Gujarat High Court
Yatinkumar Babubhai Panchal vs State Of Gujarat on 9 February, 2022
Bench: Biren Vaishnav
C/SCA/14759/2019 JUDGMENT DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14759 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3422 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10900 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11731 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12001 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 19233 of 2017
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 ?
==========================================================
YATINKUMAR BABUBHAI PANCHAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
In SCA No. 14759 of 2019
MS DHARA M SHAH(5546) for the Petitioner(s) No. 1,2
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 3
In SCA No. 3422 of 2016
MR. DEVDIP BRAHMBHATT for the Petitioner(S) No.1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
Page 1 of 19
Downloaded on : Sun Apr 24 12:22:47 IST 2022
C/SCA/14759/2019 JUDGMENT DATED: 09/02/2022
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
In SCA No. 10900 of 2016
MR. G.M.JOSHI, SENIOR COUNSEL WITH Ms. BHOOMI THAKORE, for the
Petitioner(s)1-3,4
MR. DIPAK DAVE, ADVOCATE for the Respondent(s) No. 5
MR MANISH J PATEL(2131) for the Respondent(s) No. 1-3,4
In SCA No. 11731 of 2016
MR.P.S.PATEL, ADVOCATE for the Petitioner(s) No. 1-6, 7
MR MANISH J PATEL(2131) for the Respondent(s) No. 2
In SCA No. 12001 of 2017
MR. DIPAK R DAVE, ADVOCATE for the Petitioner(s) No.1
MR.KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1.
In SCA No. 19233 of 2017
MR. DIPAK R DAVE, ADVOCATE for the Petitioner(s) No.1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1
MR. MANISH J PATEL, ADVOCATE for the Respondent(s) No.2.
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/02/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Learned AGP waives
service of rule on behalf of the State-respondent. All these
matters with consent are taken up for final hearing today.
2 An advertisement was issued by the District
Panchayat Service Selection Committee for the
recruitment of Talati-cum-Mantri on the establishment of
the District Panchayat, Sabarkantha at Himmatnagar. The
advertisement was dated 08.04.2015. The advertisement
was issue for 93 posts of Talati-cum-Mantri. Pursuant to
the advertisement, the recruitment process was
undertaken and the petitioners of Special Civil Application
No.14759 of 2019, 10900 of 2016 and 11731 of 2016 were
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selected and issued orders of appointment. These
petitioners, except the petitioner No.2 of Special Civil
Application No. 14759 of 2019 joined the service.
Petitioner No.2 of Special Civil Application No. 14759 of
2019 was not offered appointment, though she was on the
select list.
2.1 Special Civil Application Nos. 14870 of 2015 and
allied matters were filed by certain candidates whose
names were not recommended for appointment to the
post of Talati-cum-Mantri, Rajkot. It is not in dispute that
though these petitions were filed only for Rajkot district,
the controversy to the question papers was common for
the district under consideration in the present petitions.
The case of the petitioners there was that the answer keys
to certain questions were defective and had the correct
options been mentioned, those petitioners would have
been selected. In the facts of those petitions, this Court
while allowing those petitions by an oral common
judgment dated 19.02.2019 held as under:
"22. In the result, I dispose of all the three writ
applications with a direction that the answers given
by the writ applicants be looked into accordingly, and
the mistakes be rectified at the earliest. After
rectifying the mistakes, appropriate marks be
adjusted, and ultimately, after correction, if any of
the three writ applicants find place in the merit-list,
then they shall be placed accordingly."
2.2 Accordingly, pursuant to these directions, the present
respondent, District Panchayat Service Selection Board,
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rectified the mistakes and readjusted the merit list and the
selections undertaken in context of the District Panchayat,
Sabarkantha at Himmatnagar. As a result of this
reshuffling, the petitioner No.1 of Special Civil Application
No. 14759 of 2019, the petitioners of Special Civil
Application No. 10900 of 2016 and the petitioners of
Special Civil Application No. 11731 of 2016 faced
termination of their service by virtue of this reshuffling of
the merit list. The petitioners of Special Civil Application
No. 10900 of 2016 were only protected and the
terminations were not made effective. It may be pointed
out that the respondent No.5 of that petition was selected
but not appointed by virtue of this reshuffling.
