Gujarat High Court
Arvindbhai Shambhubhai Chaniyara vs State Of Gujarat & 7 on 21 January, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/6856/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6856 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ARVINDBHAI SHAMBHUBHAI CHANIYARA....Petitioner(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MR NISARG D SHAH FOR MR MURALIN N. DEVNANI, ADVOCATE for the
Petitioner(s) No. 1
MS MOXA THAKKAR, AGP for the Respondent(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 2 8
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 21/01/2014
ORAL JUDGMENT
[1] Rule. Ms.Moxa Thakkar, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent Page 1 of 11 C/SCA/6856/2013 JUDGMENT no.1. Mr.Rajesh Chauhan, learned advocate for Mr.H.S.Munshaw, learned advocate waives service of notice of Rule on behalf of respondent no.2. Respondents nos.3 to 8 have not appeared before this Court pursuant to the issuance of notice, therefore, there is no necessity of issuance of notice of Rule to them. On the facts and in the circumstances of the case, the petition is being heard and decided finally.
[2] This petition under Article 226 of the Constitution of India has been preferred, interalia, challenging the appointment orders dated 27.07.2012, issued in favour of respondents nos.3 to 8 herein, whereby, they have been appointed as Station Officers in the service of respondent no.2 - Rajkot Municipal Corporation. [3] Briefly stated, the facts of the case are that respondent no.2 issued an advertisement for filling up seven posts of Station Officer. The qualification for the said post was Higher School Certificate. In addition thereto, the candidate should possess experience of 5 years of leading Fireman, or he must have 10 years experience as Fireman, or the experience of 10 years as a Driver of the Fire Brigade. Another qualification required is that the Page 2 of 11 C/SCA/6856/2013 JUDGMENT candidate should have a licence for Heavy Motor Vehicles and should have knowledge of swimming and driving. The candidate must also have completed the Course of Computer Concept (CCC) or have an educational qualification of computers, as promulgated by the State Government, from time to time. The age limit mentioned in the advertisement is not more than 45 years. This advertisement was published in the daily newspaper "Fulchhab", on 24.03.2012. According to the petitioner, being eligible, he submitted his candidature for the post of Station Officer, in the category of Socially and Economically Backward Class (SEBC). After scrutiny of applications, respondent no.2 found 28 candidates to be eligible. 18 candidates were from the general category, 9 candidates were from the SEBC category and 1 candidate from the Scheduled Caste / Scheduled Tribe (SC/ST) category. All 28 candidates were called for interview. The petitioner also received a call letter dated 10.07.2012, asking him to remain present on 17.07.2012, for the oral interview and practical test, at Sardar Vallabh Patel Snanagar (Swimming Pool). Only 24 candidates out of 28 candidates appeared for the oral interview and practical test. 4 candidates chose not to remain present. After considering the performance of each of the candidates in the oral interview and Page 3 of 11 C/SCA/6856/2013 JUDGMENT practical test, 6 candidates, as mentioned in the impugned order dated 27.07.2012, came to be appointed as Station Officers. The said candidates are arrayed as respondents nos.3 to 8 in the present petition. Out of 6 candidates, 4 are from the general category and 2 are from the SEBC category. The petitioner was not offered appointment as Station Officer. Aggrieved thereby, he has approached this Court by way of this petition.
[4] Mr.Nisarg Shah, learned advocate for Mr.Murali N. Devnani, learned advocate for the petitioner, has submitted that the entire exercise carried out by respondent no.2 is not in accordance with law and is nothing but an attempt to favour certain candidates who have been appointed, namely respondents nos.3 to 8. It is submitted that on going through the detailed marks allotted to each of the candidates, as per the merit, it is clear that the petitioner, who is at Sr.No.26 has been given 0.0 marks in the practical test and oral interview, even though the petitioner possesses the requisite qualifications and experience and is eligible in all respects. The selected candidates have been illegally appointed, therefore, the prayers made in the petition deserve to be granted and the impugned order of selection be quashed and set Page 4 of 11 C/SCA/6856/2013 JUDGMENT aside.
[5] Ms.Moxa Thakkar, learned Assistant Government Pleader submits that the State Government has nothing to do with the selection procedure and is a formal party.
[6] Mr.Rajesh Chauhan, learned advocate for respondent no.2, has submitted that the petitioner had remained present on 17.07.2012 for the swimming test at Sardar Patel Swimming Pool, at Rajkot. However, he could not pass the 100 meter swimming test and has failed. The petitioner was not called for the practical test for this reason, therefore, there was no question of asking him to attend the oral interview. It is further submitted that respondents nos.3 to 8 have been selected on the basis of their eligibility. In support of the said submission, learned advocate for respondent no.2 has drawn the attention of the Court to the second affidavit in reply filed by respondent no.2 dated 12.12.2013, wherein the merit of each of the selected candidates has been discussed in detail. The petitioner has obtained 0.0 marks in the practical test and oral interview and does not stand anywhere in comparison with the selected candidates. Learned advocate for the Page 5 of 11 C/SCA/6856/2013 JUDGMENT petitioner has not controverted the averments made in the said affidavit by filing any pleadings to the contrary, nor has placed any other material on record.
