Gujarat High Court
Prajapati Ramchandra Badlubhai vs State Of Gujarat on 30 January, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4109/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4109 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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PRAJAPATI RAMCHANDRA BADLUBHAI
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS. AISHVARYA GUPTA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3,4
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 30/01/2020
ORAL JUDGMENT
1 Rule. Ms.Aishvarya Gupta, learned AGP and Ms.Roopal Patel, learned advocate waives service of notice of rule on Page 1 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT behalf of the respective respondents. With consent of the learned advocates for the respective parties, the matter is taken up for final hearing.
2 By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 05.03.2018 passed by the Gujarat Public Service Commission, by which, the appointment of the petitioner to the post of Assistant Engineer (Civil), Class-II, has been cancelled on an interpretation of second proviso of sub rule 5 of rule 8 of the Gujarat Civil Services Classification and Recruitment (General Rules), 1967. The short facts of the petition are as under:
2.1 The petitioner's date of birth is 20.08.1968. He belongs to Socially & Educationally Backward Class (SEBC) and has passed his B.E(Civil) examination. The petitioner was appointed as a Junior Clerk with Directorate of Technical Examination by an appointment order dated 03.12.1990. He joined his duties on 12.12.1990. The petitioner was promoted as a Senior Clerk on 22.04.2010. On 06.02.2008, the GPSC advertised for appointments to the posts of Assistant Engineer (Civil), Class-II. The petitioner, through proper channel, applied for the post in question after obtaining the No Objection Certificate from his department. It is undisputed Page 2 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT that when he was first appointed, he was within age limit.
2.2 The petitioner was, thereafter, issued an appointment order after verification of documents on the recommendation of the GPSC on 09.02.2010.
2.3 The verification of documents was carried out on 02.03.2010 and on 29.07.2010, the petitioner was appointed on the post of Assistant Engineer (Civil), Class-II. On being so appointed, the Directorate of Technical Education relieved him from the post of Senior Clerk on 03.08.2010. The petitioner joined the Narmada Water Resources Water Supply & Kalpsar Department on 04.08.2010.
2.4 After having worked for a period of four years, by a communication dated 23.07.2014, the Gujarat Public Service Commission cancelled the appointment of the petitioner. That cancellation was a subject matter of challenge before this Court by filing Special Civil Application No. 10371 of 2014. 2.5 On the ground that the order of cancellation of appointment was based in violation of principles of natural justice, the Court set aside the order reserving the liberty for the GPSC to consider the submissions of the petitioner and take a fresh decision. The order was passed on 13.12.2017. By the impugned order of 05.03.2018, the petitioner's appointment has been cancelled.
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C/SCA/4109/2018 JUDGMENT 3 Mr.Pujara, learned counsel appearing for the petitioner,
would submit that the order cancelling the appointment is bad.
3.1 Mr.Pujara, learned advocate, would submit that the petitioner applied after having obtained No Objection Certificate from the department. A certificate was issued on 12.11.2009 by the Directorate of Technical Education stating that at the time when the petitioner was first appointed, i.e. to the post of Junior Clerk, he was eligible in accordance with the age criteria so prescribed.
3.2 Mr.Pujara, learned advocate, would further submit that it is not open for the GPSC to pass an order repeating the same contents when earlier the order was set aside by this Court.
3.3 What is even otherwise submitted by Mr.Pujara, learned counsel, is that the petitioner applied pursuant to an advertisement of 06.02.2008. The GPSC and the State on verification of documents issued an appointment order on 29.07.2010. The petitioner worked till the year 2014 and even now after a passage of eight years, by the impugned order, for no fault of the petitioner, he is faced with a situation where his appointment is cancelled. It is not even the case of the department that the petitioner has obtained an appointment Page 4 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT by fraud.
3.4 According to Mr.Pujara, learned advocate, in order to support the interpretation of the second proviso to sub rule 5 of rule 8, reliance sought by pressing into service the decision of Division Bench in the case of State of Gujarat vs. P.G.Purohit, rendered in Letters Patent Appeal No. 1256 of 2003 would be of no consequence or relevance and in fact, it was a case where the GPSC's action of not giving the benefit of sub rule 5 was set aside and confirmed by the Division Bench. Reliance was also placed on a decision of the Supreme Court in the case of Shekhar Ghosh vs. Union of India and Anr., reported in (2007) 1 SCC 331. He would further submit that in the case of Board of Secondary Education of Assam vs. Md. Sarifuz Zaman And others., reported in (2003) 12 SCC 408, correction for mistakes must be done within a reasonable period of time. Reliance is also placed on the decision in the case of Bharat Sanchar Nigam Limited vs. BPL Mobile Cellular Limited and others., reported in (2008) 13 SCC 597, where the Supreme Court did not permit correction of mistake after a period of three years. Reliance is placed on a decision in the case of Bhartiya Seva Samaj Trust vs. Yogesh Ambalal Patel reported in (2012) 9 SCC 310, to submit that for appointment which is Page 5 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT contrary, the employee cannot be made to suffer. 4 Ms.Roopal Patel, learned advocate appearing for the Gujarat Public Service Commission would support the order of the Commission in cancelling the order of appointment. The decision of the Division Bench in Letters Patent Appeal No. 1256 of 2003 is pressed into service to submit that when the petitioner applied for the post of Assistant Engineer (Civil) in the previous employment, when he was holding the post of Junior Clerk, he had not at the time of appointment passed the requisite qualification of engineering, and therefore, could not have got the benefit of age relaxation.
