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2020 Supreme(Guj) 659
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Deepak S/o Ishwar Chandnani – Appellant
Versus
Rajkot Municipal Corporation – Respondent
R/SPECIAL CIVIL APPLICATION NO.5852 of 2019 With CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019, With R/SPECIAL CIVIL APPLICATION NO. 11941 of 2019
Decided on : 23-09-2020
Advocate Appeared:
For the Appellant : MR ANAND B GOGIA, MR BB GOGIA, MS MUSKAN A GOGIA, Adv.
For the Respondent: MR KV GADHIA, MR ZUBIN F BHARDA, adv
IMPORTANT POINT
The Constitution through its Preamble, Fundamental Rights and Directive Principles created a secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty and commitment of the State to establish an egalitarian social order.
Headnote:
Constitution of India – Article 226, 14, 15, 16, 21, 38, 39 and 46 - Regulations – Course – Possession of certificate -When the regulation is read in its entirety in accordance with the proviso, unless a certificate of Accounting Technician Course is obtained, the qualification is not established in the eyes of the Corporation. Reading Regulation 37C would indicate that even if an incumbent completes the course, as the title of the regulation would suggest, the requirement of having completed such course would also include possession of a certificate of such a course.
Facts of the case:
Advertisement for Municipal Accountant - these petitions, arise out of a common cause of action inasmuch as advertisement issued by Municipal Corporation for appointment of a Municipal Accountant - Qualification advertised for post was that candidate should possess a qualification in Accountant Technical Course from Institute of Chartered Accountants of India - Petitioner who according to himself though is qualified as he has passed Accountant Technical Course and was above respondent, his case for appointment was ignored and respondent was appointed - His petition being Special Civil Application, court issued notice by an order - It appears that when court issued notice in aforesaid matter, respondent Corporation by an order terminated services of respondent whose selection was challenged by petitioner of Special Civil Application order of termination gave rise to a petition at hands of respondent of Special Civil Application - Hence Special Civil Application was filed.
Finding of the court:
Reliance placed on decisions in cases is misplaced context of possession of a certificate in those cases was for purposes of experience and not basic qualification as is required in accordance with Chartered Accountants Regulations, 1988 in facts of present case. judgments are therefore clearly distinguishable - Having held that Regulation 37C required that petitioners possess a certificate on which they admittedly did not, action of respondent Corporation in not selecting petitioner of Special Civil Application and in terminating petitioner of Special Civil Application cannot be faulted with.
Result: Petitions are dismissed.
ORDER :
1. Both these petitions, under Article 226 of the Constitution of India, arise out of a common cause of action inasmuch as the advertisement issued by the Rajkot Municipal Corporation (for short 'the Corporation') for appointment of a Municipal Accountant. The qualification advertised for the post was that the candidate should possess a qualification in Accountant Technical Course from The Institute of Chartered Accountants of India (for short 'the Institute').
1.1 Special Civil Application No. 5852 of 2019 is by the petitioner who according to himself though is qualified as he has passed the Accountant Technical Course and was above respondent no.2, his case for appointment was ignored and the respondent no.2 was appointed. His petition being Special Civil Application No. 5852 of 2019, the court issued notice by an order dated 25.03.2019. It appears that when the court issued notice in the aforesaid matter, the respondent Corporation by an order dated 24.06.2019 terminated the services of the respondent no. 2 whose selection was challenged by the petitioner of Special Civil Application No. 5852 of 2019. The order of termination dated 24.06.2019 gave rise to a petition at the hands of respondent no.2 of Special Civil Application No. 5852 of 2019. Hence Special Civil Application No. 11941 of 2019 was filed.
1.2 In both these petitions therefore, the issue is of the interpretation of Regulation 37C of the Chartered Accountants Regulations, 1988 (for short 'the Regulations').
FACTS/SUBMISSIONS IN SPECIAL CIVIL APPLICATION NO. 5852 OF 2019.
2. The Rajkot Municipal Corporation issued an advertisement inviting applications for the post of Municipal Accountant to be filled on a fixed pay of Rs.39,200/-. The advertisement specified that the applicant for the post should have passed the Accounting Technician Examination from the Institute of Chartered Accountants of India. The advertisement specified that the applicants should make an application online and the last date of the submission of the application was 26.09.2017. The case of the petitioner is that he passed his Accounting Technician Course in the year 2011. A mark-sheet dated 09.02.2012 is produced in support of his submission that the petitioner passed his examination in the year 2011 and the mark-sheet was issued on 09.02.2012. This was produced in order to substantiate that the applicant petitioner was qualified for the post. It was his case that since he had passed his examination on 09.02.2012 he was eligible. A written examination was held for the purposes of selection.
3. Mr. Anand Gogia, learned advocate for the petitioner invited the attention of this court to the result sheet issued by the Corporation and the merit list would indicate that the petitioner having secured 76 marks was at merit rank no. 1 whereas the respondent no. 2 having secured 66 marks was at merit rank no. 13. It is the case of the petitioner therefore that he being ranked no. 1 on the merit list, the respondent no. 2 who was much below in rank in merit at Sr. No. 13 could not have been appointed.
3.1 Mr. Gogia would further submit that the advertisement required that the candidate should have passed his Accounting Technical Certificate Course (ATC) which admittedly the petitioner had passed in the year 2011 and on making an application a certificate was issued by the Institute on 30.10.2017. The certificate though was issued on 30.10.2017, admittedly since the petitioner had already passed an examination in the year 2011 and had also undergone Articleship as is evident from letter dated 29.12.2010, the petitioner in accordance with Regulation 37C of the Regulations was eligible to be appointed. The non-selection of the petitioner therefore and the selection of respondent no. 2 was bad and therefore the petitioner ought to have been selected in preference of respondent no.2.
3.2 Regulation 37(C) of the Regulations, 1988 has been pressed into service inasmuch as in accordance with the Regulations,
