assistant Government Pleader, the Court passed an order on 24.9.2019, which reads as under:- "Since the main petition is pending to be tried on rival contentions and the merits are required to be gone into, it goes without saying that the same shall be bound by the final outcome of the petition. With the aforesaid observation, the application is dismissed." 7. The appellants being aggrieved by the said order of learned Single Judge dated 24.9.2019 in which learned Single Judge has not granted the relief desired by the appellants, the said order is made the subject matter of the present Letters Patent Appeal. 8. Learned advocate Mr. Dipak B. Patel appearing for the appellants has vehemently contended that the petition in origin form is challenging the validity of the advertisement itself and as such, if the interim relief as prayed for in the Civil Application is not granted, same would frustrate the very challenge and the main proceedings would become infructuous. It has been contended by Mr. Patel that the advertisement has to contain a clause for relaxation of marks for female candidates as well as for physically challenged candidates in view of the guidelines issued by the Government of India, Ministry of Personnel in Office Memorandum dated 29.12.2005, and by referring to Clause 22, it has been contended that learned Single Judge ought to have considered the relief as prayed for in the Civil Application. It has been contended that while passing the impugned order, learned Single Judge has not arrived at a subjective satisfaction while not considering the relief as no reasons are visible from the impugned order and that being the position, request is made to set aside the impugned order and grant the relief as prayed for in the Civil Application till the main proceedings, i.e. Special Civil Applications, be disposed of. 9. Learned advocate Mr. Patel has submitted that there are large number of posts published and if the interim relief as prayed for is granted, same will not prejudice the opponent authority. Resultantly, a request is made to keep the posts vacant and has further submitted that there is no objection if the Special Civil Application is to be heard and disposed of at the earliest. 10. To this submission, learned Assistant Government Pleader Ms. Aishwarya Gupta appearing on behalf of the State authority on receipt of advance copy has vehemently contended that granting of such relief in the blank form will seriously prejudice the process of recruitment and would deprive the other eligible candidates from being appointed. It has further been submitted that though protection has been extended by learned Single Judge by observing that the process which is to be undertaken pursuant to the recruitment shall always be bound by the final outcome of the petition and as such, since it is conveyed in no uncertain terms, that everything will be subject to outcome of the petition, there is no element of prejudice to be caused to the appellants. It has further been submitted that with a view to see that their challenge may not become infructuous, a remedial measure is already provided in an earlier order dated 9.8.2018 and as such also, there is hardly any justification for the appellants-petitioners to challenge the order passed by learned Single Judge. Ms. Gupta has further contended that on the contrary, in para 5, it has been categorically observed that such interim measure which has been provided shall not create any right or equity in favour of the petitioners and if the process is subject to final outcome, as indicated in the impugned order, the appeal has no merit. Ms. Gupta has further contended that on the contrary, in para 5, it has been categorically observed that such interim measure which has been provided shall not create any right or equity in favour of the petitioners and if the process is subject to final outcome, as indicated in the impugned order, the appeal has no merit. It has further been contended that if these posts are ordered to be kept vacant, same would tantamount to grant of substantial relief at the initial stage itself, which may not be in consonance with the proposition of law laid down on such issue of grant of substantial relief. Resultantly, no case is made out by the appellants and the appeals deserve to be dismissed. 11. Having heard learned advocates appearing for the parties to the proceedings and having gone through the orders passed by learned Single Judge, we have noticed that there is a challenge to the advertisement mainly on the ground that the advertisement must contain the relaxation clause on the issue of marks to be allocated either it may be for a category of female candidates or it may be for physically challenged candidates. Learned Single Judge has seen to it in the order dated 9.8.2018 to provide participation of the appellants in the second stage of examination so as to see that their challenge in the main proceedings may not become infructuous and undisputably, the said participation of the appellants did take place. 12. We have further noticed from an order dated 24.9.2019 that learned Single Judge has clearly observed that, "it goes without saying that the same shall be bound by the final outcome of the petition". When that precautionary orders are passed in the proceedings, we see no infirmity of any nature in the order impugned. Resultantly, no case is made by the appellants. 13. Furthermore, we are of the opinion that the recruitment pursuant to the advertisement may not be halted or intercepted in any manner and here is a case in which yet, the appellants are to establish their grievance about the fact whether there is any prima facie case in their issue, which is raised in the petitions and as such, at the initial stage itself, if this substantial relief is granted, same will prejudice the process. Resultantly, we are of the considered opinion that since the sufficient safeguards are provided by learned Single Judge while passing the order, we see no reason to interfere with the order passed by learned Single Judge. Accordingly, the appeals stand dismissed. 14. However, while parting with this, we may clarify that dismissal of the Letters Patent Appeals will not come in the way of the appellants in ultimate adjudication of the main writ petitions. 15. Since the main appeals are dismissed, the Civil Applications do not survive and stand disposed of.