Gujarat High Court

Badi Irafan Amibhai vs State Of Gujarat on 27 January, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                            C/SCA/9602/2012                                   JUDGMENT DATED: 27/01/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 9602 of 2012


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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                                   Approved for Reporting                    Yes             No

                       =============================================
                                                  BADI IRAFAN AMIBHAI & ANR.
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR PRADEEP PATEL(642) for the Petitioner(s) No. 1,2
                       MR NIRAJ SHARMA, AGP for the Respondent(s) No. 1
                       MR HS MUNSHAW(495) for the Respondent(s) No. 15,16,2,3
                       REFUSED SERVED (R)(70) for the Respondent(s) No. 7
                       RULE SERVED for the Respondent(s) No. 1,10,14,8
                       RULE SERVED BY DS for the Respondent(s) No. 11,12,13,4,5,6,9
                       =============================================

                         CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                         Date : 27/01/2025

                                                         ORAL JUDGMENT

1. By way of present petition, the petitioners herein have

prayed for the following reliefs:

"A) May be pleased to Admit this Writ Petition.

B) Be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order, or direction quashing and setting aside, the selection process of Walk-in-Interview for selection as trainees to M.H.W. Course held by District Panchayat, Rajkot, on 12/4/12 and select list dated 13/4/12 (Annexure A) after holding the same as arbitrary, illegal and unconstitutional, and further be pleased to hold

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the non selection of the petitioners as trainees to M.H.W. Course as arbitrary and illegal and be pleased to direct the respondents no.1 to 3 to publish a fresh select list in accordance with law and in the interest of justice pursuant to walk-in-interview held on 12/4/12.

C) Pending admission hearing and final disposal of the petition, be pleased to stay the further operation, implementation and execution of select list dated 13/4/12 (Annexure A) and be pleased to direct the respondents to publish a fresh select list in accordance with law pursuant to walk-in-interview held on 12/4/12 by District Panchayat, Rajkot for M.H.W. Course.

D) Be pleased to pass such other/further orders deemed fit and be pleased to award the costs of this Petition."

2. Heard Mr. Pradeep Patel, learned advocate appearing for

the petitioners, Mr. Rajesh Chauhan, learned advocate for Mr.

H.S. Munshaw, learned advocate appearing for the respondent

Nos.2, 3, 15 and 16 and Mr. Niraj Sharma, learned AGP

appearing for the respondent No.1 - State. Though served, the

private respondent Nos.4-6, 9 and 10 - 14 not appeared. The

respondent No.7 has refused the service of notice of Rule.

3. The petitioners herein have challenged the legality and

validity of the selection of respondent Nos.4 to 14 as

Multipurpose Health Workers (Male) by the respondent No.2

vide order dated 13.04.2012 and the exclusion of the

petitioners as trainees on the ground that the petitioners are

not eligible to be selected as trainees whereby, the petitioners

names are not included in the impugned select list dated

13.04.2012 which is duly produced at Annexure - A, page 14 to

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the petition.

3.1 It is the case of the petitioners that pursuant to the

advertisement dated 16.01.2012 published in 'AKILA'

newspaper informing about Walk-in-Interview, to be held on

23.01.2012 for selection of 16 Trainees as Multipurpose Health

Worker (Male) for which, the educational qualifications

required was SSC pass, wherein, pursuant to the participation

in the Walk-in-Interview held on 23.01.2012, both the

petitioners were selected for training course of Multipurpose

Health Worker by order dated 26.03.2012 which is duly

produced at Annexure - C to the petition wherein, the names

of the petitioners figured at serial Nos.9 and 10 respectively.

The petitioners were asked to report at the relevant training

centre on 02.04.2012. The selection process of both the

petitioners was completed, all the paper formalities were

undertaken and the petitioners had gone personally to the

allotted training centre for joining the course. The petitioners

were however, not permitted to join the course and were

informed that the date of joining would be intimated to the

petitioners. The documents prepared by the petitioners

pursuant to the selection for training to M.H.W. Course are duly

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annexed at Annexure - D colly., page 21.

3.2 To utter shock and surprise of the petitioners, a fresh

advertisement dated 08.04.2012 was issued in 'AKILA'

newspaper for Walk-in-Interview of M.H.W. Course, which is

duly produced at page 48, Annexure - E to the petition, which

included the names of the petitioners amongst the 11

candidates who were selected and whose names figured in the

select list pursuant to the earlier advertisement published on

16.01.2012. The said advertisement dated 08.04.2012

provides for minimum educational qualification of Std.12 (HSC)

pass and over and above the earlier qualifications, the

candidates were required to possess knowledge in computer

as provided in Clause- 4 of the said advertisement and that,

the earlier advertisement dated 16.01.2012 was cancelled in

light of the Government Resolution dated 17.02.2009 which

provides for minimum qualification of Std.12 (HSC) pass in any

stream or passing of equivalent examination for being eligible

and undergoing for the said Course.

