C/LPA/1046/2021 ORDER DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1046 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12432 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 1046 of 2021
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DINDOR SUREKHABEN BABUBHAI
Versus
PARMAR BHAVNABEN NARVATBHAI
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Appearance:
MR BY MANKAD(440) for the Appellant(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 2,3,4,5
MR MAHARSHI PATEL FOR HL PATEL ADVOCATES(2034) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 14/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)
1. The present Letters Patent Appeal under Clause 15 of the Letters Patent at the instance of original respondent No.5 is directed against judgment dated 07 th October, 2021 passed by learned Single Judge in Special Civil Application No.12432 of 2016, by which learned Single Judge has quashed and set aside appointment of respondent No.5, by further directing the authorities to appoint original petitioner to the post of Coordinator-cum-Cook.
2. Short facts can be stated as under.
(i) On 11th May, 2016 an advertisement came to be issued for the post of Coordinator-cum-Cook in the Mid-Day- Meal Centre by Mamlatdar, Morva, District Panchmahals with specific criteria mentioned therein.
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(ii) In furtherance to the aforesaid, original petitioner submitted an application along with necessary documents on 16th May, 2016 for consideration for the post of Coordinator- cum-Cook in the Morva Main School. The present appellant- original respondent No.5 also applied for the said post along with necessary documents on 20 th May, 2016. It also appears that there were other two candidates also applied for the said post with necessary documents. Thus, in all, four candidates have applied their candidature for the post of Coordinator- cum-Cook in the Morva Main School.
(iii) List of all four candidates with their respective percentage in S.S.C. examination can be stated in a tabular form as under.
Name of the Percentage in Whether a Whether any
candidate SSC local resident relative in
examination Govt. job
Parmar 68.49% Yes No
Bhavnaben
Narvatbhai
(petitioner)
Dindor 63.6% No Yes
Surekhaben
Babubhai
(Respondent
No.5)
Mal Niruben 48.10% Yes No
Zalabhai
Parmar 48.14% Yes No
Lilaben
Ramsingh
(iv) Thereafter, on 30th May, 2016 the original
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petitioner was intimated to remain present for the interview on 06th June, 2016 with necessary documents. Accordingly, the original petitioner remained present for interview with necessary documents.
(v) On 10th June, 2016 appellant herein-original respondent No.5 was appointed on the post of Coordinator- cum-Cook even though having less marks in S.S.C. examination than the original petitioner.
3. Thus, being aggrieved by and dissatisfied with the aforesaid, respondent No.1 herein-original petitioner has approached this Court by way of Special Civil Application No.12432 of 2016.
3.1 This Court vide interim order dated 27th July, 2016 provided that appointment of the appellant - original respondent No.5 shall be subject to final orders that may be passed in the writ petition.
3.2 It appears that the appellant - original respondent No.5 though served, have chosen not to appear before learned Single Judge. However, on 06th February, 2019, one more chance was given to the present appellant - original respondent No.5 but not availed of.
3.3 Learned Single Judge, having left with no option but to proceed ex parte qua original respondent No.5, passed the impugned judgment dated 07th October, 2021 by which appointment of the original respondent No.5 came to be cancelled and petitioner was directed to be appointed on the Page 3 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023 C/LPA/1046/2021 ORDER DATED: 14/02/2023 post of Coordinator-cum-Cook.
3.4 Being aggrieved by the aforesaid, appellant - original respondent No.5 is before this Court by way of present Letters Patent Appeal.
4. We have heard learned advocate Mr.B.Y. Mankad for the appellant, learned advocate Mr.Maharshi Patel for H.L. Patel Advocates for respondent No.1 and learned Assistant Government Pleader Mr.Manan Mehta for respondent Nos.2 to 5.
4.1 Learned advocate Mr.Mankad for the appellant submitted that the judgment of the learned Single Judge is bad in law being passed on misreading of evidence on record and against the provisions of law and also against the prevailing Government Resolutions. Learned advocate further submitted that the impugned judgment is in violation of principles of natural justice as appellant was not heard before passing the impugned order. He further submitted that appellant was not knowing English language properly and that she was ignorant of the fact that after receiving notice, she has to appear and defend her case and thereby she could not engage any advocate and thus the entire matter decided in her absence. Mr.Mankad further submitted that learned Single Judge has committed serious error in allowing the petition solely on the ground hat the original petitioner having more percentage than the present appellant. According to learned advocate, condition No.2 does not stipulate that the candidate having more percentage in S.S.C. examination Page 4 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023 C/LPA/1046/2021 ORDER DATED: 14/02/2023 would be given preference. Condition No.2 however stipulates that candidates should have passed S.S.C. examination. Therefore, according to Mr.Mankad, candidates must have good skill in cooking in addition to passing of S.S.C. examination.
4.2 Learned advocate further submitted that the appellant was appointed after being interviewed and thus the learned Single Judge could not have sat in appeal over the decision taken by the interview committee on subjective satisfaction.
4.3 By making above submissions, learned advocate Mr.Mankad for the appellant has prayed this Court to allow the Letters Patent Appeal by quashing and setting aside the impugned judgment of the learned Single Judge.
