Parmar Bhavnaben Narvatbhai vs State Of Gujarat
2021 Latest Caselaw 15802 Guj

    C/SCA/12432/2016                                     JUDGMENT DATED: 07/10/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 12432 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
==========================================================
1     Whether Reporters of Local Papers may be allowed                        No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                 Yes

3     Whether their Lordships wish to see the fair copy                       No
      of the judgment ?

4     Whether this case involves a substantial question                       No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       PARMAR BHAVNABEN NARVATBHAI
                                   Versus
                         STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1
MR.ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3
RULE SERVED(64) for the Respondent(s) No. 4,5
==========================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 07/10/2021
                                ORAL JUDGMENT

[1] In the present writ petition, the petitioner has challenged appointment letter dated 10.06.2016 issued in favour of the respondent appointing her on the post of coordinator-cum- cook. By the order dated 27.07.2016, this Court has granted ad-interim relief to the effect that the appointment order in favour of the respondent no.5 shall be subject to final orders, which may be passed in the writ petition.

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

[2] On 06.02.2019, the Court has specifically observed that the respondent no.5 though served, has chosen not to appear before this Court and a last chance was given. Today, when the matter is taken up for hearing, the respondent no.5 is not represented by anyone.

[3] The short facts of the present petition are that the petitioner as well as the respondent no.5 applied to the post of coordinator-cum-cook as per advertisement dated 11.05.2016. The said advertisement mentioned specific criteria, which reads as under:-

1. That the post was for woman candidate

2. That the candidate must have cleared SSC examination.

       3.    That    the    candidate             must       be       a      local
              resident.

4. That any person who has a job in Central Government or State Government or in any Panchayat or Anganwadi which is a public undertaking of the Central or State Government or is holding any honorary post then, his wife/husband, respectively, son/daughter/dependent would not be entitled for recruitment.

[4] Accordingly, the petitioner and respondent no.5 applied for the aforesaid post and the

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

respondent no.5 was selected whereas the petitioner was not selected.

[5] Learned advocate Mr.Darshan Dave for the petitioner has submitted that though the petitioner has secured more percentage in SSC examination and she is also local resident, the respondent no.5 has been appointed de hors the provision of advertisement. He has submitted that the respondent no.5 does not fulfill the condition no.2 as well as the condition no.8 as specified in the advertisement, which read as under:-

2. The person appointed as administrator in this selection should have studied up to SSC and should be a native of the same village, but if such a person is not found in the village, the person who has passed Std-7 can be appointed as an administrator, but must be a native of that village.

8. Employees, spouses, sons, daughters or dependents of employees who are on full or part time duty in a Panchayat or Anganwadi or 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.

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

[5.1] He has submitted that the respondent no.5 is not a local resident of the village and hence, in violation of the aforesaid condition mentioned in the advertisement, the respondent no.3 - Mamlatdar, Panchmahal issued an order appointing the respondent no.5. In support of his submissions, learned advocate Mr.Darshan Dave has placed reliance on the judgment passed in the case of Sanjay K. Dixit vs. State of Uttar Pradesh and others reported in 2019 (17) SCC 373. He has also placed reliance on the judgment of the Supreme Court in the case of Bedanga Talukdar vs. Saifudaullah Khan reported in AIR 2012 SC 1803.

[6] Learned AGP Mr.Rohan Shah by placing reliance on the affidavit filed on behalf of the respondent no.3 has submitted that after the recruitment process, when it was found that the respondent no.5 was having higher qualification of Sy.B.A. and hence, she was selected as coordinator-cum-cook in the Mid-Day Meal Scheme Centre No.29, Village Mora, District Panchmahal. He has placed reliance on the Government Resolution dated 18.05.2011 and has submitted that the petitioner can approach Deputy Collector under the provision of Government Resolution dated 18.05.2011, in case of any grievance.

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

[6.1] It is submitted that the respondent no.5 is married to Bhaveshbhai P. Panda, who is resident of village Mora and therefore after marriage with the respondent no.5, she can be said to have been residing with the husband at the said village and the name is also mentioned in the ration card and hence, it cannot be said that she is not the resident of that village.

[7] Heard the learned advocates appearing for the respective parties to the lis.

[8] The facts as stated herein above are not in dispute. The advertisement dated 11.05.2016 issued by the respondent authorities for filling up the post of coordinator-cum-cook prescribes 22 conditions out of which the condition nos.2 and 8 are relevant to decide the controversy raised in the present petition. The condition no.2 specifically states that candidate must have passed SSC and if such a person is not found in the village, the person who has passed Std-7 can be appointed as administrator, but he/she must be a native of that village, whereas the condition no.8 specifically states that husband/wife, son/daughter or dependent of employees, who are on full or part time duty in a Panchayat or Anganwadi or on any honorarium under a public enterprise under the jurisdiction of the State

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

Government or the Central Government and the State Government or the Central Government shall not be appointed.

[9] Thus, the condition no.2 specifically states that the candidate must be SSC pass and must be resident of same village. Unquestionably, the respondent authorities have appointed respondent no.5 for the reasons that she is having higher qualification of Sy.B.A., though the petitioner is having more percentage in SSC exam. It is not in dispute that the petitioner has secured 68.49% in S.S.C whereas the respondent no.5 has secured 63.6%.

[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,

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

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.

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 selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot 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. In the present case, the law enunciated by the

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

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%, whereas the respondent no.5 is having 63.60%. Thus, the respondent 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, the case of the respondent authority is taken as true and the respondent no.5 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.

C/SCA/12432/2016 JUDGMENT DATED: 07/10/2021

[13] The submissions advanced by learned AGP for availing an alternative remedy as prescribed in the Government Resolution dated 18.05.2011 does not merit acceptance, as a bare reading of the aforesaid Government Resolution would clarify that the same does not in any manner reflect that an employee has to approach the Deputy Collector with regard to any issue concerning his or her non-appointment or termination or on any other issue relating to their service conditions.

[14] In light of the foregoing reasons, the appointment of the respondent no.5 is hereby quashed and set aside. The respondent authority is directed to appoint the petitioner to the post of coordinator-cum-cook in place of respondent no.5. It is further directed that her date of appointment, seniority and all other consequential benefits shall be granted from the date of appointment of respondent no.5 Necessary order in terms of directions of this Court shall be passed within a period of four weeks from the date of receipt of this order.

[15] With the aforesaid directions, the present writ petition is disposed of. Rule is made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) NABILA A. VHORA