Gujarat Public Service ... vs Neel Rohit Shah
2023 Latest Caselaw 3364 Guj

     C/LPA/570/2023                             ORDER DATED: 26/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 570 of 2023

          In R/SPECIAL CIVIL APPLICATION NO. 14800 of 2021

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
              In R/LETTERS PATENT APPEAL NO. 570 of 2023
==========================================================
                  GUJARAT PUBLIC SERVICE COMMISSION
                                Versus
                           NEEL ROHIT SHAH
==========================================================
Appearance:
MR RC JANI(357) for the Appellant(s) No. 1
for the Respondent(s) No. 2
MR KB PUJARA(680) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 26/04/2023

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This Appeal is filed under Clause 15 of the Letters

Patent challenging an order dated 20.12.2022 rendered by

the learned Single Judge of this Court in Special Civil

Application No. 14800 of 2021, whereby, the learned Single

Judge has allowed the petition filed by the original

petitioner.

C/LPA/570/2023 ORDER DATED: 26/04/2023

2. The brief facts leading to filing of the present Appeal

are as under:

2.1 It is the case of the petitioner that he had passed

M.B.B.S. and D.G.O. (Diploma in Gynaecologist and

Obstetrics). The respondent issued an advertisement, being

Advertisement No.121/2019-20, for filling-up the post of

Gynaecologist (Class-I) in Gujarat Health and Medical

Service, for 274 vacancies. Pursuant to the said

advertisement, the petitioner submitted an online

application on 27.12.2019 along with certificate of

experience dated 06.09.2019.

2.2 It is further the case of the petitioner that by notice

dated 06.05.2021, the petitioner was selected for document

verification and was asked to upload online, the necessary

documents/certificates during the period from 13.05.2021

to 24.05.2021. Accordingly, the petitioner uploaded all the

relevant documents; more particularly, the Certificate of

Experience dated 13.05.2021.

2.3 It is further the case of the petitioner that thereafter

vide Notice dated 13.09.2021, the petitioner was declared

C/LPA/570/2023 ORDER DATED: 26/04/2023

ineligible for oral interview on the ground that he did not

possess the prescribed experience, as per the Recruitment

Rules and the provisions of the Advertisement. Thereafter,

the petitioner made a representation dated 15.09.2021 to

the appellant-original respondent No. 1. Thereafter, the

petitioner filed the captioned petition in which the petitioner

had prayed for the following reliefs :-

"(a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date;

(b) to quash and set aside the impugned decision dated 13.09.2021 as per Annexure-G wrongfully declaring the petitioner as ineligible on the ground that he is not possession the prescribed experience as per the Recruitment Rules and Advertisement.

(c) to direct the respondent to treat the petitioner as eligible for the post of Gynecologist, Class-I pursuant to the Advertisement No.121/2019-20 and to give him appointment as such, with all the consequential benefits as if he was given appointment along with the first candidate of the same recruitment process;

(d) Pending the hearing and final disposal of this petition, be pleased, to stay the further process of recruitment of the posts in question;

(e) Pending the hearing and final disposal of this petition, be pleased to direct the respondents to call the petitioner for Oral Interview along with other candidates, subject to further orders of the Hon'ble Court;"

2.4 The learned Single Judge vide impugned judgment and

order dated 20.12.2022 allowed the petition filed by the

C/LPA/570/2023 ORDER DATED: 26/04/2023

original petitioner and thereby directed the original

respondent to appoint the petitioner on the post of

Gynaecologist (Class-I) within stipulated time. The original

respondent No. 1 - the present appellant has, therefore,

preferred the present Appeal under Clause 15 of the Letters

Patent.

3. Heard Mr. R.C. Jani, learned advocate for the

appellant-original respondents, Mr. K.B. Pujara, learned

advocate for respondent No.1-original petitioner and Mr.

Ronak Raval, AGP for the respondent-State.

4. Mr. R.C. Jani, learned advocate appearing for the

appellant-original respondents mainly submits that as per

the advertisement issued by the appellant-Gujarat Public

Service Commission (GPSC), a person having experience of

two years in respective subject in the Government Hospital

or Hospital owned, manage or controlled by the Non-

Government Organization Hospital, or Trust Hospital, is

eligible for appointment on the post in question.

5. Learned advocate for the appellant has referred to the

Recruitment Rules for the post in question, which was

C/LPA/570/2023 ORDER DATED: 26/04/2023

framed on 04.10.2008. It is submitted that the post in

question is governed by Specialist (Class-I) Recruitment

Rules of 2008. Learned advocate for the appellant has in

particular, referred to Rule 4 (c) (i) of the Recruitment Rules

of 2008. Learned advocate would submit that as per the

aforesaid Recruitment Rules, the candidate who is applying

to such post should either own a hospital, or had manage a

hospital, or controlled a hospital, which can be Non-

Government Organization Hospital or Trust Hospital. At this

stage, learned advocate Mr. Jani has referred to the

definition of own provided in 'Black's Law Dictionary'. The

relevant pages of the said dictionary are produced before

this Court for perusal. The word 'own' is defined in the said

dictionary as under:

"Own. To have a good legal title; to hold property; to have a legal or rightful title to; to have; to possess."

6. At the same time, Mr. Jani, learned advocate for the

present appellant has also referred to the definition of

'control' given in the said dictionary, as under:

"Control, v. To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from

C/LPA/570/2023 ORDER DATED: 26/04/2023

action; overpower; counteract; govern.

Control, n. Power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or over- see."

