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2024 DIGILAW 1223 (GUJ)

Rameshbhai Dahyabhai Patel v. State of Gujarat

2024-06-12

VAIBHAVI D.NANAVATI

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ORDER : Vaibhavi D. Nanavati, J. 1. Heard Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom H. Shah, learned advocate appearing for the petitioner, Mr. Shrineel M. Shah, learned advocate appearing for the respondent no.2 and Ms. Suman Motla, learned Assistant Government Pleader appearing for the respondent Nos.1 and 3 – State. 2.1. Briefly stated, that the petitioner herein applied for the post of Lecturer in the subject of Animal Husbandry, pursuant to the advertisement issued in the newspaper by the respondent authorities dated 05.07.1995. 2.2. Pursuant to the due procedure of selection, the petitioner came to be appointed on the post of Lecturer, initially on probation for a period of one year, through an order dated 06.11.1995 and subsequently, came to be confirmed on the said post. The petitioner was subsequently served with an approving letter from the respondent State Government, duly produced at Annexure-D, which is dated 05.12.1995. 2.3. The advertisement was for both Categories, i.e. Category-I as well as for Category-II and the rules governing the said post of Lecturer, at the relevant point of time has made the position clear that the candidates who are having master’s degree shall be entitled to the post of Lecturer in Category-I and shall be entitled to the pay scale prescribed against the same. The petitioner herein is governed to the rules of the recruitment for the post of Lecturer, at the relevant point of time published in the year 1987, duly produced at Annexure-F (original resolution dated 06.06.1986 duly produced at Annexure-M). 2.4. The petitioner herein is possessing the degree of Master of Rural Studies in the year 1993. 2.5. In light of the aforesaid, it is the case of the petitioner that the petitioner herein is entitled for the pay scale under Category-I. It is submitted that the said error which was committed at the time of appointing the petitioner on 06.11.1995, does not mentioning the category, that under which category, the petitioner was appointed. The petitioner herein since 05.12.1995 being appointed in Category-II, approached the respondent no.2 with a representation dated 06.10.1997, duly produced at Annexure-E. The 2nd representation dated 17.03.1998 duly produced at Annexure-F. The petitioner got a clarification from the South Gujarat University that there was no such thing as main subject at the relevant point of time, when the petitioner was conferred for his master degree. The said clarification was issued by the South Gujarat University dated 06.10.1998 duly produced at Annexure-G and further clarification was also produced on record, which was also issued by the said University, which was dated 07.02.2014, reiterating the same. The respondent no.2 made representation to the respondent no.3 on 03.09.2003 pointing out to the respondent no.3 that it was an error, because of which, though the petitioner is possessing the degree of master of Rural Studies, and in view thereof, he is entitled to be considered in Category-I and the said anomaly be rectified. 2.6. In the meantime, in the year 2008, the respondent – State vide letter dated 21.10.2008 directed the Principal of the respondent College to compute the arrears to be paid to the petitioner, if shifted from the Category-II to Category-I. The said communication is duly produced at Annexure-K. The respondent no.2 replied to the respondent – State by communication dated 08.11.2008 / 13.11.2008, which is duly produced at Page-28 and at Pages-29 and 30, there was detail of the amount, that would be payable, if the petitioner shifted from Category-II to Category-I. However, the said mistake has not been rectified by the concerned authorities. 2.7. In view thereof, the petitioner herein was constrained to approach this Court invoking Article-226 of the Constitution of India and has prayed for the following reliefs : “(A) This Honourable Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ that the Honourable Court deems fit declaring the action of the respondent authorities in not placing the petitioner in category I and instead placing him in Category II as arbitrary and illegal and direct the respondents to grant him all the benefits flowing thereof including the revised salary with retrospective effect. (B) Be pleased to award the cost of this petition. (C) Any other and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner.” 3. Mr. Gautam Joshi, learned senior counsel assisted by Mr. (B) Be pleased to award the cost of this petition. (C) Any other and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner.” 3. Mr. Gautam Joshi, learned senior counsel assisted by Mr. Vyom Shah, learned advocate appearing for the petitioner submits that it is not in dispute that the petitioner herein is having degree of Mater in Rural Studies, which is duly produced at Annexure-A, which is dated 15.12.1993 and in view of the resolution duly produced at Annexure-M, which is dated 06.06.1986, the petitioner herein is entitled to be considered in pay scale of Category-I. However, petitioner was appointed in the pay scale of Category-II, because of anomaly that occurred in the petitioner’s appointment. In light of the aforesaid, it is submitted since 1997, the petitioner herein is pursuing the respondents to consider the case of the petitioner and place the petitioner in Category-I as per his qualification. The mistake that has occurred in petitioner’s appointment, be rectified. 