Karansinh Natvarsinh Bhati vs State Of Gujarat
2022 Latest Caselaw 4064 Guj

C/SCA/13118/2020                                JUDGMENT DATED: 08/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 13118 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

============================================================
                   KARANSINH NATVARSINH BHATI
                             Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
MS RATNA VORA(2251) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,11
4,115,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,1
3,130,131,132,133,134,135,136,137,138,139,14,140,141,142,143,144,1
45,146,147,148,149,15,150,151,152,153,154,155,156,157,158,159,16,1
60,161,162,163,164,165,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,
31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,
53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,
75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95,96,
97,98,99
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                   Date : 08/04/2022
                   ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant

Government Pleader waives service of notice of Rule for the

respondents.

C/SCA/13118/2020 JUDGMENT DATED: 08/04/2022

2. With the consent of the learned advocates for the respective

parties, the petition is taken up for final hearing today.

3. By way of this petition, under Article 226 of the Constitution

of India, the petitioners have prayed that they be extended the

benefits of the old pension scheme as applicable to the regular

employees appointed before the 1.4.2005.

4. The facts in brief would indicate that the petitioners are

serving at various police stations as Constables. They are

appointed in the year 2006-2007. The case of the petitioners is

that on 1.1.2004, the respondent made a policy for recruitment

to the posts of Lok Rakshak on a fixed pay of five years by

virtue of which it was decided to make recruitment to the

posts of Lok Rakshak. On 7.2.2004, an advertisement was

published by the Gujarat Subordinate Services Selection

Board for recruitment to the Lok Rakshak. Physical Tests

were conducted in May / June, 2004 and the written

examinations were held on 12.12.2004. Despite the interviews

scheduled to be held in December, 2004, the interviews could

start from March, 2006 till May, 2006. The final result was

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first published on 1.7.2006.

5. Ms. Vora, learned counsel for the petitioners would submit

that the recruitment process actually started in February, 2004

and for no fault of the petitioners, the process continued till

March / May, 2006 and pursuant to such recruitment process,

the appointment of the petitioners were made post the cut of

date of 1.4.2005 when the new pension scheme was made

applicable to post 1.4.2005 employees.

5.1. Ms. Vora would submit that had the authorities been

more vigilant in conducting the recruitment process, the

petitioners would have been appointed prior to 1.4.2005 and

because of no fault of theirs is only because the recruitment

process ended in September, 2006, the applicability of the new

pension scheme is bad. She places reliance on the decision

dated 19.2.2021 of the State of U.P. v. Mahesh Narain passed

in Special Appeal Defective Case No.117 of 2021.

6. Mr. Kurven Desai, learned AGP for the State would oppose

the petition on the basis of a reply filed by the Under

Secretary of the Home Department. He would submit that the

C/SCA/13118/2020 JUDGMENT DATED: 08/04/2022

petitioners were appointed after the cut of date of 1.4.2005

and it was on this account that the present petitioners are

covered under the New Defined Contributory Pension

Scheme. It is the case of the State that since there were 3000

candidates, their verification was an exercise which required a

sufficiently long time by virtue of which the process was

delayed. He would rely on the decision of SCA No.8832/2019

and allied matters dated 8.3.2019 and the paragraph referring

to the decision in the case of Mahesh Narain (Supra), where

the Court had upheld the action of the State in extending the

benefits of the new pension scheme.

7. Considering the submissions made by the learned counsel for

the respective parties, it is clear that the issue has been

decided by the decision of this Court in SCA No.8832 of 2019

and allied matters dated 8.3.2019. Relevant paragraphs thereof

are reproduced hereunder:

"6 Having considered the submissions made by the learned advocates for the respective parties, and on perusal of the advertisement what is evident is that the advertisement states that the General Provident Fund Scheme shall be applicable only after appointments are made. The Clause (qualifies it "in accordance with rules"). Clause 19 of the advertisement clearly stipulates that for the purposes of appointment, merit shall be considered. Merely by appearing in the examinations and being rendered successful will not give the candidate the right to appointment. The candidate selected and recommended for appointment shall be considered by the Government after due

C/SCA/13118/2020 JUDGMENT DATED: 08/04/2022

verification and in case of the Government not being satisfied the candidate shall not be appointed.

