Gujarat High Court
Badi Irafan Amibhai vs State Of Gujarat on 27 January, 2025
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9602 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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BADI IRAFAN AMIBHAI & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PRADEEP PATEL(642) for the Petitioner(s) No. 1,2
MR NIRAJ SHARMA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 15,16,2,3
REFUSED SERVED (R)(70) for the Respondent(s) No. 7
RULE SERVED for the Respondent(s) No. 1,10,14,8
RULE SERVED BY DS for the Respondent(s) No. 11,12,13,4,5,6,9
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 27/01/2025
ORAL JUDGMENT
1. By way of present petition, the petitioners herein have prayed for the following reliefs:
"A) May be pleased to Admit this Writ Petition.
B) Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order, or direction quashing and setting aside, the selection process of Walk-in-Interview for selection as trainees to M.H.W. Course held by District Panchayat, Rajkot, on 12/4/12 and select list dated 13/4/12 (Annexure A) after holding the same as arbitrary, illegal and unconstitutional, and further be pleased to hold Page 1 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined the non selection of the petitioners as trainees to M.H.W. Course as arbitrary and illegal and be pleased to direct the respondents no.1 to 3 to publish a fresh select list in accordance with law and in the interest of justice pursuant to walk-in-interview held on 12/4/12.
C) Pending admission hearing and final disposal of the petition, be pleased to stay the further operation, implementation and execution of select list dated 13/4/12 (Annexure A) and be pleased to direct the respondents to publish a fresh select list in accordance with law pursuant to walk-in-interview held on 12/4/12 by District Panchayat, Rajkot for M.H.W. Course.
D) Be pleased to pass such other/further orders deemed fit and be pleased to award the costs of this Petition."
2. Heard Mr. Pradeep Patel, learned advocate appearing for the petitioners, Mr. Rajesh Chauhan, learned advocate for Mr. H.S. Munshaw, learned advocate appearing for the respondent Nos.2, 3, 15 and 16 and Mr. Niraj Sharma, learned AGP appearing for the respondent No.1 - State. Though served, the private respondent Nos.4-6, 9 and 10 - 14 not appeared. The respondent No.7 has refused the service of notice of Rule.
3. The petitioners herein have challenged the legality and validity of the selection of respondent Nos.4 to 14 as Multipurpose Health Workers (Male) by the respondent No.2 vide order dated 13.04.2012 and the exclusion of the petitioners as trainees on the ground that the petitioners are not eligible to be selected as trainees whereby, the petitioners names are not included in the impugned select list dated 13.04.2012 which is duly produced at Annexure - A, page 14 to Page 2 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined the petition.
3.1 It is the case of the petitioners that pursuant to the advertisement dated 16.01.2012 published in 'AKILA' newspaper informing about Walk-in-Interview, to be held on 23.01.2012 for selection of 16 Trainees as Multipurpose Health Worker (Male) for which, the educational qualifications required was SSC pass, wherein, pursuant to the participation in the Walk-in-Interview held on 23.01.2012, both the petitioners were selected for training course of Multipurpose Health Worker by order dated 26.03.2012 which is duly produced at Annexure - C to the petition wherein, the names of the petitioners figured at serial Nos.9 and 10 respectively. The petitioners were asked to report at the relevant training centre on 02.04.2012. The selection process of both the petitioners was completed, all the paper formalities were undertaken and the petitioners had gone personally to the allotted training centre for joining the course. The petitioners were however, not permitted to join the course and were informed that the date of joining would be intimated to the petitioners. The documents prepared by the petitioners pursuant to the selection for training to M.H.W. Course are duly Page 3 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined annexed at Annexure - D colly., page 21.
3.2 To utter shock and surprise of the petitioners, a fresh advertisement dated 08.04.2012 was issued in 'AKILA' newspaper for Walk-in-Interview of M.H.W. Course, which is duly produced at page 48, Annexure - E to the petition, which included the names of the petitioners amongst the 11 candidates who were selected and whose names figured in the select list pursuant to the earlier advertisement published on 16.01.2012. The said advertisement dated 08.04.2012 provides for minimum educational qualification of Std.12 (HSC) pass and over and above the earlier qualifications, the candidates were required to possess knowledge in computer as provided in Clause- 4 of the said advertisement and that, the earlier advertisement dated 16.01.2012 was cancelled in light of the Government Resolution dated 17.02.2009 which provides for minimum qualification of Std.12 (HSC) pass in any stream or passing of equivalent examination for being eligible and undergoing for the said Course.
