Gujarat High Court
Sanjay Babulal Baraiya vs State Of Gujarat on 14 July, 2025
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Reserved On : 02/07/2025
Pronounced On : 14/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11592 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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SANJAY BABULAL BARAIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
MR HENIL SHAH, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
RULE SERVED for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. This petition is filed for the following prayers:
"27(A) Your Lordships may be pleased to issue a writ of
Mandamus or a writ in nature of Mandamus or any other
appropriate writ/s, order/s, and/or direction/s directing the
respondent Nos.1 to 3 to appoint the petitioner on the post
of Panchayat Sahayak within the stipulated time as may be
fixed by this Honourable Court.
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(B) Pending admission, hearing and final disposal of this
petition, Your Lordships may be pleased to grant ad-interim/
interim relief directing the respondent Nos.1 to 3 to consider
the case of the petitioner for the appointment of the
petitioner on the post of Panchayat Sahayak keeping in
mind the birth date of the petitioner.
(C) xxxx"
2. The facts leading to filing of this petition are such
that the respondent no.2, under the scheme of respondent
no.1, issued a public advertisement dated 9.11.2003 inviting
applications for selection and appointment for the post of
Panchayat Sahayak with fixed monthly salary of Rs.2,500/-, in
which there were certain reserve category for the candidates
like Scheduled Castes and Scheduled Tribes, Socially and
Educationally Backward Castes, Physically Handicapped,
Retired Army Man etc. and relaxation upto 5 years has also
been given to the candidates of reserve category; that the
petitioner applied for the said post on 3.12.2003 and again
on 12.3.2003 alongwith the necessary documents; the
documents were verified by the Taluka Development Officer
based on the letter of the District Development Officer; that
the interview was conducted on 23.2.2004 and as the
petitioner did not receive any communication, he made
inquiry and on inquiry found that the respondent no.4
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herein- Mansukh Jadav was selected who also belongs to
Socially and Educationally Backward Class and is having
same merit i.e. 84.86% as that of the petitioner and that
though the petitioner was elder to said Mansukhbhai, he
was not selected; that the petitioner wrote a letter to the
respondent nos.1 to 3 authorities on 24.2.2004, however, there
was no response to the same; that the petitioner, respondent
nos.4 and 5 stood at sr.no.116 (sr.no.119), 114 nd 121
respectively and without the considering the age of the
candidates whose merits are equal, appointed the respondent
no.4 on the post of Panchayat Sahayak vide order dated
21.2.2004; therefore the respondent no.5 who is elder than
the respondent no.4 is not appointed, the respondent no.5
filed a Regular Civil Suit No.120 of 2004 in the court of
learned Civil Judge at Bhavnagar for a declaration that he is
entitled to be selected and appointed on the post of
Panchayat Sahayak considering his age joining the respondent
nos.1,2 and 4 herein as defendants; and the said suit was
partly decreed vide order dated 26.10.2007 and the plaintiff
therein-respondent no.5 herein was ordered to be appointed;
that the petitioner is elder to the respondent no.4 and
therefore, this petition is filed with the above mentioned
prayers.
3. Heard learned advocates for the parties.
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3.1 Learned advocate Mr.Mangukiya for the petitioner
mainly submitted that the respondent nos.4 and 5 secured
equal merit and as per the decision of this Court rendered in
Special Civil Application No.4673 of 2001 and circular issued
by the Gujarat Panchayat Service Selection Board dated
19.10.1973, if selection is required to be made amongst the
candidates possessing equal merits, the person older in age
should be selected; that the date of birth of the petitioner is
21.2.1983, the date of birth of respondent no.4-Mansukhbhai
Jadav is 7.8.1983, and the date of birth of respondent no.5-
Narendrabhai Bhagatbai Rathod is 9.7.1981 and therefore, it
is clear that the petitioner is elder to respondent no.4 and
therefore he should be appointed, which is not done and the
respondent no.4 is appointed by the respondents-authorities;
that the respondent no.5 approached the civil court for
appointment on the same ground as he is elder to respondent
no.4 and the civil court directed the respondent authorities to
appoint respondent no.5 herein and therefore, the petitioner
who is also elder to respondent no.4 should be appointed. He,
therefore, prayed that this petition be allowed and the
respondents authorities be directed to appoint the petitioner
on the post of Panchayat Sahayak.
