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2023 DIGILAW 713 (GUJ)

Rahulkumar Rameshbhai Rathva v. State Of Gujarat

2023-05-01

HASMUKH D.SUTHAR, VIPUL M.PANCHOLI

body2023
ORDER : HASMUKH D. SUTHAR, J. 1. This Appeal under Clause 15 of the Letters Patent is filed against the order dated 17th April 2023 passed by a learned Single Judge of this Court in the Special Civil Application No.19827 of 2022, whereby the learned Single Judge was pleased to dismiss the writ-application filed by the appellant herein – original petitioner. 2. The facts giving rise to this Appeal may be summarised as under : 3. The appellant herein – original petitioner preferred the Special Civil Application No.19827 of 2022 with the following prayers : “(A) That the Hon’ble Court be pleased to issue a writ of or in the nature of mandamus commanding the respondent to suitably re-notify the date of second and last walking test that has been currently scheduled to be held on 17.09.2022 vide Advertisement numbered FOREST/201819/1 dated 08.09.2022. (B) That pending the hearing and final disposal of this petition, the Hon’ble Court be pleased to restrain the respondent from conducting the second and last waling test that has been currently scheduled to be held on 17.09.2022 vide Advertisement numbered FOREST/201819/1 dated 08.09.2022.” 4. It appears that the learned Single Judge rejected the prayer of the appellant herein for re-scheduling the date of the second and last walking test and dismissed the writ-application vide order dated 17th April 2023. The order reads thus : “….Thus, in my opinion re-notification of the dates would amount to going beyond the recruitment rules 2016. Further, accepting such request would not permit to attain finality to the recruitment process. 10. Moreover, from the recruitment rules 2016, it is clear that every candidate who had cleared the written examination is to be provided with two opportunities to appear in the physical test. In the present case, two opportunities to the present petitioner have been provided, however, he could not participate in the second physical test scheduled on 17.09.2022. Further, pursuant to the select list published, appointments were also given to the selected candidates and entire recruitment process is over, therefore, prayer prayed for in the present petition is no consequence and, on that ground, also present petition deserves no consideration. 11. In view of above facts and reasons this petition deserves to be dismissed and accordingly dismissed. Notice is discharged.” 5. 11. In view of above facts and reasons this petition deserves to be dismissed and accordingly dismissed. Notice is discharged.” 5. The case of the appellant herein is that pursuant to the advertisement dated 6th November 2018, he had applied for recruitment to the post of Forest Guard (Class-III). The appellant herein had appeared in the written examination scheduled on 27th March 2022 and was declared successful in result declared on 12th May 2022. Since he obtained the requisite qualifying marks in the written examination, he became eligible to appear in the physical test scheduled to be held on 3rd September 2022. The petitioner did participate in the physical test (walking test), however on account of his ill-health he could not finish the walking test. The petitioner was diagnosed with Rhabdomyolysis with ATN and he was advised to take rest for atleast two months. The second walking test was re-notified on 17th September 2022. Therefore, the petitioner made a written representation on 10th September 2022 before the respondent and informed about his inability to appear in the said test owing to his serious health condition and requested for re-scheduling the second and last attempt of walking test. Pursuant to the communication dated 13th September 2022, the respondent rejected the request made by the petitioner for re-scheduling the second and last walking test and also informed the appellant herein that failing to appear in the test would make him ineligible for selection. 6. On 7th October 2022, the learned Single Judge was pleased to issue notice to the respondents and pursuant to the same, the respondents herein filed an affidavit-in-reply dated 10th January 2023. Since there was a walking test scheduled by the respondent on 12th January 2023, the learned Single Judge, vide order dated 11th January 2023, was pleased to permit the appellant herein to appear for the walking test. The appellant herein did appear and pass the test. On 17th April 2023, the learned Single Judge was pleased to dismiss the petition of the appellant herein. 7. Being aggrieved and dissatisfied with the order dated 17th April 2023 passed by the learned Single Judge in Special Civil Application No.19827 of 2022, the present Letters Patent Appeal came to be preferred by the appellant herein. 8. On 17th April 2023, the learned Single Judge was pleased to dismiss the petition of the appellant herein. 