Nutanben Vajerambhai Dhandhla vs State Of Gujarat
2024 Latest Caselaw 5368 Guj

Gujarat High Court

Nutanben Vajerambhai Dhandhla vs State Of Gujarat on 24 June, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

                                                                                           NEUTRAL CITATION




    C/SCA/13229/2023                                       JUDGMENT DATED: 24/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13229 of 2023
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
            In R/SPECIAL CIVIL APPLICATION NO. 13229 of 2023
                                 With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2023
            In R/SPECIAL CIVIL APPLICATION NO. 13229 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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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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                       NUTANBEN VAJERAMBHAI DHANDHLA
                                    Versus
                           STATE OF GUJARAT & ORS.
========================================================
Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1
MR ADITYA PATHAK ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 24/06/2024

                                 ORAL JUDGMENT

1. Heard learned Advocate Mr. Sandip Patel and learned Assistant

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Government Pleader Mr. Aditya Pathak on behalf of respondent- State.

2. Issue Rule returnable forthwith. Learned AGP waives service of notice on behalf of respondent- State.

3. By way of this petition, the petitioner has inter alia has sought a direction against the respondents that they may consider the case of the petitioner for appointment to the post which was advertised for selection viz; teacher in Lower Primary selection.

4. It is the case of the petitioner that the respondent no. 3 had given advertisement for filling up of post of Primary Teacher and whereas since the petitioner being eligible on account of having degree, in Bachelor of Arts in English and having passed the TET i.e. Teacher Eligibility Test, was qualified to compete in the selection process. It is the case of the petitioner that she had been called for district selection on 23.07.2023 at the office of the respondent no.3 and whereas since on the said day there was heavy rains in the area where the petitioner was residing therefore, the petitioner had submitted an E-mail to the respondents informing that she would not be able to attend the verification center due to bad weather and whereas it was requested to postpone the district selection of the petitioner. The weather having improved on the next day i.e. on 24.07.2023 the petitioner travelled to the office of respondent no.3 and whereas since no heed was given to the request of the petitioner, therefore the petitioner has moved the present petition.

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5. The facts insofar as the petitioner being eligible for appearing in the district selection having received a call letter from respondent no. 3 for attending the district selection on 23.07.2023, not being in dispute, the only contention which requires to be recorded being that according to learned Advocate, the petitioner was residing in Taluka Sihor District Bhavnagar and whereas there was an orange alert issued by the Government for the said date and whereas on account of heavy rains the petitioner could not attend the district selection process. It is also submitted by learned Advocate that on the very date i. e. on 23.07.2023 at 4.16 p.m, the petitioner had sent an E-mail to the respondents informing them that it would not be possible for the petitioner to reach the office of respondent no. 3 on account of heavy rains. Learned Advocate Mr. Patel would submit that the respondents considering the genuine difficulty of the petitioner ought to have granted one more opportunity to the petitioner and whereas the respondents having completely refused appointment to the petitioner intervention of this Court is warranted.

6. As against the same the present petition is vehemently opposed by learned AGP Mr. Aditya Pathak on behalf of the respondents. It is submitted by learned AGP Mr. Pathak that as per the call letter itself, it is inter alia mentioned at item no. (4) that if the candidate does not remain present then she would not get a second chance for district selection. It is further mentioned that if candidates arrive later than the prescribed time then candidates would be given option for selection as per the

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vacancies available and whereas it is further clarified that upon the process being over no option for district selection would be given.

7. Learned AGP would submit that candidate being made aware about clear direction that no option would be given after the process is over, if the candidate did not make it on time on the given date then the candidate will have to face the consequences.

7.1 Learned AGP would further submit that while the petitioner claims that there was heavy rain in her Taluka on the given date, yet around 23 candidates from the very Taluka had reached the centre at Gandhinagar on the given day under such circumstances it is submitted that the contention of the petitioner that she could not make it on account of heavy rain could not be countenanced. Thus submitting learned AGP would request this Court not to entertain the present petition and to reject the same.

8. Heard learned Advocates for the respective parties and perused the documents on record. The question which arises for consideration of this Court is whether the petitioner who could not attend the district selection cum document verification process on the given date, would be entitled to be granted a second opportunity or not ?

8.1 At the first instance what requires to be noted is that the

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contentions raised in the petition, stand completely unanswered. It requires to be mentioned that a learned Co-ordinate Bench of this Court vide 02.08.2023 while issuing Notice had recorded the submission that the petitioner could not attend the district selection process on account of flood situation in the district in which the petitioner resides and whereas after issuance of notice, the learned Co-ordinate Bench had inter alia observed that the respondents are directed to consider the application of the petitioner dated 24.07.2023 to act upon accordingly if vacancy is available. It does not appear that either the respondents have attempted to deny or in any manner oppose the submission made by the petitioner by any facts and figures as regards either there being no flood situation in the said district on the said date or that there was no orange alert issued as mentioned in the petition. Furthermore shockingly, while the respondents were directed to consider the application of the petitioner dated 24.07.2023 i.e. of being given one more chance, there is nothing on record to show that the said direction is complied with.

9. Reverting back to the facts of the case, it would appear that while the petitioner has contended about there being an orange alert for the district, the same is attempted to be controverted by learned AGP by submitting that atleast 23 persons from the area had attended the document verification cum district selection process and thus it is submitted that the case of the petitioner may not be considered.

10. From the submissions made by learned AGP, it clearly

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appears that neither do the respondents attempt to deny that an orange alert was issued nor do the respondent deny that there was a flood-like situation in the district in question on the given day. The only answer being that since many other candidates could make it, the petitioner should also have reached the centre for document verification cum district selection.

