Gujarat High Court
Amitkumar Kashibhai Patel vs State Of Gujarat Through Secretary & 3 on 10 August, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
C/LPA/1093/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1093 of 2014
In SPECIAL CIVIL APPLICATION NO. 9136 of 2011
With
LETTERS PATENT APPEAL NO. 1094 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9134 of 2011
With
LETTERS PATENT APPEAL NO. 1095 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9140 of 2011
With
LETTERS PATENT APPEAL NO. 507 of 2014
In
SPECIAL CIVIL APPLICATION NO. 12099 of 2012
With
LETTERS PATENT APPEAL NO. 818 of 2014
In
SPECIAL CIVIL APPLICATION NO. 18000 of 2011
With
LETTERS PATENT APPEAL NO. 843 of 2014
In
SPECIAL CIVIL APPLICATION NO. 9180 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
============================================================
====
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
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C/LPA/1093/2014 CAV JUDGMENT
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 or any order made thereunder ?
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AMITKUMAR KASHIBHAI PATEL....Appellant(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 3....Respondent(s)
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Appearance:
LETTERS PATENT APPEAL NO.1093 OF 2014
MR DG SHUKLA, ADVOCATE for the Appellant
MR CHINTAN DAVE, AGP for the Respondents No.1-2
MR HS MUNSHAW, ADVOCATE for the Respondent No.3-4
LETTERS PATENT APPEAL NO.1094 OF 2014
MR DG SHUKLA, ADVOCATE for the Appellant
MR CHINTAN DAVE, AGP for the Respondents No.1-2
MR HS MUNSHAW, ADVOCATE for the Respondent No.3-4
LETTERS PATENT APPEAL NO.1095 OF 2014
MR DG SHUKLA, ADVOCATE for the Appellant
MR CHINTAN DAVE, AGP for the Respondents No.1-2
MR HS MUNSHAW, ADVOCATE for the Respondent No.3-4
LETTERS PATENT APPEAL NO.507 OF 2014
MR SHALIN MEHTA, SR. ADVOCATE WITH MS VIDHI J BHATT,
ADVOCATE for the Appellant
MR CHINTAN DAVE, AGP for the Respondents No. 1 - 2
MR HS MUNSHAW, ADVOCATE for the Respondent No.3-4
LETTERS PATENT APPEAL NO.818 OF 2014
MR HS MUNSHAW, ADVOCATE for the Appellant
MR VIJAY PATEL, ADVOCATE FOR HL PATEL ADVOCATES for the
Respondent No.1-5
MR CHINTAN DAVE, AGP for the Respondents No. 1 - 2
LETTERS PATENT APPEAL NO.843 OF 2014
MR HS MUNSHAW, ADVOCATE for the Appellant
MR KB PUJARA, ADVOCATE for Respondent Nos.1-12
MR CHINTAN DAVE, AGP for the Respondents No.13-14
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 10/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The present set of Letters Patent Appeals are arising out of a common CAV judgment dated 12.3.2014, passed by the learned Single Judge, whereby two groups of Special Civil Applications came to be disposed of in terms of the final direction contained in the said order, to which at an appropriate stage elaborate details would be mentioned.
2. Before dealing with the impugned judgment, some factual matrix is required to be mentioned hereinafter, so as to examine ultimately the grievance voiced out by the respective original petitioners ( appellants) of the petitions.
2.1 The respective petitioners of the petitions have questioned the order dated 29.6.2011 passed by the District Primary Education Officer, District Panchayat, Jamnagar with regard to the recruitment related to the post of Vidyasahayak.
2.2 Insofar as Special Civil Application No.9136 of 2011 is concerned, the same was filed by one Amitkumar Kashibhai Patel. He approached this Court by way of aforesaid petition challenging the decision of District Primary Education Officer, District Panchayat, Jamnagar dated 29.6.2011, whereby his appointment which was made as Vidyasahayak came to be Page 3 of 56 HC-NIC Page 3 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT cancelled and he was discontinued from the services.
2.3 So far as Special Civil Application No.9140 of 2011 which is filed by one Patel Hiren Manubhai has also approached this Court for seeking quashment of the impugned order dated 29.6.2011 passed by the District Primary Education Officer, District Panchayat, Jamnagar and sought a relief to direct the respondent authorities to reinstate the petitioner in service as Vidyasahayak with continuity and all consequential benefits as he also came to be discontinued.
2.4 Similar is the case with respect to petitioner - Amitaben Ranchhodbhai Patel, who preferred Special Civil Application No.9134 of 2011, inter-alia, praying to quash and set aside the impugned order dated 29.6.2011 passed by the District Primary Education Officer, District Panchayat, Jamnagar and similarly, sought a relief to reinstate her in the services as Vidyasahayak with continuity of service and all consequential benefits.
2.5 In respect of Special Civil Application No.12099 of 2012, the petitioner of that petition Mr.Kalpeshgiri Surendragiri Goswami has questioned the validity of the impugned order dated 29.6.2011 and has also sought a relief to be reinstated in service as Vidyasahayak with continuity and all consequential benefits. Whereas a petition which came to be filed by five petitioners being Special Civil Application No.18000 of 2011, who tried to ventilate the grievances and sought a relief in the petition to direct the respondents to forthwith give appointments to the petitioners as Page 4 of 56 HC-NIC Page 4 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT Vidyasahayak / Primary Teachers as per their merit pursuant to the advertisement dated 22.4.2008 by implementing the judgment of this Court dated 15.9.2010 passed in SCA No.8875 of 2010 and SCA No.9412 of 2010. This petition has been filed on the premise that fraudulent appointment of 84 candidates came to be made, resultantly the petitioners were deprived of their appointments at the relevant point of time and therefore, sought the relief as contained in Para.17 of the said petition. Since two sets of petitions were presented before this Court, the relief sought by the petitioners of SCA No.18000 of 2011 deserve to be incorporated hereinafter :
"17(a)To direct the respondents to forthwith give appointments to the petitioners as Vidyashayaks/ primary teachers as per their merit pursuant to the Advertisement dated 22.4.2008 as per Annexure-A by implementing the judgment of this Hon'ble Court dated 15.9.2010 passed in SCA Nos.8875/2010 and SCA No.9412/2010 (Coram :
Ravi R. Tripathi,J.) as per Annexure-G wherein it is clearly directed that '... after appointment of 84 candidates is cancelled, the merit list will be operated in accordance with law...';
(b) To direct the respondents to forthwith give appointments to the petitioners pursuant to the Advertisement dated 22.4.2008 as per Annexure-A with all consequential benefits, on the 84 vacancies caused by cancellation of appointments of 84 candidates by orders dated 29.6.2011 as per Annexures-K and L Colly as because of the said fraudulently appointed 84 candidates only the petitioners were deprived of the appointments at the relevant time;
(c) Pending the hearing and final disposal of this
petition, be pleased to forthwith give
appointments to the petitioners pursuant to the Advertisement dated 22.4.2008 as per Annexure-A Page 5 of 56 HC-NIC Page 5 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT with all consequential benefits, on the 84 vacancies caused by cancellation of appointments of 84 candidates by orders dated 29.6.2011as per Annexures-K and L Colly, subject to further orders that may be passed by this Hon'ble Court;
(d) To direct this petition to be heard and decided along with SCA No.9180/2011 preferred by exactly similarly situated candidates."
2.6 Yet another petition being SCA No.18389 of 2011 was brought before this Court, in which the concerned petitioner - Mittal R. Patel has sought a relief that she may be given an appointment pursuant to advertisement dated 22.4.2008, of which interview held on 30.3.2010 with all consequential benefits upon vacancies being caused by cancellation of appointments of 84 candidates, who were fraudulently appointed and therefore, this petition was related to second group of petitions as referred to above. The aforesaid petitions since encircling around the recruitment to the post of Vidyasahayak in response to the very same advertisement published by the authority, the record indicates that this group of petitions are clubbed together and heard in common and came to be disposed of by common CAV judgment on 12.3.2014 which is the subject matter of present group of Letters Patent Appeal.