2.3 Petitioners of Special Civil Application No. 3422 of
2016, 12001 of 2017 and 19233 of 2017 are the
beneficiaries of the exercise undertaken by virtue of the
reshuffling made pursuant to the decision of this Court.
They found their names in the merit list, and therefore,
clamour for being appointed.
2.4 Accordingly, therefore, before this Court is a question
whether the persons who are selected prior to the
reshuffling of the select list should continue in case where
they have been granted protection and/or the petitioners
who are selected but faced termination by virtue of the
reshuffle be appointed on the select list as if their
termination are set aside. The second issue is that the
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rival petitioners of Special Civil Application No. 3422 of
2016, 12001 of 2017 and 19233 of 2017 should be given
the benefits of having succeeded and finding their place
on the merit list as a result of reshuffling.
3 It is in this context that an affidavit-in-reply filed by
the District Panchayat in Special Civil Application No.
10900 of 2016 can be considered in context of the
controversy as referred to hereinabove.
3.1 Mr.Manish Patel, learned advocate appearing for the
District Panchayat Selection Committee-cum-District
Development Officer under the D.D.O, Sabarkantha, would
submit that as per an advertisement for appointment of
Talati-cum-Mantri in all 26 districts of the Gujarat State, an
examination was taken and selection was made on the
post. He would refer to the judgement of the Co-ordinate
Bench dated 19.02.2016 referred to hereinabove and
submit that since the candidates who had given proper
answers were required to be put in the panel, so a
proposal was made to the Development Officer on
29.03.2016 to get sanctions for the post. The
Development Commissioner gave a reply on 19.04.2016
but no sanction was given. He did not express any opinion.
3.2 Mr.Manish Patel, learned advocate, would further
state that pursuant to the order of the Court dated
19.02.2016, the candidates who have given true answers
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have been put on the merit list. As per the list, total 12
candidates who have been selected are affected and have
to be immediately relieved from service. Accordingly,
seven candidates who were working in Sabarkantha
district have been ordered to be relieved and have been
served with the order of relieving also. Five candidates
who are selected in the then Sabarkantha district and
presently Aravalli district, their orders have been sent to
Aravalli district but before service of order of relieving
came to be passed, four persons have filed the present
special civil application and they have therefore not been
relieved.
3.3 Petitioners of Special Civil Application No. 10900 of
2016, 11731 of of 2016 and 14759 of 2019 would submit
that irrespective of the order of this Court passed in
Special Civil Application No. 14870 of 2015 dated
19.02.2016 in accordance with the decision of the Hon'ble
Supreme Court in the case of Vikas Pratap Singh & Ors
vs. State of Chhatisgarh & Ors., reported in (2013)
14 SCC 494., and in the case of Rajeshkumar & Ors
vs. State of Bihar & Ors., reported in (2013) 4 SCC
690, which has been extensively considered by the
Division Bench of this Court in Letters Patent Appeal
No.1303 of 2015 dated 29.01.2016, the petitioners of
these petitons can be retained or reinstated in service and
appointed in accordance with the merit list prior to its
reshuffling. The petitioners of Special Civil Application No.
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3422 of 2016, 12001 of 2017, 19233 of 2017 and the
respondent No.5 of Special Civil Application No. 10900 of
2016 can be appointed. In other words, all the rival
petitioners of the respective petitions of the two groups
can be accomodated on appointment to the post of Talati-
cum-Mantri. It is in this background that the decision of
the Division Bench in the case of Bharwani Jitendra K
vs. State of Gujarat & Anr., needs to be considered.
3.4 Considering the issue of operation of merit list, the
Division Bench, while considering the decisions of the
Hon'ble Supreme Court in the case of Vikas Pratap
(supra) and Rajeshkumar (supra), held as under:
"6. We have considered the submissions canvassed
on behalf of the learned advocates appearing for the
parties. We have also gone through the material
placed on record, impugned order passed by the
learned Single Judge and the decisions relied upon by
the learned advocates appearing for the parties.
7. From the record it has emerged that the
appellants appeared in the examination for the post
in question as per the advertisement issued by the
respondent No.3. Their names appeared in the merit-
list at the first instance and they got appointment on
the basis of the merit-list. The appellants worked on
the past in question for a period of one and half year.