4.1. Supporting the case of the petitioner, Mr. Shrineel M. Shah, learned advocate appearing for the respondent no.2 submitted that the respondent no.2 has been constantly communicating with the respondent no.3 by representations and communications, also reiterating the fact that the mistake which had occurred at the time of appointment of the petitioner in Category-II, be rectified and the petitioner be considered in Category-I. 4.2. It is submitted that, all the documents that are available with the respondent no.2 were placed before the government authority, at the time when the respondent no.2 communicated to the respondent no.3 with respect to the mistake that occurred in the case of the petitioner. At the time when the 1st representation was preferred by the respondent no.2 to the respondent no.3 on 03.09.2003, petitioner’s mark-sheet of Bachelor of Rural Studies and Master of Rural Studies, letter of appointment, Letter of D.P. branch and application of the petitioner applied for the post of Lecutrer were attached alongwith the said communication, duly produced at Page-22. 4.3. In light of the aforesaid, it is submitted that petitioner’s case be considered in Category-I by the respondent no.3. 5. Ms. Soman J. Motla, learned Assistant Government Pleader appearing for the respondent nos. 4.3. In light of the aforesaid, it is submitted that petitioner’s case be considered in Category-I by the respondent no.3. 5. Ms. Soman J. Motla, learned Assistant Government Pleader appearing for the respondent nos. 1 and 3 – State submitted that the respondent no.3 appointed the petitioner herein in Category-II, pursuant to the proposal, from the respondent no.2 and no error can be attributed to the respondent nos. 1 and 3 in appointing the petitioner in Category-II. It is submitted that, the respondent no.3 by communication dated 18.07.2020 directed the respondent no.2 to produce Rojkam of the recruitment committee and proposal of the administrative approval taken from the respondent no.3 in order to appoint the present petitioner. The respondent No.2 was not in a position to submit those documents and in view thereof, the respondent no.3 cannot be faulted for not considering the petitioner’s case in Category-I. 6. Having heard the learned advocates appearing for the respective parties, following emerge for consideration of this Court. A. The petitioner herein is conferred the degree in Master of Rural Studies on 15.12.1993. It is also not in dispute that, pursuant to the advertisement dated 05.07.1995, the petitioner herein applied for the post of Lecturer in animal Husbandry and came to be appointed initially on probation for a period of one year by an order dated 06.11.1995. Subsequently, petitioner came to be confirmed on the said post. The petitioner was appointed in Category-II, in view of the aforesaid mistake that occurred, petitioner made representations from 06.10.1997 to the respondent nos. 2 and 3 to correct the said mistake. The respondent no.2 also communicated to the respondent no.3 for the aforesaid error/mistake. B. In the meantime, the South Gujarat University has also issued certificate / communication dated 30.09.1998/06.10.1998 (Annexure-G, Pg.16) and 07.02.2014 duly produced at Annexure-L, wherein, the South Gujarat University clarified that at the relevant of time, there was no such thing as main subject, when the petitioner was conferred the master degree and recommended that the petitioner be considered for the grant of benefits and there is no objection, if the petitioner is granted the benefits as per the eligibility (Annexure-L, Pg.31). C. In light of the aforesaid undisputed facts, this Court has perused the communications, by the respondent no.2 to the respondent no.3. C. In light of the aforesaid undisputed facts, this Court has perused the communications, by the respondent no.2 to the respondent no.3. All the details have been placed on record by the respondent no.2 before the respondent no.3 by communication dated 03.09.2003 (Annexure-I, Pg. 22), which includes the mark-sheet of the petitioner, date of appointment, letter of D.P. branch, Application made by the petitioner for the post of the Lecturer and also the communication dated 08/13.11.2008 (Pg. 28) D. Ms. Motla, learned AGP is not in a position to dispute the aforesaid facts that the said documents were produced before the respondent no.3 by the respondent no.2. It is also not in dispute that the petitioner herein is a Master of Rural Studies, having been conferred with the said degree on 15.12.1993. 7. In view of aforesaid, it is always open for the respondent authorities to rectify the mistake, which has occurred. Considering the submissions advanced by Ms. Motla, learned AGP for the respondent - State nos.1 and 3 and the affidavit in reply filed by the respondent no.3, it is also not the case of the respondent no.3 that the petitioner herein is not eligible to be considered under Category-I, except that the respondent no.2 has failed to produce the Rojkam, pursuant to the communication dated 18.07.2020. It is also noted that the said communication is addressed by the respondent no.3 to the respondent no.2 after filing of the present petition. The respondent no.3 in view of the aforesaid, to take into consideration the documents, that were produced by the respondent no.2 vide communication dated 03.09.2003 and 08/13.11.2008 (Pg.28), which are also undisputed and the genuineness of the same, is also not controverted by the respondent no. 3 and consider the case of the petitioner as per the resolution of 1987 (Annexure-M, Pg-32) for pay scale in Category-I instead of Category-II and the said error be rectified. Further, the respondent to consider the case of the petitioner for granting the benefits flowing thereof including revised of salary from the initial date of appointment. The aforesaid exercise be undertaken by the respondent no.3, within a period of four weeks from the receipt of the order. 8. The petitioner and the respondent no.2 also to cooperate, with the respondent no.3, in the aforesaid exercise directed by this Court. 9. The aforesaid exercise be undertaken by the respondent no.3, within a period of four weeks from the receipt of the order. 8. The petitioner and the respondent no.2 also to cooperate, with the respondent no.3, in the aforesaid exercise directed by this Court. 9. For the foregoing reasons, exercising the extraordinary jurisdiction under Article-226 of the Constitution of India, the present Petition stands allowed, accordingly. Direct service is permitted.