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2024 DIGILAW 1795 (GUJ)

DISHANTSINH SANJAYSINH PUWAR v. STATE OF GUJARAT

2024-09-02

A.S.SUPEHIA, MAUNA M.BHATT

body2024
ORDER : 1. Learned advocate Mr. Darshan K. Kothari, appearing for the appellants, on instructions, seeks permission to withdraw the present Letters Patent Appeal. 2. Permission as prayed for is granted. The Letters Patent Appeal is disposed of as withdrawn. FURTHER ORDER 3. Before the aforementioned withdrawal order of the appeal was signed by us, learned advocate Mr. Darshan K. Kothari, has submitted that in fact, by way of interim relief, the appellants have prayed for two reliefs; (i) to participate in the selection process and in the alternative; (ii) to stay the recruitment process. 4. Since we were not inclined to grant interim relief of allowing the appellants to participate in the recruitment process, learned advocate Mr. Kothari, sought withdrawal of the appeal however, thereafter when the Court was about to rise, he has submitted that in the alternatively, the appellants have also prayed for the stay of the recruitment of the advertisement. Hence, we have again heard him on the issue of staying the recruitment process. 5. Learned advocate Mr. Kothari, at the outset, has submitted that the recruitment process is required to be stayed since the appellants are debarred in participating in the same due to the educational qualifications prescribed in the advertisement for the posts of Assistant Station Officer and Assistant Sub-Officer. He has pointed out the degree held by the appellants in Bachelor of Science (Fire and Safety) and has submitted that since Rule 3(b) of the Directorate of Gujarat State Fire Prevention Service, Recruitment Rules, 2020 prescribes the qualification of bachelor degree obtained for the post of Station Officer/ Instructor, Class-III, the appellants cannot be debarred from participating in the recruitment process. It is submitted that in the impugned advertisement dated 08.07.2024, the respondent-Ahmedabad Municipal Corporation has prescribed the educational qualification for the candidates to be eligible for applying to the post of Assistant Station Officer as passing of ‘National Fire Service College Sub-Officers’ Course which is not in line with the aforesaid Rules. It is also submitted that as per the provisions of Rule 456(5) of the Gujarat Provincial Municipal Corporation Act, 1949, if any Rules made by the Corporation are inconsistent with the Rules made by the State Government, the same shall be declared as null and void to the extent of inconsistency. 6. Learned advocate Mr. It is also submitted that as per the provisions of Rule 456(5) of the Gujarat Provincial Municipal Corporation Act, 1949, if any Rules made by the Corporation are inconsistent with the Rules made by the State Government, the same shall be declared as null and void to the extent of inconsistency. 6. Learned advocate Mr. Kothari, appearing for the appellants has further submitted that there were two Notifications issued by the State Government on 03.10.2020; firstly notifying that the provisions of the Gujarat Fire Prevention and Life Safety Measures Act, 2013 will be applicable to all the Municipal Corporations of the State, one of which is Ahmedabad Municipal Corporation, whereas in the second Notification, issued on the same date, it is declared that the Fire Brigade, by whatever name called for all Municipalities/Municipal Corporations shall not form part of State Fire Service. 7. Learned advocate Mr. Kothari, has further contended that in fact, the Municipal Corporation has also issued another advertisement for filling up the Class-I and Class-II posts, for which, the appellants would be held qualified however, for Class-III Post, such as the present one, the appellants cannot apply for the said post in view of the qualification prescribed under the advertisement. 8. Learned advocate Mr. Kothari, has further submitted that other Municipal Corporations have in fact prescribed the qualification in line to the Rules and hence, it is urged that the recruitment process may be stalled. 9. The learned Single Judge by the order dated 30.08.2024, while admitting the matter, has rejected the interim relief prayed by the present appellants. Hence, the present appeal. 10. The appellants, in the writ petition prayed for two folds prayer, which reads as under: “(A) Admit and allow this petition. 9. The learned Single Judge by the order dated 30.08.2024, while admitting the matter, has rejected the interim relief prayed by the present appellants. Hence, the present appeal. 