7. It is submitted that, as the original petitioner was not

satisfying the conditions stipulated in the Recruitment

Rules, and as per the certificate issued by the concerned

Hospital, the petitioner was employed by the said Hospital,

he is not eligible for the post in question, and therefore, his

candidature was rightly rejected by the appellant herein. In

spite of that, the learned Single Judge has passed the

impugned order and thereby issued a direction to the

present appellant to appoint the original petitioner on the

post in question. Learned advocate for the appellant,

therefore, urged that this appeal be allowed and the

impugned order passed by the learned Single Judge be

quashed and set aside.

8. On the other hand, learned advocate Mr. K.B. Pujara

appearing for respondent No. 1-original petitioner has

opposed this appeal and referred to the reasoning recorded

by the learned Single Judge. It is submitted that the

C/LPA/570/2023 ORDER DATED: 26/04/2023

petitioner possesses requisite qualification as per the

Recruitment Rules and the petitioner is also having

experience of two years; as provided in Rule 4 (c) (i) of the

Rules of 2008. At this stage, learned advocate submitted

that prior to issuance of the advertisement in question for

the regular appointment for the post in question,

advertisement was issued by the Commissioner Health for

the appointment of Gynecologist (Class-I) on contractual

basis. The petitioner also submitted an application,

pursuant to the said advertisement, and in the said process

also, the petitioner supplied the same experience certificate

and the concerned respondent- authority has accepted the

said certificate and issued an appointment order dated

22.06.2021. A copy of the said order is placed on page 63 of

the compilation.

9. Mr. Pujara, learned advocate further submits that

when for the same post and for the similar Rules, the

petitioner was considered to be eligible, it is not open for the

present appellant to now contend that the petitioner is not

having requisite experience of the concerned Hospital.

C/LPA/570/2023 ORDER DATED: 26/04/2023

Learned advocate, therefore, urged that the present appeal

may not be entertained, as the learned Single Judge has not

committed any error while allowing the petition filed by the

original petitioner.

10. Having heard learned advocates for the respective

parties and having gone through the material placed on the

record, it emerges that the Advertisement No. 121/2019-20

for filling up the post of Gynecologist (Class-I) in the Gujarat

Health and Medical Service came to be issued by the

original respondent for 274 vacancies. It is not in dispute

that the petitioner submitted an online application,

pursuant to the said advertisement. The petitioner also

supplied requisite documents and the experience certificate.

At this stage, the relevant clause of the advertisement is

required to be referred. Clause 2 provides Educational

Qualification and Experience, which reads as under:

"A. Possess a degree of Bachelor of Medicine and Bachelor of Surgery or as the case may be Bachelor of Dental Surgery or any of the University established or incorporated by or under the Central or State Act in India; or any other educational institution recognized as such declared to be a deemed as university under section 3 of the University Grants Commission Act, 1956 (3 of 1956) or possess any other qualifications specified in First or Second Schedule to the Indian Medical Council Act, 1956

C/LPA/570/2023 ORDER DATED: 26/04/2023

or as the case may be possess an equivalent qualification recognized by the Dental Council of India, and B. (I) Possess a post-graduate diploma in respective subject as shown in the Annexure against the each post, of the Universities established or incorporated by or under the Central or State Act in India; or possess an equivalent qualifications recognized by the Medical Council of India and have experience of two years in respective subject in government Hospital or owned manage respective subject in Government Hospital or owned manage or controlled by the, Non-Government Hospital or owned manage or controlled by the, Non-Government Organization or Trust Hospital or"

11. At this stage, this Court would like to refer to the

relevant Recruitment Rules of 2008 which provides as

under :-

"4. to be eligible for appointment by direct selection to the post mentioned in Rule (3) (b), candidate selection to the post mentioned in rule (3)(b), a candidate shall-

(c)(i) possess a post-graduate diploma in respective subject as, shown in the Annexure against the each post, of the Universities established or incorporated by or under the Central or State Act in India; or possess an equivalent qualification recognized by the Medical council of India and have experience of two years in government Hospital or owned manage or controlled by the Non government Organization Hospital or Trust:

12. Thus from the relevant Clause of the advertisement as

well as from the Recruitment Rules, it reveals that to be

eligible for appointment by direct selection to the post in

question, the concerned candidate must possess requisite

qualification and he must possess experience of two years in

C/LPA/570/2023 ORDER DATED: 26/04/2023

Government Hospital or Hospital owned manage or

controlled by the Non government Organization Hospital or

Trust Hospital.

13. Now, it is the case of the present appellant that the

original petitioner had produced a certificate of experience [a

copy of which is placed on record at page 42 of the

compilation] which is issued by Shradhha Surgical Hospital

in favour of the petitioner. It is pertinent to note that the

present appellant has not raised any doubt with regard to

the said certificate and it is not the case of the appellant

that the petitioner is not having two years experience. The

only contention taken by the appellant is that the candidate

who is applying to such post should either own a hospital or

had manage a hospital or controlled a hospital which can be

Non-Government organization Hospital or Trust Hospital.

However, petitioner was merely employed by Shradhha

Surgical Hospital. Thus, on this ground, the candidature of

the petitioner was rejected.

14. We are of the view that the aforesaid contention taken

by the appellant is misconceived. Neither, the provisions

C/LPA/570/2023 ORDER DATED: 26/04/2023

stipulated in the advertisement nor the Recruitment Rules,

remotely suggest that the candidate has to be the owner or

the manager of the Hospital. Further, the same certificate

has been accepted by the Government, while appointing the

petitioner on adhoc / contractual basis.

15. Looking to the aforesaid facts and circumstances of the

present case, we are of the view that the learned Single

Judge has not committed any error while passing the

impugned order, and therefore, no interference is required.

Accordingly, this Appeal is dismissed.

16. In view of the dismissal of the Appeal, Civil Application

would not survive and the same is disposed of.

(VIPUL M. PANCHOLI, J.)

(HASMUKH D. SUTHAR,J.) ALI