2.7 The aforesaid petitions which are clubbed, have been bifurcated for the sake of convenience and brevity by the learned Single Judge in two groups; first group of petitions, namely SCA Nos.9134/2011, 9140/2011 and 1299 of 2011, whereas SCA No.9180/2011, 18000/2011 and 18389 of 2011 came to be treated as second group of petitions for the sake of Page 6 of 56 HC-NIC Page 6 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT convenience. The first group of petitions is essentially filed for the purpose of challenging the orders, whereby the respective petitioners' appointment came to be cancelled without any qualification for future services and inter-alia sought a reinstatement with all consequential benefits. Whereas in second group of petitions, in substance, relief is sought to direct the respondent authorities to give them appointments forthwith for Vidyasahayaks / Primary Teachers as per their merit pursuant to the advertisement dated 22.4.2008 mainly on the premise that 84 appointments fraudulently being given.
2.8 It appears from the record of the case that the authorities have published an advertisement for filling up the vacancies total 785 in numbers for the post of Vidyasahayak in the Primary Schools under the control of Jamnagar District Education Committee, Jamnagar. The qualification which is mentioned in the advertisement which came to be published requiring the relevant candidate to have qualification of HSC, PTC/ATD etc. In the original advertisement, there was no criteria mentioned about grant of 5% weightage to the candidates having sports certificate. It was the case of the petitioners that preference of 5% was already fixed much prior to by the Government in the Resolution dated 25.2.1980 in which Item No.3 of the said Resolution has prescribed 5% weightage to the candidates, who have participated in sports at a National and International level and based upon this, the petitioners of first group came to be recruited to the post in question.
2.9 It is borne out from the record that one Mr.Dharmendrasinh M. Jadeja, member of Jamnagar District Page 7 of 56 HC-NIC Page 7 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT Panchayat, made a representation with regard to the irregularities and mal-practice in respect of a consideration of sports certificate while preparing the select list. The record reveals that the said grievance which has been voiced out by the member of Jamnagar District Panchayat was handed over for inquiring to one Dr.Bharatbhai Pandit, the Deputy Education Director, who, in turn, upon an inquiry, found that there were irregularities in the matter of consideration of sports certificate with respect to 84 candidates for preparation of select list for Vidyasahayak which consists of present petitioners of first group also. Simultaneously, two petitions had been filed before this Court in the year 2010 by raising grievance that candidates on merit list seeking appointments were wrongly kept out of the select list and therefore, said petitions appeared to have been entertained by this Court and were taken up together and the Director of Primary Education, during the course of those petitions, was requested to submit the report of inquiry, if required. It appears further from the record that this Court has taken note of the report of the Director of Primary Education at a later point of time on 15.9.2010 and the same was taken on record for perusal. The said report was dated 28.7.2010. The Court upon perusal has also taken note of the communication dated 29.7.2010 addressed to the Deputy Secretary (Primary Education Department) by the office of the Director of Primary Education, in which it had been categorically mentioned that about 84 appointees out of that recruitment process, have been given appointments on the basis of marks given to them based upon their certificates in sports, to which they were not entitled to. The learned Assistant Government Pleader, then, who was appearing had also drawn the Page 8 of 56 HC-NIC Page 8 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT attention of the Court to yet another communication in which the concerned District Education Officer, Surendranagar, Mr.R.N.Amaliar, who retired w.e.f. 31.7.2010. He was allowed to be retired subject to departmental proceedings after retirement under Rule 24 of the Gujarat Civil Services (Pension) Rules,2002 and to that effect, the notification was also published on 31.7.2010. It appears further from the order dated 15.9.2010 that in addition to the aforesaid communication, on 30.8.2010 the District Primary Education Officer of District Panchayat Education Committee, Jamnagar was asked to take appropriate steps at the level of District Panchayat Committee against those 84 candidates, who secured the appointments of Vidyasahayak on the basis of sports certificate and after giving them individual opportunity, the action be initiated. The Assistant Government Pleader, after placing these communications on record, has pointed out that one another communication dated 30.8.2010 addressed to the District Primary Education Officer and the District Development Officer will be acted upon at the earliest and accordingly, when the steps were contemplated with regard to the candidates, who, on the basis of sports certificates, secured the appointments, were to be dealt with and therefore, those two petitions came to be disposed of since the Court found that authorities are to act upon the inquiry report and in pursuance to communication dated 30.8.2010 referred to above and therefore, thought it fit not to keep the petitions pending and by reserving the liberty to apply before this Court, the petitions came to be disposed of.
2.10 Subsequently, it appears that when the authorities have acted upon and proceeded with those 84 candidates, who Page 9 of 56 HC-NIC Page 9 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT secured the appointment to the post of Vidyasahayak on the basis of sports certificate and availed of 5% weightage in the selection, came to be discontinued from the services by an order dated 7.1.2011 and therefore, it appears that the said order was assailed by the concerned petitioners those who have been discontinued and hence, brought the petition before this Court challenging the said action. The petitions came to be numbered as SCA No.2852 of 2001 with SCA Nos.3461 to 3493 of 2011. These petitions had come up for hearing before this Court and after hearing at length, came to be disposed of by judgment and order dated 15.3.2011. In the said judgment and order passed by this Court, it was found that the original order dated 7.1.2011 which came to be passed was in complete violation of the principles of natural justice and the authorities have misconstrued the earlier order of the Division Bench of this Court dated 31.1.2011 passed in LPA No.145 of 2011 as if the High Court has given a mandate for cancellation of appointment. Upon scrutiny of merit and upon hearing the parties to the proceedings, the learned Single Judge of this Court was pleased to partly allow the petition since the committee came to be constituted by the State authority to examine the irregularities with regard to sports certificates which were made the basis of granting the appointment. It was found by the Court that since a committee was to inquire into such irregularities, the concerned petitioners / candidates be given an opportunity to represent their case before the committee and also consequential order of recovery of salary dated 4.3.2011 (and any such other orders) came to be set aside. It was directed in the said order that the petitioners of aforesaid petition shall appear before the committee at the time and on the date Page 10 of 56 HC-NIC Page 10 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT which shall be intimated by respondent No.4 on behalf of the committee and the committee upon granting an opportunity, shall complete the inquiry preferably within a period of 3 months from the date of order passed by this Court and till such exercise is finally concluded, 84 posts of Vidyasahayak in District Jamnagar shall be kept vacant and if any adverse order passed by the committee against the petitioners, the same was ordered to be kept in abeyance for a period of 30 days from the date of communication. With such observations and directions, the said group of petitions came to be disposed of as partly allowed.
2.11 In continuance of such exercise of examination about the grievance voiced out and the irregularities being pointed out, in response to the order passed by this Court individual show cause notices came to be issued calling upon the petitioners to provide the opportunities and to represent their defence if to be projected. Insofar as SCA No.9136 of 2011 is concerned, said show cause notice is dated 6.5.2011 which came to be issued and with respect to other petitioners of other petitions, such show cause notices have also been undisputedly given.
2.12 The record further indicates that pursuant to such exercise being undertaken by the authority, a detailed Inquiry Report came to be prepared with respect to cause for which inquiry was set up and the detailed report has indicated that out of total number of candidates, 84 candidates including the petitioners have subsequently added the certificates and thereby, their marks have been accumulated by giving 5% weightage so as to place them in the select list. The overall inquiry conclusion indicates that these 84 candidates, some of Page 11 of 56 HC-NIC Page 11 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT whom are the petitioners before this Court, have wrongly been extended the benefit of 5% weightage by taking in aid the certificates with respect to their sports activity. It was found by the Inquiry Committee that if such certificates are not allowed to be added, the petitioners could not have found their place in the selection list. A categorical finding contained in the Inquiry Report indicates that officials of concerned department have failed in discharge of their duties which has caused such irregularities. The detailed finding has been given by the committee which is consisting of 3 officers including one officer from the office of Director of Primary Education, one officer from Education Department not below the rank of Under-Secretary and another officer, who is the District Primary Education Officer, Jamnagar, who is an appointing authority. These members appeared to have examined in detail such irregularities which have been the subject matter of scrutiny and found that 84 candidates' appointments deserve to be cancelled. The inquiry opinion reflecting from Page-78 of the compilation of SCA No.9136 of 2011 and the ultimate conclusion reflecting on Page-81 in recruiting those 84 candidates and based upon such detailed inquiry at the instance of the committee constituted by the State, on 29.6.2011 the appointments came to be cancelled by an order passed by the District Primary Education Officer, District Panchayat, Jamnagar and it is this order of cancelling the appointment is made the subject matter of challenge in SCA No.9136 of 2011 and similar orders are made the subject matter of challenge by the petitioners of first group of petitions referred to above.