5. Per contra, learned advocate Mr.Maharshi Patel for respondent No.1 has vehemently opposed the present appeal stating, inter alia, judgment passed by the learned Single Judge is perfectly justified in the facts and circumstances of the case and thereby does not require any interference. Mr.Patel submitted that admittedly the respondent No.1 - original petitioner having more merit than the present appellant in S.S.C. examination. Thus, according to the criteria laid down in the advertisement, appointment of respondent No.5 is justifiedly quashed and set aside by learned Single Judge. Mr.Maharshi Patel submitted that appointment of the present appellant-original respondent No.5 is admittedly de hors condition No.2 of the Page 5 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023 C/LPA/1046/2021 ORDER DATED: 14/02/2023 advertisement.
5.1 Mr.Patel, learned advocate, has further submitted that as per the qualification eligibility criteria for the post in question, candidate must have passed S.S.C. and therefore, according to Mr.Patel, result of S.S.C. requires to be considered for the purpose of determining the merits. Mr.Patel then submitted that admittedly the respondent herein obtained more percentage than that of the present appellant in the S.S.C. examination. Thus, the fact that the appellant studied upto B.A. would pale into insignificance. Mr.Patel further submitted that the arguments sought to be canvassed by the learned advocate for the appellant that the candidate must have also good skill in cooking in addition to passing S.S.C. examination and for the same, interview committee has arrived at subjective satisfaction in favour of the present appellant is completely illogical. According to Mr.Patel, cooking skills cannot be adjudged by way of interview and therefore, subjective satisfaction recorded by the interview committee in favour of the appellant is not tenable. Mr.Patel additionally submitted that though learned Single Judge has not taken cognizance of the fact that father- in-law of the appellant is serving as Coordinator in the same village, thereby is contrary to one of the conditions of the advertisement dated 11th May, 2016. They live in a joint family.
5.2 By making above submissions, learned advocate for the respondent has prayed this Court to dismiss the present Letters Patent Appeal.
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6. We have heard learned advocates for the respective parties and the materials produced on record. We have also gone through in detail the order passed by the learned Single Judge. No other and further submissions have been canvassed by the learned advocates for the respective parties except what are stated hereinabove.
7. Considering the submissions of the rival parties, facts which are not in dispute are as under.
(i) Advertisement dated 11th May, 2016 issued for filling up the post of Coordinator-cum-Cook prescribes 22 conditions. Amongst those 22 conditions, condition Nos.2 and 8 are relevant, fair translation of which can be quoted as under.
"No.2 Candidate must have passed S.S.C. and if such a person is not found in the village, the person who has passed Standard-7 can be appointed as administrator, but he/she must be a native of that village.
No.8 Husband/wife, son/daughter or dependent of employees, who are on full pr part time duty in a Panchayat or Anganwadi or on any honorarium under a public enterprise under the jurisdiction of the State Government or the Central Government and the State Government or the Central Government shall not be appointed."
7.1 Undisputably, appellant herein secured 63.6% in S.S.C. examination whereas respondent No.2 - original petitioner secured 68.49% in S.S.C. examination. However, the authorities have appointed appellant herein for the reasons that she is having higher qualification of S.Y. B.A.
Page 7 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023C/LPA/1046/2021 ORDER DATED: 14/02/2023 7.2 The learned Single Judge having considered the aforesaid facts, held as under.
[10] In the decision of the Supreme Court in the case of Bedanga Talukdar vs. Saifudaullah Khan reported in AIR 2012 SC 1803 it is observed thus:
"28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.Page 8 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023
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29. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1.
Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India."
[11] The Supreme Court has asserted that the selection process has to be conducted strictly in accordance with the stipulated procedure. Consequently, when a selection particular schedule is mentioned in an advertisement, the same has cannot to be conditions be any of scrupulously relaxation the maintained. In advertisement power is specifically could be reserved in reserved. The the terms unless Such relevant There and such a a power Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. In the present case, the law enunciated by the Supreme Court is absolutely ignored and selection and appointment of respondent no.5 has been made de hors the provision of advertisement. It is also held that it would be necessary to ensure that those candidates who are eligible, are also afforded equal opportunity to apply and complete. In the present case, if the advertisement had stipulated the eligibility of educational qualification of Respondent no.5, more candidates could have appeared in the selection process. Thus, in wake of any such stipulation, it was not open for the respondent- authorities to appoint respondent no.5 on the post.
[12] It is also not in dispute that the percentage of SSC examination of the present petitioner is 68.49%, Page 9 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023 C/LPA/1046/2021 ORDER DATED: 14/02/2023 whereas 63.60%. Thus, the the respondent respondent no.5 is having authority was required to verify the percentage only of SSC examination coupled with the fact that whether they are resident of same village. Assuming, even if, taken the as case of true the respondent and the authority respondent no.5 is is considered to be a local resident, it cannot be ignored that she is having less percentage in SSC than the present petitioner and hence, no appointment could have been offered to respondent no.5 on the basis of her qualification of Sy.B.A."
8. In our view, learned Single Judge has not committed any error much less in applying law and thereby the same does not require to be interfered with. We are in complete agreement with the reasoning given by the learned Single Judge in the impugned order. We say so because learned Single Judge while passing the impugned order appears to have heavily relied on the judgment of the Apex Court in the case of Bedanga Talukdar v. Saifudaullan Khan [AIR 2012 SC 1803] and the ratio laid down by the Apex Court would squarely covers the present case.
9. For the foregoing reasons, the present Letters Patent Appeal fails and accordingly dismissed.
10. In view of order passed in the Letters Patent Appeal, Civil Application does not survive. Notice is discharged.
(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) ANUP Page 10 of 10 Downloaded on : Mon Feb 20 20:35:51 IST 2023