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Gujarat High Court
Judgename :A.L.DAVE, C.K.THAKKER
K.V.GARASIYA - Appellant
Versus
BABUBHAI N.GAVIT - Respondent
L.P.A. 1311 of 1997
Decided On : 06/18/1998
The experience has to be computed from the date on which requisite qualifications are obtained. This rule will be effective because special recruitment rules are silent in this regard. The Honourable Supreme Court has also held that same in the case of N. Suresh Nathan & Anr. vs. Union of India, AIR 1992 SC 564.
[Para 21]
(b) Constitution of India, 1950 - Art. 226 - Letters Patent Appeal - Appeal against the judgment of Single Judge - Single Judge allowed the writ petition and quashed the order of `GPSC declaring respondent petitioner as unqualified - GPSC recommended the petitioner for appointment to the post by Annexure `C - Latter on `GPSC by Annexure `G declared that the petitioner was lacking requisite experience as per rules - Whether interfere by Single Judge justified - Held, no, infact the Annexure `G was the final decision of `GPSC whereby the Petitioner was found to be lacking requisite experience - More so, High Court while exercising discretion under Art. 226 of the Constitution is not supposed to sit in appeal.
This being so, no error seems to have been committed in deciding for considering respondent No. 1 as lacking requisite experience, and therefore, even if the power to relax was exercised by the G.P.S.C. it would not have helped respondent No. 1 in any manner. Against this, it would not be out of place to observe that when it comes to exercise of discretion by such authority, Court is not supposed to sit in appeal while exercising its extraordinary jurisdiction under Art. 226 of the Constitution of India and has to be slow in using its discretion.
[Para 18]
If Annexure C which is letter intimating respondent No. 1 about his name having been placed at serial No. 1 in the select list is perused, it specifically indicates in paragraph (2) that the recommendation is made prima facie accepting the certificates etc., produce by respondent No. 1 and that he shall be eligible to be appointed only after due verification of the documents. It is also stated therein that if at any stage he is found to be lacking the qualifications stated in the advertisement or Rules his candidature shall be cancelled and he will not be entitled to be appointed. Thus, it cannot be said that Annexure C was the final letter or decision of the G.P.S.C. regarding selections/appointment of respondent No. 1. In fact, Annexure G is the final decision taken by the G.P.S.C. after perusal of all the requisite papers and therefore Annexure C cannot be said to be final decision of the G.P.S.C. Besides this, it was only a letter of recommendation which was also conditional and the ultimate decision was to be taken by the Government.
[Para 20]
(c) Constitution of India, 1950 - Art. 226 - Gujarat Civil Services Classification & Recruitment (General) Rules, 1967 - Rule 3 - Advertisement for the recruitment on the post of personal assistant - Advertisement in Gujarati language - Clerical error in advertisement - Benefit under the garb of bonafide mistake in advertisement - Held, petitioner cannot get advantage of a bonafide clerical error.
The qualifications of experience is specified in the Rules and advertisement and the slip in Gujarati advertisement is specifically averred to, in the affidavit and the same has been detected before respondent No. 1 could be given appointment and as such respondent No. 1 cannot get the advantage of a bonafide clerical error which is sought to be corrected. After all, before appointment is given no right is created in favour of respondent No. 1.
[Para 24]
(d) Administration of Justice - Petitioner belongs to Scheduled Tribe community - Sympathetic view - Held, appellants social position may call for sympathy but the rule of law will prevail.
Contention raised by Mr. Parmar is that respondent No. 1 is a man belonging to Scheduled Tribe coming from that strata of society where education is a rarity and as such his case needs to be considered with sympathy. True, it is that the applicants social position may call for sympathy but it has to be borne in mind that rule of law must prevail.
[Para 22]
(e) Letters Patent Appeal - Appeal of non-petitioner allowed reversing decision of Single Judge - Prayer by petitioner to keep the Judgment of appeal in abeyance to approach higher forum - Held, in the facts of the case, the Judgment kept in abeyence for four weeks.
A prayer is also made that the order passed by us may be kept in abeyance for some time so as to enable the appellant to approach higher forum. In the facts and circumstances of the case, the order passed by us is ordered to be kept in abeyance for a period of four weeks from today.
[Para 27]
( 1 ) THESE appeals arise out of an order passed by the learned single Judge in Special Civil Application No. 3678 of 1997 on 29/09/1997
( 2 ) RESPONDENT No. I -original petitioner had applied for the post of Personal assistant (Non-Technical) to the Chief Town Planner and was placed at the top of the select list by Gujarat Public Service Commission ("g. P. S. C. " for short ). The application was given by him pursuant to an advertisement that was published by g. P. S. C. , a copy of which is produced at Annexure-A. There were certain other candidates also, who had applied and. after the select list was prepared, name of respondent No. 1 was recommended by G. P. S. C. , to the Government for appointment.
( 3 ) UPON verification of the documents, the Government Department found that respondent No. 1 did not possess the requisite qualifications and, therefore, there was an exchange of correspondence and, ultimately, it was found that because he did not possess the requisite qualification of about 5 years experience as required. his name was checked off the select list.
( 4 ) BEING aggrieved by that decision of G. P. S. C. , respondent No. 1 preferred special Civil Application No. 3678 of 1997 challenging that decision, wherein he joined the State of Gujarat and the G. P. S. C. as respondents. The learned single Judge, after considering the case of both the sides, came to the conclusion that the crux of the case lied in deciding the question whether the qualification of experience of about five years in case of eligible candidates should have been gained before acquiring the requisite academic qualification or thereafter. Considering the facts and circumstances of the case and relying upon a decision of the Punjab and Haryana high Court in the case of Shri Sahig Ram Kumar v. Secretary, Haryana State Public service Commission, 1973 (1) SLR 1039. the learned single Judge came to the conclusion that the qualification of experience required of an eligible candidate could be even before acquiring academic qualification and, ultimately, while allowing the petition, directed that the State of Gujarat shall consider the original recommendation of G. P. S. C. . for appointment of the petitioner to the post of Personal Assistant (Non- technical to the Chief Town Planner. G. S. S. Class II on the basis of selection order made by the Commission and as conveyed under communication dated 30th november, 1996.
( 5 ) NOW the present appellant, who had also appeared at the interviews and who was also selected and was placed on the top of the waiting list, having learnt about this order and having been aggrieved thereby, with a special permission, has preferred Letters Patent Appeal No. 1311 of 1997. Aggrieved by the order passed by the learned single Judge. G. P. S. C. has preferred Letters Patent Appeal No. 1488 of 1997.
( 6 ) THE contentions that are raised are that the original petitioner, who is respondent No. 1 in these appeals, did not possess the requisite qualification of experience of about 5 years, as rightly concluded by G. P. S. C. It is contended that the learned single Judges conclusion that the experience gained before acquiring academic qualification may be taken into consideration is erroneous in light of various decisions of the Apex Court. Respondent No. 1-original petitioner graduated on 10/04/1992. The application was supposed to reach before 1/04/1996 and, therefore, respondent No. 1 could not be said to have met with the requirement of 5 years experience, as expected of him. The qualification of experience must necessarily succeed the acquisition of academic qualification. In this regard, reliance was placed on the decision of the Supreme Court in the case of N. Suresh Nathan and Anr. v. Union of India and Ors. , AIR 1992 SC 564 and G. Sundareswararao v. Govt. of A. P. , 1996 (8) SCC 234. Reliance was also placed on the decision in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation. 19
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