2.13 Since the questionable appointments were cancelled by Page 12 of 56 HC-NIC Page 12 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT the authority, the petitioners of second group of petitions have come forward before this Court to see that they may be given an appointment and 84 posts of Vidyasahayak now falling vacant and therefore, as per their merit and placement from the merit list to be reorganized, be given an appointment with consequential effect. Now, this group of petitions, namely, first and the second groups came up for consideration before this Court and looking to the center of controversy which is around of the recruitment pursuant to the same advertisement, it was thought it fit to club all the petitions together and to decide in common. Resultantly, all these petitions had come up for consideration before the learned Single Judge, who, upon hearing at length all the respective advocates, passed a common CAV judgment on 12.3.2014, whereby the petitions of first group, namely, SCA Nos.9134 to 9140 of 2011 and SCA No.12099 of 2012 came to be dismissed and the Rules was discharged and with respect to the petitions consisting of second group being SCA Nos.9180 of 2011, SCA No.18000 of 2011 and SCA No.18389 of 2011 came to be partly allowed and the respondent authorities were directed to give the appointments to the petitioners of SCA No.18000 of 2011 and SCA No.18389 of 2011 within a period of 4 weeks from service of the order and it was further directed that respondents are also to continue the appointments of petitioners of SCA No.9180 of 2011, SCA No.18000 of 2011 and SCA No.18389 of 2011 till the placement of petitioners of second group in the merit list as also in the select list is finalized and operated. It was also ordered that upon finalization of merit list / select list, it would be open to the respondents to pass necessary orders against any of the petitioners not found entitled to Page 13 of 56 HC-NIC Page 13 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT appointment as Vidyasahayak and the respondents are directed to complete the said exercise of finalization of placement of the petitioners of the second group in the merit list / select list within a period of three months from the date of receipt of this order and in respect of the petitioners pertaining to second group, the Rule made absolute in the aforesaid terms and by virtue of this common order, all the petitions came to be disposed of by detailed order.
2.14 Now, this common CAV judgment is made the subject matter of LPAs filed by the respective petitioners which are again clubbed together for adjudication and by judgment and order dated 6.5.2015, the Division Bench of this Court was pleased to take all these matters together and ordered to be listed on 15.6.2015. The record indicates that LPA No.1093 of 2014 is filed by Amitkukar K. Patel (petitioner of SCA No.9136 of 2014), whereas in respect of petitioner of SCA No.9134 of 2011, LPA is numbered as LPA No.1094 of 2014. With respect to petition being SCA No.9140 of 2011, LPA is numbered as LPA No.1095 of 2014 and SCA No.12099 of 2012 filed by one Alpeshgiri Goswami, whose LPA is numbered as LPA No.507 of 2014. Now along with this, the District Education Officer has also filed LPA which is numbered as LPA No.818 of 2014 which is arising out of order related to SCA No.18389 of 2011 and that is how all the LPAs have come up for consideration before this Court for its final adjudication.
2.15 During the passage of time, it appears that LPA No.842 of 2014 preferred in SCA No.18389 of 2011, Mr.K.B.Pujara, learned advocate appearing for the original petitioner of SCA referred to above, stated before the Court that in view of Page 14 of 56 HC-NIC Page 14 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT subsequent development, since the respondent No.1 of that LPA has got service elsewhere, she is not interested in the employment in question and therefore, the said LPA No.842 of 2014 appears to have been disposed of by permitted original petitioner to withdraw the main petition i.e. SCA No.18389 of 2011 and with respect to that petitioner, the order of the learned Single Judge came to be quashed without entering into the merit of the case and the rest of the LPAs have been left for final adjudication which have been taken up by this Court.
3. Basically, in this group of matters, learned advocates representing the respective sides are Mr.Shalin Mehta, learned Senior Advocate appearing in LPA No.507 of 2014. In respect of other LPAs, Mr.D.G.Shukla, learned advocate has represented respective appellants and in addition thereto, Mr.Vijay Patel, learned advocate as also Mr.H.S.Munshaw, learned advocate have been heard by us in respect of present proceedings.
4. Mr.D.G.Shukla, learned advocate representing the appellant has vehemently submitted that at the time when the appellants were called for verification of certificates in recruitment camp held by the respondent authorities, the appellants have submitted their relevant certificates which came to be acknowledged by the authorities as well. Mr.Shukla has pointed out that the camp which was organized calling upon the respective candidates to remain present on 25.10.2008 at 10.00 O'clock pursuant to communication dated 16.10.2008, the appellant - Amitkumar K. Patel did appear before the authority and submitted the relevant Page 15 of 56 HC-NIC Page 15 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT documents and testimonials as required by the authorities. By drawing our attention to a communication at Page-148 of compilation, it has been brought to our notice that even sports certificate issued by the Gujarat State Kabaddi Association as well as the National Kabaddi Championship Certificate was also submitted by this appellant before the District Education Committee, Jamnagar on the day he was called upon and after scrutinizing and after acknowledging these certificates along with others, the appointment order came to be issued with respect to his client on 6.12.2008 which is figuring at Page- 150 of the compilation of the proceedings. It has been pointed out by Mr.D.G.Shukla, learned advocate that since the appointment from 6.12.2008, the appellant has actually served to the utmost satisfaction of the authority and practically for a period of almost 2 years, the appellant has discharged his sincere services and therefore, after a lapse of time, to terminate abruptly in such a manner amounts to arbitrary exercise of power and smacks malafides. It has also been pointed out and contended by Mr.D.G.Shukla that the officers, who were present at the time of scrutiny when the appellant along with others called for, these officers have scrutinized the forms as well as the certificates and then only, onward action has been taken of appointing the appellant and therefore, now to say that these certificates are of no value, it is hardly fit in the mouth of authority after almost a period of 2 years. Mr.Shukla has further contended that even when there was a fault on the part of officer at the relevant point of time, then also the appointment cannot be cancelled after a lapse of period of 2 years especially when appellant was not in fault nor any irregularity occurred during the course of employment, at the instance of appellant in any manner.
Page 16 of 56HC-NIC Page 16 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT 4.1 Mr.D.G.Shukla, learned advocate has submitted that ultimately, for cancellation of appointment and terminating the services of appellant, the authority has attributed against the appellant about sports certificates and its veracity. Now, in that case the full-fledged inquiry should have been made and not in this manner the summary inquiry and therefore, relying upon the decision of the Apex Court reported in 1993 (1) GLH 174 (SC), Mr.Shukla has pointed out that action is thoroughly unjustified, not tenable in the eye of law and in complete deviation of principles of natural justice. Apart from this, Mr.D.G.Shukla has further contended that detailed inquiry could have been made, more particularly in view of the fact that respective Kabaddi Associations have also issued the verification letters as well which are attached at Page- 130, 131 and 132 of the petition compilation and therefore, when the genuineness of the certificates is fortified and corroborated by the stand taken by the respective Kabaddi Associations, to terminate the services on the basis of such certificate is impermissible, not in consonance with the legal principles and therefore, when the factum of participation in event and competition with respect to Kabaddi, is very much established and therefore, simply because no production of certificates at the relevant point of time could not have been a ground to terminate the services and that too, after a period of more than 2 years and therefore, this action on the part of the authority is not permissible in the eye of law. Mr.D.G.Shukla, in addition to this, has relied upon the following decisions to substantiate his contentions;
(1) D.K.Yadav v. (M/s.) J.M.A. Industries Ltd., Page 17 of 56 HC-NIC Page 17 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT reported in 1993 (1) GLH 174(SC).
(2) Dipti Prakash Banerjje v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors., reported in (1999) 3 SCC 60.
(3) Union of India & Anr. v. Mohd. Ramzam Khan, reported in (1991) 1 SCC 588.
