Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1884 (GUJ)

DINESHBHAI ANANDBHAI SHIYAL v. STATE OF GUJARAT

2024-10-10

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. Heard Mr. Harshit Karathia, learned advocate appearing for the petitioner, Mr. Manish Patel, learned advocate appearing for the respondent no. 3 and Ms. Pooja Ashar, learned A.G.P. appearing for the respondent no. 1. 2. Issue Rule, returnable forthwith. Ms. Pooja Ashar, learned A.G.P. waives service of Rule for the respondent no. 1 and Mr. Manish Patel, learned advocate waives service of Rule for the respondent no. 3 3. By way of the present petition, the petitioner herein has prayed for the following reliefs: “(A) Your Lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ order or direction and be pleased to direct the respondent authorities to consider the petitioner as eligible candidate for the Viva-interview, with respect to the advertisement being Advertisement No. 70/2016-17 published by the Respondent No. 3 authority for filling up the post for Assistant Professor, Class-2, and further be pleased to direct the respondent authority to vacant one post of the SEBC (Common) category, till the final list come out. (B) Your Lordships may be pleased to direct the respondent authority stay the oral interview as likely to be scheduled for the candidates of the other eligible candidates in all categories, with respect to the advertisement being Advertisement No. 70/2016-17 published by the Respondent No. 3 authority for filling up the post for Assistant Professor, Class-2. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents not to fill up at-least one post at SEBC (Common) category, with respect to the advertisement being Advertisement No. 70/2016-17 published by the Respondent No. 3 authority for filling up the post for Assistant Professor, Class-2, further be pleased to vacant one post of handicapped category with respect to the advertisement being Advertisement No. 70/2016-17 published by the Respondent No. 3 authority for filling up the post for Assistant Professor, Class-2. (D) Your Lordships may be pleased to grant any other appropriate just and proper reliefs including the cost of this petition.” 4. (D) Your Lordships may be pleased to grant any other appropriate just and proper reliefs including the cost of this petition.” 4. Briefly stated, the petitioner herein is having the qualification of M.A. in Hindi and subsequently, persuaded the Gujarat State Eligibility Test for lectureship from the Maharaja Sayajirao University, Baroda in the year 2014 in the subject of Hindi whereas, the certificate of State Eligibility Test came to be granted to the petitioner on successfully passing the examination. The said certificate is duly produced at Annexure-A. The respondent no. 3 issued combined advertisement being no. 69/2016-17 to 94/2016-17 for the post of Assistant Professor in the government arts, science and commerce college, GES, Class-II for filling up the total 554 posts in various 26 subjects. Against every subject, the above combined advertisements being nos. 69 to 94 have been mentioned respectively. Moreover, out of those 26 subjects, the advertisement no. 70/2016-17 was published for filling up the posts in the subject of Hindi wherein, total 41 posts were declared to be filled in. For Hindi subject, in total 41 posts out of various categories, prescribed as (1) total 27 seats were kept reserved for general candidates, which included 8 seats for women (2) total 9 seats were kept reserved for Socially and Educationally Backward Class, which included total 3 seats for women (3) total 1 seat was kept reserved for Schedule Caste candidates and (4) total 4 seats were kept reserved for Scheduled Tribes candidates, which included 1 seat for woman. Further, the general instructions followed by essential qualifications and terms of experience required from the proposed candidates, were also prescribed in the said advertisement. 4.1. The petitioner herein has applied with respect to the post of Hindi as mentioned in the advertisement no. 70/2016-17 in Socially and Educationally Backward Class category. After filling up the application successfully, the proposed application number being no. GPSC/201617/70/1279 came to be generated. 4.2. The respondent no. 3 issued admit card for the purpose of appearing in the written examination on 23.01.2017, which was scheduled to be held on 05.02.2017 wherein, the petitioner was allotted seat no. 101000526. Having appeared in the written examination, the final list containing the seat numbers of eligible candidates appeared in the examination with respect to the advertisement no. 70/2016-17 for the purpose of scrutiny of application, which came to be published by the respondent no. 101000526. Having appeared in the written examination, the final list containing the seat numbers of eligible candidates appeared in the examination with respect to the advertisement no. 70/2016-17 for the purpose of scrutiny of application, which came to be published by the respondent no. 3 authority vide order dated 19.06.2017. The petitioner herein remained present before the respondent no. 3 for verification of the documents as mentioned in paragraph 5 of the said list. The petitioner produced all the documents as required and asked for by the officer of the respondent no. 3. The petitioner had submitted the school leaving certificate instead of SSC credit certificate for the purpose of verifying the date of birth of the petitioner. As per the terms of the advertisement, though the petitioner had to attach the creamy layer certificate of 2016 at the time of scrutiny, the petitioner produced the certificate of 2017. In view thereof, the petitioner’s candidature came to be declined by the communication dated 09.01.2018 wherein, the petitioner figures at S. No. 35 at page 71. The reason for declining the petitioner’s candidature is stated as “The candidate has not produced Appendix-A for the prescribed period and he has not produced the SSCE certificate as the proof of date of birth.” 