3.3 The petitioners remained present in the Walk-in-Interview

held on 12.04.2012. A fresh selection list which was prepared

by the respondent No.2 on 13.04.2012 did not include the

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petitioners names though, the petitioners were having more

percentage than some of the selected candidates and the

petitioners were earlier selected by the respondent No.2

himself.

3.4 The date of birth of the petitioner No.1 is 01.08.1991 and

possesses the educational qualification of Std.12 pass with

54.57% in general stream and also possesses basic knowledge

of computer. The date of birth of the petitioner No.2 is

21.01.1994 and possesses the educational qualification of

Std.12 pass with 56.14% in general stream and also possesses

basic knowledge of computer. Both the petitioners are

permanent residents of District : Rajkot.

3.5 It is the case of the petitioners that the petitioners herein

meet with the qualifying criteria of the 2 nd advertisement also.

In absence of any reasons assigned in the select list dated

13.04.2012, the petitioner No.1 applied for information under

the Right to Information Act which was replied to by the

respondent No.2 by communication dated 11.06.2012 wherein,

it was informed that the petitioners were not selected as they

did not fulfill the criteria of the Government Resolution dated

17.02.2009. A copy of the Rojkam dated 12.04.2012 was

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provided to the petitioner No.1 which is duly produced at

Annexure - G to the petition.

3.6 Being aggrieved and dissatisfied by the selection process

dated 12.04.2012 and the selection list dated 13.04.2012 as

also, being aggrieved by non-selection to the course of M.H.W.,

the petitioners herein are constrained to invoke Article 226 of

the Constitution of India and have prayed for the reliefs as

referred above.

4. Mr. Pradeep Patel, learned advocate appearing for the

petitioners herein relied on the facts, as referred above, and

submitted that the petitioners herein complied with the

qualifying criteria as issued in the first advertisement dated

16.01.2012 duly produced at page 19 and the second

advertisement dated 08.04.2012 duly produced at page 48.

Both the advertisements were published in the leading daily

newspaper 'AKILA'. It is submitted that both the petitioners

have passed Std.12 examination as referred above and have

also undergone certificate course in Computer and the

certificates of the petitioners dated 15.02.2011 are duly

produced at pages 78 and 79 to the petition. It is submitted

that admittedly, the said certificates are prior to the issuance

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of the first advertisement itself dated 16.01.2012 and the

petitioners herein complied with the criteria with respect to

both the advertisement and the Government Resolution dated

17.02.2009 pursuant to which, the second advertisement came

to be issued. It is submitted that once the first advertisement

having been issued, it is not open for the respondent

authorities to change the Rules of the game. It is submitted

that the Government Resolution came into effect from

17.02.2009 which is duly produced at Annexure - F to the

petition. Placing reliance on the aforesaid submissions, it is

submitted that the prayers as prayed for in the present

petition be allowed.

4.1 Mr. Patel, learned advocate submitted that the

respondent authorities have erred in not considering the

certificates held by the petitioners. It is also submitted that the

petitioners have produced all the documents at the training

centre as per Rule 8 (page 51) on the day of reporting. This

aspect was also clarified in the order dated 13.04.2012 issued

in favour of the private respondents and therefore, the

candidature of the petitioners could not have been rejected. It

is submitted that the petitioners gathered knowledge that one

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Shri Yusuf Miraji, a member of selection committee was

influenced by one Shri Ali Vali, Ex-Sarpanch of Village : Tithva

and on his recommendation, candidates at serial Nos.7 to 10

have been selected for training to M.H.W. Course. Under such

circumstances, the said selection list is vitiated. It is submitted

that even otherwise, the entire selection process is not fair and

transparent and the select list is not as per the provisions of

the Government Resolution dated 17.02.2009. It is submitted

that all the 11 selected candidates were called for Walk-in-

Interview pursuant to the advertisement dated 08.04.2012.

Out of those 11 selected candidates, 4 candidates out of the

earlier select list were selected however, the remaining 7

candidates were selected though their names were not

included in the advertisement dated 08.04.2012. It is

submitted that those who are selected, are even less qualified

that the petitioners herein. It is submitted that the aforesaid

exercise undertaken by the respondent authorities is non-est in

eye of law.