4.2 By relying upon the aforesaid decisions, Mr.D.G.Shukla has submitted that the learned Single Judge ought to have appreciated the grievance of the appellant from this angle. Learned advocate has further contended that factum of participation in Kabaddi Tournament at National level and such competitive participation is established by the appellant and substantiated by the certificates which are supported by even the letter of Association and therefore, granting of 5% weightage to the appellant can never be said to be impermissible. On the contrary, by inviting our attention to the said Government Resolution with respect to granting of 5% weightage, Mr.D.G.Shukla has contended that this appellant was very much entitled to have 5% weightage and was rightly recruited to the post of Vidyasahayak and therefore, the action initiated by the authority is not only unjust, arbitrary, but reflects clear non-application of mind. Learned advocate has, after contended this, submitted before us that the learned Single Judge ought to have scrutinized this aspect in its proper perspective. Learned advocate has contended that the committee has randomly examined the issue and the controversy involved in the present proceedings and has not properly come to the conclusion by examining the material in detail. On the contrary, Mr.D.G.Shukla has contended that the conclusion which is reflecting on record Page 18 of 56 HC-NIC Page 18 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT with respect to this issue in controversy, is not the sound conclusion and also not supported by any cogent material or reason and therefore, when such a laconic report of inquiry based upon to terminate the appellant, the action can never be said to be justified in the eye of law and therefore, since the learned Single Judge has not appreciated this aspect of the matter, the order in question deserves to be corrected by issuing necessary and appropriate orders. Ultimately, Mr.D.G.Shukla has contended before this Court that the appellant is required to be taken back in the service with all consequential benefits.
5. Mr.Shalin Mehta, learned Senior Advocate appearing for Ms.Vidhi Bhatt, learned advocate appearing for some of the appellants, has contended that none of the appellants were at fault. It is the authority who selected them after scrutinizing all testimonials and given the appointment and now, to terminate the services after almost a period of 2 years, is not a just exercise of authority. Learned Senior Advocate has contended that though through oversight, the advertisement might not have mentioned the fact of giving weightage of 5% to the appellants having sports certificates, it would not ipso- facto vitiate the recruitment process. On the contrary, all certificates have been examined, acknowledged and only thereafter the selection has taken place and the respective appellants were appointed to the post of Vidyasahayak and this giving of weightage of 5% is well supported by the Government Resolution which has specifically indicated to grant such weightage and therefore, there appears to be no irregularity of any nature in the recruitment and therefore, it is not open for the respondent authorities to terminate the Page 19 of 56 HC-NIC Page 19 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT services. Mr.Shalin Mehta, learned Senior Advocate has further contended that in the said Resolution dated 25.2.1980 reflecting at Page-141 of petition compilation of SCA No.9136 of 2011, it is categorically indicated that it would be open for the authority to grant 5% weightage if the candidate is fulfilling the relevant criteria as mentioned in Para.3 of the said Resolution and referring to this Resolution, learned Senior Advocate has contended that the authority, at the relevant point of time, has examined this issue, accepted the certificate and only thereafter, appointments came to be released and therefore, there cannot be any irregularity attached to the process of recruitment. Learned Senior Advocate has further contended that action initiated by the respondent authority even in issuing show cause notice is also clearly violating the principles of natural justice. It is settled position of law that a person / candidate cannot be expected to recollect everything and every minute details of the past several years. It is submitted that the manner in which the show cause notice has been issued, it transpires that the authority has demanded certain particulars in the year 2011 of those which were of 2003 and 2004. Such past particulars cannot be expected from the candidates to be recollected exactly and for that contention, some of the clauses have been pointed out by the learned Senior Advocate and submitted that that the same are very difficult to be answered even if opportunity is extended to the appellants. For example, Clause-13, 16 and 26 are the particulars which cannot be expected to be recollected in the exact form by the appellants and therefore, demanding such particulars of prior to almost 10 years and above, cannot be a just exercise on the part of respondent authorities. In addition thereto, learned Senior Page 20 of 56 HC-NIC Page 20 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT Advocate has contended that even apart from this, as far as possible the pointwise answers have very much been given by the candidates at the time when they have been extended the opportunity and such pointwise explanation is sufficient enough to justify the sports participation at the competition by respective appellants and resultantly, the grant of 5% weightage can never be said to be impermissible. Mr.Shalin Mehta, learned Senior Advocate has further contended that conclusion of the inquiry held by the committee constituted by the State authority reflects a predetermined approach towards the appellants. Before termination, the inquiry which has been conducted by the authority is also not fair to the appellants. For example, during the course of inquiry, the committee has posed a question to give name of the Manager or the Coach where he had participated at the National level tournament of Kabaddi. Now to recollect this, is almost difficult even by a normal person and simply because the candidate has not been able to recollect the name of the Manager or the Coach exactly, the conclusion that the applicant has not been able to given the name of the Manager or the Coach while participating in the tournament, the authority cannot assume that he has never participated. These particulars and the details ought to have been, on the contrary, asked from the relevant associations, to which the appellants were attached. Without calling the Associations and the particulars of that, to brand the appellants that they have not been able to establish, is nothing but a clear example of arbitrary exercise of power. The minimum requirement of any inquiry requires an application of Rule of fairness which should have been applied and having not done so, here the ultimate outcome of the inquiry is vitiated and cannot be the Page 21 of 56 HC-NIC Page 21 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT sole basis for cancelling the appointments from the post on which the appellants were working almost for a period of about 2 years. Mr.Shalin Mehta, learned Senior Advocate has contended that even if the strict Rules of evidence are not applicable to this kind of inquiry, then also a bare minimum Rule of burden to establish is upon the person who alleges. Now, here is a person, namely, the authority is alleging against the appellants that they have not participated or the certificates relied upon are not genuine, then it was on the part of authority to establish beyond the reasonable doubt on that issue. Such legal burden should not have been shifted upon the appellant to establish and therefore, this Rule of fairness is completely missing by the authority while inquiring into the controversy.
5.1 Mr.Shalin Mehta, learned Senior Advocate has, therefore, submitted that judicial review in such a situation is always open when the decision making process by the authority is highly unfair, suffers from the vice of non application of mind and based upon lack of material and therefore, this is a fit case in which the intervention of this Court is called for, which ought to have been appreciated by the learned Single Judge. Having not done so, the impugned judgment and order passed by the learned Single Judge deserves to be corrected. Mr.Shalin Mehta, learned Senior Advocate has further contended that this is a fit case of serious infirmity in examining the controversy for which the committee was set up. On the contrary, it transpires that an eyewash is made upon an inquiry. Further, it was a pre- decisive move to depute the committee and to inquire in such a casual manner which can be fortified from the fact that Page 22 of 56 HC-NIC Page 22 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT earlier round of litigation was ended by the direction vide order dated 15.3.2011 and in response thereto, show cause notice came to be given on 6.5.2011, hearing was scheduled by the committee on 26.5.2011 and surprisingly, the matter was closed on that very day by demanding the old particulars of about 2003 much prior to this inquiry and thereby, ultimately held that appellants have not been able to produce any material or justify by giving particulars and this action, therefore, smacks malafides. On the contrary, it is an eyewash to the spirit on which this Court has directed to examine and inquire into the controversy in question and therefore, since such a decision making process has been undertaken by the authority, the termination and cancellation of appointments based upon it, is a glaring example of arbitrary exercise of power which is impermissible in law and therefore, the relief prayed for in the appeals, deserve to be granted. The learned Single Judge ought to have appreciated all these issues which unfortunately have been missing and therefore, the error crept in deserves to be correct, in the interest of justice.
