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Gujarat High Court · body

2024 DIGILAW 222 (GUJ)

Akash Haribhai Patel v. State of Gujarat

2024-01-30

NIKHIL S.KARIEL

body2024
ORDER : 1. Heard learned advocate Ms. Dhruti Pandya for learned advocate Ms. Kruti Shah on behalf of the petitioner, learned Assistant Government Pleader Mr. Sahil Trivedi on behalf of the respondent – State and learned advocate Mr. Swapneshwar Goutam on behalf of respondent no.5. 2. Issue Rule returnable forthwith. Learned advocates for the respondent respondents waive service of rule on behalf of the said respective respondents. 2.1. With the consent of parties, the petition is being taken up for final disposal. 3. By way of this petition, the petitioner has sought for the following reliefs:- “(A) Admit and allow this petition; (B) Issue appropriate writ, order or direction to the respondent no.2 and 3 to give approval to the appointment of the petitioner on the post of Clerk cum Typist from the date of his appointment i.e. 13.04.2022; (C) Issue appropriate writ, order or direction to the respondent nos.1 to 3 to release and pay the salary with the interest at the rate of 18% per annum to the petitioner from the date of his appointment and continue to pay the same; (D) Pending admission, final hearing and disposal of this petition, direct the respondent no.2 and 3 to pay the arrears of the salary from 13.04.2022 and further be pleased to pay regular salary; (E) Grant such other and further relief as thought fit in the interest of justice.” 3.1. It is the case of the petitioner that he had applied for selection pursuant to an advertisement dated 12.02.2014 issued by the respondent no.5 for selection to the post of Clerk-cum-Typist with the respondent no.5 institution which is a grant-in-aid (for disabled) institution. 3.2. It appears that the petitioner having participated in the selection process which was done in the presence of District Employment Officer, Aravalli at Modasa had been selected and had been given appointment vide communication dated 12.04.2022. It appears that while the petitioner has been working on the post from the said date since his appointment had not been approved, the petitioner had not been granted salary till date and hence, the present petition. 4. Learned advocate Ms. It appears that while the petitioner has been working on the post from the said date since his appointment had not been approved, the petitioner had not been granted salary till date and hence, the present petition. 4. Learned advocate Ms. Pandya for the petitioner would submit that respondent no.5 institution had taken all steps as required, prior to the advertisement and even after selecting the present petitioner and whereas it is submitted that inspite of the concerned respondents having been intimated/informed, the respondents have not granted approval to the appointment of the present petitioner. 4.1. It is submitted by learned advocate Ms. Pandya that the respondents more particularly respondent no.3 had initially rejected the application for approval inter alia on the ground that the selection of the petitioner was not in consonance with the recruitment rules in force. It is submitted that the institution had once again in detail submitted an application dated 23.05.2023 intimating to the respondent no.3 as regards the process undertaken by the respondent no.5 before selecting the present petitioner and requesting for approving the selection of the present petitioner and whereas, vide a communication dated 07.08.2023, the respondent no.2 had also confirmed the non-approving of the selection of the present petitioner more particularly on the ground that the selection process was not in accordance with the requirement of the recruitment rules insofar as the education qualifications are concerned. 4.2. Learned advocate, at this stage, would draw the attention of this Court to the recruitment rules in question i.e. “Gujarat Non-Secretariat Clerk, Class-III, Recruitment Rules, 2014.” The education qualifications as per the said recruitment rules was that the candidate having passed the higher secondary school certificate examination conducted by the Secondary and/or Higher Secondary Education Board or possess an equivalent qualification recognized as such by the government. Learned advocate would submit that as such, the 2014 recruitment rules had been amended vide the 2019 amendment rules promulgated vide notification dated 30.09.2019. 4.3. It is submitted that the amendment was, insofar as relevant to the present case, stating that instead of higher secondary certificate, the candidate should possess a bachelor’s degree obtained from any recognized university. It is submitted by learned advocate Ms. 4.3. It is submitted that the amendment was, insofar as relevant to the present case, stating that instead of higher secondary certificate, the candidate should possess a bachelor’s degree obtained from any recognized university. It is submitted by learned advocate Ms. Pandya in this regard that while the advertisement specified the requirement of the candidate having the HSC qualification, since the amended rules required the candidate to have the minimum educational qualification of being a graduate from the recognized university, the respondents had not approved the selection of the present petitioner. 4.4. At this stage, learned advocate Ms. Pandya without prejudice to her rights would submit that in any case, while the petitioner had applied as having being HSC passed, the petitioner is also having a graduation degree from a recognized university and hence, it could not be said that the petitioner did not possess the relevant educational qualifications. 