4.2 Mr. Patel, learned advocate submitted that though the

petitioners were holding the certificates in Computer, the same

was not considered by the respondent authorities and nothing

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is on record to show that the petitioners were not holding such

certificates. In light of the aforesaid, it is submitted that the

impugned exercise undertaken by the respondent authority is

required to be quashed and set aside and the prayers as

prayed for in the present petition are such that the same are

required to be allowed.

5. Mr. Rajesh Chauhan, learned advocate for Mr. H.S.

Munshaw, learned advocate appearing for the respondent

Nos.2, 3, 15 and 16 relied on the affidavit-in-reply which is filed

at page 59 and submitted that no interference is called for in

the selection of the private respondents; the process of the

same having been undertaken in accordance with the

Government Resolution dated 17.02.2009. Placing reliance on

paragraph 2 of the reply, it is submitted that the petitioners

herein in their respective applications neither mentioned that

they possess the qualification/knowledge of computer nor they

attached any certificate showing their qualifications in

Computer Science. It is submitted that even during the Walk-

in-Interview held on 12.04.2012, the petitioners failed to

produce such certificates and in view thereof, their names

were not included for the training. Reliance is placed on the

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select list which is produced at page 74 to the petition.

5.1 Mr. Chauhan, learned advocate submitted that the earlier

select list was not in accordance with the Government

Resolution dated 17.02.2009 which provides for minimum

qualification of Std.12 pass and also provides for knowledge in

Computer Science. The 2nd advertisement came to be issued

on 08.04.2012 duly produced at page 48 wherein, the

petitioners herein not qualifying with the criteria as per the

Government Resolution dated 17.02.2009, the petitioners were

rightly not included in the select list for training course of

M.H.W. (Male). It is submitted that the prayers as prayed for be

denied and the petition be dismissed.

6. Mr. Pradeep Patel, learned advocate appearing for the

petitioners herein reiterated the contentions raised earlier and

relied on the affidavit-in-rejoinder which is duly placed on

record at page 76 wherein, the computer certificates are duly

produced at pages 78 and 79. It is also submitted that the 2 nd

advertisement provides for the petitioners to appear in the

Walk-in-Interview and that, the said 2nd advertisement never

provided for filling up form. Further, the 1 st advertisement

never provided for the requirement of the computer certificate

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and therefore, the petitioners herein never produced the same

with their application. It is submitted that the certificate was

required to be produced on the 2 nd day of the interview. It is

submitted that the competent authority orally asked the

petitioners whether they possess the knowledge of operating

Computer and it was answered in affirmative and also handed

over Xerox copy of the certificate issued by the competent

authority. Both the certificates are duly annexed at Annexure -

A colly to the affidavit-in-rejoinder, page s 78 and 79. It is

submitted that with a view to do undue favour to the other

selectees, during the Walk-in-Interview, it was opined that the

petitioners do not possess the knowledge of computer. It is

reiterated that the aforesaid exercise is undertaken to favour

the private respondents. It is submitted that it is not open for

the respondent authorities to hold that the petitioners have

failed at every stage to point out that they are holding a

necessary qualification in computer science and hence, they

are kept out of the select list though, the petitioners were

higher in merits compared to the other candidates. It is

submitted that the prayers as prayed for be allowed, the

petitioners being satisfying all the requisite criteria of both the

advertisement dated 16.01.2012 and 08.04.2012 as also, the

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Government Resolution dated 17.02.2009.

6.1 Reliance is also placed on the ratio laid down by the

Hon'ble Apex Court in case of Tej Prakash Pathak & Ors. vs.

Rajasthan High Court & Ors., reported in 2024 SCC Online SC

3184 wherein, it is held that the rules of the game cannot be

changed either mid-stream or after the game is played. In the

facts of the present case, the petitioners having undergone the

process of applying through the advertisement being regular

process, it is not open for the competent authority to deny the

petitioners the reliefs as prayed for.

Analysis:-

7. Having heard the learned advocates appearing for the

respective parties and the facts as narrated above, it emerges

that the petitioner No.1 born on 01.08.1991 is a permanent

resident of District : Rajkot and has secured 54.57% in

General Stream in Std.12 and also, has basic knowledge of

computer and a certificate bearing registration No.82929 to

the said effect is duly produced at page 78 issued by the All

India Computer Saksharta Mission dated 15.02.2011 wherein,

it is stated that the petitioner has undergone training from

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01.11.2010 to 31.01.2011 having passed Grade - A in the

Course on Computer Concept (CCC).