10. The appellants, in the writ petition prayed for two folds prayer, which reads as under: “(A) Admit and allow this petition. (B) To issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other appropriate writ, order or direction to quash and set aside the advertisement issued on 08.07.2024 bearing advertisement No. 04/2024-25 and 05/2024-25 (at Annexure-A) by declaring the advertisement to be illegal, unjust, arbitrary and ultra-vires and further be pleased to hold and declare that the respondent authority to issue a fresh advertisement holding that the degree in Bachelor of Science (Fire And Safety) is valid qualification to apply for the post which have been advertised at Annexure-A. Interim Relief: (C) Pending Admission, hearing and final disposal of this petition direct the respondent no. 2 to permit the petitioners to apply in the advertisements at Annexure-A by holding that the degree of Bachelor in Science (Fire And Safety) is a valid qualification and allow the petitioners to go through the selection process and if they are selected, let their appointment be subject to outcome of this petition or alternatively stay the recruitment process of the advertisement. (D) To pass such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case.” 11. Thus, the interim relief, as prayed for by the appellants in paragraph (C), is in two part, (i) to permit the appellants to apply in the advertisement and in the alternative, (ii) to stay the recruitment process of the advertisement. So far as the first part of the interim prayer i.e. participate in the selection process, the same was not pressed. 12. The submissions are advanced by the learned advocate for the alternate prayer-(C) for staying the recruitment process of the advertisement. It is the case of the appellants that they would not be able to participate in the selection process due to the educational qualification prescribed in the advertisement, and since today is the last day of filling up the applications, the recruitment process of the advertisement may be stayed. 13. It is the case of the appellants that they would not be able to participate in the selection process due to the educational qualification prescribed in the advertisement, and since today is the last day of filling up the applications, the recruitment process of the advertisement may be stayed. 13. It is not in dispute that there would be numerous candidates, who would have applied for the posts pursuant to the advertisement and if the entire recruitment process is stayed, the same would be detrimental to their interest and also of the Corporation. On this count also, we are not inclined to stay the recruitment process. 14. In the captioned writ petition, the appellants have prayed for setting aside the advertisement issued on 08.07.2024. 15. The learned Single Judge, after hearing the respective parties and after dealing with the submissions advanced by the learned advocates appearing for them, has held thus: “4. Heard learned advocates for the parties and perused the documents on record. 5. The fulcrum of the argument of the learned advocate for the petitioners is that the State Government has enacted the Gujarat Fire Prevention and Life Safety Measures Act, 2013 and the Recruitment Rules framed thereunder prescribe B.Sc. (Fire & Safety) as an eligible qualification for various posts under the State fire services. Further, the learned advocate for the petitioners has also stated that some of the Corporations have adopted the said educational qualification as an eligibility to apply for the posts in various fire services. It is pertinent to note that by Notifications dated 3.10.2020 above referred, the State Government itself has exempted all the Municipalities and Municipal Corporations of the State from being part of the State fire services. The Act and the Rules relied upon with respect to the qualification are admittedly only for the State fire services. In the present case, the fire services of the Corporation do not come under the State fire services. 6. In view thereof, the Municipal Corporation has its own prescribed Rules for the same. As per the learned advocate for the respondent Corporation, the qualification so prescribed under the impugned advertisements are as per the said Rules. In the present case, the fire services of the Corporation do not come under the State fire services. 6. In view thereof, the Municipal Corporation has its own prescribed Rules for the same. As per the learned advocate for the respondent Corporation, the qualification so prescribed under the impugned advertisements are as per the said Rules. Prima facie, inclusion or exclusion of qualification is at the discretion of the employer and, in any case, since the Notifications No. GLH/L1-153 of 2020-AGN/10/2020/422/L.1 and GLH/L-1-155 of 2020- AGN/10/2020/422/L.1 dated 3.10.2020 exempts all the Municipal Corporations from the ambit of the Act, 2013 and the Recruitment Rules, 2020 therein, at this stage, no interim relief can be granted to the petitioners. The prayer for interim relief is refused.” 16. It is not in dispute that by the Notification dated 03.10.2020, as referred by the learned Single Judge, the State Government has declared that the Fire Brigade, by whatever name called, of all Municipalities/Municipal Corporations shall not form part of the State Fire Service. 