Gujarat High Court
Ashish Ashokbhai Dixit vs State Of Gujarat & on 25 September, 2017
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/20714/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20714 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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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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ASHISH ASHOKBHAI DIXIT....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR RAJESH B DESAI, ADVOCATE for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
MR AJAY R MEHTA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 25/09/2017
ORAL JUDGMENT
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1. The petitioner by way of this petition has challenged the order dated 15.09.2015 vide which his appointment as Assistant Technician (Electronics) has been withdrawn.
2. The respondent No.2 floated an advertisement No.3/14 (R&P) for various posts. There were 10 posts of Assistant Technician (Electronics) out of which, 5 posts were reserved for general category. The petitioner being eligible, applied for the post of Assistant Technician (Electronics).
3. Earlier, the petitioner has cleared SSC examination and secured 80.71% marks. He cleared 12th Standard Examination i.e 10+2 pattern in the year March-April 2003 and secured 46.77% marks. He being eligible for diploma studies, had applied for admission in Diploma (Electronics and Communication Engineering) with the Director of Technical Education, Gandhinagar. He cleared Diploma in Electronics and Communication Engineering in the year 2006.
4. It is further the case of the petitioner that he appeared in the written examination and cleared the written examination and therefore, was called for interview vide communication dated 06.03.2015. After interview, the respondent No.2 asked the petitioner to produce the original Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT documents for verification. After due verification, the petitioner was offered appointment against the post of Assistant Technician (Electronics) A-2 level in the pay scale of Rs.12,000-27,000/-. It was shocking as well as surprising for the petitioner that the respondent unilaterally canceled the offer of appointment by communication dated 15.09.2015 wherein, the appointment given vide letter dated 07.09.2015, came to be canceled.
5. After receipt of this letter, the petitioner approached the Director, Technical Education Board and sought for information as to whether during the period of July 2003-06, the Diploma course for three years was available or not? The petitioner was informed about the Rules and Regulations for admission to first year course in Degree/Diploma Engineering/Pharmacy after 12th Science Stream for the academic year 2003-04. It is the case of the petitioner that if the regulations are perused, then as per Rule 4 of the Regulations, the minimum qualification for obtaining admission in Diploma was 12th Standard Examination in Science Stream with minimum 45% marks. Aggrieved from the foregoing action of the respondents, the petitioner has approached this Court by way of filing this petition.
6. After notice, the respondents have contested this petition by filing reply wherein, it has Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT been stated that in the advertisement it was specifically required for the applicant to have three year diploma for being considered eligible for the appointment. As the petitioner was having diploma of only two and half years, he was wrongly given appointment which was later on withdrawn.
7. Learned counsel for the petitioner has drawn the attention of this Court to various documents placed on record by the petitioner. According to him, the petitioner has passed SSC examination with 80.71% marks. Thereafter, he has passed HSC examination (10+2 pattern) with 46.77% marks. After that, the petitioner cleared the Diploma in Electronics and Communication Engineering with first class (Distinction) in the year 2006. The petitioner has obtained degree in Bachelor in Electronics and Communication Engineering with distinction in the year March-2009. He has also obtained degree in Master in Electronics and Communication Engineering with 8.67 grades in the year January-2015.
8. Learned counsel for the petitioner has submitted that the petitioner was called for interview, his certificates were verified and thereafter, he was declared successful and was issued appointment letter which is available at page No.34 of this petition. It has been argued that the unilateral decision of withdrawing the Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT appointment letter vide impugned order dated 15.09.2015 is liable to be quashed and set aside.
9. The arguments raised by the learned counsel for the petitioner has been controverted by the learned counsel for the respondent, Oil and Natural Gas Corporation Ltd that as per the Note (C) of the advertisement, it was specifically mentioned that no candidate with direct Bachelor degree will be eligible for appointment against said post. According to him, as the petitioner having been passed Bachelor degree without having three years diploma course in the concerned subject, he was not eligible to be selected for the said post. He has drawn attention of this Court to Note(C) of the advertisement which is available at page No.17 of the petition. Learned counsel has also referred to the decision of the Division Bench of this Court passed in the case of Kiritkumar Dahyabhai Patel V/s Oil and Natural Gas Corporation Limited and 1 dated 18.07.2016 in Letters Patent Appeal No.587 of 2016. It has been argued that in similar circumstances, the candidature of the petitioner with two years diploma course is not founded to be equivalent to the diploma specifying period of three years.
