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2024 Supreme(Guj) 2084
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, GITA GOPI, JJ.
Jayeshkumar Bhagwanbhai Pancholi – Appellant
Versus
State Of Gujarat & Ors. – Respondents
R/LETTERS PATENT APPEAL NO. 761 of 2024, In R/SPECIAL CIVIL APPLICATION NO. 8866 of 2024 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/LETTERS PATENT APPEAL NO. 761 of 2024
Decided on : 29-10-2024
Advocate Appeared:
For the Appellant :MS PRACHI UPADHYAY, ADVOCATE for MR VAIBHAV A VYAS
For the Respondent: MS SHRUTI R. DHRUVE, AGP
The appointment of a District Commandant must adhere to statutory educational qualifications, and relaxation based on experience cannot undermine these requirements.
Headnote:(A) Gujarat Home Guards Act, 1947 - Section 2(1)(2) - Guidelines dated 29.09.2018 - Appointment of District Commandant - Appointment of respondent No.3, who possesses only 9th Standard qualification, quashed due to violation of statutory provisions and guidelines requiring minimum educational qualification of graduation. (Paras 7, 10, 12)
(B) Educational Qualification - The court emphasized that relaxation of educational qualifications based solely on experience cannot undermine statutory requirements, particularly for supervisory roles. (Paras 11, 12)
Facts of the case:
The appellant challenged the appointment of respondent No.3 as District Commandant, Home Guard, on the grounds of inadequate educational qualifications, as the respondent only completed 9th Standard while the appellant holds a Bachelor of Commerce degree.
Findings of Court:
The court found that the appointment of respondent No.3 violated both statutory provisions and the State's own guidelines, necessitating the quashing of the appointment.
Issues: The main issues were the legality of the appointment of respondent No.3 despite his lower educational qualifications compared to the appellant and the implications of the State's guidelines.
Ratio Decidendi: The court ruled that the State's decision to prioritize experience over educational qualifications was unlawful and undermined the statutory framework governing appointments.
Result: The appeal was allowed, and the appointment of respondent No.3 was quashed.
JUDGMENT :
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned Assistant Government Pleader waives service of notice of admission on behalf of respondent No.1 – State. Respondent no.3 has chosen not to contest the present appeal.
2. The present appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the impugned order dated 27.06.2024 passed by the learned Single Judge in the captioned writ petition.
3. Pursuant to the advertisement (Annexure ‘D’), the appellant applied for the post of District Commandant, Home Guard (Class-I), District Narmada. The advertisement was issued pursuant to the communication dated 14.09.2023 issued by the Office of Director General of Civil Defence and Home Guards. The appellant - original petitioner has assailed the appointment of the respondent no.3 to the post of District Commandant, Home Guard (Class-I) on honorarium basis at Narmada District. He was appointed vide a Notification dated 05.03.2024. The challenge to the appointment is on the ground of lack of educational qualification of respondent no.3. The appellant is a Bachelor of Commerce, whereas the respondent No.3 is 9th Standard.
4. When a specific query was raised to the learned Assistant Government Pleader that what weighed upon the State Government in appointing the respondent no.3, on the post of District Commandant, when the personnel such as Home Guards, Armourer (Class-III), Junior Staff Officer (Administration) Class-II and Head Clerk (Class-III) are recruited on the basis of their educational qualifications, which is more than 9th Standard; in response thereto the learned Assistant Government Pleader has stated that the respondent No.3 is appointed on the basis of his experience as a District Commandant, Home Guard, by invoking Clause-12 of the Guidelines dated 29.09.2018, which specifies that the State Government can appoint the District Commandant of Home Guards by ignoring the provisions of Section 2(1)(2) of the Gujarat Home Guards Act, 1947.
5. Thus, the respondent no.3 is appointed as a District Commandant, Home Guard, (Class-I) on the basis of his experience only.
6. Section 2(1)(2) of the Gujarat Home Guards Act, 1947 reads as under : -
“SECTION 2: Constitution of Home Guards and appointment of Commandant 7 [Commandant General and Commandant]
(1) the [State] Government shall constitute for each of the areas specified in sub-section (3) of section Land for each of the areas notified under the said sub-section (3) a volunteer body called the Home Guards the members of which shall discharge such function [and duties) in relation to the protection of persons, 10 [the security of property, the public safety and the maintenance of essential services] as may be assigned to them in accordance with the provisions of this Act and the rules made thereunder.
(1-A) In respect of the Saurashtra area and the Vidarbha region, the Home Guards raised or constituted. Immediately before the commencement of the Bombay Home. Guards (Extension and Amendment) Act, 1958, (Bom. LXXV of 1957) shall be deemed to be constituted under sub-section (1).
(2) The [State] Government shall appoint a Commandant of each of the Home Guards constituted under sub-section (1)./
[(3) The State Government shall also appoint a Commandant General of the Home Guards in whom shall vest the general supervision and control of the Home Guards throughout the [State of Gujarat).”
7. Thus, the State Government has appointed the respondent No.3, by ignoring the statutory provisions and also Clause-2 of the Guidelines dated 29.09.2018, which categorically mentions that the first preference shall be given to the candidate, whose minimum educational qualification is upto the level of graduation. In the present case, the appellant, who is a graduate candidate and holding a Bachelor of Commerce Degree, is not selected however, respondent No.3, who is 9th Standard, has been selected on the post of District Commandant, Home Guards. Though, the appointment is on h
