Gujarat High Court
Kanubhai vs Hasmukh on 1 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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MCA/1630/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR CONTEMPT No. 1630 of 2011
In
SPECIAL
CIVIL APPLICATION No. 6939 of 2001
=========================================================
KANUBHAI
KESHAVBHAI KARKAR & 4 - Applicant(s)
Versus
HASMUKH
ADHIA - IAS PRINCIPAL SECRETARY TO THE & 2 - Opponent(s)
=========================================================
Appearance :
MR
PARESH UPADHYAY for
Applicant(s) : 1 - 5.
None for Opponent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 01/07/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The basis of the present petition is the alleged breach and non-compliance to the direction dated 04.04.2002 passed by this Court in Special Civil Application No.6939/01 and allied matters, whereby the direction was given to continue the petitioners on their respective posts till the eligible persons duly selected by GPSC are made available.
We have heard Mr.Upadhyay, learned counsel for the petitioners.
It is an admitted position that there is no direction in favour of the petitioners as sought to be canvassed, but the contention of the petitioners is that in the group of the matter, he was party to the petition. The another relevant aspect is that at the time when this Court issued the direction, neither any selection process nor any select list was available. At that stage, the Court had issued the following directions -
"...all these petitions are disposed of with a direction that the petitioners shall be continued on their respective posts till eligible persons duly selected by the Gujarat Public Service Commission are made available. It is clarified that this order shall not preclude the respondent authorities from terminating service of any of the petitioners if his service is found to be unsatisfactory or who does not apply for the selection by the Gujarat Public Service Commission as and when such opportunity arises. It is made clear that such appointment shall be continued only till the candidates duly selected by the Gujarat Public Service Commission are made available. In case any of the petitioners fail to take competitive test given by the Gujarat Public Service Commission or is not found suitable by the Gujarat Public Service Commission, such petitioner shall be liable to be discharged from service on that ground, even if the vacancies are available or persons duly selected by the Gujarat Public Service Commission may not be available. It is further clarified that continuance in service under this order shall not create equity in favour of any of the petitioners."
The aforesaid shows that at the relevant point of time, there was no selection process undertaken by GPSC and the Court accepted their continuation till the regularly selected candidate is available or till the selection process is undertaken and the result is declared. The contention of the petitioners is that after the order, recently the selection has been undertaken. Their names are included in the select list, but three persons, viz., Shri G.N. Chaudhari, Shri M.B. Prajapati, and Shri K.T.Porania are continued even after this direction and the petitioners have made statement in the petition at paragraph 7 that those persons had participated in the selection process and they failed. Whereas the petitioners are included in the select list, but they are not being appointed.
The aforesaid shows that the grievance on the part of the petitioners is twofold. One is that the aforesaid three persons are not terminated or discontinued and the another is that the petitioners herein are not being appointed. In our view, the right of the petitioners to be appointed cannot be gone into in a petition under the Contempt of Court Act in absence of any specific direction of this Court after examining the rights of the petitioners, if any, and the consequential direction, as may be available in law.
The second grievance of continuing the aforesaid three persons and not terminating their services in our view also cannot be pressed in service by the petitioners in a contempt jurisdiction since they are already appointed and unless their appointment is examined by the proper forum after giving opportunity to the Department for showing the circumstance, such direction cannot be pressed in service by the petitioners as sough to be canvassed.
It further appears that the enabling power of the authority to terminate or discontinuing of the persons who was not selected to be terminated cannot be pressed in service by the petitioners who are only co-employees and at their instance such direction against the aforesaid three persons was not passed.
Under these circumstances, we find that the rights or the legality and validity of the action can be gone into a petition under Article 226 of the Constitution if such challenge is brought before the Court.
Keeping in view the aforesaid facts and circumstances, we find that it is not a fit case to entertain the petition under the Contempt of Court Act.
Hence, the petition is not entertained. It is observed that in the event any proceeding is initiated by the petitioners for challenging the appointment order or continuation of the aforesaid three persons, the rights and contentions of both the sides shall remain open.
(JAYANT PATEL, J.) (R.M. CHHAYA, J.) *bjoy Top