State Of Gujarat vs Koshiya Narendrabhai Harilal
2023 Latest Caselaw 2243 Guj

     C/LPA/146/2023                              ORDER DATED: 14/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 146 of 2023

           In R/SPECIAL CIVIL APPLICATION NO. 6502 of 2021

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
              In R/LETTERS PATENT APPEAL NO. 146 of 2023
==========================================================
                            STATE OF GUJARAT
                                  Versus
                      KOSHIYA NARENDRABHAI HARILAL
==========================================================
Appearance:
MR JK SHAH, GOVERNMENT PLEADER for the Appellant(s) No. 1,2
 for the Respondent(s) No. 2
MR GAUTAM JOSHI, SR. ADVOCATE, MR KEVALSINH B RATHOD(10250)
for the Respondent(s) No. 1
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                             Date : 14/03/2023

                   COMMON ORAL ORDER

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

1. This is an appeal, filed by the appellant-State under Clause 15 of the Letters Patent, challenging the common judgment and order passed by the learned Single Judge, Dated: 27.06.2022, in Special Civil Application No. 5948 of 2021 and the allied matters.

2. The factual matrix of the present case are as under;

Pursuant to the issuance of Advertisement

C/LPA/146/2023 ORDER DATED: 14/03/2023

No. 1/2021 by the appellant-State for recruitment to the post of Shiksan Sahayak in non-governmental grant-in-aid Higher Secondary Schools within the State, the opponent Nos. 1 and 2, herein, i.e. the petitioners in Special Civil Application No. 6502 of 2021, applied for the same by filling-up online form.

2.1 The qualifications of the Opponents are post graduation from Swami Vivekananda Mahavidyalaya, Sagar, Madhya Pradesh, and Rajiv Gandhi College, Barkatullah University, Bhopal, Madhya Pradesh, respectively.

2.2 Both the opponents were called for document verification. At the time of document verification, they produced migration certificates, transfer certificates, bona fide certificates, degree certificates, NCTE recognition letters etc. to demonstrate that they had undertaken the study of M.Ed. at the concerned college/University. However, the appellant-State did not consider the same, as valid and they were denied appointment.

2.3 Being aggrieved with the same, the Opponents- original petitioners preferred the captioned petition, wherein, the learned Single Judge passed the impugned order dated 27.06.2022 and allowed the same.

Hence, the appellant-State has preferred the

C/LPA/146/2023 ORDER DATED: 14/03/2023

present appeal.

3. Learned AGP, Mr. Shah, appearing for the appellant-State mainly placed reliance on Clause-23 of Advertisement No. 1/2021 and submitted that the provisions of Clause-23 would be applicable to the students, who have studied in the university, which is situated outside the State of Gujarat and who have obtained degree from such a university.

3.1 It was, further, submitted that, as per Clause- 23 of Advertisement No. 1/2021, the concerned candidate is required to submit the proof of residence. It was submitted that so far as the present Opponents are concerned, they failed to provide requisite proof of their residence and therefore, their post graduation degrees were not taken into consideration and accordingly, they were not given 5 marks, i.e. for possessing post graduation degree.

3.2 Learned AGP, Mr. Shah, submitted that in a similar type of case, where, the appellant-State has challenged the order passed by the learned Single Judge, Dated: 27.06.2022, in Special Civil Application No. 12267 of 2021, by filing Letters Patent Appeal No. 145 of 2023, the Coordinate Bench of this Court has admitted the appeal and has also granted stay against the order of the learned Single Judge vide order dated 15.02.2023. It was, therefore,

C/LPA/146/2023 ORDER DATED: 14/03/2023

submitted that the present appeal may also be admitted and the order passed by the learned Single Judge may be stayed.

3.3 Learned AGP, Mr. Shah, further, submitted that the learned Single Judge ought not to have given direction to appoint the Opponents, herein, on the post in question, considering their post graduation degree as valid. It was, therefore, urged that the order of the learned Single Judge may be modified, accordingly.

4. On the other hand, learned Sr. Advocate, Mr. Gautam Joshi, appearing with learned Advocate, Mr. Amit Joshi, for the Opponents strongly opposed this appeal and submitted that the facts of the Letters Patent Appeal No. 145 of 2023 are totally different from the facts of the present appeal.

4.1 It was submitted that in Letters Patent Appeal No. 145 of 2023, the concerned candidate did not supply any of the documents, which are mentioned in Clause-23 of Advertisement No. 1/2021 and therefore, in the peculiar facts of the said case, the Coordinate Bench of this Court has admitted the appeal and has granted stay.

4.2 It was submitted that in the case on hand, the Opponents-original petitioners have produced all the documents, including the documents, which are

C/LPA/146/2023 ORDER DATED: 14/03/2023

mentioned in Clause-23 of Advertisement No. 1/2021 and despite that the concerned authority did not take into consideration the post graduation degree of the present Opponents and therefore, the learned Single Judge rightly allowed the petition filed by the Opponents, herein.