10. Finally, learned counsel for the respondents has contended that because of deficiency in the qualification, the case of petitioner for appointment cannot be considered and accordingly, Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT the petition is liable to be dismissed.
11. This Court has considered the submissions made by both the sides. It is the grievance of the petitioner that he was having requisite qualification and the action of the respondents of withdrawing the appointment letter, is against the established principles. However, on the other hand, it is the case of the respondents that the diploma possessed by the petitioner was not equivalent to the required diploma of three years as it was specifically mentioned in the advertisement that no candidate with direct Bachelor degree in engineering will be eligible. Hence the appointment is rightly withdrawn.
12. It could be seen that the petitioner was having diploma in Electronics and Communication Engineering from the Technical Examination Board of the State of Gujarat. After diploma, petitioner has cleared examination of Bachelor of Engineering and obtained Master degree in Engineering with distinction. The respondents have not taken into consideration the higher educational qualification of the petitioner.
13. This Court is of the firm opinion that the action of the respondents of withdrawing appointment letter issued to the petitioner is against the rules.
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C/SCA/20714/2015 JUDGMENT
14. After advertisement, the petitioner cleared written examination. He also cleared the interview and was further called for verification of documents, which were verified, perused and scrutinized by the respondents. After completing all the formalities, the petitioner has been issued appointment letter. Once the appointment letter has been issued, the same cannot be withdrawn unilaterally as has been done in this case. Respondents should have given an opportunity to the petitioner to explain the nature of diploma course passed by him and that of qualification required for the post. Apart from the minimum requirement of having diploma with distinction, the petitioner also have Bachelor and Master degree in Electronics and Communication Engineering. All these things were not considered by the respondents and appointment has been abruptly withdrawn. Learned counsel for the respondents have referred to the Note (C) of the advertisement wherein, it has been stated that no candidates with direct Bachelor Degree will be eligible. It will be relevant to note that apart from the degree in Engineering, the petitioner has completed diploma in Engineering from an institute in the State of Gujarat. Merely, on the basis that diploma passed by the petitioner was of two and half years duration, cannot be a valid ground for withdrawal of the appointment letter. Petitioner in his affidavit has referred to the selection of Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT another candidate namely Mitesh Girishbhai Parmar, who was having diploma of 3 years. The original duration of his diploma course was 2 and half years but he could not complete it within said duration as he has to re-appear in one subject. Re-examination of that subject was conducted after 3-4 months and the result was declared after another 1-2 months. Hence, in this way his two and half year diploma course was considered valid for 3 years and he was found eligible for the job. This Court is of the view that the selection of the present petitioner cannot be withdrawn simply for the reason that he has cleared the diploma in two and half years without any re-appearance and further having qualification of Bachelor and Master degree with distinction.
15. Learned counsel for the respondents has referred to the aforementioned decision of Kiritkumar Dahyabhai Patel V/s Oil and Natural Gas Corporation Limited and 1. This Court has gone through this decision. It will be relevant to note here that the petitioners of this case were having diploma which was completed within a period of two years. It is not clear from this judgment, whether the petitioners in that case were having higher qualification like the present petitioner. The case relied upon by the learned counsel for the respondents further distinguishable as the present petitioner has Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Oct 07 06:18:30 IST 2017 C/SCA/20714/2015 JUDGMENT cleared the written examination as well as interview. The certificates possessed by the petitioner have been scrutinized by the respondents and thereafter, appointment letter is also issued to him. So the case of the present petitioner is on much much better footing then that of the case relied upon by the learned counsel for the respondents.
16. In view of the foregoing discussion, this petition is allowed. The petitioner is found eligible for the post for which appointment letter was issued to him. The petitioner will be issued fresh appointment in the next available vacancy of the Assistant Technician (Electronics) with the respondents. With this direction, this petition stands disposed of. Direct service is permitted.
(MOHINDER PAL, J.) PALAK Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Oct 07 06:18:30 IST 2017