3.2 In support of this submissions, learned advocate
for the petitioner has relied on the following decisions:
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(1) Raju Ramdebhai Khunt V/s Director General and
Inspector General of Police, Gujarat State and Ors, decided
on 13.2.2025 passed in Special Civil Application Nos.19954 of
2022 and allied matters.
(2) Sonalben Bhaurao Saindave V/s State of Gujarat & Anr.,
dated 17.4.2025 passed in Special Civil Application No.20657
of 2022.
(3) Desai Jitendra Jivanbhai V/s State of Gujarat & Ors. Of
the Hon'ble Apex Court dated 22.10.2024 passed in civil
appeal arising from SLP(C) No.9199 of 2024.
4. Per contra, learned advocate Mr.Munshaw for
respondent nos.2 and 3-the contesting respondents, has
submitted that the advertisement for the post of 56
Panchayat Sahayaks was published by the Gujarat Panchayat
Service Selection Board on 19.11.2003, out of which 15 posts
were to be filled up through SEBC category candidates; for
th
the 15 post, in all three candidates placed at sr.no.114, 116
and 121 of the select list had secured identical marks; the
respondent no.4 was selected for the said post and
accordingly all the 15 posts were filled up; that when the
civil court passed the order of appointing respondent no.5 in
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the civil suit filed by him, though all the 15 posts were
filled up, but by way of operating the said list qua SEBC
category candidate, one Ms.Alpa Ranendrabhai Kanada had
not joined the service and therefore the respondent no.5 was
issued appointment order as Panchayat Sahayak on 22.4.2008
on the said vacant post.
4.1 Learned advocate Mr.Munshaw further submitted
that this petition suffers from delay and laches on the
ground that the select list is operated and all the
appointments are made on 21.2.2004 and the life of the
select list, which is one year, had expired as per the
government resolution dated 12.6.1989; that the present
petitioner had made representation in the year 2004 for his
appointment which was replied on 19.3.2004 and after nearly
five years of the same, this petition is filed; that the
Government of Gujarat, though its Panchayat and Rural
Housing Department has laid down through Government
Resolution dated 12.6.1989 that the life of the list is one
year from the date of publication of select list or publication
of the result of next advertisement, whichever is earlier; the
period of one year has already expired in this case and
therefore as the list is not operative, the petitioner cannot
get any benefit either on facts as well as on the basis of
Government Resolution dated 12.6.1989. He, therefore,
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submitted that this petition is not required to be allowed.
4.2 He relied on the following decision in support of
the submissions:
(1) Chairman/Managing Director, Uttar Pradesh Power
Corporation Limited and Others V/s Ram Gopal reported in
2021(13) SCC 225.
4.3 Learned AGP Mr.Shah has submitted that the
advertisement is issued by the Gujarat Panchayat Selection
Board, and therefore the respondent nos.2 and 3 are the
contesting respondents. However, he submitted that the
petitioner approached this Court after a period of about four
years of the declaration of the result and therefore, this
petition is required to be dismissed on the ground of delay
and laches.
4.4 Though served, respondent nos.4 and 5 have not
filed their appearance.
4.5 In rejoinder to the said submissions made by
learned advocate Mr.Munshaw for the respondent nos.2 and
3, learned advocate Mr.Mangukiya for the petitioner has
submitted that though the petitioner is elder than the
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respondent no.4, the respondent authority illegally and
arbitrarily not appointed the petitioner and therefore, now the
respondent authority cannot take a stand that the list is
expired and the list has expired on account of the fault,
mistake and action of the respondent; that the respondent
no.5 is appointed in the year 2008 and therefore the bar as
per the resolution dated 12.6.1989 would not come in the
way of the appointment of the petitioner. He, therefore,
prayed to allow this petition.