[7] I have heard learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. The grievance of the petitioner is mainly that he has not been selected as a Station Officer in the Fire Brigade Department of respondent no.2 - Corporation. According to the petitioner, respondent no.2 has illegally appointed respondents nos.3 to 8, even though they were not eligible. The second affidavit of reply filed by respondent no.2
- Corporation may be referred to at this stage. Insofar as respondent no.3 is concerned, the petitioner has not made any specific allegation as is clear from the averments made in paragraph 7 of the petition. Regarding respondent no.4, the petitioner has stated that he does not possess the requisite educational qualification of HSC, as mentioned in the advertisement but has only passed the 7th Standard, and that too on 01.05.1987. In reply to this allegation, the Corporation has stated that respondent no.4 has been serving as a Driver in Fire Brigade Page 6 of 11 C/SCA/6856/2013 JUDGMENT Department of the respondent - Corporation since 16.11.1996. Though he is holding the qualification of 7 th Standard, he is eligible for the post of Station Officer, as per qualifications prescribed in the Circular dated 26.06.2012. A copy of the said Circular has been annexed to the affidavit in reply. Said Circular makes it clear that a driver having the experience of 10 years in the Fire Brigade Department is qualified to apply for the post of Station Officer. The application of respondent no.4 was, therefore, considered and he has been selected and appointed on merit.
[8] Insofar as respondent no.5 is concerned, the petitioner has raised an objection that he is working with the respondent - Corporation as a leading Fireman and though he possesses the qualifications, as mentioned in the advertisement, he does not possess the qualification of CCC. The petitioner has further objected that respondent no.5 has applied for the reserved category of SC / ST, but has been appointed in the general category. In reply to this objection, respondent no.2 has stated that respondent no.5 belongs to the SC category and applied for the post of Station Officer against an open category post. Referring to Circular dated 26.06.2012 it is stated that in all 7 posts were to be filled which are Page 7 of 11 C/SCA/6856/2013 JUDGMENT as under :
Open Category 4
S.T. 1
S.E.B.C. 2
[9] Respondent no.5 applied against the open category post
and was selected against the said post. The contention of the petitioner that being an S.T. candidate it would not be possible and open for him to apply when no post for a schedule caste candidate was advertised, cannot be accepted. Insofar as the qualification of Course on Computer Concept (CCC) is concerned, it is stated that respondents no.5 and 7 others were permitted to take the examination in the said course much prior to the advertisement dated 24.03.2012. Respondent no.5 has cleared the said examination and a copy of certificate in this regard has been annexed to the affidavit in reply.
[10] The next objection of the petitioner pertains to the appointment of respondent no.6. According to the petitioner, respondent no.6 has been appointed contrary to the terms of the advertisement, inasmuch as the age limit stated in the advertisement is 45 years, whereas the application of respondent Page 8 of 11 C/SCA/6856/2013 JUDGMENT no.6 reveals that his date of birth is 05.06.1962, and at the time of advertisement he was overage. In this regard, it is stated by respondent no.2 - Corporation in the second affidavit in reply that as per the Circular dated 26.06.2012, the upper age limit fixed was of 45 years, but so far as the employees of the Municipal Corporation are concerned, the age limit is 50 years. The date of birth of respondent no.6 is 05.06.1962. Advertisement was published on 24.03.2012, therefore, he has not crossed the upper age limit of 50 years. Further the General Board of the respondent Municipal Corporation has passed a resolution in its meeting dated 11.06.2012, resolving that the upper age limit for its employees would be 50 years. A copy of the said resolution has been annexed to the affidavit in reply.
[11] The next objection of the petitioner pertains to respondent no.7, and that too on the ground of age. In this context, it is stated by the respondent - Corporation in the affidavit in reply that the upper age limit is 45 years for the post of Station Officer, as per advertisement dated 24.03.2012. Respondent no.7 was born on 06.06.1978 and he was well within the age limit of 45 years. Page 9 of 11
C/SCA/6856/2013 JUDGMENT [12] The petitioner does not appear to have raised any
specific objection regarding respondent no.8 in the petition, though the appointment order of respondent no.8 has also been challenged.
[13] From the above factual position, it is clear that respondents nos.3 to 8 have been appointed by following the proper procedure and their appointments have been made as per Circular dated 26.06.2012. They are eligible and qualified for the post of Station Officer and no illegality has been committed by the respondent Corporation by appointing them.
[14] The most salient feature of this petition is that the petitioner, himself, is found to be ineligible. The petitioner has not been able to clear the swimming test and has obtained 0.0 marks, whereas respondents nos.3 to 8 have secured higher marks. Though he has chosen to participate in the selection process, he has challenged the same after he has been eliminated from the selection process, having failed to qualify. The petitioner cannot maintain a challenge to the selection process after having himself participated unsuccessfully in it as per the principles of law Page 10 of 11 C/SCA/6856/2013 JUDGMENT enunciated by the Supreme Court in Manish Kumar Shahi v/s. State of Bihar and others (2010) 12 SCC 576.
[15] From the above, it is clear that no legal or fundamental right of the petitioner has been violated, so as to entitle him to challenge the selection process of Station Officer initiated by respondent no.2 - Corporation and the appointments of the selected candidates, namely respondents nos.3 to 8. [16] For the aforestated reasons, the petition deserves to be rejected. It is, accordingly, rejected. Rule is discharged.
(SMT. ABHILASHA KUMARI, J.) satish Page 11 of 11