7. Being aggrieved and dissatisfied with the order dated 17th April 2023 passed by the learned Single Judge in Special Civil Application No.19827 of 2022, the present Letters Patent Appeal came to be preferred by the appellant herein. 8. We have heard Mr.Yash Patel, the learned advocate appearing for the appellant (original writ-applicant) and Mr.Kurven Desai, the learned AGP appearing for the respondent – State. 9. Learned advocate Mr.Patel appearing for the appellant herein would submit that the learned Single Judge was pleased to allow the appellant herein to appear in the second and last walking test and since the appellant herein successfully cleared the said walking test held on 12th January 2023, he is entitled for appointment to the post of Forest Guard (Class-III). Therefore, the action on the part of the respondent in not appointing the appellant herein is erroneous and illegal since the appellant herein has successfully cleared all the stages of examination. Mr.Patel would submit that the learned Single Judge has committed an error in considering the case of the petitioner. He further submitted that the learned Single Judge ought to have considered the law laid down by the Hon’ble Supreme Court in the case of Onkar S.Sharma vs. Rajasthan Public Service Commission and another, reported in (2002) 10 SCC 414 and allowed the petition thereby directing the respondent authority to appoint the petitioner to the post of Forest Guard (Class-III). 10. Per contra, learned AGP Mr.Kurven Desai appearing for the respondent – State would submit that the second and last walking test has already completed on 17th September 2022, the select list has also been published and the appointments have also been given to the selected candidates qua the posts advertised. He would, therefore, submit that since the entire recruitment process is over, now the prayer of the appellant would not survive and the same has become infructuous. The learned Single Judge has rightly dismissed the writ-application filed by the appellant herein. He has further submitted that the alleged second walking test was scheduled for the candidates who were in the wait-list and not for the regular recruitment process. 11. The learned Single Judge has rightly dismissed the writ-application filed by the appellant herein. He has further submitted that the alleged second walking test was scheduled for the candidates who were in the wait-list and not for the regular recruitment process. 11. Having heard the learned advocates for the parties and having gone through the materials on record, it appears that the respondent had issued an advertisement for recruitment to the posts of Forest Guard (Class-III) on 6th November 2018. The appellant herein had appeared in the written examination scheduled on 27th March 2022 and was declared successful in result declared on 12th May 2022. Since he obtained the requisite qualifying marks in the written examination, he became eligible to appear in the physical test scheduled to be held on 3rd September 2022. The petitioner did participate in the physical test (walking test), however, on account of his ill-health he could not finish the walking test. Therefore, one more opportunity was given to the appellant herein to appear in the second and last walking test scheduled on 17th September 2022. The said order is produced at Annexure-G, page-28 of the compilation. In the said order, it was specifically mentioned that as per the Gujarat Subordinate Forest Service Recruitment Rules, 2016, the candidates shall have to appear in the second and last walking test and on failure to appear or pass the walking test, no further opportunity shall be given to the candidates. It is the case of the appellant herein that due to ill health he could not finish the first walking test. From the document produced at Annexure-G, page-28 of the compilation, it is appears that the name of the appellant herein – original petitioner is mentioned at Serial No.3 and in the remarks column it is stated that in the first opportunity of the walking test on 03.09.2022 he has been declared fail. Nowhere there is a reference about his ill-health. Thus, whatever may be the reasons, it is an undisputed and admitted fact that the appellant herein was failed in the first opportunity of the walking test. The recruitment rules 2016 provides for two opportunities to appear in the physical (walking) test for those candidates who have cleared the written examination. The appellant herein also availed both the opportunities, however, he could not participate in the second and last walking test scheduled on 17th September 2022. The recruitment rules 2016 provides for two opportunities to appear in the physical (walking) test for those candidates who have cleared the written examination. The appellant herein also availed both the opportunities, however, he could not participate in the second and last walking test scheduled on 17th September 2022. Further, pursuant to the said recruitment process, select list was been published and appointments were given to the selected candidates and the entire recruitment process is over. Moreover, the appellant herein has sought for re-scheduling the date of the second walking test and no further relief has been sought for. Hence, the question to grant any other relief beyond the scope of the prayers, and that too, of giving appointment to the appellant herein – original petitioner on the post of Forest Guard (Class-III) after the recruitment process is over does not arise since the relief sought for by the appellant herein has become infructuous on completion of the recruitment process. 