17. Since the learned advocate appearing for the appellants has raised various contentions, we are constrained to deal with the same. 18. The first contention was raised that the appellants are entitled to be considered eligible to apply for the post of Assistant Station Officer, in view of the “Station Officer/Instructor, Class-III, under the Directorate of Gujarat State Fire Prevention Service, Recruitment Rules, 2020.” The said Notification has been issued by the Urban Development and Urban Housing Department of the State Government prescribing the manner and method of appointing the Station Officers/Instructor Class-III. The appellants, unquestionably, seek appointment to the post of Assistant Station Officer and Assistant Sub-Officer. For the post of Sub-Officer, they have placed reliance upon the Sub-Officer, Drill Inspector, Class-III under the Directorate of Directorate of Gujarat State Fire Prevention Service, Recruitment Rules, 2020, which are framed under the Notification dated 30.05.2020. Both the Rules are pari materia. 19. The appellants have failed to satisfy us as to whether the posts of Sub-Officer and Station Officer, which fall under the purview of Directorate of Gujarat State Fire Prevention Service, Recruitment Rules, 2020, are equivalent post to that of the Assistant Sub-Officer/Assistant Station Officer in the Corporation. It is contended that both the posts are Class-III posts. 20. 19. The appellants have failed to satisfy us as to whether the posts of Sub-Officer and Station Officer, which fall under the purview of Directorate of Gujarat State Fire Prevention Service, Recruitment Rules, 2020, are equivalent post to that of the Assistant Sub-Officer/Assistant Station Officer in the Corporation. It is contended that both the posts are Class-III posts. 20. We are unable to accept the contention of equivalence of posts and qualifications, in wake of the fact that Rule 2(a) and (b) of the aforesaid Rules of Sub-Officers and Station Officer/Instructors, stipulate two modes of selection to the post of Sub- Officers and Station Officers. One mode is prescribed to those officers or instructors or persons of equivalent cadre in the fire service of Municipal Corporation or Municipalities, who have minimum three years of experience. Thus, for becoming eligible to the post of Station Officer/Instructor serving in the Corporation, a person has to acquire minimum three years’ experience. Thus, the post of Station Officer and Sub-Officer under the Directorate of Gujarat State Fire Prevention Service stand on higher pedestal to the post of Assistant Sub-Officer and Assistant Station Officer of the Corporation. The appellants, in any manner, cannot equate their qualifications to that of the Assistant Station Officer or Assistant Sub-Officer. The designation/nomenclature of both the posts is also different. The posts, which fall under the Director of State are Station Officer and Sub-officer, whereas in the Corporation, the advertisement specifies the post of Assistant Station Officer and Assistant Sub-Officer. It would be entirely in the domain of the employer i.e. Ahmedabad Municipal Corporation to prescribe particular qualification for a particular post, which suits their requirement. The appellants cannot equate the posts of Corporation to that of State Government. 21. The entire recruitment process cannot be stalled, only because the appellants think that they are eligible to be appointed to the post of Assistant Sub-Officer and Assistant Station Officer. 22. It appears that keeping in mind the provisions of Rules 2(a) and (b) of the aforesaid Rules, the State Government has issued the Notification dated 03.10.2020, declaring that the entire Fire Brigade, by whatever name called, of all Municipalities and Municipal Corporations, shall not form part of the State Fire Service. The Directorate of Gujarat State Fire Prevention Service and the Personnels working under them would form a separate class in itself. The Directorate of Gujarat State Fire Prevention Service and the Personnels working under them would form a separate class in itself. The Rules, which are issued for filling up the post under the Directorate of Gujarat State Fire Prevention Service, can only apply to those candidates, who seek appointments under the Directorate of Gujarat State Fire Prevention and they cannot be, in any manner, equated with the Rules of the Ahmedabad Municipal Corporation, which is a separate entity and it is the administrative and constitutional right of the Ahmedabad Municipal Corporation to fill up their posts by inviting applications through an advertisement prescribing particular qualifications for respective posts. 23. The provisions of Rule 456(5) of the Gujarat Provincial Municipal Corporation Act, 1949, will not in any manner dilute the advertisement issued by the Corporation for filling up the posts of Assistant Sub-Officer or Assistant Station Office, since the Rules do not in any manner stand conflict with the requisite qualification prescribed by the Corporation for the said posts. 24. It is not in dispute that there would be numerous candidates, who would have applied for the posts pursuant to the advertisement and if the entire recruitment process is stayed, the same would be detrimental to their interest and also of the Corporation. On this count also we are not inclined to stay the recruitment process. 25. For the foregoing reasons, we are not inclined to stall the recruitment process. The present Letters Patent Appeal fails, and the same is rejected. However, it is clarified that it will be open for the appellants to file appropriate application before the learned Single Judge for getting the matter listed for early hearing.