In the meantime, representations were received by
the respondent authorities about the wrong key-
answers for some of the questions and therefore the
concerned respondent authorities has taken the help
of the experts and found that certain answer-keys
were incorrect. Accordingly, decision was taken to
rectify the said mistake and on the basis of correct
answer-keys, revised merit-list was published and in
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the said revised merit-list the appellants could not
get the place. Accordingly, their services were
terminated. It has also emerged from record that
before terminating the services of the appellants the
respondent authorities have not issued any notice to
the appellants nor any opportunity of hearing was
given to them. Thus, in view of the aforesaid
admitted position it is clear that the respondents
have violated the principles of natural justice.
8. From the affidavit filed by the respondent
authorities and from the submissions canvassed on
behalf of the learned AGP, it is also clear that it is not
the case of the respondent authorities that the
appellants have played any fraud or adopted any
malpractice. It is also an admitted position that it was
the mistake on the part of the concerned authority
while preparing the answer-keys on the basis of
which the merit-list was prepared in which the names
of the appellants were reflected and they got the
appointment. It is also true that because of the
mistake of the concerned authority while preparing
the keyanswers, meritorious candidates should not
suffer and therefore there is no fault on the part of
the respondent authorities in correcting the
keyanswers and on the basis of which in preparing
the revised merit-list. Thus, we are of the opinion
that the respondent authorities have not committed
any illegality while preparing the revised merit-list on
the basis of the corrected key-answers.
9. Thus, in view of the aforesaid facts and
circumstances of the case, the issue which this Court
has to decide is whether the appellants are entitled
to claim any relief from this Court?
10. As observed hereinabove, learned AGP has
placed reliance upon various decisions rendered by
the Hon'ble Supreme Court. In the case of Anand
Kumar Pandey & Ors. (supra), there was large-scale
copying at a particular centre and therefore after
preparation of the select list when the complaint was
received by the Railway Authorities, inquiry was
C/SCA/14759/2019 JUDGMENT DATED: 09/02/2022
conducted and it was found that the complaint was
correct and therefore the Railway Authorities decided
to deny the appointment to the candidates who were
qualified in the written examination from that
particular centre and fresh written examination was
held. Thus, this decision relied upon by learned AGP
is not applicable to the facts of the present case.
11. In the case of Ram Preeti Yadav (supra), the
Hon'ble Supreme Court has held that once the fraud
is proved, it will deprive the person of all advantages
or benefits obtained thereby and in such cases it is
not necessary for the authority to observe the
principles of natural justice. This decision is also not
applicable to the facts of the present case.
11.1.Similarly, in other decisions relied upon by the
learned AGP it was found that the concerned
candidates played fraud or adopted malpractice and
therefore the Hon'ble Supreme Court in such
background held that if malpractice or fraud is
played by the candidates it is not necessary for the
authority to observe the principles of natural justice.
12. Admittedly, in the present case, it is not the case
of the respondent authorities that the present
appellants have played any fraud or malpractice
during the course of the examination or in
preparation of key-answers. It was only a mistake on
the part of the respondent authorities in preparing
the key-answers. Thus, in the facts of the present
case the respondent authorities were duty bound to
follow the principles of natural justice and without
giving opportunity of hearing to the appellants their
services ought not to have been terminated.
13. In the case of Rajesh Kumar & Others (supra)
relied upon by learned advocate Mr. Gadhvi for the
appellants, the Hon'ble Supreme Court in similar set
of facts, observed in para 22 as under:
"22. In the result, we allow these appeals, set
aside the order passed by the High Court and
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direct that:
(1) answer scripts of candidates appearing in 'A'
series of competition examination held pursuant
to advertisement No.1406 of 2006 shall be got
re-evaluated on the basis of a correct key
prepared on the basis of the report of Dr.(Prof.)
CN Sinha and Prof. KSP Singh and the
observations made in the body of this order and
a fresh merit list drawn up on that basis.
(2) Candidates who figure in the merit list but
have not been appointed shall be offered
appointments in their favour. Such candidates
would earn their seniority from the date the
appellants were first appointed in accordance
with their merit position but without any back
wages or other benefit whatsoever.