12. One more aspect which is required to be taken into consideration is that the appellant herein – original petitioner has argued that by way of an interim order, the petitioner was permitted to participate in the walking test scheduled on 12th January 2023. However, if we peruse the order dated 11th January 2023 passed by the learned Single Judge of this Court, it appears that the learned Single Judge, considering the objection raised by the learned AGP on behalf of the respondent that the walking test has been scheduled for the candidates who are on the waiting list, was pleased to kept open the issue of entitlement to appointment of the appellant herein – original petitioner. 13. In view of the above, merely on the basis of having appeared in the walking test would not make the appellant – original petitioner entitle to get the appointment. Once the select list is published, appointments are given and recruitment process is over, then thereafter if an application for rescheduling the date for any examination is accepted, it would be nothing but opening the floodgates for the litigation and endless process for recruitment and the recruitment process never gets over. Moreover, to re-schedule or re-notify the date for examination is also the realm of the examining authority. The learned Single Judge has considered the request of the appellant herein – original petitioner in its true perspective. Moreover, to re-schedule or re-notify the date for examination is also the realm of the examining authority. The learned Single Judge has considered the request of the appellant herein – original petitioner in its true perspective. Re-scheduling or re-notifying the date of examination would amount to going beyond the recruitment rules of 2016. If such a request is accepted, the recruitment process would never attained finality. 14. Further, learned advocate for the appellant has relied upon the case of Onkar S.Sharma (supra). We have given our thoughtful consideration to the said decision. The Hon’ble Supreme Court rendered the said decision exercising its jurisdiction under Article 142 of the Constitution of India considering the peculiar facts of the said case with a view to do away complete justice to the parties. In that case, one post was ordered to be kept vacant. However, in the present case, no such order has been passed or no such prayer was made by the appellant herein - original petitioner. Therefore, the said authority is of no help to the appellant herein – original petitioner. Further, it is worth to mention here that an order/direction issued by the Supreme Court under Article 142 of the Constitution does not constitute a binding precedent. Many a times, after declaring the law, the Court, in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. Be that as it may, the Constitution has, by Article 142, empowered the Supreme Court to make such orders as may be necessary for doing complete justice in any case or matter pending before it which authority the High Court does not enjoy and as such the similar order cannot be issued by a High Court. In this regard, reference can be made to the case reported in AIR 1992 SC 1593 (State of Punjab vs. Surinder Kumar). The Supreme Court granting certain relief in exercise of powers under Article 142 of the Constitution, a similar order cannot be issued by High Courts. In this regard, reference can be made to the case reported in AIR 1992 SC 1593 (State of Punjab vs. Surinder Kumar). The Supreme Court granting certain relief in exercise of powers under Article 142 of the Constitution, a similar order cannot be issued by High Courts. The power to do justice by giving appropriate relief by the Supreme Court is not available to High Courts. Hence, the decision relied upon by the learned advocate for the appellant in the case of Onkar S.Sharma (supra) would be of no help to the appellant. 15. On the facts and in the circumstances of the case, we are of the considered view that the learned Single Judge has not committed any error, much less an error of law, in dismissing the writ-application. The order passed by the learned Single Judge does not call for any interference by this Court. Therefore, the present appeal stands dismissed. Civil Application, if any, stands disposed of.