ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present Appeal under Clause 15 of the Letters Patent, the appellant herein – Vadodara Municipal Corporation (hereinafter referred to as “Corporation”) has challenged the judgment and order dated 15.06.2021 passed by the learned Single Judge in Special Civil Application No.8753 of 2020, whereby the learned Single Judge while allowing the petition filed by the respondent held that though the respondent had applied under the reserved category but having received more marks than the last candidate of General category, he shall be treated as General Category candidate and shall be appointed on the post in question.

2. The appeal came to be admitted by the Coordinate Bench vide order dated 28.02.2022 and on the same day, while disposing of the Civil Application, execution and implementation of the impugned order was stayed.

3. Today, the appeal is taken up for final hearing.

4. The short facts, which arise from the record are reproduced as under:

4.1 The appellant Corporation published an advertisement for filling up 48 posts of Staff Nurse. Out of 48 posts, 26 posts were for General Category, where 3 for SC, 7 for ST and 12 for SEBC. The pay-scale for the posts in question was fixed monthly wages at Rs.19,950/- initially for a period of 5 years and thereafter, as per 7th Pay Commission. The General conditions were also referred in the advertisement like the candidates, who are seeking reservation under SC/ST or SEBC would be granted to those candidates only to whom appropriate certificate has been issued by the competent Officer of the State of Gujarat. The respondent – original petitioner filled up his application and appeared in the examination. The Corporation published the provisional list of candidates qualified for selection for the post of Staff Nurse in connection with the advertisement issued by the Corporation itself. The petitioner obtained 131 marks out of 200 and was shown at Sr. No.9 in the said provisional list.

4.2 As per the procedure prescribed and referred in the advertisement itself, the documents were sought to be verified. At that time, the Corporation found that the present respondent does not belong to SEBC from the State of Gujarat and no certificate issued by any Officer of Gujarat State that he belongs to SEBC was produced and therefore, he was not selected for the post of Staff Nurse.

4.3 The respondent being aggrieved with the said decision of the Corporation, filed captioned writ petition and challenged the same on various grounds. In response to the notice issued by the learned Single Judge, an affidavit in reply dated 04.08.2020 was filed by the Corporation and opposed the grant of relief as prayed for in the petition. The learned Single Judge after considering the documentary evidence produced on record as well as various decisions of the Hon’ble Apex Court held that since the original petitioner was meritorious and had obtained more marks than the last person appointed from the General category, directed the Corporation to appoint the petitioner for the post of Staff Nurse.

Hence, this Appeal.

5. Mr. Nilesh Pandya, learned advocate for the appellant – Corporation has vehemently submitted that the learned Single Judge has committed grave error in accepting the petition filed by the present respondent. By taking us to condition No.4 of the advertisement, he would submit that it was made clear in the advertisement that as per the guidelines issued by the State Government, the reservation to different categories shall be granted only to those candidates who possess the appropriate caste certificate issued by the competent Officer of the State of Gujarat. He would submit that when petitioner has applied for the post in question, he has applied under SEBC category and therefore, now he cannot ask appointment under vacant General Category. He would submit that once he has applied under SEBC category as per condition No.9 of the advertisement, h