5. I have heard the learned advocates for the parties
and also perused the material on record.
6. The undisputed facts are that the advertisement is
issued on 19.11.2003; the appointments were made on
21.2.2004; the respondent no.5 approached the civil court on
1.3.2004 i.e. within less than 15 days from the date of
appointments being made on 21.2.2004; the respondent no.5
was given appointment in the year 2008 pursuant to the
judgment passed by the civil Court on 26.10.2007; this
petition is filed in the year 2008. Considering the date of
births of the petitioner and respondent nos.4 and 5 which are
21.2.1983, 7.8.1983 and 9.7.1981 respectively, the petitioner is
elder to respondent no.5; that according to the circular issued
by the Gujarat Panchayat Service Selection Board on
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19.10.1973, if a selection is required to be made amongst the
candidates possessing equal merits, the person older in age is
required to be appointed. Be that as it may. The fact
remains that the advertisement is issued in the year 2003,
the appointments are made in 2004 and this petition is filed
in the year 2008 i.e. after a delay of four years, which
remains unexplained satisfactorily. As per the Government
Resolution dated 12.6.1989, the select list is operative for one
year i.e. it expired in the year 2005 itself and the petitioner
filed this petition after three years of the expiry of the said
list and when the list itself is not in existence on the date
of filing the petition, the petitioner is not entitled to get any
relief as prayed for.
7. In this regard, a reference to the judgment of the
Hon'ble Supreme Court relied on by learned advocate for
respondents in the case of Ram Gopal (supra), would be
helpful. It is observed and held in paragraph 11 as under :
"11. Whilst it is true that limitation does not strictly apply
to proceedings under Articles 32 or 226 of the Constitution,
nevertheless, such rights cannot be enforced after an
unreasonable lapse of time. Consideration of unexplained
delays and inordinate laches would always be relevant in
writ actions, and the writ courts naturally ought to be
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reluctant in exercising their discretionary jurisdiction to
protect those who have slept over wrongs and allowed
illegalities to fester. Fence-sitters cannot be allowed to barge
into courts and cry for their rights at their convenience, and
vigilant citizens ought not to be treated alike with mere
opportunists......."
8. There cannot be any dispute with regard to the
decisions relied on by learned advocate for the petitioner,
however, the facts of the present case are different to the
facts of those cases and therefore will not be helpful to the
petitioner. In the case on hand, it is not that the petitioner
approached this Court in time to agitate his grievances and
the matter is delayed because of the pendency before this
Court. The petitioner himself has filed this petition after a
delay of four years from the date of appointments to others
and after a delay of three years from the date of expiry of
the select list. Therefore, when the petitioner himself was not
vigilant and allowed the illegalities to fester, this Court
cannot grant any relief to the petitioner.
9. As regards the contention that the respondent no.5
was given appointment in the year 2008 and therefore the
bar of resolution dated 12.6.1989 would not apply and that
the select list cannot be said to be expired, the same cannot
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be accepted in view of the fact that the appointments were
made on 21.2.2004 and the respondent no.5 immediately
approached the Court for getting relief i.e. on 1.3.2004, as
can be seen from the judgment of the civil Court passed in
Regular Civil Suit No.120 of 2004, which copy of annexed
with the petition. The said was decided in the year 2007 and
as the respondent no.5 succeeded, the appointment was given
to him in the year 2008. It is not that the respondents gave
the appointment on their own to the respondent no.4 in the
year 2008. Therefore, this contention of the learned advocate
for the petitioner cannot be accepted.
10. In view of the above discussion, as the petitioner
was sleeping for four years, suddenly he awakened from
slumber in the year 2008, filed this petition, and in the
meanwhile, the select list has expired as per the government
resolution, no relief can be granted to the petitioner as
prayed for. Accordingly, this petition is required to be
dismissed and dismissed. Rule is discharged. No order as to
costs.
(SANDEEP N. BHATT,J)
SRILATHA