6. To oppose the stand taken by the appellants belonging to the first group of petitions, Mr.H.S.Munshaw, learned advocate appearing for the District Primary Education Officer
- the authority, has vehemently contended that there is no perpetual legal right in favour of the appellants to continue in the employment particularly when the sports quota benefit was not available to them. It has also been contended that the original advertisement which came to be issued inviting applications from the respective candidates, does not refer to any weightage to be given to candidates having sports certificates to ultimately secure 5% weightage and therefore, Page 23 of 56 HC-NIC Page 23 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT no alteration in the criteria published in the advertisement can be allowed to be changed at a later point of time. It has also been contended that this Court sitting in an extraordinary jurisdiction may not certify the illegality which has been crept in by incorporating the sports criteria and thereby, to give 5% weightage to the candidates who have secured the certificates. It has also been contended by Mr.H.S.Munshaw that apart from introduction of 5% weightage at a later point of time, even the certificates which have been obtained by the respective candidates, 84 in numbers, have subsequently attached and given which was supposed to have been given at the time of application. It has also been found during the course of inquiry by the committee constituted by the State that such certificates have no legal sanctity nor the Associations have backed up those certificates with some cogent material, except by mere letters. On the contrary, it has been found that some of the Associations have been black- listed and the sports quota was cancelled and therefore, in such a situation when fraud is practiced upon the recruitment process by those 84 candidates, no vested right to be crystallized in their favour by exercising jurisdiction of this Court. Mr.H.S.Munshaw, learned advocate has submitted that learned Single Judge has rightly come to the conclusion while dismissing the SCAs of first group. Learned advocate has further contended that a detailed reply has been filed by the authority in original SCA No.18000 of 2011 and it has been specifically contended that there is no indefeasible right to secure or to continue the appointment as Vidyasahayaks only because their names have appeared in select or the waiting list. It has also been specifically pointed out by Mr.H.S.Munshaw that the report of the Inquiry Committee is Page 24 of 56 HC-NIC Page 24 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT sufficient enough to suggest that a serious irregularity has been crept-in in the course of recruitment to the post of Vidyasahayaks. Mr.H.S.Munshaw, learned advocate has further contended that even by virtue of grant of interim relief, the appointments cannot be allowed or directed by the Court in exercise of extraordinary jurisdiction, particularly when serious mal-practice has been visualized by the authority. Learned advocate has further submitted that the interim order, by virtue of which some of the appellants have been brought in service, is virtually amounts to granting of a mandatory relief and practically allowing the petition at the interlocutory stage itself, which is not permissible in law. Apart from the challenge to the interim order by virtue of which the candidates have been kept in employment, is again a serious error in exercise of jurisdiction and therefore, qua that also the order of the learned Single Judge practically confirming the interim order by virtue of direction, is uncalled for in the background of these facts. Mr.Munshaw has, therefore, specifically contended that the appellants - candidates are not entitled to seek any protection. The detailed report submitted by the committee is clearly suggesting a mal-practice and since the recruitment of candidates of the present proceedings had been on the basis of such mal-practice, no undue sympathy be shown to the respective candidates. Mr.H.S.Munshaw, learned advocate has further pointed out that responsible person on account of whom such serious irregularities have crept in, has been proceeded departmentally and the action is also initiated against such officer, who committed ruckus to the entire recruitment. Not only that the Associations have also not got any material to justify even the sports participation as none of Page 25 of 56 HC-NIC Page 25 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT the appellants have been able to procure any concrete material from the Association which indicate that apart from non-availability, they were not even holding such criteria in their favour and therefore, in the absence of any such material, the committee was thoroughly justified in concluding that 84 candidates have not been found to be eligible to secure the appointments and the detailed report would clearly indicate the subjective satisfaction of the committee on that issue. Learned advocate has also submitted that in extraordinary jurisdiction, normally the Court has to evaluate a decision making process and here in the case on hand, after giving a reasonable opportunity pursuant to the direction of this Court, a show cause notice was issued, whatever explanation submitted is considered to cancel the appointments and therefore, the entire decision making process which is impugned since the same is reasonable and completely in consonance with the principles of natural justice and in a fair manner, such conclusion and the satisfaction may not be substituted in exercise of extraordinary jurisdiction. There appears to be no apparent infirmity of such nature which would warrant the exercise of extraordinary jurisdiction in favour of the respective appellants. Learned advocate has further contended that there appears to be no manifest error nor any material irregularity which would not justify the cancellation of appointments and therefore, in the absence of indefeasible right to the post in question, the order of the learned Single Judge is required to be suitably corrected and qua the cancellation of appointment part is concerned with respect to first group of petitions, the conclusion arrived at by the learned Single Judge is justified and ultimately, requested not to entertain the Letters Patent Appeals of those Page 26 of 56 HC-NIC Page 26 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT candidates.
6.1 Mr.H.S.Munshaw, learned advocate representing the authority, namely, District Primary Education Officer, has relied upon following decisions for consideration.
(1) State of Orissa & Anr. v. Rajkishore Nanda & Ors., reported in (2010) 6 SCC 777 (2) Man Singh v. Commissioner, Garhwal Mandal, Pauri & Ors., reported in (2009) 11 SCC 448 (3) Aryavrat Gramin Bank v. Vijay Shankar Shukla, reported in (2007) 12 SCC 413.
7. As against this, Mr.K.B.Pujara, learned advocate appearing for some of the candidates, who, pursuant to the advertisement dated 22.4.2008, participated in the process of recruitment and are waiting for their turn in employment. Since the appointments to the post of Vidyasahayak, 84 in numbers which is in serious controversy, it appears that petitioners of these petitions, namely, SCA No.18000 of 2011 and 9180 of 2011 have approached this Court with a request that after cancellation of 84 candidates' appointments, as found to be fraudulently appointed, since the petitioners of these petitions have been deprived of employment, a direction is sought from this Court to appoint them to the post in question upon falling vacant i.e. 84 candidates, whose appointments are cancelled by way of an order dated 29.6.2011. To meet with this relief, Mr.K.B.Pujara, learned advocate has submitted before this Court that it is settled position of law that when any appointment is cancelled or the appointed candidate is not accepting the appointment or not Page 27 of 56 HC-NIC Page 27 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT resuming the place of appointment and the post is remaining vacant and unfilled, then merit list candidates have to be given a preference by further operating the prepared merit list and it is further submitted before this Court that undisputedly, the petitioners of these petitions have figured next in number on the merit list and therefore, a specific direction was given by this Court in an order dated 15.9.2010 passed in SCA No.8875 of 2010 and 9412 of 2010 is justified and therefore, requested the Court that they may be appointed, moment 84 candidates' posts became vacant and therefore, since these petitioners' fate is depending upon the first group of petitions, these petitions have been ordered to be tagged along with the first group of petitions and it seems that the learned Single Judge has disposed of both the groups by way of common CAV judgment. It appears from the record that by interim order, all 12 petitioners of SCA No.9180 of 2011 have got appointments. However, so far as petitioners with respect to SCA No.18000 of 2011 and SCA No.18389 of 2011 are concerned, there seem to be no interim relief and therefore, they are here to be appointed. However, SCA No.18389 of 2011 is concerned, the respective petitioner of that petition has since got the appointment elsewhere, said petition came to be withdrawn and the LPA with respect to that petitioner bearing LPA No.842 of 2014 also came to the withdrawn with original petition by virtue of an order dated 17.9.2014. With respect to petition being SCA No.9180 of 2011 is concerned, the petitioners, 12 in numbers, as stated above, have got their respective appointments by virtue of an interim order and therefore, they have requested that since they are forming part of the merit list and by virtue of interim order, have been placed in the employment and there is no Page 28 of 56 HC-NIC Page 28 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT infirmity with regard to their discharge of services to the post in question, they may be finally continued to be in the employment as by virtue of cancellation of appointment of 84 candidates, the post have fallen vacant and therefore, by referring to aforesaid circumstances prevailing on record, Mr.K.B.Pujara, learned advocate has requested the Court to take care of these set of petitioners, who are forming part of the petitions of second group.
7.1 Mr.K.B.Pujara, learned advocate, has drawn our attention to following decisions which are pressed into service and pointed out that same had also been pressed at the time when petitions came to be heard :
(1) Union of India v. Dattatray s/o Namdeo Mendhekar & Ors., reported in (2008) 4 SCC 612 (2) Gujarat Industrial Development Corporation v.
Revabhai Maganbhai Patel (Supra), reported in 2013 (3) GLH 367.
(3) Bank of India v. Avinash D. Mandivikar & Ors., reported in (2005) 7 SCC 690
8. Mr.Vijay Patel, learned advocate representing the petitioners of second group of petitions, has also submitted on the line of Mr.K.B.Pujara and has also contended that since the fraudulent appointments have been cancelled by the authority, the posts have fallen vacant and since they are forming part of the part merit list and eligible candidates scrutinized by the recruitment agency, they also may be Page 29 of 56 HC-NIC Page 29 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT considered for employment to the respective posts. Practically, Mr.Vijay Patel has adopted substantially the stand taken by Mr.K.B.Pujara, learned advocate representing the petitioners of second group of petitions. Mr.Vijay Patel, learned advocate, has contended that these petitioners related to a second group of petitions since are waiting and some of them have been accommodated, an equal treatment be given to the petitioners of second group of petitions, who have been appointed by virtue of the interim order as well. Mr.Vijay Patel, for the purpose of consideration of his submission, has relied upon following decisions which are referred to hereinafter :
(1) Regional Manager, Central Bank of India v.