4.3 Learned Counsel, further, submitted that pursuant to the filing of the captioned petition by the Opponents, Appellant No.2-authority conducted an inquiry and submitted a report, wherein, it is stated that merely because the Opponents filed the captioned petition, aforesaid exercise was carried out by Appellant No.2-authority. It was submitted that the same was done with a view to fill-in lacunae, which is not permissible.

4.3.1 In support of this submission, learned Counsel placed reliance on the decision of the Apex Court in the case of 'MOHINDER SINGH GILL & ANR VS THE CHIEF ELECTION COMMISSIONER, NEW DELHI, & OTHERS', reported in AIR 1978 SC 851.

4.3.2 In the matter before the Apex Court, it was submitted that after the decision was taken, the concerned authority tried to justify its decision by filing an affidavit. However, in the present case, even an affidavit is also not filed and merely, an inquiry was conducted after the decision was taken. It was, therefore, urged that the present appeal be

C/LPA/146/2023 ORDER DATED: 14/03/2023

dismissed.

4.4 Learned Counsel, however, fairly submitted that the direction given by the learned Single Judge to appoint the Opponents, herein, on the post of Shiksan Sahayak, considering their post graduation degree as valid may be modified by observing that, if, the Opponents are found to be eligible, after considering their post graduation degree on merit, then, their case may be considered for appointment.

5. We have heard the learned Advocates for the parties, considered the submissions made by them and also perused the material produced on record. From a perusal of the record, it emerges that pursuant to the issuance of Advertisement No. 1/2021, both the Opponents filled-up online application form for respective posts and they also submitted the requisite documents, including the documents mentioned in Clause-23 of the advertisement.

5.1 We have perused the document produced at Page-54 of the compilation, which is a certificate, Dated: 10.12.2019, issued by the concerned officer of Park View New Boys Hostel, Bhopal, and which indicates that Opponent No.1 had, in fact, stayed at the said hostel during the year 2008-2009, while he was undertaking the study of M.Ed. at Rajiv Gandhi College, Tiranga Colony, Bhopal.

C/LPA/146/2023 ORDER DATED: 14/03/2023

5.2 Similarly, a perusal of the document produced at Page-76 of the compilation, which is a certificate, Dated: 19.01.2021, issued by the Principal of Swami Vivekanand Mahavidyalaya, Makronia, Sagar, Madhya Pradesh, which also indicates that Opponent No.2 had stayed at the said hostel during the year 2008-2009, while pursuing study of M.Ed. at Swami Vivekanand Mahavidyalaya, Sagar, Madhya Pradesh.

5.2.1 Further, the receipt of the fees paid by Opponent No.2 to Swami Vivekanand College is also produced at Page-77 of the compilation, which indicates that Opponent No.2 paid Rs.1,000/- towards outstanding hostel fees on 19.01.2021.

5.3 It may be noted that, though, the aforesaid documents were produced by opponent No.1 before appellant No.2-authority, his case was not considered on the ground that he failed to provide the proof of residence.

5.3.1 So far as, Opponent No.2 is concerned, though, he had supplied the relevant / requisite documents, including the documents, as per Clause-23 of the advertisement, his case was also not considered on the ground that one Shri. Mahendra Natvarlal Shah filed an affidavit, Dated: 05.12.2019, and thereby, it was stated that Opponent No.2 had produced two different proofs with regard to his residence.

C/LPA/146/2023 ORDER DATED: 14/03/2023

5.3.1.1 In regard to the above, learned Sr. Advocate, Mr. Gautam Joshi, pointed out from the record that the aforesaid affidavit was filed with regard to one Ms. Hetal Hasmukhbhai Soni, i.e. the petitioner in Special Civil Application No. 6818 of 2021 and thus, there appears to be a genuine mistake on the part of Appellant No.2-authority to that extent.

5.3.1.2 Learned AGP, Mr. Shah, verified the aforesaid aspect and upon the instructions received from the concerned officer, who is personally present before this Court, submitted that the Appellant No.2- authority committed a mistake, while referring to affidavit of said Mr. Mahendra Natvarlal Shah in the case of Opponent No.2.

5.4 In view of the above discussion, we are of the considered view that Opponent Nos. 1 and 2 have produced all the relevant / requisite documents, including the documents mentioned in Clause-23 of the advertisement.

5.5 At this stage, it is pertinent to note that Appellant No.2-authority, after the filing of the captioned petition by the Opponents before this Court, carried out an inquiry with regard to the certificates / documents produced by both the Opponents at Pages-54, 76 and 77 of the compilation,

C/LPA/146/2023 ORDER DATED: 14/03/2023

with a view to justify their action of not granting five marks for the post graduation studies to them and ultimately, they denied the said benefit to the Opponents by stating that the concerned person/s did not show willingness to give a statement to that effect.

