Gujarat High Court
Sanjay Babulal Baraiya vs State Of Gujarat on 14 July, 2025
NEUTRAL CITATION
C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025
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Reserved On : 02/07/2025
Pronounced On : 14/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11592 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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SANJAY BABULAL BARAIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR HENIL SHAH, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
RULE SERVED for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. This petition is filed for the following prayers:
"27(A) Your Lordships may be pleased to issue a writ of Mandamus or a writ in nature of Mandamus or any other appropriate writ/s, order/s, and/or direction/s directing the respondent Nos.1 to 3 to appoint the petitioner on the post of Panchayat Sahayak within the stipulated time as may be fixed by this Honourable Court.Page 1 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025
NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined (B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant ad-interim/ interim relief directing the respondent Nos.1 to 3 to consider the case of the petitioner for the appointment of the petitioner on the post of Panchayat Sahayak keeping in mind the birth date of the petitioner.
(C) xxxx"
2. The facts leading to filing of this petition are such that the respondent no.2, under the scheme of respondent no.1, issued a public advertisement dated 9.11.2003 inviting applications for selection and appointment for the post of Panchayat Sahayak with fixed monthly salary of Rs.2,500/-, in which there were certain reserve category for the candidates like Scheduled Castes and Scheduled Tribes, Socially and Educationally Backward Castes, Physically Handicapped, Retired Army Man etc. and relaxation upto 5 years has also been given to the candidates of reserve category; that the petitioner applied for the said post on 3.12.2003 and again on 12.3.2003 alongwith the necessary documents; the documents were verified by the Taluka Development Officer based on the letter of the District Development Officer; that the interview was conducted on 23.2.2004 and as the petitioner did not receive any communication, he made inquiry and on inquiry found that the respondent no.4 Page 2 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined herein- Mansukh Jadav was selected who also belongs to Socially and Educationally Backward Class and is having same merit i.e. 84.86% as that of the petitioner and that though the petitioner was elder to said Mansukhbhai, he was not selected; that the petitioner wrote a letter to the respondent nos.1 to 3 authorities on 24.2.2004, however, there was no response to the same; that the petitioner, respondent nos.4 and 5 stood at sr.no.116 (sr.no.119), 114 nd 121 respectively and without the considering the age of the candidates whose merits are equal, appointed the respondent no.4 on the post of Panchayat Sahayak vide order dated 21.2.2004; therefore the respondent no.5 who is elder than the respondent no.4 is not appointed, the respondent no.5 filed a Regular Civil Suit No.120 of 2004 in the court of learned Civil Judge at Bhavnagar for a declaration that he is entitled to be selected and appointed on the post of Panchayat Sahayak considering his age joining the respondent nos.1,2 and 4 herein as defendants; and the said suit was partly decreed vide order dated 26.10.2007 and the plaintiff therein-respondent no.5 herein was ordered to be appointed; that the petitioner is elder to the respondent no.4 and therefore, this petition is filed with the above mentioned prayers.
3. Heard learned advocates for the parties. Page 3 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025
NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined 3.1 Learned advocate Mr.Mangukiya for the petitioner mainly submitted that the respondent nos.4 and 5 secured equal merit and as per the decision of this Court rendered in Special Civil Application No.4673 of 2001 and circular issued by the Gujarat Panchayat Service Selection Board dated 19.10.1973, if selection is required to be made amongst the candidates possessing equal merits, the person older in age should be selected; that the date of birth of the petitioner is 21.2.1983, the date of birth of respondent no.4-Mansukhbhai Jadav is 7.8.1983, and the date of birth of respondent no.5- Narendrabhai Bhagatbai Rathod is 9.7.1981 and therefore, it is clear that the petitioner is elder to respondent no.4 and therefore he should be appointed, which is not done and the respondent no.4 is appointed by the respondents-authorities; that the respondent no.5 approached the civil court for appointment on the same ground as he is elder to respondent no.4 and the civil court directed the respondent authorities to appoint respondent no.5 herein and therefore, the petitioner who is also elder to respondent no.4 should be appointed. He, therefore, prayed that this petition be allowed and the respondents authorities be directed to appoint the petitioner on the post of Panchayat Sahayak.
3.2 In support of this submissions, learned advocate for the petitioner has relied on the following decisions: Page 4 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025
NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined (1) Raju Ramdebhai Khunt V/s Director General and Inspector General of Police, Gujarat State and Ors, decided on 13.2.2025 passed in Special Civil Application Nos.19954 of 2022 and allied matters.
(2) Sonalben Bhaurao Saindave V/s State of Gujarat & Anr., dated 17.4.2025 passed in Special Civil Application No.20657 of 2022.
(3) Desai Jitendra Jivanbhai V/s State of Gujarat & Ors. Of the Hon'ble Apex Court dated 22.10.2024 passed in civil appeal arising from SLP(C) No.9199 of 2024.
4. Per contra, learned advocate Mr.Munshaw for respondent nos.2 and 3-the contesting respondents, has submitted that the advertisement for the post of 56 Panchayat Sahayaks was published by the Gujarat Panchayat Service Selection Board on 19.11.2003, out of which 15 posts were to be filled up through SEBC category candidates; for th the 15 post, in all three candidates placed at sr.no.114, 116 and 121 of the select list had secured identical marks; the respondent no.4 was selected for the said post and accordingly all the 15 posts were filled up; that when the civil court passed the order of appointing respondent no.5 in Page 5 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined the civil suit filed by him, though all the 15 posts were filled up, but by way of operating the said list qua SEBC category candidate, one Ms.Alpa Ranendrabhai Kanada had not joined the service and therefore the respondent no.5 was issued appointment order as Panchayat Sahayak on 22.4.2008 on the said vacant post.