(3) In case writ petitioners-respondent nos. 6 to
18 also figure in the merit list after re-
evaluation of the answer scripts, their
appointments shall relate back to the date when
the appellants were first appointed with
continuity of service to them for purpose of
seniority but without any back wages or other
incidental benefits.
(4) Such of the appellants as do not make the
grade after reevaluation shall not be ousted
from service, but shall figure at the bottom of
the list of selected candidates based on the first
selection in terms of advertisement No.1406 of
2006 and the second selection held pursuant to
advertisement No.1906 of 2006.
(5) The needful shall be done by the
respondents - State and the Staff Selection
Commission expeditiously but not later than
three months from the date a copy of this order
is made available to them."
14. The facts of the present case are almost similar
to that of the case decided by the Hon'ble Supreme
Court in Vikas Pratap Singh & Others (supra),
wherein the Hon'ble Supreme Court held and
directed as under:
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"27. Admittedly, in the instant case the error
committed by the respondentBoard in the
matter of evaluation of the answer scripts could
not be attributed to the appellants as they have
neither been found to have committed any
fraud or misrepresentation in being appointed
qua the first merit list nor has the preparation of
the erroneous model answer key or the
specious result contributed to them. Had the
contrary been the case, it would have justified
their ouster upon re-evaluation and deprived
them of any sympathy from this Court
irrespective of their length of service.
28. In our considered view, the appellants have
successfully undergone training and are
efficiently serving the respondent-State for
more than three years and undoubtedly their
termination would not only impinge upon the
economic security of the appellants and their
dependants but also adversely affect their
careers. This would be highly unjust and grossly
unfair to the appellants who are innocent
appointees of an erroneous evaluation of the
answer scripts. However, their continuation in
service should neither give any unfair
advantage to the appellants nor cause undue
prejudice to the candidates selected qua the
revised merit list.
29. Accordingly, we direct the respondent-State
to appoint the appellants in the revised merit
list placing them at the bottom of the said list.
The candidates who have crossed the minimum
statutory age for appointment shall be
accommodated with suitable age relaxation.
30. We clarify that their appointment shall for
all intents and purpose be fresh appointment
which would not entitle the appellants to any
back wages, seniority or any other benefit
based on their earlier appointment.
31. The order passed by the High Court shall
stand modified to the above extent. Appeals
disposed of. There shall be no order as to
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costs."
15. Keeping in mind the aforesaid decisions rendered
by the Hon'ble Supreme Court in Rajesh Kumar &
Others (supra) and Vikas Pratap Singh & Others
(supra), we are of the opinion that in the present
case also the error committed by the respondent
authorities in the matter of preparation of the key-
answers could not be attributed to the appellants as
they have neither been found to have committed any
fraud or misrepresentation in being appointed qua
the first merit-list nor in preparation of the erroneous
key-answers. Moreover, the appellants have worked
on the post in question for more than one and half
years and because of termination of the services of
the appellants it would not only affect the economic
security of the appellants and their dependants but
also adversely affect their careers more particularly
when most of the appellants are more than 32 years
of age and some of them are more than 35 years of
age. Thus, if their termination orders are not
quashed and set aside, it would be highly unjust and
grossly unfair to the appellants who are innocent
appointees of an erroneous preparation of the
answer scripts. However, at the same time, we are of
the opinion that their continuation in service should
neither give any unfair advantage to the appellants
nor cause undue prejudice to the candidates selected
qua the revised merit list. We are informed that
because of the interim relief granted by the learned
Single Judge and thereafter by this Court, five posts
of Accountant are kept vacant so far as Letters
Patent Appeal No.1303 of 2014 is concerned.
Similarly, two posts of Accountant are kept vacant so
far as Letters Patent Appeal No.1304 of 2014 is
concerned. Thus, total seven posts are kept vacant
by way of interim orders.
16. In view of the aforesaid discussion, the following
order: (a) The impugned orders of termination of
service of the appellants passed by the concerned
respondent authorities are quashed and set aside.
(b) The respondents are directed to appoint the
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appellants herein in the revised meritlist placing
them at the bottom of the said list. The candidates
who have crossed the minimum statutory age for
appointment shall be accommodated with suitable
age relaxation.
(c) The appellants shall be accommodated on seven
posts which are kept vacant as per the interim orders
passed by this Court.