Madhulika Guruprasad Dahir & Anr., reported in (2008) 13 SCC 170 (2) Patel Hardikkumar Jagdishbhai & Ors. v. State of Gujarat & Ors., reported in 2009 (4) GLR 3183 (3) Mahesh T. Rabari v. Director of Primary Education & Ors., reported in 2002 (1) GLH 438 (4) State of Jammu & Kashmir v. Sat Pal, reported in AIR 2013 SC 1258 8.1 Ultimately, both the learned advocates have contended that the learned Single Judge has rightly passed the order.
9. Having heard the learned advocates representing the Page 30 of 56 HC-NIC Page 30 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT respective appellants and having also heard the learned advocates representing the authority and upon perusal of the order passed by the learned Single Judge which has been placed before us for consideration, the following circumstances are not possible to be ignored.
(1) The advertisement which has been published with respect to 785 candidates for the post of Vidyasahayaks under the authority of the District Education Committee, Jamnagar which contains no criteria for the weightage of 5% to be given to the candidates having sports certificate, namely, certificates regarding participation in Kabaddi competition at the National and International level.
(2) It appears that almost majority candidates, who filled in their candidature, were not from amongst those who have submitted their testimonials about sports certificates at a relevant time.
(3) It appears that only 84 candidates have secured their appointments on the basis of sports certificates and the criteria of 5% weightage upon it, otherwise they might not have been in the category of successful candidates.
(4) The Government Resolution which is taken in aid to help out those 84 candidates is of 25.2.1980 which requires further certain criteria to be fulfilled as contained in Clause (3) of the said Government Resolution.
Page 31 of 56HC-NIC Page 31 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT (5) From the record, it appears that with respect to controversial appointments of 84 candidates, a serious protest was made by one of the members of the District Panchayat, Jamnagar - Shri Dharmendrasinh M. Jadeja vide letter dated 11.1.2010 and in respect of the same, an inquiry was assigned to one Deputy Director of Education, who inquired the same at length and submitted the report vide communication dated 28.7.2010.
(6) Based upon the aforesaid report dated 28.7.2010 and its conclusion, the record indicates that the cancellation of appointment straightway had been made. Resultantly, the concerned appointees have approached this Court by way of petition at that point of time.
(7) It also further appears from the record that in respect of those petitions, especially SCA No.8875 of 2010 with SCA No.9412 of 2010, the Court vide order dated 15.9.2010 has specifically opined that now the authorities are to act upon an Inquiry Report, the petitions came to be disposed of with an observation that case of those petitioners will have to be considered for the post on account of cancellation of 84 candidates. The relevant extract contained in Para.3 is reproduced hereinafter :
"3. Now that the authorities are to act upon the inquiry report and in pursuance thereto Page 32 of 56 HC-NIC Page 32 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT communication dated 30th August 2010 is issued. The petitions are not required to be kept pending, because after appointment of 84 candidates is cancelled, the merit list will be operated in accordance with law and the resultant effect will be that the case of the petitioners will be considered for appointment to the post of Vidya Sahayak."
(8) It further appears from the record that in some other group of petitions, namely, SCA No.2852 of 2011 with SCA No.3461 of 2011 to 3493 of 2011, later on this Court has, by common oral judgment dated 15.3.2011, disposed of the petitions by considering the fact that for the purpose of examining the grievance with respect to granting of 5% weightage related to candidates having and relied on sports certificates, a committee was constituted by the State Government comprising 3 Senior Officers, namely one from the office of the Director of Primary Education, another from the Education Department not below the rank of Under Secretary and the District Primary Education Officer himself of Jamnagar being the appointing authority and therefore, since the committee was constituted to scrutinize the grievance related to the controversy about the sports certificate and weightage of 5%, the Court has extended an opportunity of personal hearing at Jamnagar to all those candidates, as previously it was not given and till such exercise being undertaken and concluded, 84 posts of Vidyasahayaks would be kept vacant in Jamnagar District by the District Primary Education Officer. It was also observed that since the Page 33 of 56 HC-NIC Page 33 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT opportunity of hearing was not extended an the orders of cancellation of appointments dated 7.1.2011 found to be in clear violation of principles of natural justice, the same was quashed and wet aside with a further direction that the committee which has been constituted, shall complete the inquiry preferably within a period of 3 months from the date of receipt of the order and it has also been observed that in case the committee is taking adverse stand against the petitioners, the said order shall not take effect for a period of 30 days from the date of communication and thereby, by judgment and order dated 15.3.2011, the petition came to be partly allowed.
(9) It is also borne out from the record that in response to such direction, a show cause notice came to be given to all those respective candidates on 6.5.2011 and around, calling upon them to justify their stand and supply all those relevant evidence and material about their claim. It appears further that pursuant to such opportunities having been given, all those candidates have appeared before the committee, submitted their explanation and participated in the process of such scrutiny and it is only after such process having been carried out in consonance with the principle of natural justice, ultimately the committee has arrived at a conclusion and submitted a detailed report and categorically come to the conclusion that several infirmities have crept in and ultimate opinion is formulated that appointment of the relevant candidates, namely, the petitioners of first group Page 34 of 56 HC-NIC Page 34 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT deserves to be cancelled. Based upon this report thereafter in the month of June,2011 i.e. on 29.6.2011, an order came to be passed of cancellation of appointment. However, with a view to see that no further damage may cause to the relevant petitioners / candidates, it has been specifically mentioned in that order that this cancellation of appointment will not be treated as ineligibility for future employment and by observing this, the order came to be passed with respect to petitioners of first group of petitions.
(10) It is also noticed from the record that majority candidates have not been able to justify their stand nor have been able to produce the record nor have explained as to why the weightage of 5% be extended to them.
(11) It appears further that in large number of applications related to petitioners of first group, those sports certificates have been added subsequently just with a view to see that they can avail of the benefit of 5% weightage and therefore, the committee which has been specially constituted to scrutinize these serious irregularities have thoroughly examined and come to a conclusion which appears to be a main basis for cancellation of appointment.
(12) The contents of the report of the committee and the compliance of principles of natural justice would indicate that the subjective satisfaction is arrived at Page 35 of 56 HC-NIC Page 35 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT by the authority to examine the issue in question which was posed before the committee and by reading and perusal of the order impugned in the LPAs, it appears that the learned Single Judge has examined this issue and has appreciated this circumstance and only thereafter passed the order which is impugned in these LPAs.
(13) The aforesaid circumstances which are prevailing on record have been found by the learned Single Judge as justifiable and found no infirmity and therefore, the order impugned is passed on 12.3.2014.
(14) It further emerges from the perusal of the order passed by the learned Single Judge that in the decision making process, there appears to be no infirmity nor any illegality and therefore also, the learned Single Judge has found no case in favour of the petitioners of first group of petitions.
(15) The learned Single Judge has also perused the detailed affidavit and after taking note of such affidavit filed by the District Primary Education Officer in SCA No.12099 of 2012, a strong suspicion appears to have been generated with regard to genuineness of sports certificates and therefore, since the candidates have not been able to satisfy the authority, namely, the committee, the decision delivered by the authority appears to have accepted by the learned Single Judge.
(16) From the reading of the order passed by the learned Page 36 of 56 HC-NIC Page 36 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT Single Judge, it also appears that an action is also initiated against the responsible officer, who created chaos with respect to the recruitment to the post of Vidyasahayaks to the extent of 84 candidates and Mr.K.N.Chauhan, Education Officer, Taluka Panchayat, Jamkhambhaliya, was proceeded departmentally by the authorities, under whom such Education Officer is functioning and therefore, the tenor of the record shows that all those 84 appointments have been based upon serious irregularities and therefore, the learned Single Judge appears to have rightly come to the conclusion in disposing of the petitions in the manner in which those were to be dealt with.
(17) It also appears from the record that a balance is struck in an order by keeping interest of those eligible candidates as well, who have suffered on account of such irregular appointments, 84 in numbers and therefore, by issuing appropriate direction in respect of second group of petitions, the learned Single Judge has observed to take appropriate measure as found in Para.28 of the judgment. Hence, we see no illegality in an order under challenge.
