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Gujarat High Court · body

2020 DIGILAW 345 (GUJ)

President Thara Nagar Palika v. State Of Gujarat

2020-02-25

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. The present Letters Patent Appeal, under Clause 15 of the Letters Patent has been filed for assailing the correctness of the order passed by the learned Single Judge in Special Civil Application No.18231 of 2011, dated 11.11.2019. 2. The background of facts giving rise to the present appeal is that the appellant – Thara Nagarpalika, issued an advertisement for the post of Clerk-cum-Computer Operator on 14.10.2009. As per the terms of the advertisement, a candidate having the qualification of 12th pass, M.S. Office and computer course of ‘CCC’, can apply. As a result of this, the respondent No.3 herein original petitioner, applied for the said post on 28.10.2009 along with necessary details. Said application was submitted along with the receipt of having appeared in examination of computer course ‘CCC’. So, at the time when application was submitted by the original petitioner, she has already applied for the examination of ‘CCC’ examination but, has not received the relevant marksheet and the certificate related to it. Since the same was not supplied to the original petitioner, she attached the receipt indicating the aforesaid fact regarding ‘CCC’ examination. According to the original petitioner, she got the said ‘CCC” certificate on 22.4.2010. Hence, the same was immediately submitted before the Chief Officer much prior to the date of interview, since the same were commenced by the selection committee from the period 1.7.2010 to 5.7.2010. Even, on the basis of the said particulars, the selection committee has interviewed the original petitioner on 3.7.2010. The said selection committee has, by resolution dated 13.7.2010, selected 10 candidates out of 160 and the names have been published in which the respondent No.3 herein – original petitioner was shown at Serial No.3. 2.1 It appears that despite the aforesaid situation, no appointment was released in favour of the original petitioner, essentially on the ground that at a relevant point of time i.e. at the time when application was submitted, the same lacked certification of ‘CCC’ examination clearance. This has led the original petitioner to approach this Court by way of Special Civil Application No.4951 of 2011 where, vide order dated 21.7.2011, on analysis of the relevant rules, the Court directed the District Collector to reconsider the question of approval of selection of the original petitioner. The petition came to be disposed of. This has led the original petitioner to approach this Court by way of Special Civil Application No.4951 of 2011 where, vide order dated 21.7.2011, on analysis of the relevant rules, the Court directed the District Collector to reconsider the question of approval of selection of the original petitioner. The petition came to be disposed of. It appears that subsequent to the said order, the District Collector passed an order on 18.10.2011 refusing to approve the appointment of the original petitioner, mainly on the ground that at the time when application was submitted, the original petitioner did not have the certificate of ‘CCC’ examination. This again led the original petitioner to approach this Court by way of Special Civil Application No.18231 of 2011. 2.2 It appears from the record that the said petition came up for consideration before the learned Single Judge on 11.11.2019. After hearing the learned counsels for the respective parties, the learned Single Judge was pleased to allow the petition by holding that the impugned order dated 18.10.2011 passed by the respondent No.2 District Collector is erroneous and issued direction as contained in Para.11 which reads as under : “11. In this view of the foregoing observations and looking to the totality of the aforementioned facts, the impugned order dated 18.10.2011 passed by the respondent No.2-Collector, Banaskantha is hereby quashed and set aside. The respondents are hereby directed to appoint the petitioner to the post of Clerk-cum-Computer Operator from the date of appointment offered to the other similarly situated candidates. It is clarified that the respondents shall also pay 50% back wages since the petitioner is denied the appointment because of the ignorance of the Recruitment Rules. It is also clarified that the intervening period shall be counted for the purpose of seniority, pay fixation and accordingly respondents are directed to fix her pay. Necessary orders in terms of the directions of this court shall be passed within a period of two(2) months from the date of receipt of writ of this order. Rule is made absolute.” 2.3 It is this order passed by the learned Single Judge that is made the subject matter of present appeal before us. 3. We have heard Ms. Dilbar Contractor, learned counsel for the appellants and Ms.Gayatriba Jadeja, learned counsel for the private respondent, on caveat. 4. Ms. Rule is made absolute.” 2.3 It is this order passed by the learned Single Judge that is made the subject matter of present appeal before us. 3. We have heard Ms. Dilbar Contractor, learned counsel for the appellants and Ms.Gayatriba Jadeja, learned counsel for the private respondent, on caveat. 4. Ms. Dilbar Contractor, learned counsel for the appellants has vehemently contended that at the time when application was submitted, undisputedly the original petitioner did not have a certificate of ‘CCC’ examination. As such, at that time the original petitioner was not eligible to participate in the recruitment process. As such, the District Collector even after reconsideration has clearly observed that since the original petitioner was not eligible, her appointment was not approved. According to the learned counsel, the learned Single Judge, has committed an error in passing the impugned order which has had the effect of substituting the conditions of advertisement itself, which is otherwise is impermissible. 