6.1 Even on reading the notifications dated 30.10.2004 and 01.09.2004, what is evident is that the candidates who had appeared for the combined competitive examinations for recruitment to the posts which examination was held in June 2002, and the interviews held on 03.05.2004, 26.07.2004 and 30.08.2004 were declared successful and listed in such notification. The note below the Notification reads as under: "Note:-

1. The mere success in the examination shall not confer any right to appointment and no candidate shall be appointed to the post unless the Government is satisfied. After such inquiries as may be considered necessary that the candidate is suitable in all respects for appointment to the post.

2. The order of preference for the post indicated by the candidate shall not confer any right for appointment to these posts. Having regard to the rank in the order of merit and the number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment. Where a candidate has not given preference for any post, or the candidate has given preference only for a few posts, and the number of posts for which he has given preference are not availbale to accomodate the candidate as per his preference, such candidate shall be considered for appointment to any of the remaining post after the process of appointment of the other candidates, who have given preference for all these scheduled posts is completed.

The candidates at merit numbers, 7, 10, 21, 31, 32, 42, 44, 54, 58, 60, 65, 67, 68, 75, 76, 79, 80,82,84,85, 90,91,95,96,97,103,106,107,109,112,119,122,124,126 and 130 who are reserved category candidates have been considered for unreserved posts as per Government Circular, G.A.D No. - PVS- 1099-MM-13-G4 dated 29/01/2000 and PVS-1020-03-G2 dated 23/07/2004.

Widow candidates have been given the benefits of Notification G.A.D No. -CRR -1096-2213-G2 dated 22/05/1997. The above result is subject to the outcome of SCA No.4889/2004 pending in the High Court of Gujarat.

The above result is subject to revision after rechecking of marks of those candidates who apply within 45 days from the date of this Notification for rechecking of marks of the Main Written Examination."

6.2 Even when the Final List was to be published, the Gujarat Public Service Commission in its letter dated 06.11.2004 unequivocally stated while informing a candidate that no further correspondence be entertained with the Commission. The documents with regard to educational qualification, experience, caste regarding creamy layer, age, citizenship have been

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provisionally accepted by the Commission based on which the recommendations have been made. The State Government shall examine these documents and after due consideration and verification subject to the candidate fulfilling all the conditions of the advertisement an appointment letter shall be issued. The final notification published in the official gazette on 02.12.2004 also when read, reiterated the note of the earlier notification. The notes read as under:

"Note:-

1. The mere success in the examination shall not confer any right to appointment and no candidate shall be appointed to the post unless the Government is satisfied. After such inquiries as may be considered necessary that the candidate is suitable in all respects for appointment to the post.

2. The order of preference for the post indicated by the candidate shall not confer any right for appointment to these posts. Having regard to the rank in the order of merit and the number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment.

6.3 Based on the sequence of events, the dates need to be reproduced, which is as under:

30.12.2000: Advertisement for the posts of Class 1 and Class 2 officers for serving the Government of Gujarat was advertised by the Respondent No.3, Gujarat Public Service Commission. 30.10.2004: The final list of selected candidates was given by Respondent No.3 to the Government of Gujarat only on 30.10.2004.

6.11.2004: The petitioners were informed that final recommendation with their names has already been sent to the Government by the respondent No.3-GPSC.

02.12.2004: The names of the petitioners as well as the similarly situated candidates came to be published in the government gazette. It is noteworthy that there has to be sanctity of the list published in the official gazette. The said aspect clearly reveals that even if the date of publication in the official gazette is considered, the same was prior to 1.4.2005. 28.01.2005: The noting on file came to be made for the first time for allotment to the concerned departments. 17.02.2005: Second noting came to be recorded in the files of the respective authorities for allotment of department. 28.03.2005: The GPSC requested GAD to furnish details as to whether appointments were made taking into consideration their recommendation dated 30.10.2004.