10. Now, we may deal with the judgments relied on by learned advocates appearing for the respective parties. Mr.D.G.Shukla, learned advocate appearing for the appellants of the first group of petitions, has relied upon a decision in case of D.K.Yadav (supra), in which the Supreme Court had an occasion to deal with the issue related to violation of Page 37 of 56 HC-NIC Page 37 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT principles of natural justice and fair play in the context of examining the retrenchment issue as envisaged under Section 2(oo) of the I.D.Act. The Supreme Court, while dealing with an issue related to I.D.Act more particularly an issue related to retrenchment in the context of standing order applicable there in that case, has laid down that the action of employer must be fair, just and reasonable and in consonance with the principles of natural justice and it has also been laid down that there is no distinction between the quasi-judicial function and an administrative function for the purpose of applicability of principles of natural justice and fair play. We are in conformity and conscious about the said salutary principles laid down by the Supreme Court in the context of applicability of principles of natural justice. But when we are examining the case on hand, we found specifically that original order which was found to be in infirmity, this Court had directed the authorities to initiate and conclude the action after complying with the principles of natural justice and in that view of the matter, the State authorities have constituted a committee of 3 senior officers including the appointing authority of the appellants and the said committee has examined in detail the veracity and applicability of the weightage of 5% in respect of the appellants, who are armed with sports participative certificates and while examining that, ample opportunities are given by issuing show cause notice as well as by extending personal hearing and only thereafter, upon proper scrutiny, it appears and found by the learned Single Judge that the action is ultimately taken against the appellants and therefore, the authority has closely applied the principles of natural justice in the case on hand which has been specifically found by the learned Single Judge as well. We are of the opinion that the Page 38 of 56 HC-NIC Page 38 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT aforesaid decision has no exact bearing on the case on hand.
11. In addition thereto, Mr.D.G.Shukla has further drawn our attention to yet another decision in case of Union of India & Anr. v. Mohd. Ramzam Khan (Supra), in which while dealing with a disciplinary proceedings and in that context while examining the right of the delinquent to know the finding and punishment imposed by Inquiry Officer, the Supreme Court has dealt with an issue related to supply of inquiry report to the delinquent. Now, here the case on hand has got a different set of circumstance altogether in which the inquiry is not a disciplinary inquiry at all, but the inquiry was related to examine the veracity of the sports quota certificate and thereby, a claim with regard to 5% weightage and therefore, in view of settled position of law that if there is a slight change in the fact, it would make a world of difference in applying principles of law laid down by the Court. We found that this decision has, therefore, no bearing and hence, accepting the said proposition laid down by the Supreme Court, we are unable to extend the same on case on hand.
12. Yet another decision which has been brought to our notice by Mr.D.G.Shukla, learned advocate is in case of Dipti Prakash Banerjje (supra) in which also, the case was with respect to termination of probationer and the concerned order has got the effect of stigma and from that context, the Supreme Court was examining whether the probationer is entitled to such departmental inquiry before termination. As stated earlier, that the background of facts has a close bearing on applicability of precedent and therefore, the case which has been referred to has got a different set of Page 39 of 56 HC-NIC Page 39 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT circumstance, we are unable to apply the same as a straitjacket formula and therefore, in this situation on hand, the decision cited by Mr.D.G.Shukla, learned advocate has no applicability in its exact term. These decisions are not only not applicable, but on the present fact we found that these concerned appellants have not been declared as ineligible for future employment in view of the irregularities inquired into by the authority, we are unable to accept the stand taken by the appellants of first group of petitions.
13. So far as the decisions which are referred to by Mr.Vijay Patel, learned advocate appearing for the concerned appellants of the second group of petitions, we may prefer it to deal with the same hereby. First judgment which has been pointed out before us is the decision of the Supreme Court in the case of Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir & Anr. (Supra), in which a false caste certificate was given for securing the appointment and upon scrutiny in that case, the concerned candidate was terminated from the service which was the subject matter of challenge before various Forums and ultimately, went before the Supreme Court. On close reading of the said decision, the principle which has been culled out by the Supreme Court is that it is not open for the concerned candidate, who armed with false caste certificate by playing fraud / deceit, secured the employment and thereby, to claim that he has undergone several years in employment and therefore, be continued and that appears to be rightly so, since here also the certificates upon which 5% weightage is claimed and secured an employment, the inquiry found that these candidates were not in a position to claim or to extend such benefit and therefore, discontinued.
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14. The second judgment which has been pressed into service by Mr.Vijay Patel, learned advocate is in case of Patel Hardikkumar Jagdishbhai (Supra) which is delivered by the Division Bench of this Court. In the said decision also, a large scale mal-practices were perpetrated and the Court found that since false and forged sports certificates were relied upon by those respective appellants, there was no hindrance in the way of State authority to keep aside that doubtful certificates and the candidates to be placed out of consideration. Here also, the material on record if to be looked into, there was a serious grievance with regard to placement of service for claiming 5% weightage and to march over other eligible candidates and was found to be erroneous which appears to have been rightly dealt with by the learned Single Judge. Relevant extract of the said decision are reproduced hereinafter :
"10. It should be noted here that it is not the case of the State Government that the appellants have produced false or forged sports certificates. The objection is in respect of the authenticity of the associations organizing the tournaments or the alleged tournament itself is questionable. If the State Government has decided to keep such doubtful certificates out of consideration, the court of law should not make exception about it. Moreover, neither the appellants have right to appointment nor a right to selection. All that they can claim is a right to be considered for selection, the said right has not been abridged by the impugned action. What is taken away Page 41 of 56 HC-NIC Page 41 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT is the preferential treatment given on the basis of participation in certain sports event. In a case like the present one where a large scale fraud has been perpetrated upon the public authority, issuance of show-cause notice to each individual is neither possible nor necessary (reference can be had to the decisions of the Hon'ble Supreme Court in the matters of The Bihar School Examination Board v/s. Subhas Chandra Sinha and others [AIR 1970 SC 1269]; of M/s. Andhra Steel Corporation Limited v/s. The Andhra Pradesh State Electricity Board and another [AIR 1991 SC 1456]; of Union Territory of Chandigarh v/s. Dilbagh Singh and others [AIR 1993 SC 796]; of Union of India and others v/s. O.Chakradhar [(2002)3 SCC 146] and of Karnataka Power Corporation Limited and another v/s. A.T.Chandrashekar [AIR 2007 SC 2480])."
15. Yet another decision is relied upon by Mr.Vijay Patel in the case of Mahesh T. Rabari (Supra), in which the appellant in that case was not holding any qualification prescribed for Trade Instructor, the post came to be filled in. In that case, the question of opportunity of hearing was dealt with by the Division Bench of this Court and it has been held that hearing is of no consequence and would not have made any difference and therefore, termination was upheld.
16. Mr.Vijay Patel, learned advocate has further relied upon a decision in the case of State of Jammu & Kashmir v. Sat Pal (Supra), in which the issue came to be dealt with by the Apex Court while dealing with a situation where the post of Page 42 of 56 HC-NIC Page 42 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT Junior Engineer (Civil, Grade-II) became vacant and therefore, an opportunity of employing persons, who are figured immediately after the name of selected candidate in the merit list upon representation, have been given an appointment and therefore, here also such a situation has arisen where undisputedly, the petitioners of second group of petitions are the next candidates immediately after those who are to be discontinued and therefore, the posts which are falling vacant on account of that situation, the petitioners of second group of petitions having found immediately next in the merit list, deserve to be employed and that has rightly been appreciated by the learned Single Judge while issuing final direction and disposing of the group of petitions and therefore, by referring to these decisions, an assistance is sought for to claim relief as prayed for in the petitions, which according to us, rightly have been appreciated by the learned Single Judge and therefore, we feel no infirmity in the order passed and the benefit extended to the petitioners of second group of petitions.
17. Mr.K.B.Pujara, learned advocate has also almost on a similar line has drawn our attention to some of the decisions delivered by this Court as well as the Supreme Court. One such decision in the case of Union of India v. Dattatray s/o Namdeo Mendhekar & Ors.(Supra), in which also the Supreme Court was confronted with the situation to deal with reliance of fake caste / tribe certificates for securing the appointment and upon an inquiry, it was found that the caste certificate since relied upon was not genuine, the appointment appears to have been rightly cancelled. But in that particular case, the resignation came forward and therefore, no further order was passed. However, the terminal benefits were Page 43 of 56 HC-NIC Page 43 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT ordered not to be paid.
