The Secretary vs Yatinkumar Babubhai Panchal
2023 Latest Caselaw 2524 Guj

    C/LPA/838/2022                            ORDER DATED: 27/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 838 of 2022
         In R/SPECIAL CIVIL APPLICATION NO. 14759 of 2019

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/LETTERS PATENT APPEAL NO. 838 of 2022
                                 With
               R/LETTERS PATENT APPEAL NO. 170 of 2023
             In SPECIAL CIVIL APPLICATION NO. 3422 of 2016
                                 With
               R/LETTERS PATENT APPEAL NO. 172 of 2023
            In SPECIAL CIVIL APPLICATION NO. 19233 of 2017
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/LETTERS PATENT APPEAL NO. 172 of 2023
            In SPECIAL CIVIL APPLICATION NO. 19233 of 2017
                                 With
               R/LETTERS PATENT APPEAL NO. 1704 of 2022
            In SPECIAL CIVIL APPLICATION NO. 10900 of 2016
                                 With
               R/LETTERS PATENT APPEAL NO. 267 of 2023
            In SPECIAL CIVIL APPLICATION NO. 11731 of 2016
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/LETTERS PATENT APPEAL NO. 267 of 2023
            In SPECIAL CIVIL APPLICATION NO. 11731 of 2016


================================================================
                            THE SECRETARY
                                 Versus
                     YATINKUMAR BABUBHAI PANCHAL
================================================================
Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
 for the Respondent(s) No. 3
MR DG SHUKLA(1998) for the Respondent(s) No. 4
MR GAUTAM JOSHI, SR.ADVOCATE with MS DHARA M SHAH(5546) for
the Respondent(s) No. 1,2
MR JAINISH P.SHAH, ADVOCATE for the Respondent.
MS.BHOOMI M.THAKORE, ADVOCATE for the Respondent.
MS P.S.PATEL, ADVOCATE for the Respondent.
MR.SUDHANSHU JHA, ADVOCATE for the Respondent.
================================================================



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      C/LPA/838/2022                          ORDER DATED: 27/03/2023




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

                         Date : 27/03/2023

                     COMMON ORAL ORDER

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

1. This batch of Appeals under clause 15 of the Letters Patent is preferred by the appellants - (i) the Secretary, District Panchayat Service Committee and (ii) the District Development Officer, assailing the common order dated 9.2.2022 passed by the learned Single Judge in the Special Civil Applications Nos.14759 of 2019 and allied matters, whereby the learned Single Judge pleased to allow the writ-petitions.

2. As the common issues are involved in this batch of appeals, with the consent of learned advocates for the parties, they were heard together and are being disposed of by this common judgment.

3. We have heard learned counsel Mr.Manish J.Patel for the appellants and learned senior counsel Mr.Gautam Joshi, learned senior counsel appearing with Ms.Dhara M.Shah, Mr.Jainish P.Shah, Ms.Bhoomi M.Thakore, Mr.P.S.Patel, Mr.D.G.Shukla and Mr.Sudhanshu Jha for the respective respondents.

4. The case of the petitioners before the learned Single Judge was as under :

C/LPA/838/2022 ORDER DATED: 27/03/2023

4.1. That an advertisement dated 8.4.2015 was issued by the District Panchayat Service Selection Committee for recruitment to the posts of Talati-cum-Mantri on the establishment of the District Panchayat, Sabarkantha at Himmatnagar. The advertisement was issued for 93 posts of Talati-cum-Mantri. Pursuant to the advertisement, the recruitment process was undertaken and the petitioners of the captioned petitions were selected and appointment orders were issued. However, the petitioner no.2 of the Special Civil Application No.14759 of 2019 was not offered appointment, though she was on the select list.

4.2. It is the case of the petitioners that a batch of petitions, viz. Special Civil Application No.14870 of 2015 and allied matters, was filed by some candidates whose names were not recommended for appointment to the posts of Talati-cum-Mantri for Rajkot district. The case of the petitioners therein 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 19.2.2019, 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."

C/LPA/838/2022 ORDER DATED: 27/03/2023

4.3. Pursuant to these directions, the respondent - District Panchayat Service Selection Board rectified the mistakes and re-

adjusted the merit list and the selections undertaken in context of the District Panchayat, Sabarkantha at Himmatnagar. As a result of reshuffling, the petitioner no.1 of the Special Civil Application No.14759 of 2019, the petitioners of the Special Civil Application No.10900 of 2016 and the petitioners of the Special Civil Application No.11731 of 2016 faced termination of their service by virtue of this reshuffling of the merit list. The petitioners of the Special Civil Application No.10900 of 2016 were only protected and the terminations were not made effective. However, it may be pointed out that the respondent no.5 of that petition was selected but not appointed by virtue of this reshuffling. The petitioners of the Special Civil Applications Nos.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 and they found their names in the merit list.

5. Thus, the issue before the learned Single Judge was, whether the persons who were selected prior to the reshuffling of the select list should continue in case where they have been granted protection and/or the petitioners who were selected but faced termination by virtue of the reshuffling be appointed on the select list as if their termination are set-aside. The second issue was, whether the rival petitioners of the Special Civil Applications Nos.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 the reshuffling.

C/LPA/838/2022 ORDER DATED: 27/03/2023

6. Mr.Manish Patel, learned advocate appearing on behalf of the appellants, has submitted that the learned Single Judge has not considered the contention of the appellants that the petitioners who were less meritorious did not find their place in the revised merit list which is prepared as per the direction of this Court in the Special Civil No.14870 of 2015. The appellants have acted as per the directions of this Court and passed Resolution No.08-2016 dated 13.6.2016 and given proper marks to the candidates who have given true answers and prepared the provisional list accordingly.

