Gujarat High Court
Patel Padmaben Jayantibhai vs Director Of Primary Education & 7 on 28 October, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/10021/2008 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10021 of 2008
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PATEL PADMABEN JAYANTIBHAI....Petitioner(s)
Versus
DIRECTOR OF PRIMARY EDUCATION & 7....Respondent(s)
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Appearance:
MR MAULIN RAVAL FOR MS SHIVYA A DESAI,ADVOCATE for Petitioner No. 1
MS SHRUTI PATHAK,ASST.GOVERNMENT PLEADER for Respondent No. 1 - 2 , 8
MR DA SANKHESARA, ADVOCATE for the Respondent(s) No. 5 - 7
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 5 - 7
MR RAJESH CHAUHAN FOR MR HS MUNSHAW,ADVOCATE for Respondent No.3
RULE SERVED for the Respondent(s) No. 1 - 4 , 6 , 8
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 28/10/2015
ORAL ORDER
When the matter is taken up for hearing today, Mr.Maulin Raval, learned advocate for Ms.Shivya A. Desai, learned advocate for the petitioner, has submitted that respondents Nos.5 to 7 have been appointed as Vidhya Sahayaks by giving them 5% preferential marks on the basis of certificates issued by one Mr.Sanjay Vakil, Secretary of the Gujarat State Wrestling Association. The State Government has come out with a Government Resolution dated 17.07.2008, wherein it is stated that the certificates given by Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Oct 29 01:51:58 IST 2015 C/SCA/10021/2008 ORDER Mr.Sanjay Vakil are to be treated as cancelled. This Government Resolution was the subjectmatter of challenge before this Court in Patel Tulsiben Ambalal and others Vs. State of Gujarat and others, reported in 2008 (3) GLR 2685. This Court has categorically stated in the said judgment that the preferential 5% marks awarded to candidates on the basis of certificates issued irregularly by the State Association cannot be given. This judgment was the subjectmatter of a Letters Patent Appeal in Patel Hardikkumar Jagdishbhai and others Vs. State of Gujarat and others, reported in 2009 (4) GLR 3183. The Division Bench has upheld the order of this Court and dismissed the Letters Patent Appeal. Hence, the Government Resolution dated 17.07.2008 still prevails.
It is further submitted that in the advertisement dated 10.07.2004 it is required that the original certificates relating to sports produced by the candidates ought to be certified by the concerned Sports Authority. However, respondents Nos.5 to 7 have not submitted the original certificates at the relevant point of time along with their applications Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Oct 29 01:51:58 IST 2015 C/SCA/10021/2008 ORDER and the certificates submitted by them were submitted later on, which is against the terms and conditions of the advertisement.
That the petitioner was at Serial No.13 of the meritlist. After more than three weeks, the merit list was changed by including respondents Nos.5 to 7 and placing them higher than the petitioner in the meritlist on the basis of 5% preferential marks awarded to them on the basis of the Sports Certificates.
That the Sports Certificates submitted by respondents Nos.5 to 7 have been issued by the same Mr.Sanjay Vakil, whose certificates have been directed to be cancelled by the Government Resolution dated 17.07.2008.
That, in the affidavitinreply, affirmed on 11.10.2015 filed on behalf of respondent No.3, it has been stated that one post of Vidhya Sahayak has been kept vacant pursuant to the interim order passed by this Court in Special Civil Application No.911/2007, filed by the petitioner. It is submitted that another Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Oct 29 01:51:58 IST 2015 C/SCA/10021/2008 ORDER post has now fallen vacant upon the resignation of respondent No.6, therefore, the petitioner can be granted an opportunity to be considered for the said post.
Mr.H.S.Munshaw, learned advocate for respondent No.3, who is the main contesting respondent, has not remained present today. Mr.Rajesh Chauhan, learned advocate for Mr.H.S.Munshaw, learned advocate for respondent No.3, submits that Mr.Munshaw is on his legs before another Court.
The arguments of the learned advocate for the petitioner are being recorded so as to enable Mr.Munshaw to formulate his submissions as and when he appears before the Court. It would also be required for Mr.Munshaw to produce the original record of the appointment of respondents Nos.5 to 7, in view of the submissions made by the learned advocate for the petitioner.
It may also be clarified on which date respondents Nos.5 to 7 have produced the certificates pursuant to the advertisement. The learned advocate Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Oct 29 01:51:58 IST 2015 C/SCA/10021/2008 ORDER for respondent No.3 is also required to show what procedure was followed by the said respondent while granting appointments to respondents Nos.5 to 7.
Mr.H.S.Munshaw, learned advocate for respondent No.3 shall also take instructions regarding the Government Resolution dated 17.07.2008, especially in view of the judgments of this Court in Patel Tulsiben Ambalal and others Vs. State of Gujarat and others (supra) and Patel Hardikkumar Jagdishbhai and others Vs. State of Gujarat and others (supra).
Respondents Nos.1 and 2 shall also file an affidavit stating their stand with regard to the Government Resolution dated 17.07.2008, as affirmed by the judgments of this Court in Patel Tulsiben Ambalal and others Vs. State of Gujarat and others (supra) and Patel Hardikkumar Jagdishbhai and others Vs. State of Gujarat and others (supra). They may also express an opinion regarding the certificates annexed from pages66 to 71, in light of the judgments in Tulsiben Ambalal and others Vs. State of Gujarat and others (supra) and Patel Hardikkumar Jagdishbhai and Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Oct 29 01:51:58 IST 2015 C/SCA/10021/2008 ORDER others Vs. State of Gujarat and others (supra).
Mr.Rajesh Chauhan, learned advocate for Mr.H.S.Munshaw, learned advocate for respondent No.3, may apprise Mr.Munshaw of the order of this Court.
List on 02.12.2015.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Oct 29 01:51:58 IST 2015