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============================================= vs State Of Gujarat & 2 on 15 July, 2014

Gujarat High Court ============================================= vs State Of Gujarat & 2 on 15 July, 2014

C/SCA/12387/2013 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO.12387 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE HARSHA DEVANI

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

2 To be referred to the Reporter or not?

3 Whether their Lordships wish to see the fair copy of the judgment?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder?

5 Whether it is to be circulated to the civil judge?

============================================= BARAIYA LILADHAR GAGARAMBHAI….Petitioner(s) Versus

STATE OF GUJARAT & 2….Respondent(s)

============================================= Appearance:

MR KB PUJARA, ADVOCATE for the Petitioner(s) No.1 DS AFF.NOT FILED (N) for the Respondent(s) No.1 – 2 MR HK PATEL, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.1

MS KHYATI P HATHI, ADVOCATE for the Respondent(s) No.3 NOTICE NOT RECD BACK for the Respondent(s) No.1 – 2 =============================================

CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI

Date : 15/07/2014

ORAL JUDGMENT

1. Rule. Mr. Himanshu Patel, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents No.1 and 2. Ms. Khyati Hathi, learned advocate waives service of notice of rule on behalf of the

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respondent No.3.

2. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

3. By this writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the third respondent to forthwith issue appointment order to the petitioner as Sangit Visharad Vidya Sahayak pursuant to advertisement dated 19th April, 2008 with all consequential benefits with effect from 27th April, 2010 when less meritorious candidates were given appointment.

4. Pursuant to advertisement dated 19th April, 2008 inviting applications for eight posts of Sangit Visharad, the petitioner being eligible, applied for the same. A call letter dated 6th August, 2008 came to be issued to another candidate inviting him for verification of original documents; however, the petitioner did not receive any such call letter. The petitioner, however, voluntarily remained present before the third respondent and produced all his original certificates and mark-sheets which were retained by the third respondent. Thereafter, appointments were given to other candidates in other districts pursuant to order dated 27th April, 2010 issued by the Director of Primary Education, but no order was passed in the case of the petitioner and others. The petitioner and other candidates made a representation dated 15 th February, 2010 pursuant to which the third respondent issued appointment orders to five candidates who were less meritorious than the petitioner. However, no appointment

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orders were issued in case of one Bhatt Chandulal Kanaiyalal having merit 83.68 and the present petitioner having merit of 82.80. The petitioner obtained necessary information under the Right to Information Act and pursued the matter with the respondents. Since nothing substantial was being done, the petitioner had approached this court seeking the relief noted hereinabove.

5. It appears that during the pendency of the present petition, by an order dated 30 th November, 2013, the petitioner has been appointed on the post of Sangit Visharad. Therefore, the main relief prayed for in the petition does not survive and the petition is now limited to the relief seeking consequential benefits with effect from 27th April, 2010, when less meritorious candidates were given appointment.

6. Mr. K.B. Pujara, learned advocate for the petitioner has submitted that it is an admitted position as is borne out from the documents on record that the petitioner was more meritorious than the other candidates who were given appointments and hence, the petitioner has wrongly been deprived of appointment at the time when the other candidates who are less meritorious than him came to be appointed. Therefore, the petitioner is required to be given the benefits of service with effect from the date when the other candidates who are less meritorious than him were given appointment. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Mangat Ram v. State of Punjab and others, (2005) 9 SCC 323, and more particularly, paragraph 8 thereof. The decision of the Supreme Court in the case of

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Sasidhar Reddy Sura v. State of Andhra Pradesh and Others, (2014) 2 SCC 158, was cited wherein the court had directed the respondent State to do the needful for giving appointment to the appellant therein with retrospective effect i.e. from the date she ought to have been appointed. Reliance was also placed upon a decision of a Division Bench of this court in the case of Patel Shilpaben Gordhanbhai v. State of Gujarat, 2009 JX (Guj.) 1150 wherein similar relief was granted to the said petitioner. It was, accordingly, submitted that following the above decisions, the petitioner is required to be given the benefit of deemed date of appointment with effect from the date when the candidates less meritorious than him were appointed.

7. On the other hand, Ms. Khyati Hathi, learned advocate for the third respondent invited the attention of the court to the averments made in paragraph 4 of the affidavit-in- reply filed on behalf of the third respondent, wherein it has been averred that after the court’s order and by letter dated 27th April, 2010, five candidates were given appointment in 2011 and that looking to the record, the petitioner was deprived of his appointment of Vidya Sahayak at that time. The learned advocate submitted that the court may pass such orders as it deems fit in the interest of justice.

8. This court has also heard Mr. Himanshu Patel, learned Assistant Government Pleader for the first and second respondents.

9. From the facts and contentions noted hereinabove, it is apparent that the controversy involved in the present case

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is limited to the date with effect from which the petitioner is required to be given appointment having regard to the facts and circumstances of the present case.

10. The facts as emerging from the record reveal that undisputedly, the petitioner was more meritorious than the candidates named in paragraph 3 of the memorandum of petition. However, the said candidates were given appointments vide letter dated 27 th April, 2010 of the Director of Primary Education and actual appointment orders were issued on 2nd April, 2011. Admittedly, therefore, the petitioner was wrongly deprived of being appointed on the said date together with other candidates. Since, the petitioner, without there being any default on his part, has been deprived of being appointed on 2nd April, 2011 when the other candidates who were less meritorious than him were given appointments, the petitioner is entitled to be granted a deemed date of appointment with effect from such date as well as seniority qua the said candidates, in accordance with merits.

11. The Supreme Court in the case of Mangat Ram v. State of Punjab (supra) after holding that the appellant therein was unjustifiably denied promotion, directed that he be appointed with effect from the date when the post was filled up by appointment by the third respondent therein, along with all consequential benefits. In Sasidhar Reddy Sura v. State of Andhra Pradesh (supra), the Supreme Court directed the State Government to do the needful in giving appointment to the appellant therein with retrospective effect, that is, from the date she ought to have been appointed, however, subject to the condition that she shall not be paid salary for the period

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during which she had not worked as District and Sessions Judge. In Patel Shilpaben Gordhanbhai v. State of Gujarat (supra), a Division Bench of this court held that the petitioner therein was required to be granted appointment from the same date when others who were in the same recruitment were given appointment. However, it was made clear that the same would not entail the petitioner any financial benefits and for notional purpose, the petitioner would be granted a deemed date of appointment which was granted to other employees pursuant to the same advertisement.

12. In the light of the above decisions of the Supreme Court as well as this court, it is amply clear that the petitioner is entitled to be given a deemed date of appointment from the date when the other candidates who were less meritorious than him were given appointment. Moreover, the petitioner being more meritorious is also entitled to be granted seniority over the said candidates.

13. In the light of the above discussion, the petition succeeds and is accordingly allowed. The respondents are directed to give deemed date of appointment to the petitioner from 2nd April, 2011, that is, the date when less meritorious candidates were given appointments. The petitioner shall also be placed higher on the seniority list than the above referred candidates who were less meritorious than him. Rule is made absolute accordingly with no order as to costs.

Direct Service is permitted.

( Harsha Devani, J. )

hki

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