08.04.2005: From the noting dated 8.4.2005 that on 17.2.2005 the Hon'ble Chief Minister accorded his sanction on file for allotment of such department.

09.05.2005: The re-allotment of department came to be done whereby the Hon'ble Chief Minister accorded his consent for

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appointment of 249 candidates.

13.05.2005: The decision came to be taken to allot the different departments.

29.07.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.8832 of 2019 asking them to join the service within 30 days. 28.06.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.8833 of 2019 asking them to join the service within 30 days. 10.6.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.8834 of 2019 asking them to join the service within 30 days. 29.07.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.10246 of 2019 asking them to join the service within 30 days. 25.08.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.10248 of 2019 asking them to join the service within 30 days.

6.4 On reading of the dates together with the conditions of the notification which are reproduced above would indicate that the commission itself pursuant to the advertisement dated 30.12.2000, undertook the process of written examinations after two years in June 2002. Thereafter, oral interviews were held two years post the written examination on 03.05.2004, 26.07.2004 and 30.08.2004. In other words, in between the date of the advertisement and the date of interviews, four years period went by. Notifications by the Government were issued on 01.09.2004 and 02.12.2004 recommending the names of the petitioners for the posts in the Gujarat Civil Services. These notifications would indicate that modifications were made from time to time on account of rechecking of marks at the hands of the Gujarat Public Service Commission. In other words, the Gujarat Public Sercice Commission took four years in undertaking the exercise of recruitment itself.

7 It is in light of these facts that the Circular of 16.01.1969 needs to be read. The Government of Gujarat circular of 16.01.1969 indicates that appointment to the posts by direct selection, the required action like verification of character and antecedents should be completed within two months from the date of Commission's recommendation. From the date of events what is evident is and on reading the reply thereto, that the Gujarat Public Service Commission recommended a total of 255 candidates for various Class-I and Class-II posts. The General Administrative Department started the process of scrutiny. A letter was written inquiring about the age relaxation and court cases on 17.12.2004. The approval of the Hon'ble the Chief Minister was obtained on 17.02.2005. During the approval process, representations were made with regard to invalid SEBC

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Caste Certificates of successful candidates. Based on these representations, the Directorate of Developing Caste Welfare was requested to verify these SEBC Certificates. Out of total 97 successful SEBC candidates, caste certificates of three SEBC candidates were found to be invalid. This was brought again to the notice of the Chief Minister and a fresh approval was sought which was given on 19.04.2005. On 04.05.2005, the GPSC informed the Government that there was no scope of recommending the three candidates who had invalid caste certificate. It was in this line of facts that the second approval was sought for and granted by the Chief Minister on 13.05.2005. Appointment orders were subsequently issued as is evident from the dates within two months thereafter. What these circumstances would indicate is that it was purely an administrative delay in the process of appointment due to reverification exercise of caste certificate of candidates. It cannot be said that the Circulars of 1969 and the subsequent circulars are of binding nature. They are merely in the nature of guidelines and cannot be enforced by the petitioners to submit that their appointments ought to relate back to the date of the advertisement particularly when the clause in the advertisement read with the notifications recommending their appointments categorically made clear that mere listing of their names in the gazette would not give them the right to appointment. The case of the petitioners on the ground of discrimination by relying on the advertisements in case of other recruitments and also relying on the Government of India's Department of Pension, Office Memorandum dated 17.01.2020 is misconceived.