3.3 The petitioners remained present in the Walk-in-Interview held on 12.04.2012. A fresh selection list which was prepared by the respondent No.2 on 13.04.2012 did not include the Page 4 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined petitioners names though, the petitioners were having more percentage than some of the selected candidates and the petitioners were earlier selected by the respondent No.2 himself.
3.4 The date of birth of the petitioner No.1 is 01.08.1991 and possesses the educational qualification of Std.12 pass with 54.57% in general stream and also possesses basic knowledge of computer. The date of birth of the petitioner No.2 is 21.01.1994 and possesses the educational qualification of Std.12 pass with 56.14% in general stream and also possesses basic knowledge of computer. Both the petitioners are permanent residents of District : Rajkot.
3.5 It is the case of the petitioners that the petitioners herein meet with the qualifying criteria of the 2 nd advertisement also. In absence of any reasons assigned in the select list dated 13.04.2012, the petitioner No.1 applied for information under the Right to Information Act which was replied to by the respondent No.2 by communication dated 11.06.2012 wherein, it was informed that the petitioners were not selected as they did not fulfill the criteria of the Government Resolution dated 17.02.2009. A copy of the Rojkam dated 12.04.2012 was Page 5 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined provided to the petitioner No.1 which is duly produced at Annexure - G to the petition.
3.6 Being aggrieved and dissatisfied by the selection process dated 12.04.2012 and the selection list dated 13.04.2012 as also, being aggrieved by non-selection to the course of M.H.W., the petitioners herein are constrained to invoke Article 226 of the Constitution of India and have prayed for the reliefs as referred above.
4. Mr. Pradeep Patel, learned advocate appearing for the petitioners herein relied on the facts, as referred above, and submitted that the petitioners herein complied with the qualifying criteria as issued in the first advertisement dated 16.01.2012 duly produced at page 19 and the second advertisement dated 08.04.2012 duly produced at page 48. Both the advertisements were published in the leading daily newspaper 'AKILA'. It is submitted that both the petitioners have passed Std.12 examination as referred above and have also undergone certificate course in Computer and the certificates of the petitioners dated 15.02.2011 are duly produced at pages 78 and 79 to the petition. It is submitted that admittedly, the said certificates are prior to the issuance Page 6 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined of the first advertisement itself dated 16.01.2012 and the petitioners herein complied with the criteria with respect to both the advertisement and the Government Resolution dated 17.02.2009 pursuant to which, the second advertisement came to be issued. It is submitted that once the first advertisement having been issued, it is not open for the respondent authorities to change the Rules of the game. It is submitted that the Government Resolution came into effect from 17.02.2009 which is duly produced at Annexure - F to the petition. Placing reliance on the aforesaid submissions, it is submitted that the prayers as prayed for in the present petition be allowed.
4.1 Mr. Patel, learned advocate submitted that the respondent authorities have erred in not considering the certificates held by the petitioners. It is also submitted that the petitioners have produced all the documents at the training centre as per Rule 8 (page 51) on the day of reporting. This aspect was also clarified in the order dated 13.04.2012 issued in favour of the private respondents and therefore, the candidature of the petitioners could not have been rejected. It is submitted that the petitioners gathered knowledge that one Page 7 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined Shri Yusuf Miraji, a member of selection committee was influenced by one Shri Ali Vali, Ex-Sarpanch of Village : Tithva and on his recommendation, candidates at serial Nos.7 to 10 have been selected for training to M.H.W. Course. Under such circumstances, the said selection list is vitiated. It is submitted that even otherwise, the entire selection process is not fair and transparent and the select list is not as per the provisions of the Government Resolution dated 17.02.2009. It is submitted that all the 11 selected candidates were called for Walk-in- Interview pursuant to the advertisement dated 08.04.2012. Out of those 11 selected candidates, 4 candidates out of the earlier select list were selected however, the remaining 7 candidates were selected though their names were not included in the advertisement dated 08.04.2012. It is submitted that those who are selected, are even less qualified that the petitioners herein. It is submitted that the aforesaid exercise undertaken by the respondent authorities is non-est in eye of law.
4.2 Mr. Patel, learned advocate submitted that though the petitioners were holding the certificates in Computer, the same was not considered by the respondent authorities and nothing Page 8 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined is on record to show that the petitioners were not holding such certificates. In light of the aforesaid, it is submitted that the impugned exercise undertaken by the respondent authority is required to be quashed and set aside and the prayers as prayed for in the present petition are such that the same are required to be allowed.