5. Being aggrieved by the impugned action taken by the respondent no. 3, the petitioner has approached this Court, praying for the reliefs, as referred above. 6. Mr. Harshit Karathia, learned advocate appearing for the petitioner submitted that the petitioner herein accepts that the said documents, which were required to be produced at the time of scrutiny, were not produced i.e. the SSCE certificate and the creamy layer certificate of 2016. It is submitted that it was a mistake on the part of the petitioner and for the said mistake, the petitioner’s candidature could not have been rejected. It is submitted that the said mistake is not such that the petitioner’s candidature could be rejected. 6.1. It is submitted that it was a mistake on the part of the petitioner and for the said mistake, the petitioner’s candidature could not have been rejected. It is submitted that the said mistake is not such that the petitioner’s candidature could be rejected. 6.1. Reliance is placed on clause-KH of the advertisement, which is duly produced at Annexure-KH at Page 30 wherein, it is stated as under: “(KH) Since the non-creamy layer certificate is issued with reference to the income of the parents, if there is any change in the income of the parents of the candidate while submitting this certificate along with the application, the candidate/applicant himself shall make an honest declaration of such increase-decrease to the competent authority issuing the certificate. After informing the competent authority in this manner, the decision taken by the competent authority has to be reported to the office of the Commission. If a candidate/ applicant conceals the increase in income by not making such voluntary declaration, the benefit availed by him shall be cancelled and he shall be liable to legal action to be taken by the Commission.” 7. Per contra, Mr. Manish Patel, learned advocate appearing for the respondent-authority submitted that the respondent-authority is governed by the terms of the advertisement and in view thereof, at the time of scrutiny of form, the petitioner herein failed to produce on record the SSCE certificate and instead of 2016 creamy layer certificate, the petitioner produced creamy layer certificate of 2017 and in view thereof, the petitioner’s candidature was rightly rejected. 7.1. Reliance is placed on the affidavit-in-reply, which is duly produced at page 76. It is submitted that the petitioner made online application in the category of SEBC for the post of Assistant Professor in Hindi Subject pursuant to the advertisement No. 70/2016-2017 wherein, the application was numbered as 1279 and given confirmation No. 83636567. It is submitted that all the candidates, as also the present petitioner were aware that NCLC and SSCE certificates are to be produced as per the advertisement. However, the petitioner herein failed to do so and for the same, the respondent-authority cannot be held responsible. It is submitted that in the result dated 19.06.2017, it was clearly mentioned that the last date of submission of the necessary documents was 01.07.2017. However, the petitioner did not submit the necessary documents in the prescribed manner. However, the petitioner herein failed to do so and for the same, the respondent-authority cannot be held responsible. It is submitted that in the result dated 19.06.2017, it was clearly mentioned that the last date of submission of the necessary documents was 01.07.2017. However, the petitioner did not submit the necessary documents in the prescribed manner. Thereafter, the respondent-authority also wrote a letter to the petitioner however, the petitioner failed to produce NCLC certificate in time for the period for which, he was asked for and also failed to produce SSCE certificate. It is submitted that the aforesaid is well defined in the advertisement in Para 6(6)(a),(b),(c),(d) as well as in the written intimation dated 27.06.2017 by the office. Despite of the aforesaid, the petitioner admitted his fault on his own in the representation, which is duly produced at Annexure-I to the petition for which, the respondent no. 3 cannot be held responsible and for such issues, the recruitment process cannot be hampered. It is submitted that the SSCE certificate will be a valid document for verification of the birth date of the candidate, which is also stated in paragraph 3(1) of the advertisement. It is submitted that the petitioner failed to produce the copy of the NCLC certificate for the period for which, it was asked for in terms of the conditions of the advertisement. It is submitted that the forms with certificates received by the registry of the respondent, for verification or scrutiny, have been sent to the respective branch and in view thereof, on the aforesaid ground also, the present petition is required to be dismissed. 7.2. It is submitted that the petitioner has breached the conditions and clauses of the advertisement and not followed the instructions appropriately and in view thereof, no reliefs, as prayed for, be granted. It is reiterated that the petitioner submitted the school leaving certificate instead of SSC credit certificate and in view thereof, the petitioner was held ineligible for the personal interview. 7.3. It is submitted that pending the present petition, the petitioner was permitted to appear in the viva-voce test however, the same was directed subject to the final outcome of the present petition. 7.3. It is submitted that pending the present petition, the petitioner was permitted to appear in the viva-voce test however, the same was directed subject to the final outcome of the present petition. Pursuant to the same, it is submitted that the petitioner was permitted to appear in the interview wherein, the petitioner has secured 43.36 marks i.e. more than the cut off marks derived for an SEBC disabled candidate. It is submitted that if the petitioner is to be declared successful, then he will be placed at merit no. 39/A in the list of successful candidates. Consequently, the result that was published on 24.05.2018, will have to be modified accordingly. 