8 Insofar as the decisions relied upon by the learned counsel for the petitioners in the case of Mahesh Narayan (supra), it does have a persuasive value. The decision of Mahesh Narayan extensively relies on the decision in the case of Firangi Prasad (supra). If the facts of Firangi Prasad are considered, the dispute was with regard to the claim of the appellant therein for his regularization under the provisions of Section 33(C) of the U.P Secondary Education Services Selection Board Act, 1982. The admitted facts were that the appellant was appointed in a selection process held on 05.01.1993. It was also in dispute that the appointment was against a substantive vacancy. The Management notified the appointment on 18.01.1993. The Management was directed to allow the appellant therein to join within ten days. On the appellant approaching the Management with the order of 18.01.1993, the Management refused to perform a ministerial act of issuing a letter of appointment and did not allow the appellant to join the institution. After repeated representations, the Management ultimately permitted the petitioner to join on 26.08.1993 vide a letter of appointment dated 25.08.1993. In the interregnum, amendments came in the provision of Sec.33(C) providing that regularization of

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appointees not later than 06.08.1993 could be considered. By virtue of the said amendment, the case of the petitioner was not considered for regularization on the ground that he was appointed after 06.08.1993. The State did not dispute the allegation before the Allahabad High Court that the appellant had been denied appointment though a selection and an order of appointment was issued on 18.01.1993. It was under these circumstances the Court held that once the order of appointment was issued in favour of the appellant on 18.1.1993, no fault can be found on his part if the institution, the management by inaction did not perform the ministerial act of issuing a letter of appointment in terms of the selection order.

9 In the facts of the present case, it is clearly distinguished inasmuchas it was not accepted that once the name of the selected candidates was recommended by the GPSC on 02.12.2004, the exercise of issuing appointment orders was merely a ministerial act. The State from the affidavit as is evident, though in the perception of the petitoners have admitted delay, that delay would not accrue in favour of the petitioners inasmuch as the State had to undertake the exercise of verification of antecedents, character, caste certificates, age, qualifications etc., which it did for 255 candidates which reasonably took about two to three months and had to be sent back and forth as certain caste certificates were found to be non genuine.

10 Even the decision in the case of Ashutosh Joshi (supra) would not apply to the facts of the case. In the case before the Uttarakhand High Court, in case of the same advertisement, the women candidates were appointed earlier in point of time as compared to the male candidates. The selection process was common, the advertisement was common, it was in the case of the women candidates that the benefits of the pension scheme was given whereas that condition was altered to the detriment of the male candidates. On the basis of an anomolous situation which was clearly in violation of Article 14 of the Constitution of India, that the Uttarakhand High Court opined as it did.

11 Even in the case of Balwant Singh (supra) the facts would indicate the different stand that it was a case wherein pursuant to the advertisement and the interviews some selected candidates could join before 30.09.2005 and some could join after 01.10.2005. On 25.10.2005, State Government issued a notification introducing a new pension scheme effective from 01.10.2005. The Uttarakhand High Court opined that appointment letters were given on 29.09.2005. Some candidates joined prior to 30.09.2005 were given the benefits of the old pension scheme, others who joined post 01.10.2005 were not given the benefits. Based on the date of the notification as

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25.10.2005, the Uttarakhand High Court opined that the petitioners who joined on 01.10.2005 were already in service when the Notification of 25.10.2005 was brought into force. The petitioners therein could not be said to be new entrants when the appointment orders were issued on 29.09.2005 and the petitioners were not aware that a notification would come on 25.10.2005 retrospectively. In the facts of the present case admittedly it is not case where the appointments orders were issued to a class of candidates and some joined pre cut off date and post cut off date and the distinction of the pension scheme on that basis.

12 Considering all these submissions and the decisions relied upon by the learned counsels for the respective parties, there cannot be a fault found with the authorities in extending the benefits of the New Pension Scheme as per the resolution of 18.03.2005 admittedly when after the recommendations made in December 2004 finally by the GPSC, the process of appointment bonafidely took some time due to the administrative process involved therein.

13 Accordingly, all the petitions are dismissed with no orders as to costs. Rule is discharged accordingly."

8. In view of above, the petition stands dismissed. No order as to

costs. Rule is discharged.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA