Yogesh Nandlalbhai Barad vs State Of Gujarat
2021 Latest Caselaw 3911 Guj

         C/SCA/16316/2020                                       IA ORDER




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


               CIVIL APPLICATION (DIRECTION) NO. 1 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 16316 of 2020
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YOGESH NANDLALBHAI BARAD Versus STATE OF GUJARAT ========================================================== Appearance:

MR VAIBHAV A VYAS for the PETITIONER.

MR MEET THAKKAR, AGP for the Respondent No.1-State, MS ROOPAL PATEL for the Respondent No.2-GPSC. ==========================================================

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 08/03/2021

IA ORDER

1. This Civil Application is filed for the purpose of seeking following reliefs :­

"(A) Direct the respondent authorities to permit the applicant to participate in the main examination for appointment to the post of Gujarat Administrative Service Class-I, Gujarat Civil Service Class-I and II and Gujarat State Municipal Chief Officers' Service, Class-II, in connection with the advertisement No:10/2019­20 in the interest of justice, and

(B) Pending admission and final disposal of this application, the Honourable Court may be pleased to direct the respondent authorities to permit the applicant to participate in the main examination for appointment to the post of Gujarat Administrative Service Class-I, Gujarat Civil Service Class-I and II and Gujarat State Municipal Chief Officers' Service, Class-II, in connection with the advertisement No:10/2019­20 in the interest of justice, and/or,

(C) Grant any other relief or pass any other order

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which the Honourable Court may consider just and proper in the facts and circumstances of the case."

2. Learned advocate Mr. Vaibhav Vyas appearing on behalf of the applicant - original petitioner has submitted that during the pendency of the main petition, the applicant may be permitted to appear in the examination to be conducted by the respondent authority for the posts of Gujarat Administrative Service Class-I, Gujarat Civil Service Class-I and II and Gujarat State Municipal Chief Officers' Service, Class-II. According to the applicant, he is otherwise eligible and meritorious candidate belonging to physically handicapped category and on the basis of such assertion, the Court was pleased to issue notice in the main petition on 23.12.2020 and made it returnable on 27.01.2021 and by that time, the respondent - Gujarat Public Service Commission had scheduled for main examination for appointment to the said posts in question from 14.02.2021, 16.02.2021 and 18.02.2021. The said schedule of main examination was prescribed vide publication dated 05.01.2021 which is attached to the application's compilation. For seeking such relief, learned advocate Mr. Vaibhav Vyas appearing for the applicant has relied upon two orders passed by the Coordinate Bench of this Court, which are attached to the application's compilation (i) Order dated 22.11.2019 passed in Civil Application No. 1 of 2019 in Special Civil Application No. 15964 of 2019 and (ii) Order dated 22.01.2021 passed in Special Civil Application No. 13454 of 2020 and later on, submitted that the same order be passed with respect to the present applicant and he may be permitted to appear in the examination during the pendency of the main proceedings by giving similar treatment.

3. In response to the submissions made by learned advocate Mr. Vyas, on behalf of the respondent authority, learned advocate Ms. Roopal Patel appearing on advanced copy, who has received

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instructions to appear, has submitted that the applicant is otherwise not eligible to appear in the main examination and apart from that, the original date which was already fixed for submission of on­line application was 23.01.2020 and thereafter, on account of prevailing situation, even the revised schedule of submission of on­line application was prescribed by the authority and the date was fixed as 11.11.2020. Learned advocate Ms. Patel has drawn the attention of this Court that the applicant has presented the petition only on 17.12.2020 before this Court which is much after the date of revised schedule for submission of on­line application. It has been contended that if this be allowed, then there would be several candidates coming forward with such kind of request which would unsettle the process of recruitment. It has been contended that almost similar situation had arisen in past and the issue was dealt with by the Division Bench of this Court in two orders (i) Order dated 09.05.2019 passed in Letters Patent Appeal No. 992 of 2019 in Special Civil Application No. 6856 of 2019 with Civil Application (for Stay) No. 1 of 2019 in Letters Patent Appeal NO. 992 of 2019 (ii) Order dated 14.09.2012 passed in Letters Patent Appeal No. 1154 of 2012 in Special Civil Application No. 11129 of 2012 with Civil Application No. 10526 of 2012 in Letters Patent Appeal No. 1154 of 2012 and after referring to the observations made by two Division Benches of this Court in similar set of circumstances, a contention is raised that no equitable relief be granted in favour of the applicant.

3.1 Learned advocate Ms. Roopal Patel has also submitted that if ultimately the applicant succeeds in the aforesaid main proceedings, then the Court may pass suitable orders or prescribe some measures to take care of the situation, but to provide a special treatment to the applicant who otherwise failed in submitting the application in time

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though was quite aware about the schedule, the same would lead to a situation whereby the process of recruitment will be hampered and as such, only on account of the fault on part of the applicant, the relief may not be extended.

4. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it appears that in the main petition, the relief had already been prayed for in paragraph 9(E), but the same was not granted by the Court at the initial stage. It has further been noticed by the Court that the applicant does not belong to a category from which he is seeking a claim of equality. Further, it appears to the Court based upon the submissions of the Gujarat Public Service Commission that the original date had already been fixed much prior to the submission of the petition itself and thereafter, even the revised schedule for submission of on­line application was also provided. The applicant has not taken care to adhere to even such revised schedule for submission of the application and this fact is not in dispute.