4.5. Learned advocate Ms. Pandya would further draw the attention of this Court to an instruction issued by the office of respondent no.2 dated 28.12.2021 i.e. approximately the same time period when the respondent no.5 had undertaken the process for selecting the candidate for the post of Clerk-cum-Typist. Learned advocate would submit that the said instructions which had been circulated to all such institutions inter alia state that for selection to the post in question, the recruitment rules of 2014 vide notification dated 12.02.2014 would be relevant and whereas, the same should be strictly followed. Learned advocate would submit that such an instruction having emanated from the office of the respondent no.2, the respondent no.5 i.e. the institution in question while publishing advertisement on 05.07.2022 was absolutely justified in stating about the required qualification as per the recruitment rules of the year 2014. 4.6. Learned advocate would submit that respondent no.5 having adhered to the instructions of the respondent no.2 and whereas since there is no allegation as regards there being any lack of transparency in the selection process and whereas, the entire selection being under the direct supervision of the Employment Officer of the district concerned, it would not be open for the State respondents to now contend that since the recruitment of the petitioner was not as per the recruitment rules, therefore, the approval would not be granted. Thus submitting, learned advocate would request this Court to allow the present petition. 5. Thus submitting, learned advocate would request this Court to allow the present petition. 5. This petition is vehemently opposed by learned AGP Mr. Sahil Trivedi for respondent – State. 5.1. Learned AGP would submit that as such, there could not be any dispute on the fact that while 2014 recruitment rules inter alia stated about the educational qualification required being HSC examination passed and whereas the said 2014 rules having been amended by the 2019 rules which required that the candidate should have a bachelor’s degree from the recognized university therefore, the requirement of eligibility had changed since 2019. Learned AGP would submit that the instruction in question which is being relied upon by the learned advocate for the petitioner states about the 2014 recruitment rules being followed and whereas, according to learned AGP, no error could be stated to have occurred there. Learned AGP would submit that since 2014 rules have been amended vide 2019 amendment, thereafter the 2014 rules would retain its nomenclature but it would contain the 2019 amendment. 5.2. In any case, learned AGP would submit that once the recruitment rules stand amended, thereafter for whatever reason, a selection process is conducted as per the unamended rules for whatever reason the same would still be de hors the recruitment rules and consequently could not be approved by the State Government. Thus, learned AGP would submit that since the recruitment was not as per the extant recruitment rules, therefore, the State was absolutely justified in not confirming the appointment of the present petitioner. 6. In rejoinder, learned advocate Ms. Pandya would submit that a plain reading of the instructions by the respondent no.2 makes it absolutely clear that the intent of the respondent no.2 was to intimate the relevant institutions to conduct the recruitment as per the 2014 recruitment rules. Learned advocate would submit that even the intent of the respondent no.2 was to direct the recruitment as per the 2014 recruitment rules as amended by 2019 recruitment rules, then the same would have been specifically mentioned in the instructions concerned. 6.1. Learned advocate would submit that the instructions specifically stating about the recruitment rules of 2014, the institution was justified in holding the selection as per the non-amended rules. 6.1. Learned advocate would submit that the instructions specifically stating about the recruitment rules of 2014, the institution was justified in holding the selection as per the non-amended rules. In any case, learned advocate would reiterate that the petitioner having been selected after a proper selection process and whereas, since there appears to be some ambiguity for the applicability of 2019 amendment, therefore, the benefit of such ambiguity should be given to the present petitioner. 6.2. Learned advocate Ms. Pandya would also draw the attention of this Court to the communication issued by the respondent no.2 whereby the respondent no.2 has given approval to candidates selected by other similarly situated institutions more particularly the selection process being conducted as per the 2014 rules. 6.3. Learned advocate Ms. Pandya would submit that while undoubtedly, the recruitment rules of 2014 should be treated as having been amended by the 2019 rules, yet, on account of the instructions dated 28.12.2021 by the office of the respondent no.2, there was an ambiguity prevailing and whereas, since the State had given approval to the persons who were similarly situated to the present petitioner insofar as the selection process is concerned, therefore, the State ought not to have taken any objection insofar as the present petitioner is concerned. 