Gujarat High Court
Ms. Sonal Buddhiprasad Mehta vs State Of Gujarat on 5 April, 2021
Bench: Vineet Kothari, Biren Vaishnav
C/SCA/7915/2020 ORDER DT. 5.4.21
IBRAHIM MALEK SARDAR v. STATE OF GUJARAT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7915 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13458 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13631 of 2020
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IBRAHIM MALEK SARDAR
Versus
STATE OF GUJARAT
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Appearance:
MR K.B. PUJARA, Counsel for the Petitioner(s) No. 1
MR K.M. ANTANI, Assistant Government Pleader for the Respondent(s) No. 1
MR SHALIN MEHTA, Senior Counsel with MR HEMANG M SHAH for
Respondent No. 2
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/04/2021
ORAL ORDER
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Mr. Shalin Mehta, learned Senior Counsel for the Respondent High
Court, after reading paras 15 and 16 of the Committee Decision dated
21.9.2020 (pages 143, 144 of the Paper Book) and subsequent Affidavit
filed by the Respondent High Court dated 31.3.2021 drew the attention of
the Court towards the interim order passed by the Hon'ble Supreme Court
on 3.12.2019 in IA No.93974 of 2019 filed by Registrar General of
Kolkata High Court for seeking clarification / direction (pages 185 to 188
of the Paper Book).
C/SCA/7915/2020 ORDER DT. 5.4.21
IBRAHIM MALEK SARDAR v. STATE OF GUJARAT
2. He prays for some more time to clarify as to whether the cases of
the present Petitioners, who were at Sr.Nos.95, 96 and 97 as per para 2.2
of the petition itself, were at all considered against 65% quota of
promotion to the post of District Judges.
3. Though, he has submitted that two of these Petitioners appeared in
the Limited Competitive Examination for 10% quota also namely,
Ms.Arzoo R. Tapiawala, and Mr. M.Y. Radhanpurwala and could not
clear the said examination of 10% quota and one of the Petitioners
Ms.Trupti H. Dave remained absent in the main written examination and
thus having tried their luck in that category, they wanted to revert and
seek their promotion of 65% quota, which they cannot be permitted to do
so.
4. On the other hand, Mr. K.B. Pujara, learned counsel for the
Petitioners has drawn our attention to the judgment of the Hon'ble
Supreme Court in the case of All India Judges' Association vs. Union of
India [(2010) 15 SC 170], particularly paras 7 to 9 (pages 66 & 67 of the
Paper Book) and has submitted that the Hon'ble Supreme Court has
categorically directed that if the post of 10% is not filled up, then such
posts shall be filled up by regular promotion from other persons in 65%
category. He has further submitted that the Gujarat Rules were
accordingly amended vide Notification dated 23.6.2011 (page 135,
C/SCA/7915/2020 ORDER DT. 5.4.21
IBRAHIM MALEK SARDAR v. STATE OF GUJARAT
Annexure-T) and therefore, the Proviso to Clause (ii) of Sub-Rule (1) of
Rule 5 has to be given effect and the present Petitioners' cases deserve to
be considered against 65% quota vacancies for the year 2019.
5. He further submitted that since not a single candidate could clear
the examination fo 10% limited competitive examination in 2019 process
and thus 14 posts were available in this category of 10%, therefore, if the
Proviso was given effect to, the present Petitioners can be considered
against 65% quota persons to fill up such vacancies. He further
submitted that only candidate upto Sr.No.92 in the list of Senior Civil
Judge was considered in the said process 65% quota. Therefore, if the
Proviso was given effect to, the Petitioenrs could be considered 10%
quota seats to be filled by 65% quota candidates.
6. Upon hearing learned counsels and perusal of the aforesaid
documents, since it is not clear as to whether the present Petitioners at
Sr.Nos.95, 96 and 97 were really considered in the said process against
65% quota in the criteria of merit-cum-seniority in 2019 selection process
or not as only candidates upto Sr.No.92 were called, Mr. Shalin Mehta,
Senior Counsel may file Additional Affidavit as prayed for by him.
7. In view of the order passed by the Hon'ble Supreme Court in IA
No.93974 of 2019 on 3.12.2019 as noted above, the Court may also like
C/SCA/7915/2020 ORDER DT. 5.4.21
IBRAHIM MALEK SARDAR v. STATE OF GUJARAT
to wait for the decision of the Hon'ble Supreme Court in the aforesaid IA
No.93974 of 2019 referring the matter to Three-Judges Bench of Hon'ble
Supreme Court for giving clarification on the issues raised in the said IA
filed by the Registrar General of Calcutta High Court on the questions
quoted in the said order of the Hon'ble Supreme Court.
8. In view of the aforesaid, list the matter again on 5.5.2021.
(DR. VINEET KOTHARI, J)
(BIREN VAISHNAV, J)
Bharat