7.1 The petitioner No.2 born on 21.01.1994 is a permanent

resident of District : Rajkot and has secured 56.14% in

General Stream in Std.12 and also, has basic knowledge of

computer and a certificate bearing registration No.82930 to

the said effect is duly produced at page 79 issued by the All

India Computer Saksharta Mission dated 15.02.2011 wherein,

it is stated that the petitioner has undergone training from

01.11.2010 to 31.01.2011 having passed Grade - A in the

Course on Computer Concept (CCC).

8. The respondent No.2 herein has with the affidavit-in-reply

produced on record the select list dated 12.04.2012. On

perusal of the said select list, it emerges that the petitioners

herein are higher up in the said select list compared to other

respondents i.e. respondent Nos.2, 21, 18, 11, 17 and 16

however, are disqualified for the reason that the petitioners do

not possess knowledge in computer.

9. Upon perusal of the aforesaid, it is not in dispute that the

petitioners applied pursuant to the first advertisement dated

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16.01.2012 which, never included a certificate in computer.

Further, though the qualifying criteria was only SSC pass, the

petitioners herein were HSC pass and therefore, they have

produced their marksheet of Std.12 along with the said

application. In the second advertisement dated 08.04.2012

duly produced at page 48, only provided that the petitioners

were required to appear in the Walk-in-Interview that was to be

held on 12.04.2012at 10:00 am in light of the Government

Resolution dated 17.02.2009 for which, the qualifications are;

(1) The candidate must have passed H.S.C. (Standard - 12)

examination in any stream; (2) The candidate who has passed

H.S.C. in science stream shall be given priority in admission;

(3) The age of the candidate shall not be less than 17 years

and more than 22 years as on 12/01/12; (4) The candidate

should have the knowledge of computer.

10. In view thereof, the contention of the respondent

authority that the petitioners had not placed on record the

computer certificate is out of question considering the fact that

it was never forming a part of the requirement of the

advertisement dated 16.01.2012. When the petitioners

appeared in Walk-in-Interview and were asked if they possess

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a computer certificate, it was answered in 'yes' and Xerox copy

was also handed over to the authority. However, though the

petitioners are in possession of such certificate, the names of

the petitioners did not figure in the select list on the ground

that the petitioners do not have computer knowledge though

the petitioners are in merit.

11. Considering the aforesaid, in the opinion of this Court, the

petitioners herein have accepted the second advertisement

dated 08.04.2012 which is duly produced at page 48, the

petitioners are required to comply with the terms of the said

advertisement which is also in-consonance with the

Government Resolution dated 17.02.2009 and in view thereof,

this Court is not entering into the aspect whether it was open

for the respondent authorities to cancel the first

advertisement. However, undisputedly, the petitioners were

called for Walk-in-Interview having being on the select list of

the first advertisement, which was cancelled. Upon perusal of

the documents on record, it emerges that the petitioners have

passed Std.12 examination with General Stream and are in

possession of the computer certificate as provided in the

second advertisement. Nothing is coming on record from the

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affidavit in reply of the respondent authorities denying the

aforesaid contention. The respondent authority has failed to

counter the affidavit-in-rejoinder which is filed by Mr. Pradeep

Patel, learned advocate appearing for the petitioners. In light

of the aforesaid, the certificates which are produced at pages

78 and 79 of the petitioner Nos.1 and 2 respectively, are such

that the same are required to be considered.

12. At this stage, it is apposite to refer to the ratio laid down

by the Hon'ble Apex Court in case of M/s. Radha Krishan

Industries vs. State of Himachal Pradesh, reported in AIR 2021

SC 2114. Paragraph 27 of the said decision reads thus:

"27. The principles of law which emerge are that :

(I) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the

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remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

13. In view of the aforesaid facts and the position of law, as

referred above, this is fit case to exercise extra-ordinary

jurisdiction under Article 226 of the Constitution of India. The

respondent authority is directed to consider the case of the

petitioners for training as Multipurpose Health Worker (Male)

taking into consideration the marksheets of Std.12 General

Stream of the petitioners herein wherein, the petitioner No.1

has secured 54.57% and the petitioner No.2 has secured

56.14% and the computer certificates produced on record by

the petitioners herein; upon due verification and include the

names of the petitioners in the select list of trainees to M.H.W.

Course held by the District Panchayat, Rajkot, dated