Dismissed

Patel Khemabhai Nagjibhai v. State of Gujarat

Gujarat HC12 Dec 2018SCA/8728/2008

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking quashing of an appointment order and directing the hiring of the petitioner. The Court held that the petitioner, who participated in the selection, was surpassed on merit by the appointee. Relying on precedent, the Court found no illegality. Rule discharged and petition dismissed.

What did the court decide?

Petition dismissed, rule discharged, no order as to costs.

Patel Khemabhai Nagjibhai Vs State of Gujarat — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/8728/2008 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 8728 of 2008

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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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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PATEL KHEMABHAI NAGJIBHAI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR VC VAGHELA(1720) for the PETITIONER(s) No. 1 DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 5 MR BHARGAV PANDYA, AGP (1) for the RESPONDENT(s) No. 1,2,3 MR KETAN D SHAH(1356) for the RESPONDENT(s) No. 4

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 12/12/2018

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ORAL JUDGMENT

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The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the

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C/SCA/8728/2008 JUDGMENT

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following reliefs:

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a) That this Hon'ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the appointment given to the respondent no.5 and further be pleased to direct the respondents to appoint the petitioner as Sathi Sahayak in the respondent No.4 – school;

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(b) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the appointment order given to the respondent no.5;

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(c) That this Hon'ble Court may be pleased to pass/grant such further and other orders/relief or directions as the nature and circumstances of the case may require;”

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It is the case of the petitioner that the petitioner was an educated and unemployed youth residing at Village Chibhada in Diyodar Taluka of Banaskantha District. Pursuant to the advertisement dated 29.12.2007 published by respondent No.4, the petitioner has applied for the post of Sathi Sahayak. Educational qualification which has been prescribed is 10^th standard pass and holding a valid driving license. Pursuant to the said process of advertisement, call letters were also issued on 17.5.2008 and the interviews were held on 31.5.2008 at 11 a.m. It is the case of the petitioner that the petitioner has successfully cleared the interview process and to the reasonable knowledge of the petitioner, he has been

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C/SCA/8728/2008 JUDGMENT

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placed at Sr.No.1 in the select list. It has been asserted by the petitioner that one Vinodbhai Karsanbhai Patel, the Principal of respondent No.4 and one Chaudhary Bhagwanbhai have pressurized the petitioner to let go his selection. As a result of this, a specific objection was submitted by the petitioner dated 5.6.2008 before respondent No.3 and by that time, an order of appointment is issued in favour of respondent No.5 herein. As a result of this, left with no other alternative, the petitioner is constrained to approach this Court by way of this petition under Article 226 of the Constitution of India.

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This petition appears to have been admitted on 25.2.2013 and thereafter, after completion of pleadings, it has come up for final hearing before this Court in which Mr. V.C. Vaghela, learned advocate appearing for the petitioner has vehemently contended that though at the time when interview has taken place, the petitioner was found eligible and cleared the process of interview and has been placed in the selection list at Sr.No.1. Still, on account of some pressure upon the petitioner, the appointment has been given in favour of respondent No.5. It is the case of the petitioner that respondent No.5 is not fulfilling any qualification criteria

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C/SCA/8728/2008 JUDGMENT

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which has been mentioned in the advertisement and as such, granting of appointment in favour of respondent No.5 is nothing but a clear example of favouritism. As a result of this, it is requested that the appointment order issued to respondent No.5 be set aside and the authority may be directed to consider the case of the petitioner.

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Learned advocate, Mr. Vaghela has drawn the attention of the Court to a specific letter dated 5.6.2008 which has been addressed to District Education Officer wherein it was mentioned that the petitioner was pressurized for giving a letter that he was not interested in being employed with respondent No.4. Despite that, it has been contended that no appropriate steps were taken and the petitioner ‘s case has not been considered and the respondent No.5 has been issued with appointment letter.

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To meet with the said submission, learned advocate on behalf of the respondent No.4, Mr. Ketan D. Shah as well as learned AGP has vehemently objected to the stand taken by the petitioner. It has been contended that there is a serious disputed question of fact about the issue of pressure being built up upon the petitioner. Said fact is stoutly denied by

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C/SCA/8728/2008 JUDGMENT

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learned advocate for the petitioner. It has further been submitted that it is a settled position of law that when a candidate has participated on his own in the selection process and if he is not found in the select list, he cannot thereafter raise any dispute. To substantiate this contention, learned advocate has relied upon a decision delivered by the Hon’ble Apex Court in the case of Trivedi Himanshu Ghyanshyambhai Vs. Ahmedabad Municipal Corporation & Ors. r eported in 2008(1) GLR page 859 and has stated that no case is made out since the petitioner on his own has participated in the process of selection and simply because he is found to be less meritorious than respondent No.5, no grievance can be allowed to be ventilated at this stage of the proceedings.