5. Mr. Rajesh Chauhan, learned advocate for Mr. H.S. Munshaw, learned advocate appearing for the respondent Nos.2, 3, 15 and 16 relied on the affidavit-in-reply which is filed at page 59 and submitted that no interference is called for in the selection of the private respondents; the process of the same having been undertaken in accordance with the Government Resolution dated 17.02.2009. Placing reliance on paragraph 2 of the reply, it is submitted that the petitioners herein in their respective applications neither mentioned that they possess the qualification/knowledge of computer nor they attached any certificate showing their qualifications in Computer Science. It is submitted that even during the Walk- in-Interview held on 12.04.2012, the petitioners failed to produce such certificates and in view thereof, their names were not included for the training. Reliance is placed on the Page 9 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined select list which is produced at page 74 to the petition. 5.1 Mr. Chauhan, learned advocate submitted that the earlier select list was not in accordance with the Government Resolution dated 17.02.2009 which provides for minimum qualification of Std.12 pass and also provides for knowledge in Computer Science. The 2nd advertisement came to be issued on 08.04.2012 duly produced at page 48 wherein, the petitioners herein not qualifying with the criteria as per the Government Resolution dated 17.02.2009, the petitioners were rightly not included in the select list for training course of M.H.W. (Male). It is submitted that the prayers as prayed for be denied and the petition be dismissed.
6. Mr. Pradeep Patel, learned advocate appearing for the petitioners herein reiterated the contentions raised earlier and relied on the affidavit-in-rejoinder which is duly placed on record at page 76 wherein, the computer certificates are duly produced at pages 78 and 79. It is also submitted that the 2 nd advertisement provides for the petitioners to appear in the Walk-in-Interview and that, the said 2nd advertisement never provided for filling up form. Further, the 1 st advertisement never provided for the requirement of the computer certificate Page 10 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined and therefore, the petitioners herein never produced the same with their application. It is submitted that the certificate was required to be produced on the 2 nd day of the interview. It is submitted that the competent authority orally asked the petitioners whether they possess the knowledge of operating Computer and it was answered in affirmative and also handed over Xerox copy of the certificate issued by the competent authority. Both the certificates are duly annexed at Annexure - A colly to the affidavit-in-rejoinder, page s 78 and 79. It is submitted that with a view to do undue favour to the other selectees, during the Walk-in-Interview, it was opined that the petitioners do not possess the knowledge of computer. It is reiterated that the aforesaid exercise is undertaken to favour the private respondents. It is submitted that it is not open for the respondent authorities to hold that the petitioners have failed at every stage to point out that they are holding a necessary qualification in computer science and hence, they are kept out of the select list though, the petitioners were higher in merits compared to the other candidates. It is submitted that the prayers as prayed for be allowed, the petitioners being satisfying all the requisite criteria of both the advertisement dated 16.01.2012 and 08.04.2012 as also, the Page 11 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined Government Resolution dated 17.02.2009.
6.1 Reliance is also placed on the ratio laid down by the Hon'ble Apex Court in case of Tej Prakash Pathak & Ors. vs. Rajasthan High Court & Ors., reported in 2024 SCC Online SC 3184 wherein, it is held that the rules of the game cannot be changed either mid-stream or after the game is played. In the facts of the present case, the petitioners having undergone the process of applying through the advertisement being regular process, it is not open for the competent authority to deny the petitioners the reliefs as prayed for.
Analysis:-
7. Having heard the learned advocates appearing for the respective parties and the facts as narrated above, it emerges that the petitioner No.1 born on 01.08.1991 is a permanent resident of District : Rajkot and has secured 54.57% in General Stream in Std.12 and also, has basic knowledge of computer and a certificate bearing registration No.82929 to the said effect is duly produced at page 78 issued by the All India Computer Saksharta Mission dated 15.02.2011 wherein, it is stated that the petitioner has undergone training from Page 12 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined 01.11.2010 to 31.01.2011 having passed Grade - A in the Course on Computer Concept (CCC).
7.1 The petitioner No.2 born on 21.01.1994 is a permanent resident of District : Rajkot and has secured 56.14% in General Stream in Std.12 and also, has basic knowledge of computer and a certificate bearing registration No.82930 to the said effect is duly produced at page 79 issued by the All India Computer Saksharta Mission dated 15.02.2011 wherein, it is stated that the petitioner has undergone training from 01.11.2010 to 31.01.2011 having passed Grade - A in the Course on Computer Concept (CCC).