5.5.1 Insofar as the said aspect is concerned, we are of the view that, in the first place, such an inquiry could not have been conducted by the concerned authority, since, it amounts to filling-in lacunae, subsequently, which is not permissible. Secondly, in the report filed by it, the concerned authority, itself, has stated that merely because the Opponents filed captioned petition before this Court, such an inquiry was carried out. Thus, this appears nothing but an attempt on the part of the concerned authority to justify its decision by subsequent action, which cannot be permitted.

5.5.2 In regard to the above, it would be relevant to refer to the decision of the Apex Court in the case of 'MOHINDER SINGH GILL & ANR' (Supra), wherein, the Apex Court observed and held as under;

"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes

C/LPA/146/2023 ORDER DATED: 14/03/2023

to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older:"

5.5.3 From the aforesaid observations made by the Hon'ble Apex Court, it becomes evident that when an order is passed by the competent authority, on certain grounds, then, the validity of such an order is to be examined on the basis of the reasons stated, therein, and it is not permissible to substantiate or supplement the same by way of an affidavit or by assigning fresh reasons. It may be noted that in the present case, the Appellants tried to justify their action by conducting inquiry with regard to the documents submitted by the opponents, at a later stage. Hence, the above observations would vindicate the submission made by the learned Counsel, Mr. Joshi, that the Appellants could not have undertaken any such inquiry, so as to fill-in lacunae, subsequently.

C/LPA/146/2023 ORDER DATED: 14/03/2023

5.6 So far as the reliance placed by the learned AGP, Mr. Shah, on the order of the Coordinate Bench of this Court, passed in Letters Patent Appeal No. 145 of 2023, Dated: 15.02.2023, is concerned, it would be relevant to reproduce the observations made by the Coordinate Bench at Paragraphs-5 and 5.1, which reads thus;

"5. However, there is no gainsaying that the present case and the facts involved therein are distinct. They are not similar to Special Civil Application No. 6444 of 2021, more particularly with regard to the issue involved relating to compliance and fulfillment of conditions of clause 23 of the guidelines.

5.1 From the impugned decision dated 15.7.2021 which is in tabular form showing the ineligibility of each candidate, it was mentioned in respect of the respondent herein that he had obtained the degree from the outside state university. He did not produce any document in relation thereto including the advertisement and those required under sub-clauses (b), (d) and (g) in clause no.

23. These documents were migration certificate, the evidence regarding the residents where the candidate may have studied including hostel accommodation evidence and the receipt of the hostel fee, if paid. The candidate was required to produce the certificate of the recognised university about completion of regular course of graduation/under-graudation. None of these documents were produced by the candidate. In this view, learned Assistant Government Pleader could successfully demonstrate that the petitioner stood ineligible to be considered for the purpose of appointment."

C/LPA/146/2023 ORDER DATED: 14/03/2023

5.7 From a perusal of the aforesaid observations made by the Coordinate Bench, it becomes clear that the concerned petitioner did not produce the documents mentioned at sub-Clause (b), (d) and (g) of Clause-23 of the advertisement, whereas, in the present case, the opponents have produced all the documents, including the documents mentioned at Clause-23 of the advertisement. Thus, the facts of the candidate in the said appeal are totally different from the facts of the case on hand and therefore, the said decision would not help the appellant in any manner.

5.8 We are, therefore, of the opinion that the competent authority committed a grave error by not considering the post graduation degree of the Opponents and by not giving five marks to them by relying on Clause-23 of the advertisement.

5.9 Hence, we held that the learned Single Judge committed no error, while allowing the petition filed by the present Opponents. However, while so doing, the learned Single Judge ought not to have issued a blanket direction to appoint the Opponents- petitioners on the post in question by taking into consideration their post graduation qualification, as valid. Hence, the order of the learned Single Judge requires to be modified to that extent.

6. Consequently, the Appellants are DIRECTED to

C/LPA/146/2023 ORDER DATED: 14/03/2023

treat the post graduation qualification of the Opponents as valid and thereafter, consider their case on merit. Further, if, the present Opponents are found to be eligible for appointment on merit, then only, their case shall be considered for such an appointment on the post in question.

6.1 In the result, the present appeal is PARTLY ALLOWED and the common judgment and order passed by the learned Single Judge, Dated: 27.06.2022 is MODIFIED to the aforesaid extent.

6.2 Further, the appellants are directed to complete the aforesaid exercise within the period of EIGHT WEEKS from the date of receipt of a copy of this order.

6.3 In view of the disposal of the main matter, Civil Application shall not survive and the same also stands DISPOSED OF, accordingly.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J) UMESH/-