4.1 Learned advocate Mr.Munshaw further submitted that this petition suffers from delay and laches on the ground that the select list is operated and all the appointments are made on 21.2.2004 and the life of the select list, which is one year, had expired as per the government resolution dated 12.6.1989; that the present petitioner had made representation in the year 2004 for his appointment which was replied on 19.3.2004 and after nearly five years of the same, this petition is filed; that the Government of Gujarat, though its Panchayat and Rural Housing Department has laid down through Government Resolution dated 12.6.1989 that the life of the list is one year from the date of publication of select list or publication of the result of next advertisement, whichever is earlier; the period of one year has already expired in this case and therefore as the list is not operative, the petitioner cannot get any benefit either on facts as well as on the basis of Government Resolution dated 12.6.1989. He, therefore, Page 6 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined submitted that this petition is not required to be allowed. 4.2 He relied on the following decision in support of the submissions:
(1) Chairman/Managing Director, Uttar Pradesh Power Corporation Limited and Others V/s Ram Gopal reported in 2021(13) SCC 225.
4.3 Learned AGP Mr.Shah has submitted that the advertisement is issued by the Gujarat Panchayat Selection Board, and therefore the respondent nos.2 and 3 are the contesting respondents. However, he submitted that the petitioner approached this Court after a period of about four years of the declaration of the result and therefore, this petition is required to be dismissed on the ground of delay and laches.
4.4 Though served, respondent nos.4 and 5 have not filed their appearance.
4.5 In rejoinder to the said submissions made by learned advocate Mr.Munshaw for the respondent nos.2 and 3, learned advocate Mr.Mangukiya for the petitioner has submitted that though the petitioner is elder than the Page 7 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined respondent no.4, the respondent authority illegally and arbitrarily not appointed the petitioner and therefore, now the respondent authority cannot take a stand that the list is expired and the list has expired on account of the fault, mistake and action of the respondent; that the respondent no.5 is appointed in the year 2008 and therefore the bar as per the resolution dated 12.6.1989 would not come in the way of the appointment of the petitioner. He, therefore, prayed to allow this petition.
5. I have heard the learned advocates for the parties and also perused the material on record.
6. The undisputed facts are that the advertisement is issued on 19.11.2003; the appointments were made on 21.2.2004; the respondent no.5 approached the civil court on 1.3.2004 i.e. within less than 15 days from the date of appointments being made on 21.2.2004; the respondent no.5 was given appointment in the year 2008 pursuant to the judgment passed by the civil Court on 26.10.2007; this petition is filed in the year 2008. Considering the date of births of the petitioner and respondent nos.4 and 5 which are 21.2.1983, 7.8.1983 and 9.7.1981 respectively, the petitioner is elder to respondent no.5; that according to the circular issued by the Gujarat Panchayat Service Selection Board on Page 8 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined 19.10.1973, if a selection is required to be made amongst the candidates possessing equal merits, the person older in age is required to be appointed. Be that as it may. The fact remains that the advertisement is issued in the year 2003, the appointments are made in 2004 and this petition is filed in the year 2008 i.e. after a delay of four years, which remains unexplained satisfactorily. As per the Government Resolution dated 12.6.1989, the select list is operative for one year i.e. it expired in the year 2005 itself and the petitioner filed this petition after three years of the expiry of the said list and when the list itself is not in existence on the date of filing the petition, the petitioner is not entitled to get any relief as prayed for.
7. In this regard, a reference to the judgment of the Hon'ble Supreme Court relied on by learned advocate for respondents in the case of Ram Gopal (supra), would be helpful. It is observed and held in paragraph 11 as under :
"11. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and the writ courts naturally ought to be Page 9 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists......."
8. There cannot be any dispute with regard to the decisions relied on by learned advocate for the petitioner, however, the facts of the present case are different to the facts of those cases and therefore will not be helpful to the petitioner. In the case on hand, it is not that the petitioner approached this Court in time to agitate his grievances and the matter is delayed because of the pendency before this Court. The petitioner himself has filed this petition after a delay of four years from the date of appointments to others and after a delay of three years from the date of expiry of the select list. Therefore, when the petitioner himself was not vigilant and allowed the illegalities to fester, this Court cannot grant any relief to the petitioner.
9. As regards the contention that the respondent no.5 was given appointment in the year 2008 and therefore the bar of resolution dated 12.6.1989 would not apply and that the select list cannot be said to be expired, the same cannot Page 10 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025 NEUTRAL CITATION C/SCA/11592/2008 CAV JUDGMENT DATED: 14/07/2025 undefined be accepted in view of the fact that the appointments were made on 21.2.2004 and the respondent no.5 immediately approached the Court for getting relief i.e. on 1.3.2004, as can be seen from the judgment of the civil Court passed in Regular Civil Suit No.120 of 2004, which copy of annexed with the petition. The said was decided in the year 2007 and as the respondent no.5 succeeded, the appointment was given to him in the year 2008. It is not that the respondents gave the appointment on their own to the respondent no.4 in the year 2008. Therefore, this contention of the learned advocate for the petitioner cannot be accepted.
10. In view of the above discussion, as the petitioner was sleeping for four years, suddenly he awakened from slumber in the year 2008, filed this petition, and in the meanwhile, the select list has expired as per the government resolution, no relief can be granted to the petitioner as prayed for. Accordingly, this petition is required to be dismissed and dismissed. Rule is discharged. No order as to costs.
(SANDEEP N. BHATT,J) SRILATHA Page 11 of 11 Uploaded by U. SRILATHA(HC00185) on Mon Jul 14 2025 Downloaded on : Mon Jul 14 22:47:08 IST 2025