7. Learned advocate Mr. Swapneshwar Goutam for respondent no.5 while adopting the submissions made by learned advocate Ms. Pandya would also tender a copy of the communication dated 31.03.2021. Learned advocate would submit that while the said document could not be placed on record, the same may have some relevance inasmuch as according to learned advocate, the said document was a response by the office of respondent no.2 to clarification sought by the Principal, Industrial Training Institution, Godhara dated 06.01.2021. According to learned advocate, a perusal of the said document would reveal that the Principal of the institution in question had sought for the clarification with regard to selection process for the post in question i.e. Clerk-cum-Typist and whereas, the respondent no.2 has reiterated that the instructions of the 2014 recruitment rules insofar as the typing speed, would have to be followed. 7.1. 7.1. Learned advocate would thus submit that at the relevant point of time, in view of the instructions dated 28.12.2021, the institutions had published advertisement as per the unamended recruitment rules and whereas, no fault could be found with the said action on the part of the institutions since they were all adhering to the instructions dated 28.12.2021. 8. Heard learned advocates for the respective parties and perused the documents on record. The question that arises for consideration of this Court is whether the respondents were justified in not granting the approval to the appointment of the present petitioner. 8.1. From the submissions of learned advocates as well as the documents on record, it would appear that the non-grant of approval insofar as the selection of the present petitioner is concerned, stems from the objection by the State respondents that the selection process was not in accordance with the recruitment rules. 8.2. To clarify, while the original recruitment rules in question i.e. published vide notification dated 12.02.2014 inter alia stated that the educational qualification required was having passed the HSC examination, it would also appear that the said 2014 recruitment rules had been amended vide 2019 amendment rules i.e. vide notification dated 30.09.2019. The said amendment prescribed that the candidate should have a minimum educational qualification of possessing a bachelor’s degree from any recognized university. The objection being that starting from the advertisement which specified about the educational qualification of the candidate as being HSC passed, the entire selection has been as per the 2014 recruitment rules and not as per the 2014 rules as amended by 2019 amendment rules. 8.3. The institution in question has taken a stand that the institution has strictly complied with the instructions issued by the respondent no.2 dated 28.12.2021 which inter alia stated about the recruitment process being strictly in consonance with the recruitment rules vide recruitment rules of 2014. While the above is the case of the institution, it is the contention of the learned AGP that while the instructions stated about the 2014 rules, but the amendment which would be part of the 2014 rules would have to be read into the said instructions and whereas, there is no specific requirement for the respondents to have stated about the 2014 rules as amended by 2019 rules holding the fort at the relevant point of time. 8.4. 8.4. In the considered opinion of this Court, such a contention could not be countenanced. The reason for coming to such a conclusion is upon the reading of the instructions dated 28.12.2021 itself. Insofar as the present issue is concerned, the instructions at paragraph no.8 inter alia states about the recruitment to other posts being strictly as per the notification of the General Administration Department dated 12.02.2014 and whereas the rough translation of the relevant portion reads as “for other posts, the qualifications as mentioned in notification dated 12.02.2014 by the General Administration Department shall have to be followed.” 8.5. In the considered opinion of this Court, the said instruction does not leave any scope for any doubt. The instructions is that the recruitment shall be strictly as per the notification dated 12.02.2014 and whereas, the qualification as amended vide notification dated 30.09.2019 is not found in the said instruction. Thus, it would not be open for the State to contend that the instructions have to be read as 2014 recruitment rules as amended by the 2019 recruitment rules. 8.6. At this stage, while having observed as above, it would also be relevant to consider the submissions made by learned AGP that while there may or may not have been any ambiguity in the instructions dated 28.12.2021, yet, the fact remains that the 2014 recruitment rules have been amended by the 2019 amendment rules and whereas, any recruitment de hors the amended rules could not have been approved by the respondent State Authorities. The submissions of learned AGP appears to be correct. The State Authorities would not be justified in any manner whatsoever to have approved any selection which would de hors the recruitment rules, but, at the same time, the peculiar facts of the case as noted hereinabove also cannot be ignored. 