4.1 Ms.Patel, learned advocate, would further submit that the maximum age prescribed in accordance with the recruitment rules was 28. The petitioner being of SEBC Category, was entitled to maximum age relaxation of five years, and therefore, the age could have been relaxed to that of 33. The petitioner was 39 years of age, and therefore, clearly age barred.
4.2 Inviting my attention to the advertisement (page 137) of the affidavit-in-reply, Ms.Patel, learned advocate, would submit that the petitioner was himself aware of the qualification in terms of age requirement and the Page 6 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT advertisement clearly had foot note saying that on the website of the Public Service Commission details were available as to the qualification with regard to the age. The petitioner knowing fully well that he was age barred, applied. Inviting my attention to a representation made on 19.01.2018, she would submit that he himself had admitted that he procured qualification in B.E.(Civil) after his appointment as a Junior Clerk. Admittedly, as a Junior Clerk, he was not a qualified engineer, and therefore, the benefit of age relaxation relying on the second proviso to sub rule 5 of rule 8 was rightly construed and the impugned order was passed. An additional affidavit has been filed by the petitioner, by which it is prayed that pursuant to the cancellation of the appointment at the hands of the GPSC, Narmada Water Resources Department has issued a notice on 24.01.2020 asking the petitioner to show cause as to why his services be not terminated as a result of his appointment being cancelled by the GPSC. 5 Considering the submissions made by learned counsel appearing for the respective parties, and perusal of the impugned order would suggest that essentially the GPSC appears to seek refuge by interpreting proviso of sub rule 5 of rule 8. The proviso reads as under:
"8 Condition as to prescribed qualification Page 7 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT XXX XXX XXX (5) Notwithstanding anything to the contrary, contained in any rules for the time being in force relating to the recruitments to any service or post the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service.
Provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post. Provided further that where a post requiring a medical, engineering +[or veterinary] or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission a Government Servant who was within the age limit when appointed to such post shall, if he subsequently applies for ++[any such post] be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, even if experience has not been prescribed as one of the qualifications for such post.
*[(5-A)(1) Government servants may be allowed on a uniform basis, relaxation of a maximum period of 5 years or to the extent of equal number of years for which service has been put in by him, whichever is less, in the upper age limit for recruitment to Class-I or Class-II posts or service, which is to be filled in by direct selection through the commission for which experience has not been prescribed as one of the qualifications for such post.
(2) The age relaxation shall be admissible to such Government servants who are working in post which are in the same line and where a relationship could be Page 8 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT established that the service already rendered in a particular post shall be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised. The decision of the commission in this regard shall be final.
Provided that a post in the same line means such next lower post from which an employee can be promoted to the post so advertised.
(3) The relaxation admissible in upper age limit under sub-rule (1) above, shall be in addition to the relaxation in upper age limit admissible to the candidates belonging to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes.] 6 The proviso, according to the Commission, was a subject matter of interpretation by the Division Bench judgment of 27.02.2008, which appears to have been triggered at the hands of the GPSC to cancel the appointment of the petitioner. When the judgment of the Letters Patent Appeal is read, it is in context of an engineer in previous employment applying for post for higher selection on the Gujarat Engineering Services, Class-I. The GPSC at that point of time had rejected the request of the aspirant engineers on the ground that the second proviso would make them ineligible for age relaxation. It was in that context of engineer so applying for subsequent post in service that the court held in favour of the employee granting them the benefit of age relaxation.
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C/SCA/4109/2018 JUDGMENT 7 Drawing an analogy from that, the stand of the GPSC
appears to be that the petitioner who was initially appointed as a Junior Clerk did not hold the qualification of B.E(Civil) when he was so appointed, and therefore, when he applied for the post of Assistant Engineer (Civil), he did not deserve such relaxation because as a Junior Clerk he did not have qualification in engineering. This at best can be said to be a stand taken by constitutional body like GPSC completely in ignorance of provisions of interpreting rules. That proviso could never have been pressed into service to suggest that when the petitioner applied for the post of Assistant Engineer (Civil), since he was working as a Junior Clerk in his previous employment, he ought to have a qualification of B.E (Civil). 8 Even otherwise, on facts, it is found that the petitioner applied through a regular channel of selection. A certificate was given by his previous employer that when his initial appointment was made as a Junior Clerk, he was within the age (so required under the rules). Having been appointed in the year 2010, and having worked for eight years and now having attained the age of 51, after having been relieved from his previous employer in 2010, if the GPSC's arbitrary action of cancelling the appointment of the petitioner is permitted to Page 10 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020 C/SCA/4109/2018 JUDGMENT operate, it will cause severe adverse civil consequences. Assuming for the sake of argument that the Public Service Commission was entitled to correct its mistake, which according to this Court was individual one, in view of the decisions in the case of Bharat Sanchar Nigam Limited (supra), it was not open for the Commission to correct the mistake after a period of more than eight years. The appointment can be said to be in violation of the second proviso of sub-rule 5 of rule 8 which is grossly misinterpreted by the Public Service Commission.
9 Accordingly, the impugned order dated 05.03.2018 and the consequential show cause notice dated 24.01.2020 issued by the respondent No.3 is quashed and set aside. The petition is allowed, accordingly with no orders as to costs. Rule is made absolute to the above extent. Direct service is permitted.
(BIREN VAISHNAV, J) Bimal Page 11 of 11 Downloaded on : Mon Jun 15 17:52:41 IST 2020