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2024 DIGILAW 712 (GUJ)

Arjun Somatbhai Zala v. State Of Gujarat

2024-04-02

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition, under Articles 14, 16 and 21 of the Constitution of India, the petitioner has challenged the inaction on the part of the respondent-authorities with below mentioned prayers : "10(A). Your Lordship may be pleased to admit and allow this petition. (B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities to give appointment the petitioner to the post of Assistant Engineer (Civil) Class-II as per the advertisement No. 109/13-14 and further be pleased to quash and set aside the decision of respondent No.2 of not considering the petitioner as eligible for appointment on the post of Assistant Engineer (Civil) Class-II; (C) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities to consider the online form of the petitioner in SEBC Category and further be pleased to declare the petitioner is entitled and eligible for the post of Assistant Engineer (Civil) Class II only as per the advertisement No. 109/13-14; (D) During the pendency and final disposal of the present petition, Your Lordships may be pleased to: (i) stay the further proceedings for the appointment to the post of Assistant Engineer (Civil) Class-II in connection with the advertisement No. 109/13-14; (ii) Alternatively direct the respondents to keep one post vacant in the aforesaid recruitment process; (E) Pass any such other and/or further orders that may be though just and proper in the facts and circumstances of the present case. 2. The facts giving rise to present petition are that the petitioner is having the qualification of Bachelor of Engineering (Civil) from the colleges affiliated to the University approved by the Government. The applicant is from the SEBC category. The petitioner has worked as Surveyor(Civil) on contractual basis in Surat Municipal Corporation (East Zone) Varachha, Surat from 25/11/2013 to 21/11/2014 and 24/11/2014 till date in fix pay of Rs.16,000/- per month. 2.1 That, an advertisement was issued by the respondent- GPSC, inviting online applications for the recruitment to the post of Assistant Engineer (Civil) Class-II in the Narmada, W.R., W.S, and Kalpsar Pepartment. The petitioner made his online application for the post of Assistant Engineer (Civil) Class-II. 2.1 That, an advertisement was issued by the respondent- GPSC, inviting online applications for the recruitment to the post of Assistant Engineer (Civil) Class-II in the Narmada, W.R., W.S, and Kalpsar Pepartment. The petitioner made his online application for the post of Assistant Engineer (Civil) Class-II. 2.2 That, on 02/12/2013 the petitioner made his online application pursuant to the aforesaid advertisement. The petitioner mentioned his category as SEBC and also mentioned the Non Creamy Layer Certificate Number and date, which was posses him. The petitioner had not paid any Challan Fee in the Post Office for the post of Assistant Engineer (Civil), because of he paid the challan in SEBC category. In the online form one of the question was "Are you applied unreserved employee" in the said question the petitioner by mistake answered "Yes". 2.3 The respondent authority held the primary/competitive examination on 23/03/2014 and invited the petitioner for the same and the said competitive examination cleared by the petitioner. Thereafter, the respondent authority invited the petitioner for oral interview with all relevant documentary evidence on 05/11/2015 vide interview call letter dated 03/10/2015 as the petitioner succeed the oral interview. 2.4 Thereafter, the respondent authority declared the result of the interview on 21/01/2016 in connection with the Advertisement No.109/2013-14. The petitioner obtained 47 marks in the said Interview but, his name mentioned in the unsuccessful candidates at Sr.No.58, which is illegal and against the provisions of law. Because of total 400 candidates has been recommended for the appointment to the post of Assistant Engineer (Civil) Class-Il, wherein, last candidate, which is stand at Sr.No. 400 has obtained 32 marks, that means list for appointment has stopped at 32 marks in SEBC category and also stopped at 56 marks in General Category. 2.5 The petitioner is fulfilling all the requirements qualifications of the aforesaid advertisement. To the best of knowledge and information of the petitioner, he is considered to be ineligible only because he has filled up the form by mistake in General Category. The applicant is from the SEBC Category and he also paid challan of SEBC candidate and mentioned him SEBC Category and certificate number in the online application. The mistake occurred in online application by the petitioner and result therein, the petitioner declared unsuccessful candidates in oral interview because the last successful candidates in General Category obtained 56 marks, who is stand at Sr. No.400. The mistake occurred in online application by the petitioner and result therein, the petitioner declared unsuccessful candidates in oral interview because the last successful candidates in General Category obtained 56 marks, who is stand at Sr. No.400. 2.6 Therefore, on 28/01/2016 the petitioner has made the written representation to the concerned authority requesting them to consider the matter and give appointment for the post in question. The petitioner also met the concerned officer of the respondent authority and requested to give appointment on the post of Assistant Engineer (Civil) Class-II. But, till date the respondent authority not bothered and not gave the appointment on the said post. 3. Being aggrieved and dissatisfied by the impugned action of the respondent authorities, the petitioner has preferred the present petition. 4. I have heard Mr. Vaibhav Vyas, learned Counsel appearing for the petitioner; Mr.Jay Trivedi, learned Assistant Government Pleader appearing for the respondent No.1 and Mr.Premal Joshi, learned Counsel appearing for the respondent No.2 SUBMISSIONS ON BEHALF OF THE PETITIONER:- 5. Mr. Vaibhav Vyas, learned Counsel appearing for the petitioner has submitted that present petition is filed by the petitioner on the ground that though the petitioner was falling under the criteria and having sufficient eligibility criteria and having sufficient merits in category of SEBC for the appointment for the recruitment on the post of Assistant Engineer(Civil) Class-II as per the advertisement No.109/2013-14, his case was not considered and the persons who are having less merits came to be appointed by the respondents and therefore, its discriminatory and arbitrary action, the petitioner challenging by way of preferring present petition. 