(d) It is clarified that the appointments of the
appellants shall for all intents and purpose be fresh
appointment which would not entitle the appellants
to any back wages, seniority or any other benefit
based on their earlier appointment.
(e) The order passed by the learned Single Judge
shall stand modify to the aforesaid extent qua the
present appellants only as the other original
petitioners have not approached before this Court."
3.5 Reliance was placed on the decisions as referred to
above to the order of the Hon'ble Supreme Court on the
ground that no fault can be found with the petitioners of
Special Civil Application No. 14759 of 2019, 10900 of 2016
and 11731 of 2016 of having found their names on the
merit list and having been appointed pre reshuffle. Such
petitioners should be continued in service and therefore
termination be set aside. That is a specific observation
which was made by the Hon'ble Supreme Court in sub
para 4 of para 22 in the decision in the case of Rajesh
Kumar (supra), the Hon'ble Supreme Court observed
that such of the appellants who do not make the grade
after re-evaluation shall not be ousted from service but
shall figure at the bottom of the select list. The Division
Bench set aside the impugned order of termination. The
respondents were directed to appoint them in the revised
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list placing them at the bottom of the list. A clarification
was made that the appointment of the appellants shall be
considered as fresh appointment which shall not entitle
them to backwages.
3.6 What is evident from the letter written by the District
Panchayat, Sabarkantha on 29.03.2016 to the
Development Commissioner on which the Development
Commissioner did not opine is that though 93 posts were
advertised, there was a sanctioned strength of 603 of
which 526 posts were fill in and 77 posts were left vacant.
Admittedly, therefore, during the pendency of these
petitions of the year 2016, the earliest being SCA No. 3422
of 2016, 77 posts were vacant.
4 Accordingly, there is no reason why the arrangement
that was directed to be followed by the Division Bench in
Letters Patent Appeal No.1303 of 2015 should not also be
followed in the present case.
5 So far as Special Civil Application No. 10900 of 2016
is concerned, by virtue of the interim order passed by this
Court, the petitioners did not face termination though they
were in the merit list pre-reshuffle. They shall be
continued in service, as if the orders of termination were
not to be operated on the basis of their selection,
however, their names will figure at the bottom of the
select list prepared pursuant to the order of this Court
dated 19.02.2016. The respondent No.5 of that petition
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was not a candidate selected post the reshuffle. It appears
that a civil application was filed by the respondent No.5
for vacating the interim relief after being joined as party in
this petition, wherein, this Court on 28.06.2017 passed the
order, which makes it evident that on the date when this
order was passed there were 21 vacancies. The said order
read as under:
"Pursuant to order dated 05.05.2017 respondents
no.5 to 8 has filed a report dated 27.06.2017 signed
by the Deputy District Development Officer which is
to be taken on record with one annexure.
Pursuant to such report, details of which are
summarized in annexures, now, it becomes clear that
even after completing the recruitment process which
is under challenge in this petition and even after
appointing petitioners of Special Civil Application
No.10900 of 2016, as on 01.01.2017 there are as
many as ten vacancies in General category, six
vacancies in SEBC category, two vacancies in SC
category and three vacancies in ST category,
thereby, total 21 (twenty-one) posts are vacant.
Learned advocate Mr. Manish Patel appearing
for the respondents has in consultation of signatory
of such report who is present in the Court confirmed
that such vacancies have arisen because of note
endorsed at the end of the annexure R I and that
even on today such vacancies are in existence.
Learned advocate Mr. Dipak Dave for the
applicant has pointed out that there may be more
vacancies hereinafter. Therefore, now it is clear that
respondents are able to accommodate present
applicant so also petitioner of Special Civil
Application No.4678 of 2016 and petitioner of Special
Civil Application No.12001 of 2017 where they have
secured more marks than petitioner of Special Civil
Application No.10900 of 2016 and therefore, they are
eligible for appointment.
In view of such fact, let there be a formal notice,
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making it returnable on 25th September, 2017 in
Special Civil Application No.12001 of 2017. Learned
advocate Ms. Bhoomi Thakore waives service of
notice on behalf of respondents no.4 to 7. Learned
advocate Mr. Manish Patel waives service of notice
on behalf of respondents no. 2 and learned AGP
waives service of notice on behalf of responders no.
1 and 3.