8.7. It also requires to be mentioned that the respondent State Authorities having followed the instructions dated 28.12.2021 themselves also appears to be a case, inasmuch as the documents which have been annexed by the petitioner in rejoinder pointed to the fact that in selection for similar post i.e. post of Clerk-cum-Typist in similarly situated Industrial Training Institute where the recruitment was as per the educational qualification of 2014 recruitment rules, the respondent State has approved the appointment of the candidates therein. Thus, it would appear that at the relevant point of time, there appeared to be some lack of clarity on account of the intervening instructions dated 28.12.2021 and whereas, it would appear that even the State Authorities themselves were have approved selections which were as per the unamended recruitment rules. At this stage, while this Court is conscious of the legal proposition that a writ could not be issued to direct the State to commit some illegality which the State has committed insofar as the other similarly situated persons. Having observed thus, yet it requires to be reiterated that at the relevant point of time, there existed a confusion as regards the qualifications for the purpose of recruitment, more particularly on account of the instruction dated 28.12.2021 issued by the respondents, which has led to the present situation. It also needs to be mentioned that except for the said instructions, there does not appear to be any intention of the respondent no.5 to recruit persons de hors the recruitment rules. 9. Thus, in view of the observations as above, in the peculiar facts of the case, this Court deems it appropriate to direct the respondents to approve the appointment given to the present petitioner more particularly having considered the fact that there is no allegation about there being any lack of transparency in the selection process. The selection process having been initiated vide a public advertisement where the aspirants had contested amongst whom the present petitioner had been selected. It also appears that the entire selection process had been conducted under the supervision of the District Employment Officer, Aravalli and whereas it also would appear that even the State Authority at the relevant point of time had never raised any objection insofar as the selection process not being in consonance with the amended recruitment rules. Furthermore, what would weigh with this Court is a fortuitous circumstance that the petitioner, in addition to being qualified as per 2014 recruitment rules, also posses a graduation degree from the recognized institution and hence, the petitioner at the time of selection process itself was having the eligibility as per the 2019 recruitment rules. 9.1. Furthermore, what would weigh with this Court is a fortuitous circumstance that the petitioner, in addition to being qualified as per 2014 recruitment rules, also posses a graduation degree from the recognized institution and hence, the petitioner at the time of selection process itself was having the eligibility as per the 2019 recruitment rules. 9.1. It also requires to be noted that even in the merit list prepared by the respondent no.5, the educational qualification of the candidates who had applied for selection including the present petitioner had been mentioned and whereas the said educational qualification included the educational qualification of graduation. Thus, it would appear that the fact of the candidates possessing graduation degree was also taken into consideration by the respondent no.5. 10. For the observations, findings and conclusions as above, in the considered opinion of this Court, the petition succeeds. The respondent nos.1 and 2 are forthwith directed to grant the approval to the selection of the petitioner to the post of Clerk-cum-Typist with the respondent no.5 herein and whereas, the respondent nos.1, 2 and 3 shall also ensure that the petitioner is paid salary and all the benefits from his date of appointment i.e. 12.04.2022, as per the following directions:- 10.1. The above exercise of approving the appointment of the present petitioner shall be done within a period of four weeks from the date of receipt of this order and whereas, the direction of granting salary and other consequential benefits shall be complied with maximum within a period of six weeks from the date of receipt of this order. 10.2. Insofar as the salary for the period from the date of appointment till the date of approval is concerned, while it appears that the petitioner had been appointed on 13.04.2022, for the first time, the State had issued an order rejecting the approval on 09.03.2023. It would appear that while the institution would have been justified in terminating the services of the petitioner upon the State not approving the appointment, yet, the institution had continued the service of the present petitioner, thus, it appears that from March, 2023 the petitioner has been serving with the respondent no.5 without any approval from the State. It would appear that while the institution would have been justified in terminating the services of the petitioner upon the State not approving the appointment, yet, the institution had continued the service of the present petitioner, thus, it appears that from March, 2023 the petitioner has been serving with the respondent no.5 without any approval from the State. Under such circumstances, it would appear that for almost ten months, the petitioner had worked without his appointment being approved by the State and whereas, while it would appear that the State itself had taken time of approximately eleven months for rejecting the approval, therefore, the salary for the period between 12.04.2022 till the date of approval shall be paid to the petitioner at the rate of 50% of the entire entitlement of the petitioner. The remaining salary, while it would be treated as notional and whereas, from the next month onwards the petitioner shall be paid the salary as if treating the appointment of the petitioner continuous from 12.04.2022. 11. With the above directions, the present petition stands disposed of as allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.