8. The respondent No.2 herein has with the affidavit-in-reply produced on record the select list dated 12.04.2012. On perusal of the said select list, it emerges that the petitioners herein are higher up in the said select list compared to other respondents i.e. respondent Nos.2, 21, 18, 11, 17 and 16 however, are disqualified for the reason that the petitioners do not possess knowledge in computer.
9. Upon perusal of the aforesaid, it is not in dispute that the petitioners applied pursuant to the first advertisement dated Page 13 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined 16.01.2012 which, never included a certificate in computer. Further, though the qualifying criteria was only SSC pass, the petitioners herein were HSC pass and therefore, they have produced their marksheet of Std.12 along with the said application. In the second advertisement dated 08.04.2012 duly produced at page 48, only provided that the petitioners were required to appear in the Walk-in-Interview that was to be held on 12.04.2012at 10:00 am in light of the Government Resolution dated 17.02.2009 for which, the qualifications are; (1) The candidate must have passed H.S.C. (Standard - 12) examination in any stream; (2) The candidate who has passed H.S.C. in science stream shall be given priority in admission; (3) The age of the candidate shall not be less than 17 years and more than 22 years as on 12/01/12; (4) The candidate should have the knowledge of computer.
10. In view thereof, the contention of the respondent authority that the petitioners had not placed on record the computer certificate is out of question considering the fact that it was never forming a part of the requirement of the advertisement dated 16.01.2012. When the petitioners appeared in Walk-in-Interview and were asked if they possess Page 14 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined a computer certificate, it was answered in 'yes' and Xerox copy was also handed over to the authority. However, though the petitioners are in possession of such certificate, the names of the petitioners did not figure in the select list on the ground that the petitioners do not have computer knowledge though the petitioners are in merit.
11. Considering the aforesaid, in the opinion of this Court, the petitioners herein have accepted the second advertisement dated 08.04.2012 which is duly produced at page 48, the petitioners are required to comply with the terms of the said advertisement which is also in-consonance with the Government Resolution dated 17.02.2009 and in view thereof, this Court is not entering into the aspect whether it was open for the respondent authorities to cancel the first advertisement. However, undisputedly, the petitioners were called for Walk-in-Interview having being on the select list of the first advertisement, which was cancelled. Upon perusal of the documents on record, it emerges that the petitioners have passed Std.12 examination with General Stream and are in possession of the computer certificate as provided in the second advertisement. Nothing is coming on record from the Page 15 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined affidavit in reply of the respondent authorities denying the aforesaid contention. The respondent authority has failed to counter the affidavit-in-rejoinder which is filed by Mr. Pradeep Patel, learned advocate appearing for the petitioners. In light of the aforesaid, the certificates which are produced at pages 78 and 79 of the petitioner Nos.1 and 2 respectively, are such that the same are required to be considered.
12. At this stage, it is apposite to refer to the ratio laid down by the Hon'ble Apex Court in case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh, reported in AIR 2021 SC 2114. Paragraph 27 of the said decision reads thus:
"27. The principles of law which emerge are that :
(I) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the Page 16 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025 NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
13. In view of the aforesaid facts and the position of law, as referred above, this is fit case to exercise extra-ordinary jurisdiction under Article 226 of the Constitution of India. The respondent authority is directed to consider the case of the petitioners for training as Multipurpose Health Worker (Male) taking into consideration the marksheets of Std.12 General Stream of the petitioners herein wherein, the petitioner No.1 has secured 54.57% and the petitioner No.2 has secured 56.14% and the computer certificates produced on record by the petitioners herein; upon due verification and include the names of the petitioners in the select list of trainees to M.H.W. Course held by the District Panchayat, Rajkot, dated 13.04.2012 in accordance with the inter-se merit. The aforesaid exercise is directed to be undertaken within a period of two weeks from the receipt of this order. If the petitioners are found fit for the aforesaid, consequential orders be passed within a period of one week thereafter.
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NEUTRAL CITATION C/SCA/9602/2012 JUDGMENT DATED: 27/01/2025 undefined
14. With the aforesaid directions, the present petition is allowed. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J) NEHA Page 18 of 18 Uploaded by NEHA PRAJAPATI(HC01404) on Mon Feb 10 2025 Downloaded on : Sat Feb 15 00:31:20 IST 2025