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Learned advocate has drawn the attention of this Court to a detailed affidavit-in-reply which has been filed by respondent No.3 in addition to the other contentions about the eligibility of respondent No.5 wherein a specific averment has been made that during the process of selection, a merit list was prepared in which the over all merit of respondent No.5 had come to 63.72 while overall merit of the petitioner is 61.56. As a result of this, the offer of appointment was

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given in favour of respondent No.5 and, therefore, there is no merit in the submission made by the petitioner to consider the case of the petitioner as the appointment is neither a statutory right nor a fundamental right and the authority has taken care the case of the petitioner and, therefore, there is hardly any substance in the submission of the petitioner and, therefore, a request is made to dismiss the petition.

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Having heard the learned advocates appearing for the respective parties and having gone through the decision which has been delivered by the Hon’ble Apex in the case of Trivedi Himanshu Ghyanshyambhai Vs. Ahmedabad Municipal Corporation & Ors. r eported in 2008(1) GLR page 859, this Court is also of the opinion that since the petitioner has participated in the process of selection and has got less merit than respondent No.5, the petitioner was not found place in the selection list and, therefore, there is hardly any merit in the case of the petitioner which is possible to be accepted. In addition to this, in the affidavit-in-reply filed on behalf of respondent, in categorical terms, it is stated that during the process of selection, the petitioner has not been found to be more meritorious than respondent No.5 which can be seen from paragraph 5 of the affidavit-in-reply and as

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C/SCA/8728/2008 JUDGMENT

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many as 18 candidates have been interviewed and only thereafter, eligible candidates have been appointed. In that view of the matter, it is reflecting from the record that the petitioner has participated in the process of selection and have not attained any merit as desired as against respondent No.5. As a result of this, the petition does not deserve to be accepted. The relevant observations contained in paras 4 and 5 of affidavit-in-reply filed by District Education Officer read as under:

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“4. At the outset, it is submitted that petition is devoid of any substance and the petitioner does not have even a semblance of case at his command in questioning the selection procedure, undertaken by the committee constituted for this purpose. As per the requirement, the person holding the valid driving license, over and above the prescribed qualification, was to be given additional 5 marks. The petitioner, though holding valid driving license, could not succeed in competition with respondent no.5 in the matter of merits. Entire process of selection was undertaken in fair and transparent manner by the selection committee. Due weightage has been given to the marks secured by each candidate in the SSC examination. In response to the advertisement, 18 candidates remained present before the committee. The members of the committee after considering the relevant material gave marks under different heads prescribed for the process of selection. Annexed hereto and marked as ANNEXURE R- 1, collectively are the copies of valuation sheet prepared by each member of the selection committee.

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A plain reading of the valuation chart prepared by the members of selection committee, ipso facto, leads to the sole construction that the members of the committee have given additional 5 marks to the petitioner, however, the respondent no.5 could secure more marks on the basis of merits and performance, though not holding valid license. The chart further evidences a factum that

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C/SCA/8728/2008 JUDGMENT

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respondent no.5 was not allotted the marks for driving license. Still, since respondent no.5 could steal march over the petitioner on the basis of his performance and merits. After considering the merit, as recommended by each member of the committee, a final select list was prepared, which clearly evidences a fact that the petitioner could secure second place in the merit list on the basis of total marks. The overall merits of respondent no.5 comes to o63.72, whereas, the overall merits of the petitioner comes to 61.56. In view of this, the respondent no.5 was offered appointment first. Thus, there is no illegality committed by the selection committee in the matter of selection of “Sathi Sahayak”, as alleged by the petitioner.”

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Yet another circumstance which is not possible to be accepted is that as many as 18 candidates have been called in the process of interview and since the respondent No.5 was found to have higher merit, the authority has given the appointment to respondent No.5 and, therefore, after this much period of time, there is hardly any substance in accepting the submission made by learned advocate for the petitioner since he on his own had participated during the process of selection. Accordingly, no case is made out in the present petition. The petition accordingly stands dismissed. Rule is discharged. No order as to costs.

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(A.J. SHASTRI, J)

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RADHAKRISHNAN K.V.

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Patel Khemabhai Nagjibhai v. State of Gujarat

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Patel Khemabhai Nagjibhai v. State of Gujarat

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