6.1. Learned advocate Mr.Patel would submit that pursuant to the order of the Court dated 19.2.2016, the candidates who have given true answers have been put in the panel as per their merit. 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 the Sabarkantha District were ordered to be relieved and were served with the order of relieving also. Five candidates who were selected in the then Sabarkantha District and presently in the Aravalli District, their orders have been sent to the Aravalli District but before service of order of relieving came to be passed, four persons have filed the present Special Civil Application No.10900 of 2016, wherein interim relief has been granted and another Special Civil Application No.11731 of 2016, wherein similarly situated persons have challenged the orders but after their relieving. The petitioners have sought appointment by operating the provisional list after a lapse of more than three years.

       C/LPA/838/2022                        ORDER DATED: 27/03/2023




6.2    Further, learned advocate Mr.Patel would submit that as

per the advertisement for appointment of Talati-cum-Mantri, in all 26 districts of the Gujarat State, an examination was undertaken and selection was made. He would refer to the judgment of a Coordinate Bench dated 19.2.2016 and would submit that since the candidates who had given true answers were required to be put in the panel. So, a proposal was made to the Development Commissioner on 29.3.2016 to obtain sanction for the post. The Development Commissioner gave a reply on 19.4.2016 but no sanction was given or expressed any opinion.

6.3. Learned advocate appearing for the appellants has shown his inability to implement the directions issued by the learned Single Judge to accommodate the present petitioners. He submitted that the petitioners cannot be accommodated beyond the sanctioned posts, i.e. the advertisement was given to fill up 93 posts. There was a sanctioned strength of 603 posts. Out of which, 526 posts were filled up and 77 posts were left vacant.

6.4. In view of the above, learned advocate for the appellants ultimately requested this Court to allow the appeals and quash & set-aside the order passed by the learned Single Judge.

7. Per contra, learned senior counsel Mr.Gautam Joshi appearing with Ms.Dhara M.Shah, learned advocate for the respective respondent has submitted that the learned Single Judge has properly considered the case of the petitioners and there was no fault on the part of the petitioners. He vehemently

C/LPA/838/2022 ORDER DATED: 27/03/2023

submitted that as per the law laid down by the Supreme Court in the case of Vikas Pratap Singh and others vs. State of Chhatisgarh and others, reported in (2013) 14 SCC 494 and in the case of Rajeshkumar and others vs. State of Bihar and others, reported in (2013) 4 SCC 690, which has been extensively considered by the Division Bench of this Court in the case of Bharwani Jitendra K. vs. State of Gujarat and another (Letters Patent Appeal No.1303 of 2015 dated 29.1.2016), the petitioners can be retained or reinstated in service and appointed in accordance with the merit list prior to its reshuffling. All the petitioners of the respective petitions can be accommodated to the post of Talati-cum-Mantri.

7.1. Mr.Joshi, the learned senior counsel requested this Court that since the issue is squarely covered, the appeals preferred by the appellants be dismissed.

8. Having heard the learned advocates for the parties and having perused the documents on record, more particularly, the order passed by the learned Single Judge, it appears that the learned Single Judge has placed reliance on the decisions of Vikas Pratap Singh (supra) and Rajeshkumar (supra) and as law laid down by the Supreme Court on the ground that no fault can be found with the petitioners of the Special Civil Applications Nos.14759 of 2019, 10900 of 2016 and 11731 of 2016 of having found their names on the merit list and having been appointed pre reshuffling, such petitioners should be continued in service and, therefore, the learned Single Judge has rightly set-aside the termination of the petitioners considering

C/LPA/838/2022 ORDER DATED: 27/03/2023

the ratio laid down in the case of Rajesh Kumar (supra), more particularly paragraph-22, which reads as under :

"In the result, we allow these appeals, set aside the order passed by the High Court and 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 re-evaluation shall not be ousted from service,

C/LPA/838/2022 ORDER DATED: 27/03/2023

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) 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."

9. The Hon'ble Supreme Court observed that 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 and the respondents were directed to appoint them in the revised list placing them at the bottom of the select list and a clarification was made that the appointment of the appellants shall be considered as fresh appointment which shall not entitle them to backwages.

10. Further, while passing the order the learned Single Judge has also considered the letter written by the District Panchayat, Sabarkantha, dated 29.3.2016 to the Development Commissioner, to which the Development Commissioner did not opine because though 93 posts were advertised, there was a sanctioned strength of 603 posts and out of which 526 posts were filled in and 77 posts were left vacant. Admittedly, therefore, during the pendency of the petitions of the year 2016, the earliest being the Special Civil Application No.3422 of 2016,

C/LPA/838/2022 ORDER DATED: 27/03/2023

77 posts were vacant. Thus, the opinion or sanction of the Development Commissioner does not make any difference to the respondents.

11. In view of the above, the learned Single Judge has found merit in the petitions and come to the conclusion that there was no reason for not following the arrangement that was directed to be followed by the Division Bench in the case of Bharwani Jitendra K. (supra). The present matter is squarely covered by the decision in the case of Bharwani Jitendra K. (supra). The State has assailed the said decision by way of filing Civil Appeal Nos.6599-6600 of 2016 before the Hon'ble Supreme Court and the same was dismissed vide order dated 30.7.2019.

12. We have gone through the reasons assigned by the learned Single Judge qua each petitioners and we do not find any infirmity or illegality in the order passed by the learned Single Judge. Hence, we are not inclined to entertain the present LPAs.

13. The Letters Patent Appeals stand dismissed. In view of the dismissal of the main matters, the Civil Applications would not survive and the same are disposed of.

(VIPUL M. PANCHOLI, J.)

(HASMUKH D. SUTHAR, J.) /MOINUDDIN