Sanjay S Parmar vs Gujarat Public Service ...
2022 Latest Caselaw 9159 Guj

    C/SCA/17192/2007                             JUDGMENT DATED: 17/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17192 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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                         SANJAY S PARMAR
                               Versus
            GUJARAT PUBLIC SERVICE COMMISSION & 2 other(s)
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Appearance:
MR VISHAL B MEHTA(5319) for the Petitioner(s) No. 1
MR TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 2
MR MJ MEHTA(5797) for the Respondent(s) No. 1
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 17/10/2022

                            ORAL JUDGMENT

Heard learned advocate Mr.Vishal B. Mehta for

the petitioner and learned Assistant Government

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

Pleader Mr.Trupesh Kathiriya for the respondent-

State.

1. By this petition, the petitioner has prayed

for the following reliefs :

"7. The petitioner respectfully prays that, on the basis of the facts and circumstances as mentioned hereinabove and which may be urged at the time of hearing, this Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction to the respondent authorities and may be pleased to:-

(A) quash and set aside the order dated 9.9.2005, Annexure-A to this petition, and

(B) direct the respondent authorities to give appointment to the petitioner on the post of Resident Medical Officer (Ayurved) Class-II, w.e.f. 5.4.2005 with all consequential benefits, and

(C) grant any other relief or pass any other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and

(D) award the cost of the petition, and

(E) pending admission and final disposal of this petition, this Honourable Court may be pleased to stay the further implementation and operation of the order

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

dated 9.9.2005 and further be pleased to direct the respondent authorities to appoint the petitioner on the post of Resident Medical Officer (Ayurved) Class - II, and

(F) pending admission and final disposal of this petition, direct the respondent authorities not to appoint respondent No: 3 to the aforesaid post.

And for this act of kindness and justice the petitioner as in duty bound shall pray forever."

2. The brief facts of the case are as under :

2.1 In the year 1996, the petitioner obtained the

degree of B.A.M.S. (Bachelor of Ayurvedic

Medicines and Surgery) from Gujarat Ayurvedic

University, Jamnagar wherein the petitioner

secured First Class.

2.2. Gujarat Public Service Commission issued a

public advertisement dated 15.03.2003 inviting

applications for various posts mentioned in the

said advertisement to be reached to the address

mentioned therein on or before 16.04.2003.

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

2.3. In the said advertisement, at serial no.76,

applications were invited for the post of

Resident Medical Officer, (Ayurved) Class-II (in

all 7 posts) from the candidates possessing a

Bachelors Degree from the Ayurvedic University,

Jamnagar or from any other recognized University

and possessing experience of three years in

rendering treatment by Ayurvedic system of

treatment in a Hospital or Dispensary and

possessing sufficient knowledge of Sanskrit,

Gujarati and Hindi Language.

2.4. The petitioner was complying all the

requirements prescribed in the said advertisement

and hence, applied on 03.04.2003 for the

aforesaid post in the prescribed form duly filled

in by the petitioner.

2.5. Pursuant to the aforesaid application, the

petitioner appeared for the written examination

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

dated 30.11.2003 and passed the same. Therefore,

vide letter dated 29.11.2004, the petitioner was

called for the interview to be held on

17.12.2004.

2.6. On 05.01.2005, the petitioner received a

letter issued by the respondent whereby, the

petitioner was informed that out of the seven

persons, being fit for the appointment to the

said post, name of the petitioner was included in

the Select List at Serial No. 1.

2.7. Thereafter, vide order dated 5.4.2005, all

the candidates were given appointment, but the

petitioner was not so appointed.

2.8. During the course of process of selection of

the petitioner to the aforesaid post, vide letter

dated 06.04.2004, the petitioner was informed by

the respondent authority that on verification of

the application of the petitioner, it was

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

revealed that the self attested certificate of

private practice, on the letter pad of the

Dispensary was not annexed with the said

application and directed to furnish the copy of

the said certificate with the place, time and

address of the Dispensary so as to reach the

office of the Commission within ten days from the

receipt of the said letter.

2.9.Pursuant to the aforesaid letter, the

petitioner furnished the said certificate along

with the certificate issued by a Hospital managed

by Pramukhswami Health Services, Bhavnagar.