7.4. In rejoinder, Mr. Karathia, learned advocate submitted that the anomaly is such that, the same can be corrected and when the petitioner was never called upon to produce NCLC certificate of the year 2017, fault cannot be attributed to the petitioner herein. 8. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner herein applied for the post of Assistant Professor in the government arts, science and commerce college, GES, Class-II upon an advertisement having been published being combined advertisement no. 69/2016-17 to 94/2016-17 wherein, the petitioner applied for advertisement no. 70/2016-17 under the SEBC category and was allotted seat no. 101000526. The petitioner was called for scrutiny by a public advertisement issued by the respondent no. 3 on 15.11.2016. The respondent no. 3 conducted the preliminary test on 05.02.2017 and the result of the eligible candidates for application scrutiny was declared on 19.06.2017. The respondent no. 3 found sufficient number of candidates as per the prescribed criteria of the office order dated 14.10.1986. The petitioner made online application in the category of SEBC for the post of Assistant Professor in Hindi pursuant to the advertisement No. 70/2016-2017 wherein, the application was numbered as 1279 and given confirmation no. 83636567. The petitioner was required to fill the form/application in accordance with the conditions of the advertisement, which is duly produced at page 30. The petitioner is governed by the conditions of the advertisement, which is figured at page 37 and also the clauses appeared in the said advertisement. The respondent no. 3 rejected the petitioner’s candidature for noncompliance of clause-3 and clause-6 of the said advertisement, which are duly produced at pages 37 and 39 respectively. The petitioner is governed by the conditions of the advertisement, which is figured at page 37 and also the clauses appeared in the said advertisement. The respondent no. 3 rejected the petitioner’s candidature for noncompliance of clause-3 and clause-6 of the said advertisement, which are duly produced at pages 37 and 39 respectively. The petitioner herein, while applying online, produced the school leaving certificate instead of SSCE certificate, which is one of the requirements in the said advertisement as also, as per clause-6, the petitioner was required to produce the creamy layer certificate for the year 2015-2016. The petitioner was aware of the conditions of the advertisement, as referred above and was required to comply with the same. It emerges that the petitioner herein applied in SEBC category and in view thereof, the petitioner’s SEBC certificate becomes germane for consideration of the petitioner’s candidature as a disabled SEBC candidate. 9. It emerges that while filling up the online application form, the petitioner had placed on record the certificate of 2015-2016 however, at the time of scrutiny, the petitioner produced only the creamy layer certificate of the year 2017. So far as the contention of the petitioner that the benefit of clause-B would be available to the petitioner, it appears that the aforesaid would be applicable, if there is any change of income of the parents. Under such circumstances, it would be required for the candidate to produce the same. 10. In the facts of the present case, it does not appear from the record for this Court to take such inference however, it emerges and it is not disputed also, that the petitioner, at the time of scrutiny, failed to produce the creamy layer certificate of 2015-2016. 11. This Court, under Article 226 of the Constitution of India, is not inclined to interprete the terms and condition nos.6(6)(a),(b),(c),(d) of the said advertisement as also the written intimation by the office of the respondent dated 27.06.2017, which are self-explanatory wherein, the petitioner was required to produce on record the SSCE certificate. Even at the time of scrutiny, the petitioner never produced such certificate. Also, NCLC certificate of the year 2016, which was required to be produced, was not produced before the competent authority. 12. Even at the time of scrutiny, the petitioner never produced such certificate. Also, NCLC certificate of the year 2016, which was required to be produced, was not produced before the competent authority. 12. Pursuant to the advertisement, the petitioner herein has participated in the process undertaken by the respondent-authority and has also undertaken to abide by the conditions of the said advertisement. The petitioner is well aware about the conditions stipulated in the advertisement and the petitioner is bound to produce the said documents and having not produced the same before the competent authority, it is now not open for the petitioner to contend that the the documents were never asked for at the time of scrutiny. 13. Considering the additional affidavit-in-reply filed by the respondent no. 3-GPSC, wherein, it is stated that the petitioner herein has obtained 43.36 marks i.e. more than the cut off marks derived for an SEBC disabled candidate, the same can be considered by the respondent-authority in accordance with law. Other successful candidates, having been granted appointment, are not joined as party respondents and they would have to be declared unsuccessful and/or the petitioner would have to be placed at merit no. 39/A in the list of successful candidates. 14. In light of the aforesaid, upon plain reading of the terms of the advertisement, once the petitioner herein does not satisfy the said conditions, this Court would not exercise extraordinary jurisdiction under Article 226 of the Constitution of India. 15. Accordingly, the present petition stands disposed of. Rule is discharged. 16. After passing the aforesaid order, Mr. Karathia, learned advocate for the petitioner made a request to suspend the present order for a period of two weeks. 17. The request is acceded to accordingly.