4.1 The learned counsel for the appellants has submitted that the construction of Rule 2(2) of the Recruitment Rules, 2008 which has been made by the learned Single Judge is not a true construction. On the basis of such misreading of the Rule, a writ is issued which is erroneous, especially when the learned Single Judge has awarded practically all consequential benefits. According to the earned counsel for the appellant, all candidates applying pursuant to the advertisement, are bound by the terms of such advertisement. Further, the appellants are under an obligation to observe and follow the instructions that have been issued by the Collector. As such, since the Collector has not approved the selection and appointment of the original petitioner, there is hardly a case made out by the original petitioner which aspect has not been properly considered by the learned Single Judge. After reiterating the submission, the learned counsel has requested to grant the relief as prayed for in the appeal. No other submissions have been made. 5. To counter the stand taken by the appellants, Ms.Gayatriba Jadeja, learned counsel for the private respondent, has vehemently contended that the order passed by the learned Single Judge is absolutely in accordance with the relevant record, admitted position and upon true construction of Rule 2(2) of the Recruitment Rules, 2008. No other submissions have been made. 5. To counter the stand taken by the appellants, Ms.Gayatriba Jadeja, learned counsel for the private respondent, has vehemently contended that the order passed by the learned Single Judge is absolutely in accordance with the relevant record, admitted position and upon true construction of Rule 2(2) of the Recruitment Rules, 2008. It is an undisputed position that at the time when the application was submitted by the original petitioner, the receipt for ‘CCC’ examination was also attached. As soon as the marksheet/certificate was received by the original petitioner, the same was forthwith submitted before the authority, so much so that the said certificate was also produced well before the interview took place. Undisputedly, the selection committee has considered the eligibility criteria of the original petitioner. Thereafter, out of 160 candidates, the original petitioner stood at Serial No.3 on merit. It has further been submitted that even the selection committee has not raised such kind of issue and till the preparation of the selection list, no such eventuality has taken place. It is only on account of the fact that the authority has taken too technical approach that she has been denied the appointment. This has caused immense prejudice since she is deprived of her legitimate right of being appointed. 5.1 The learned counsel has further submitted that Rule 2(2) of the Recruitment Rules, 2008, if closely read, has given a leverage to the recruiting authority to consider such objection later and that has not been considered by the Collector. According to the learned counsel, previously when the original petitioner was constrained to approach this Court in the year 2011, after perusing this very rule which was part of the record, the learned Single Judge thought it fit that the case of the original petitioner deserves reconsideration. As such, by a detailed order, the Collector was directed to reconsider the issue. Now, after such direction again the very same stand has been taken instead of reconsideration, the respondent again has dragged herself to the Court, that aspect has rightly been considered by the learned Single Judge. A detailed order passed by the learned Single Judge, suffers from no illegality and the present appeal lacks merits and the same deserves to be dismissed. 6. A detailed order passed by the learned Single Judge, suffers from no illegality and the present appeal lacks merits and the same deserves to be dismissed. 6. Having heard the learned counsels appearing for the respective parties and gone through the material on record, we find that on previous occasion the direction was given to the Collector for reconsideration of the case of the original petitioner, was also made after considering the relevant rules. Having found some case in favour of the original petitioner, a direction was given vide order dated 21.7.2011. It also appears from the record of the case that undisputedly, the ‘CCC’ certificate was very much submitted to the authority prior to the interview taking place. The submission of the certificate was in April, 2010, whereas the interview had taken place in July, 2010. So, well before even the interview, the certificate was very much produced. It also appears from the record that the selection committee did examine and interview the original petitioner. Out of 160 candidates, 10 candidates were selected, from whom the respondent was placed on merit at Serial No.3. It is only on account of too technical approach shown by the authority, the original petitioner appears to have been deprived of the actual appointment. 7. The relevant Rule that has been considered by the learned Single Judge also invests the discretion in the authority to consider this eventuality. By virtue of this the concerned candidate can produce the necessary documents before the interview which has undisputedly been submitted. When that is so, the possible view that has been given of this Rule 2(2), we see no infirmity in the order passed by the learned Single Judge. 8. Additionally, the conclusion arrived at by the learned Single Judge indicates that the order is a well reasoned one, after due consideration of the relevant controversies and is supported by cogent reasons. The said conclusion which has been arrived at by the learned Single Judge in no way can be said to be perverse in any form. Resultantly, the observations are not possible to be substituted in the absence of any distinguishable material. 9. On the basis of undisputed position as is reflected in Para.8, 9 and 10 of the order passed by the learned Single Judge we are in conformity with the view taken by the learned Single Judge. Resultantly, the observations are not possible to be substituted in the absence of any distinguishable material. 9. On the basis of undisputed position as is reflected in Para.8, 9 and 10 of the order passed by the learned Single Judge we are in conformity with the view taken by the learned Single Judge. Accordingly, we see no merit in the stand taken by the appellants. Hence, appeal deserves to be dismissed. 10. Additionally, while considering the aforesaid controversy, a possible view which has been given by the learned Single Judge about Rule 2(2) of the Recruitment Rules, 2008, we are not inclined to give any different meaning in the absence of any better material or submission, before us. So, keeping in view the scope enlisted by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, reported in (2016) 3 SCC 340 , more particularly in view of the observations made in Para.5 of the said decision, we are of the clear opinion that there appears to be no error committed by the learned Single Judge. Accordingly, this Letters Patent Appeal lacks merit and the same is dismissed hereby. 11. Consequently, the connected civil application also stands dismissed.