5.1 Mr.Vaibhav Vyas, learned Counsel appearing for the petitioner has submitted that the petitioner has pointed out that his name was in the Selection List at Sr. No. 325 being category of SEBC since, the petitioner has obtained 42 marks. However, the petitioner was not selected and the persons who are having a less meritorious came to be appointed. He has further submitted that since there are vacancies available and still 68 vacancies are still remained as the persons who have been selected has not reported and therefore, 68 posts were vacant out of 68 posts and 11 posts for SEBC category is still vacant and therefore, the petitioner has urged before this Hon’ble Court that his case can be considered for the purpose of appointment in relation to the advertisement No.109/2013-14. SUBMISSIONS ON BEHALF OF THE RESPONDENT:- 6. As against the same, Mr. Jay Trivedi, learned Assistant Government Pleader appearing for the respondent No.1 has objected present petition. He has referred to and relied upon the Affidavit-in-reply filed by the respondent and submitted that the petitioner is not having fundamental rights or right of the petitioner is not in freezed or violated by the action of the respondent. 6.1 Mr. Jay Trivedi, learned AGP for the respondent No.1 has further submitted that the petitioner has prayed for appropriate direction directing the respondent authorities to give appointment to the post of an Assistant Engineer (Civil) Class-II as per the advertisement No. 109/13-14 and further be pleased to quash and set aside the decision of respondent no.2 of not considering the petitioner as eligible for the post of Assistant Engineer. 6.2 Mr. Jay Trivedi, learned AGP has submitted that as the preliminary objections that the petitioner is declined or unsuccessful candidate and the said settled proceedings initiated by this Hon'ble Court, the petitioner had no right to challenge after participating in competitive examination and hence, this petition deserves to be dismissed. At the outset, it is submitted that the recruitment examination has conducted by the respondent No.2 i.e. GPSC for the post of Assistant Engineer. 6.3 Mr. Jay Trivedi, learned AGP has submitted that the petitioner had made an online application thereafter, he had participated in the examination and got declared as failed. He has further submitted that the respondent no. 2 i.e. the GPSC which is conducting the examination for the post of Assistant Engineer as recruitment in question. 6.4 Mr. Jay Trivedi, learned AGP has submitted that it is evident that the petitioner has voluntarily accepted the general category candidate in the application form and therefore, as per cut off marks which was set by the GPSC was 50 marks for general category and 35 marks for SC-ST and OBC category. Therefore, the general females 45, SC/ST 31 marks petitioner were kept as a cut off marks. He has further submitted that it is for the GPSC to clarify that why petitioner’s case has not been considered qua prayers and contentions which are to taken by the petitioner. 7. Therefore, the general females 45, SC/ST 31 marks petitioner were kept as a cut off marks. He has further submitted that it is for the GPSC to clarify that why petitioner’s case has not been considered qua prayers and contentions which are to taken by the petitioner. 7. To controvert the submissions made by the respondents, the petitioner has filed an additional affidavit with the documents obtained in Right to Information wherein, the details with regard to the vacant post available in the category of SEBC which the petitioner has produced the documents to that effect. Till, there are vacancies for the post in the category of SEBC is available and therefore, the case of the petitioner can be considered. However, the petitioner has candidly submits that while filling up the form, there is inadvertent mistakes on the part of the petitioner that instead of applying in the category of SEBC, he has applied in the general category and that was his bonafide mistakes and because of that reason, the case of the petitioner was not considered. 8. I have heard learned Counsels appearing for the respective parties and it is well settled that this advertisement was of the year 2013-14 and now, present petition is came up for final hearing after almost 11 years thereafter, much time has passed. The respondent has floated as many as three advertisements thereafter and the recruitment process is going on. So far as the waiting list which is prepared on the basis of the selection merit of the candidate, with regard to the advertisement has also remained in force for a period of one year from the date the list was prepared. Herein, the present case because of the inadvertent mistakes on the part of the petitioner, his application was considered in a general category wherein, he would not fall under the eligibility criteria and the marks obtained by the general category candidates is higher than that of the petitioner. Therefore, the case of the petitioner was rightly denied by the respondents. Herein, the present case because of the inadvertent mistakes on the part of the petitioner, his application was considered in a general category wherein, he would not fall under the eligibility criteria and the marks obtained by the general category candidates is higher than that of the petitioner. Therefore, the case of the petitioner was rightly denied by the respondents. Now, it is also well settled by the Hon’ble Apex Court in the series of the judgments and this Court while exercising the powers under Articles 226 and 227 of the Constitution of India cannot issue a mandamus to the Government to appoint the person and considering the same, the present petition is devoid of any merits as the advertisement is of the year 2013-14 and almost 11 years have been past and it is also relevant to note herein that since the application form filled up by the petitioner where, he himself has committed mistake and therefore, he himself has paid fee. 9. In view of the aforesaid discussion and observations, present petition does not deserve to be entertained and the same deserves to be dismissed. Accordingly, present petition is hereby dismissed. Rule is discharged. No order as to costs.