18. Mr.K.B.Pujara, learned advocate has further drawn our attention to yet another contingency which has erupted in respect of the employment of a candidate which is in the case of Gujarat Industrial Development Corporation v. Revabhai Maganbhai Patel (Supra) in which, the Hon'ble Court while dealing with such case was mindful of the fact that undisputedly the concerned candidate was appointed on vacancy reserved for the S.T. candidate and it was found that said candidate was not belonging to S.T. Candidate and therefore, the very foundation of the appointment was collapsed and therefore, even if no departmental inquiry is initiated or the respondent was not heard, the Court found that the authority was justified in cancelling the appointment of respondent.
19. Yet another decision which has been pressed into service by Mr.K.B.Pujara, learned advocate, is in the case of Bank of India v. Avinash D. Mandivikar & Ors. (Supra), wherein also in almost similar set of circumstance, a caste certificate regarding ST/ caste certificate was found to be not trustworthy and was obtained fraudulently. While dealing with such a situation, even after a period of long lapse, the same would not give equity in favour of such candidate as held and therefore, the Supreme Court was pleased to uphold the order of termination / cancellation of appointment. While disposing of the said case, the Supreme Court observed that by giving protection for even a limited period, the result would be that a person who has legitimate claim shall be deprived of the benefit and on the other hand, a person who has obtained it Page 44 of 56 HC-NIC Page 44 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT by illegitimate means, would continue to enjoy it notwithstanding clear finding that he does not have a shape of right even to be considered for appointment. Relevant extract of the said decision are reproduced hereinafter :
"5. In Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others (1994 (6) SCC 241) the object for granting certain benefits to persons belonging to Scheduled Caste and Scheduled Tribe and the approach to be adopted in matters where benefits are fraudulently obtained was highlighted. At para 13 of the judgment it was, inter alia, noted as follows:
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following :
1. The application for grant of social status certificate shall be made to the Revenue Sub- Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by Page 45 of 56 HC-NIC Page 45 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian Page 46 of 56 HC-NIC Page 46 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particulars, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.Page 47 of 56
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7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, in getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.Page 48 of 56
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13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledge-ment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
9.A similar plea about long years of service was considered by this Court in R. Vishwanatha Pillai v. State of Kerala and others, (2004 (2) SCC 105) to be inconsequential. In para 19 it was observed :
"It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this Page 49 of 56 HC-NIC Page 49 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."
19.1 Now, in almost similar situation, here also the learned Single Judge found that those 84 candidates including the petitioners of first group are not amenable to 5% weightage and therefore, their appointments deserve to be cancelled since the committee has inquired into and arrived at a specific finding.
20. The other decisions have also been pressed into service Page 50 of 56 HC-NIC Page 50 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT to deal with situation where the person either as fraudulently relied upon the documents to secure the employment or the documents found to be not genuine one, but in those cases also the appointments are not to be given any equitable consideration and therefore, the judgments which have been relied upon, have a referring effect to the contentions, the same are considered by this Court to arrive at an ultimate outcome in the following premises.
21. Mr.H.S.Munshaw, learned advocate appearing for the authority in LPA No.843 of 2014, has contended that the High Court in exercise of extraordinary jurisdiction cannot direct the authority to grant an appointment and it has further been contended that selection list cannot be treated as perpetual. To substantiate his main contention, Mr.H.S.Munshaw has relied upon a decision in the case of Aryavrat Gramin Bank (supra), in which the Supreme Court, while dealing with a right to appointment issue, has culled out the proposition that a candidate included in the panel has no right to appointment and the State authority cannot be directed to make the appointment. A close perusal of the background of the said case indicates that in that facts situation, the High Court had directed the respondent authorities to appoint particularly when there were candidates above the said candidate, namely, the petitioner of that petition in the panel and they had also not been appointed and the claim of the said petitioner was suffering from delay and latches. Now if we compare to the facts on hand, undisputedly the petitioners of second group of petitions are next in queue and forming part of the selection list and therefore, if 84 appointments which have been cancelled, the posts which are falling vacant on Page 51 of 56 HC-NIC Page 51 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT account of that, can be filled in by this immediate candidates in cue, who are scanned by the authorities for the purpose of selection and therefore, the background of present fact is altogether distinct from the aforesaid case and therefore, we are of the view that the ratio laid down by the said decision cannot be applied as a straitjacket formula.
22. Yet another decision which is pressed into service by Mr.H.S.Munshaw is in the case of Man Singh (supra), wherein also the issue was related to rectification of select list in the recruitment process. In that case, the appellant had already been appointed as a peon from time to time, initially placed in the panel at Serial No.3 but his name later on deleted to include another candidate who had wrongly been placed in the category of reserved candidate and therefore, in that situation the Supreme Court had opined that it is not open to rectify the select list. Whereas as stated above, here no such eventuality almost similar is reflecting and therefore, the background of present fact would lead to believe us that the ratio laid down by the Supreme Court in that case cannot be pressed into service by the learned advocate and hence, of no avail.
23. Another decision which is sought to be relied upon by Mr.H.S.Munshaw, learned advocate, is in the case of State of Orissa & Anr. v. Rajkishore Nanda & Ors., (supra), in which the select list cannot be treated as perpetual reservoir for the purpose of appointment as held by the Supreme Court. It has been propounded in the said decision that if the selection process is over whereby the select list has expired and appointments have been made, no relief can be granted Page 52 of 56 HC-NIC Page 52 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT by the Court subsequently on the basis of expired select list. Whereas, herein in the background of present fact the recruitment process which was undertaken is of 785 posts of Vidyasahayaks, out of which upon detailed inquiry, only 84 appointments have been found not in consonance with the terms of the advertisement and it is also found by the competent authority that those candidates are not entitled to be appointed and therefore, those 84 posts which have fallen vacant, the petitioners of second group of petitions which are undisputedly coming next in the queue and have been found to be suitable and have been accommodated and a fact is also to be noticed that the interim order by virtue of which some of the petitioners have been accommodated of second group of petitions, the said interim order appears to have not been disturbed and therefore, some of the petitioners of second group of petitions have been accommodated and therefore, there appears to be a slight distinction in the background of facts of the case on hand and therefore, we are unable to find any justification to apply the ratio laid down by the Supreme Court which is based on a different set of circumstance.
24. We are mindful of the fact that judicial precedent has got its own significance and has to be observed as a part of judicial discipline. But for the purpose of understanding whether the ratio decidendi is to be applied straightway or the facts are in a different compass altogether have to be evaluated and therefore, we are in aid of yet another decision of the Supreme Court in the case of State of Andhra Pradesh v. M. Radha Krishna Murthy, reported in (2009) 5 SCC 117, wherein while dealing with an issue of law of precedent, the Supreme Court has specifically propounded Page 53 of 56 HC-NIC Page 53 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT that if there is a slight change in the fact, it would make a world of difference in applying the principle laid down in the decision and therefore, keeping this proposition in mind, we are of the opinion that the judgments which have been pressed into service by learned advocate for the authority, have not that much bearing which would permit us to dislodge the finding arrived at by the learned Single Judge and therefore, we deem it proper not to disturb the order passed by the learned Single Judge. Following are some of the observations in the said decision which are relevant and reproduced hereinafter;
"16. Unfortunately, in the instant case the High Court has lost sight of the aforesaid aspects and by placing reliance on the aforesaid decision has directed acquittal.
17. '15... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation Page 54 of 56 HC-NIC Page 54 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
16. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
18. The following words of Lord Denning in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR P.688, Para.19) '19. "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
"Precedent should be followed only so far as it marks the path of justice, but you must cut Page 55 of 56 HC-NIC Page 55 of 56 Created On Mon Aug 21 15:58:16 IST 2017 C/LPA/1093/2014 CAV JUDGMENT the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."'
25. After perusal of the record and the case law cited before us, we see no infirmity of any nature in the order passed by the learned Single Judge and therefore, keeping ourselves in the appellate jurisdiction, we refrain ourselves from interfering with the order passed by the learned Single Judge and accordingly, we hereby confirm the order passed by the learned Single Judge dated 12.3.2014 (common CAV judgment) and direct the authorities to act upon it and accordingly, we deem it proper to dismiss the Letters Patent Appeals. Hence, all sets of Letters Patent Appeals are hereby dismissed.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) vipul Page 56 of 56 HC-NIC Page 56 of 56 Created On Mon Aug 21 15:58:16 IST 2017