5. Further, it has been noticed by the Court that as per the averment of the applicant himself, the schedule of main examination for appointment to the posts in question starts from 14.02.2021, 16.02.2021 and 18.02.2021 and for that purpose, the applicant himself has not adhered to the revised schedule for submission of application form. That being the situation, which is undisputed on record, no fault can be found of the authority in not permitting the applicant to submit the form.

6. Additionally, it has categorically been observed from two decisions of this Court in respective Letters Patent Appeals which are cited herein above that if a thing is required to be done in a particular manner, then it has to be done in the same manner and in no other manner. The procedure of application could not be changed by the applicant nor such

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a change could be justified and as such, on going through the said orders which have been passed by the Division Benches of this Court, it seems that the applicant is not entitled to seek any interim relief. Since the Court has considered the observations made by two Division Benches of this Court, the relevant observations contained in judgment and order 14.09.2012 passed in Letters Patent Appeal No. 1154 of 2012 are reproduced hereunder :­

"3. An advertisement was issued for the post of Assistant Inspector of Motor Vehicles (Class - III) by the Gujarat Public Service Commission (for short 'Commission') on 13.7.2012. The only mode prescribed for applying in pursuance of the advertisement was on­ line application. The candidates were not permitted to submit an application in physical format. According to the appellant, since the on­line application of the appellant was not being accepted by the Computer since the appellant was overage and, therefore, he tried to submit an application in physical format on 20.7.2012 which was not accepted by the Commission.

5. In our opinion, the Commission rightly refused to accept the application dated 20.7.2012 of the appellant in physical format as the only mode prescribed for making an application in pursuance of the advertisement was on­line application. The procedure for application could not be changed by the appellant nor such a change could be justified. If a thing is required to be done in a particular manner, then it has to be done in the same manner and in no other manner.

6. In the instant case, the appellant has filed a writ petition on 9.8.2012, after the last date of submission of application i.e. 31.7.2012 was over. Therefore, the appellant who has applied after the last date of submission of application, in our opinion, is not entitled for any relief and his application could not be directed to be entertained by the Commission in the physical format.

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7. Learned counsel Mr. Majmudar has also urged that the date of examination is 30.9.2012 and the appellant can apply for appearing in the examination till 29.9.2012. In our opinion, this argument is misconceived as the candidate is required to apply within the time frame fixed for making an application.

8. For the aforesaid reasons, we do not find any error in the order dated 3.9.2012 passed by the learned Single Judge in Special Civil Application No.11129 of 2012. This Letters Patent Appeal is devoid of any merits and is dismissed summarily.

6.1 Yet in another decision delivered by the Division Bench on 09.05.2019 in Letters Patent Appeal No. 992 of 2019 also, the observations contained therein are relevant. Hence, the Court deems it appropriate to reproduce the same hereunder :­

"3. Taking cue from such petitioners, the present appellant approached this Court by filing the petition a day later i. e. on 03.04.2019. It is under these circumstances that the learned Single Judge refused to grant the interim relief on 05.04.2019 which is after the last date, on account of the fact that according to the learned Single Judge to extend the date of acceptance of the application forms would mean to extend and reset the time table of the Gujarat Public Service Commission. It is this order which is under challenge before us.

5. Having heard learned advocates appearing for the respective parties, what is noteworthy is that after the screening test, the total selected candidates for the purpose of main examination are 3257. Parity with petitioners of Special Civil Application No. 5239 of 2019 cannot be claimed inasmuch as those petitioners approached before the last date of the submission of application forms. Opening of window for the appellant at this stage would only result in denial of such benefit to those candidates who have not approached this

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Court. We therefore do not deem it fit to entertain this appeal at this stage.

6. Appeal is accordingly dismissed. Notice is discharged. No costs.."

7. In view of aforesaid observations which have been made by the Division Benches of this Court, the Court is not in a position to extend any relief as prayed for in the application. More so, those dates of appearing in the examination have been lapsed as on date.

8. Apart from that, as regards the contention which has been raised by learned counsel Mr. Vyas for the applicant to grant an equal treatment, having gone through two orders which have been passed and relied upon, the said orders are having a different fact situation and are not possible to be applied as strait­jacket formula. In addition to it, it has further been noticed by the Court that in the said interim orders, reference was not made to the observations made by the aforesaid Division Benches' judgments which are covering almost similar issue and further, in addition thereto, the interim order issue in a different background of fact can never be said to be a precedent in view of settled position of law. Hence, on the basis of undisputed facts prevailing on record of this application, this Court is not in a position to extend any relief as prayed for in the application.

9. In furtherance of this, the Court is also of the opinion that if the applicant succeeds in the main petition, suitable orders can always be passed for taking care of the relief prayed for by the petitioner.

10. As a result, on overall consideration of material on record and in view of the observations made by the Courts as stated above, the

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application being devoid of merits is not entertained and accordingly stands dismissed.

(ASHUTOSH J. SHASTRI, J) A.M.A. SAIYED