11. In the considered opinion of this Court, individual circumstances cannot be fitted into any straight jacket formula. While it is apparent that there was an orange alert in district in question and that the district had received some amount of rainfall, merely because other candidates had managed to reach the centre would not mean that the circumstances of the petitioner was such that she could also reach the centre in time.

12. The only aspect which would requires consideration at this stage is that whether there was any reasonability in the request of the candidate or not. In this regard, it would appear that on the date of the selection, the petitioner had sent an E-mail to the respondents informing that she could not attend the location of document verification due to heavy rain in her local area and that she could attend the office of respondent no. 3 on the next date. From the E-mail of the said date, to this Court it would appear that the petitioner was in a difficult position whereby she could not due to circumstances beyond her control reach the center in question and whereas it does not appear that the justification is an afterthought more particularly since the justification was given on the date of the District Selection cum

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Document verification itself.

13. Insofar as the submission made by learned AGP that the call letter itself clearly indicates that the candidate has to remain present on the date of selection in question and whereas in case the candidate does not remain present then she would not get any opportunity on the next date, while the same, would be and has to be the general policy of a selection body to ensure that candidates do not misuse the process but at the same time in the considered opinion of this Court such an instruction cannot be termed as being an absolute and inviolable rule. While it is true that in certain circumstances, like in case of candidates attempting to use unfairness in the selection process or producing forged and fabricated documents, there could not be any kind of overlooking or diluting rule which debars candidates upon the acts as above being proved yet, insofar as issues like the present, where a candidate because of genuine reasons beyond her control could not reach the centre on the given day. To such candidates some exception would be required to be carved out. Again while it is not the opinion of this Court that exceptions have to be carved out in case of every candidate who could not attend the document verification cum district selection process, yet, in cases of genuine hardships, the respondent no. 3 as an examination conducting body/ selecting body, would require to make exceptions.

13.1 As noticed hereinabove, there is no denial to the submission that there was an orange alert in the district in

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question, there is no denial to the submission that there was heavy flood like situation in the area where the petitioner was residing and whereas the only circumstances to counter the submission of the petitioner being that some other candidates of the said area could make it to the centre. In the considered opinion of this Court, without controverting the submission of the petitioner merely because some other candidates found it convenient to attend, would not by itself mean that the petitioner should have made it without fail. The other candidates, may be residing in areas which have more accessibility to highways or there being no flood-like situation in the near vicinity of the residences of the other candidates could all be circumstances entirely specific to the other candidates that by itself would not mean that the reason given by the petitioner ought not to be accepted. Moreover it also required to be mentioned here that the petitioner being a lady candidate, in a flood like situation, travelling around 200 kilometers ( the distance between Sihor Taluka and Gandhinagar) may not have been possible for the present petitioner.

13.2 Again the petitioner having sent an E-mail on the very day and the petitioner having reached the office of the respondent no. 2 on the immediate next date are circumstances which ought to have been considered by the respondents.

14. In the considered opinion of this Court, the respondent no. 3 may be bound by instructions or even statutory rules as the case may be to conduct the selection process in a particular

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manner, but at the same time, a selection body has to be amenable to genuine request made by the candidates. To this Court it defies imagination that in an era when getting a permanent job is a bridge to a secure future and is a bridge to acquiring stability in life, a candidate who has an opportunity of having a confirmed job would forgo the same without any genuine cause.

15. The respondent no. 3 ought to appreciate that there existence is for selecting candidates. That all the instructions are to be followed by human beings, who unlike inanimate objects, have certain circumstantial existential requirements. As noted hereinabove, while being a selection body, the respondent no. 3 could not be expected to cater to any and all requirements of candidates, yet, the respondent no. 3 ought to have ensured that when it came to issues beyond control of an individual or which are acts of God and specific to an individual, there should be some methodology place to ensure that genuine requests are acceded to while run of the mill/unreasonable requests are weeded out.

15.1. Having observed as thus as far as facts of the case are concerned, since it clearly appear to this Court that the present petitioner could not remain present on account of circumstances beyond her control, more particularly circumstances being completely relatable to acts of God. Therefore, in the considered opinion of this Court, the respondent no. 3 was completely unjustified in not acceding to the request of the petitioner and

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was completely unjustified in not granting a further opportunity to the petitioner to appear for district selection.

16. For the foregoing discussions, reasonings and conclusions, the petition succeeds and whereas the following directions in the considered opinion of this Court would meet with the ends of justice:.

[1] The respondent no. 3 shall afford one more opportunity to the petitioner for remaining present for district selection and document verification.

[2] The petitioner shall be offered appointment in the district/ districts as per the preference given by the petitioner more particularly having regard to the vacancy situation.

[3] In case there are very few vacancies available then the petitioner may be given a choice to opt for any of the vacancies. In case there is no vacancy available in the present selection, then the respondents shall ensure that in the forthcoming selection for the post in question, one vacancy shall be reserved for the petitioner and whereas she would be entitled to seek appointment in a district of her choice subject to the petitioner fulfilling all other criteria.

[4] At this stage, while this Court takes an absolutely dim view about the respondent no. 3 having not complied with order of this Court dated 02.08.2023 and whereas this Court deems it

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appropriate not to pursue issue any further but suffice it to state that the respondent shall ensure appropriate compliance to orders of this Court.

With the above observations and directions the present petition stands disposed of. Rule is made absolute to the above extent. Civil Applications stand disposed of. Direct service is permitted.

(NIKHIL S. KARIEL,J) NIRU