Therefore, now at this stage the Court is
required to issue some directions to the respondents
to confirm the recruitment of the above referred
petitioner so as to put an end to this litigation. For
the purpose, petitioners are relying upon the case of
the Rajeshkumar and others V/s. State of Bihar and
Others. reported in (2013) 4 SCC 690.
In view of above facts and circumstances, now
respondents are directed to process the file for
appointing above referred petitioners, since, they are
having higher merit than other petitioners who are
appointed till date, more particularly when there are
vacancies in every category, thereby, when there are
total vacancies 21 and only three petitioners are to
be accommodated by appropriate orders,
respondents are directed to proceed their file for
appointment, for which Panchayat Authority shall
forward proper proposal within three weeks, State
Authority shall confirm the requisite procedure within
six weeks thereafter.
It is made clear that by such appointment,
petitioners of Special Civil Application No.10900 of
2016 are not to be disturbed in any manner
whatsoever.
Direct service is permitted."
5.1 The Court, therein also observed that the
respondents are directed to process the file for appointing
the petitioners since there are 21 vacancies. In other
words, pursuant to this order, the respondent No.5 has
already been appointed.
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6 In Special Civil Application No. 14759 of 2019, the
petitioner No.1, a candidate prior to the reshuffling of the
list was terminated. Hence, he is directed to be reinstated,
shall be offered appointment on the post of Talati-cum-
Mantri after his name being shown at the bottom of the
list of selected candidates. However, the petitioner No.1
shall not be entitled to the benefit of any continuity of
service or backwages.
6.1 Petitioner No.2 of Special Civil Application No. 14759
of 2019 shall also be appointed to the post of Talati-cum-
Mantri and be placed in accordance with the directions in
para 22 sub clause 4 of the decision in the case of
Rajeshkumar (supra) with no consequential benefits for
the purposes of seniority and backwages.
7 The petitoner of Special Civil Application No.11731 of
2016 whose termination had operated, shall be reinstated
and appointed on the post despite he being on the merit
list prior to the reshuffle and be placed in the bottom of
the select list and the benefits of continuity of service for
the purposes of seniority and backwages will not be given
in accordance with sub para 3 and 4 of para 22 of
Rajeshkumar (supra).
8 As far as petitioner of Special Civil Application No.
3422 of 2016 and petitioner of Special Civil Application No.
19233 of 2017 is concerned, since they are post reshuffle,
they shall be appointed on the post of Talati-cum-Mantri.
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They will earn their seniority in accordance with the
directions of the Hon'ble Supreme Court in the case of
Rajeshkumar (supra).
9 As far as Special Civil Application No.19233 of 2017 is
concerned, it is pointed out by the learned counsel for the
petitioner Mr.Dipak Dave, that the petitioner was a SEBC
female candidate. The cut off marks for a female was
71.90 %. A call letter was issued to her, however, she
could not join because of the pending litigations at the
hands of the terminated candidates where there was an
interim relief. The affidavit filed by the Selection
Committee would show that the cut off for marks was
72.70% whereas the petitioner had got 72% and in the
event the list was finalized, the petitioner would not find
place in the merit list. Further, as is evident from the
rejoinder filed in the petition, it is clear that pending this
litigation, the list was never finalized, the cut off
percentage minimum was 71.09.
9.1 Admittedly, the petitioner has secured 72% and
several SEBC candidates who have waited sufficiently
have not joined, therefore, the petitioner being within the
minimum prescribe of merit, deserves to be appointed in
accordance with the call letter issued to her which is
placed on record. Her case will be governed as far as other
benefits are concerned in accordance with para 22(2) of
Rajeshkumar (supra).
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10 As far as the petitioner of Special Civil Application No.
12001 of 2017 is concerned, if by virtue of the order
referred to hereinabove, if the petitioner is appointed,
then she would be continued in service and given the
benefits in accordance with para 22(2) of Rajeshkumar
(supra).
11 As far as the petitioner No.4 of Special Civil
Application No. 10900 of 2016 is concerned, the benefits
of this order will not ensue in her favour, as she has left
and joined some other department.
12 Accordingly, all the petitions are allowed in terms of
the directions issued hereinabove. Rule is made absolute
to the above extent with no orders as to costs.
(BIREN VAISHNAV, J)
Bimal