2.10. The petitioner was informed by letter dated

09.02.2005 that the certificate dated 18.12.2004

of Shri Swaminarayan Sanskar Dham, Bhavnagar,

which was produced by the petitioner personally,

did not reveal as to whether the petitioner

rendered services for part time or full time and

accordingly necessary clarification was sought

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

from the petitioner.

2.11. The petitioner, vide letter dated

19.02.2005, rendered necessary clarification

along with a further certificate of Shri

Swaminarayan Sanskar Dham, Bhavnagar revealing

that the petitioner was rendering full time

service at the said Hospital. On the same day, a

statement of the petitioner also came to be

recorded wherein also, the petitioner stated the

timings of his working hours in detail and in the

said statement, the petitioner, in connection

with the compliant filed against the petitioner

by respondent No. 3, has stated that he was

engaged in the service of the Central Government

in Postal Department as a Marketing Executive at

Bhavnagar Head Post Office and the Department of

Post has No Objection if the petitioner is

appointed on the present post as Resident Medical

Officer (Ayurved) Class-II.

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

2.12. The petitioner wrote a letter dated

11.04.2005 to respondent since the candidates

placed at a lower level to the petitioner were

given appointment prior to the petitioner, who

was at Sr.No.1 on the said Select List. Pursuant

to the aforesaid letter of the petitioner, the

petitioner was informed by respondent No. 2 vide

letter dated 03.05.2005 that in view of the

compliant filed against the petitioner, necessary

report was sent to respondent No.1 and that

further action will be taken in accordance with

the decision of respondent No.1.

2.13. Thereafter on 06.06.2005, the petitioner

was issued a notice calling upon the petitioner

to show cause within 15 days as to why the

petitioner should not be declared unfit on

account of breach of undertaking given in the

application form and further to show cause as to

why the petitioner should not be debarred, for a

period of next five years, from appearing in all

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

the Examinations / Direct selection to be held by

the respondent No.1. The petitioner responded to

the said notice vide a detailed reply dated

17.06.2005.

2.14. The petitioner received a letter on

11.07.2005 from respondent No.1 whereby the

petitioner was informed that the aforesaid reply

of the petitioner cannot be accepted and further

informed the petitioner that if the petitioner

wants to make special

representation/clarification, he shall remain

present before the Secretary of respondent No.1

on 19.07.2005 at 12.00 hours. On 19.07.2005, the

petitioner personally remained present before the

concemed officer and after having oral

discussion, submitted a written representation

dated 19.07.2005.

2.15. Thereafter vide impugned order dated

09.09.2005, the petitioner was debarred for five

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

years from all the Examinations and Direct

Selection to be held by respondent No.1 from the

date of issuance of the said order as well as the

candidature of the petitioner was also cancelled

for the Advertisement No.76/2002-03 i.e. for the

post in question.

3. Learned advocate Mr.Vishal Mehta for the

petitioner submitted that the petitioner has

challenged the order dated 9th September, 2005

whereby, the selection of the petitioner for the

post of Resident Medical Officer, Class-II was

cancelled by the respondent-Gujarat Public

Service Commission (for short 'GPSC').

3.1. It was submitted that in view of the facts

stated hereinabove, the petition is required to

be allowed as the selection of the petitioner is

wrongly cancelled by the respondent-GPSC in

asmuch as, the petitioner was having the required

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

experience for the post which was advertised.

3.2. It was further submitted that there was no

intention on the part of the petitioner for non-

disclosure of the employment with the Central

Government as the Application Form did not

contain any such column or stipulation and

therefore, the impugned order is liable to be

quashed and set aside.

4. On perusal of the impugned order, it appears

that the same is for cancelling the selection of

the petitioner and debarring the petitioner from

exams and selection for five years which is

already over in the year 2010. Therefore, the

impugned order has lived its life and the same

would not survive after 2010.

5. In view of such undisputed fact, the petition

has become infructuous and without entering into

the merits of the matter, the same is accordingly

C/SCA/17192/2007 JUDGMENT DATED: 17/10/2022

disposed of keeping all the rights of the

petitioner open for being selected after 2010 in

accordance with law. Rule is discharged.

(BHARGAV D. KARIA, J)

PALAK