Gujarat High Court
Namrata Rajendrabhai Joshi vs Commissioner on 15 January, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/801/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 801 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NAMRATA RAJENDRABHAI JOSHI....Petitioner(s)
Versus
COMMISSIONER, HIGH EDUCATION OFFICE....Respondent(s)
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Appearance:
MR. JAIMIN R DAVE, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MS SHRUTI PATHAK, AGP for the State.
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 15/01/2016
ORAL JUDGMENT
1. The petitioner has challenged the communication dated 08.12.2015 issued by the respondent authority whereby the petitioner's services as a Librarian is sought to be terminated. The following factual matrix would be necessary for the adjudication of the issue raised before this Court by the petitioner under Article 226 of the Constitution of India.
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2. The petitioner was serving as a Librarian in different colleges for 5 years. Pursuant to an advertisement dated 29th April 2015 for 36 posts of Librarian (ClassIII), online applications were invited. The petitioner applied for the said post, and after undergoing the recruitment process was selected. Her name appeared in the merit list and also received an appointment letter dated 7th August 2015. She reported to duty on 14th August 2015, and after verifying all her testimonials, she continued to serve since then.
3. After about four months' period, she received the impugned notice dated 26th November 2015, whereby her services as a Librarian were sought to be terminated on the ground that the appointment was in contravention of the General Administration Department Circular. She filed a reply to the said notice vide communication dated 7th December 2015. However, when she apprehended termination of her services, she approached this Court by preferring the present petition.
4. It is the case of the petitioner that the advertisement published by the respondent did not refer to the Circular dated 22nd May 1997 bearing No.CRR/1096/2213/G2. In absence of any such reference to the said Circular, to terminate her services on the strength of the same would be unsustainable. It is also her say that the terms and conditions of the appointment letter also does not endorse such termination. Therefore, Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Jan 19 01:35:15 IST 2016 C/SCA/801/2016 JUDGMENT the present petition is seeking the quashment of the order dated 7th December 2015 passed by the respondent relieving her from her services on 10th December 2015.
5. On issuance of the notice, Ms. Shruti Pathak, learned Assistant Government Pleader appeared for the State. Although no affidavitin reply is brought on record, the petition is contested severely.
6. Learned advocate Mr. Jaimin Dave appearing for the petitioner has urged that the petitioner when had been appointed on clearing the written examination and after undergoing the entire process of recruitment, to terminate her services by issuing the impugned notice dated 26th November 2015 is an act arbitrary and de hors the provisions of law. Moreover, in absence of any reference to the General Administration Department Circular dated 22nd May 1997, the termination of the services of the petitioner on the strength thereof also deserves indulgence of the Court.
7. Ms.Shruti Pathak, learned Assistant Government Pleader, on instructions and on the basis of the notice and the final order had insisted that for general category candidates, 19 posts were available, Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Jan 19 01:35:15 IST 2016 C/SCA/801/2016 JUDGMENT out of which 7 were reserved for women candidates. In the select list from Sr. No.1 to 19 already 9 women candidates were included, and therefore, there would be no requirement of reservation by allocating more posts to the woman candidates. Purely on a mistake, the petitioner was appointed, and therefore, the notice dated 26th November 2015 was issued on 7th December 2015. He has urged that it was a mistaken calculation of total posts meant for women candidates and that was the reason why her services needed to be terminated. He has further contended that all the Government Resolutions, Administrative Instructions are not necessary to be quoted in the advertisement.
8. At the outset, if the notice issued on 26th November 2015 is considered, it reflects that in the general category candidates, 5 male and 7 women candidates were found suitable. Thereafter, 7 seats were earmarked for reservation of women candidates. 33% of the posts were meant for the women candidates and once in the concerned category if such percentage is already maintained, that will not give rise to any need for adding more women candidates. From the total number of 19 posts, when 9 women candidates were already forming part of the select list, additional numbers were not to be added by way of reservations. However, purely by way of a mistake, the addition was made, which included the present petitioner, and therefore, opportunity was given to Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Jan 19 01:35:15 IST 2016 C/SCA/801/2016 JUDGMENT her as to why her name should not be deleted and her appointment be cancelled.
9. Reference is also necessary to the General Administrative Circular dated 22nd May 1997. The requirement is in the form of issues and clarifications. Issue No.2 says as to who should be allotted the post if on the reserved post a woman candidate is not available. The explanation is that it can be made available to a male candidate of the very category and that if a male candidate is not available, it can go to the general category candidate. Issue No.7 raises the question as to how the reserved posts should be calculated if already women candidates are selected on merit. A clarification says that the objective of the Government is to fill in minimum 30% of the posts by women candidates. If already 30% women are selected on merit, then the remaining percentage of posts shall have to be filled in. In other words, if 30% posts are already filled in by women candidates in regular course on merit, there may not be any necessity for giving further posts to women candidates by way of reservation.
10. It is to be noted that there is no challenge to this Circular of the General Administration Department. The only contention raised is that it was not forming part of the advertisement. In the opinion of this Court, Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Jan 19 01:35:15 IST 2016 C/SCA/801/2016 JUDGMENT it is not at all necessary for the respondent State to publish every Government Resolution and administrative instruction in the advertisement inviting applications for filling up a particular post. Once appointed in the Government service, all the rules, regulations, resolutions, administrative instructions, etc. would apply to the concerned employee. Therefore, the contention raised by the learned advocate appearing for the petitioner that the Government Resolution or Circular which does not find place in the advertisement would have no applicability cannot be countenanced.
11. Adverting to the facts of the instant case, undisputedly the appointment of the present petitioner on the post of Librarian was made after having cleared the written examination. It is unfortunate that she had left the post of Librarian to join the services of the Government. However, that may not be a ground for the Court to intervene and quash the notice dated 26th November 2015 and the order passed by the respondent authority on 7th December 2015. The order is in accordance with law. It admits that inadvertently the appointment was given in disregard to the fact that already 9 women candidates were included in the 19 posts meant for the general category. It is not the case of the petitioner that the action of termination of her services is malafide.
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12. It is expected of the State to be vigilant and careful while finalizing the select list. It is extremely unfortunate that on leaving her services she joined the Government service and then after four months of service such order of termination came to be made. However, when the respondent State could establish that appointment to the petitioner was given purely on wrong calculation of the reserved posts meant for women and by wrong interpretation of reservation policy meant for women employees, no interference is needed. Moreover, the order impugned has been passed after giving due opportunity to the petitioner, in the opinion of this Court, therefore also the petition does not deserve to be entertained. The petitioner if aggrieved by the action or inadvertence of the Government machinery she can avail the legal remedies for that purpose, if she so chooses. The present petition, however, being devoid of any merits, deserves dismissal, and it is dismissed accordingly.
(MS SONIA GOKANI, J.) ali Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Jan 19 01:35:15 IST 2016