Gujarat High Court
Darpankumar Jashbhai Desai vs State Of Gujarat & on 23 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
DARPANKUMAR JASHBHAI DESAI....Appellant(s)V/SSTATE OF GUJARAT C/LPA/1487/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1487 of 2012 In SPECIAL CIVIL APPLICATION NO. 13288 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL ============================================================== 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 ? ============================================================== DARPANKUMAR JASHBHAI DESAI....Appellant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ============================================================== Appearance: MR KB PUJARA, ADVOCATE for the Appellant(s) No. 1 MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 2 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 23/01/2013 ORAL JUDGMENT
(PER :
HONOURABLE MR.JUSTICE JAYANT PATEL) Admit.
Mr.Patel, learned AGP waives notice of admission for respondent nos. 1 and 2 and Mr.Chauhan for Mr.Munshaw waives notice of admission for respondent no.3. With the consent of the learned advocates appearing for both the sides, the appeal is finally heard.
The present appeal is directed against the order dated 15.10.2012 passed by the learned Single Judge of this Court in Special Civil Application No.13288/12 whereby the learned Single Judge for the reasons recorded in the order has dismissed the petition.
The short facts are that the petitioner applied for the post of Multi Purpose Health Worker (MPHW) (Male) (Class III). He applied in response to the advertisement dated 04.08.2011. The petitioner also appeared at the written examination held on 15.07.2012 and his name was included in the select list. Thereafter, at the time when the verification of the document was to be made for issuance of appointment order, it was found that, in the application, in the column of sports , the petitioner had mentioned cricket . However, in the column of sports detail , national/international, no details were provided. The petitioner was called upon to produce the detail of any game played by him at national or international level in cricket but the petitioner could not since he was not aware about the same and as a result thereof, the appointment order was not issued to the petitioner. Under the circumstances, the petition was preferred which was dismissed. Hence the appeal.
We have heard Mr. Pujara, learned counsel appearing for the petitioner, Mr. Rakesh Patel, learned AGP for respondents no.1 and 2 and Mr. Chauhan for respondent no.3.
It is undisputed position that in the advertisement issued for inviting application, neither there was any specific reference about the details to be submitted for the category of sports nor there was any further description that a candidate if has played any sports at national or international level would be entitled for additional marks or similar thereof. It is also an admitted position that since the petitioner had mentioned cricket against the column of sports, he was considered as entitled for additional marks and accordingly, his name was included in the select list. It is also an admitted position that the petitioner has not played the game of cricket at national or international level. It also appears that it is an undisputed position that excluding the marks available in any game at national or international level, the merit of the petitioner is at 46.70 in SC category to which the petitioner belongs whereas the appointment orders were issued to the candidates in this category having merit upto 43.30 in Porbandar district and in Anand district to which the petitioner belongs upto 46.40. It further appears that as per the revised merit list prepared and as stated in the affidavit-in-reply dated 06.12.2012, at para 9, the selection ended for SC category at 46.00.
The aforesaid shows two situation emerging, one is that the merit of the last candidate of SC category is 46.60 whereas the petitioner has secured 46.70%. Therefore, if merit is to be considered excluding the additional marks of sports, then also in SC category, the petitioner is meritorious and entitled to be included in the select list.
The second aspect is the lapse on the part of the petitioner to give the details of his sports. It is the case of the petitioner that the petitioner belongs to remote area and the applications were to be submitted on website through the help of cyber cafe. The application was submitted but as nothing was mentioned in the advertisement, he took it that the details of the sports are to be given by showing any sports in which the petitioner had the interest. He did not know that additional marks were to be claimed in the selection based on playing of such game at national or international level.
Whereas, the learned AGP contended that when details for national/international level was to be provided after the column of sports, normal understanding would be that such game should have been played by the candidate concerned at national or international level and the petitioner having declared so, if unable to produce any certificate, his application can be rejected outright, since his application was considered accordingly and thereafter, may not be considered excluding the marks of sports.
Had it been a case where specific instructions were provided in the advertisement, the matter might stand on different footing. On the contrary, it is an admitted position that no such instructions were provided. Merely because the word sports was mentioned, it cannot be co-related with playing of such game by the candidate at national or international level. In any case, it is an admitted position that no instructions were provided in the advertisement for the additional marks in such category. The interpretation as sought to be canvassed by the learned AGP cannot be accepted. The resultant effect would be that a candidate has declared cricket against the column of sports without giving details of national or international level. If no details were given of national or international level, at the most it would be said that the candidate would not be entitled to any marks under the category of sports. The consequence would be that his application was required to be considered as without details of sports at national or international level in the respective category which is SC in the present case. Under the circumstances, it appears that if the petitioner is otherwise found to have secured merit of 46.70 in SC category in the written examination, there is no reason why he should be deprived of appointment when the select list after the revision of the merit list has ended at 46.00. We are informed by the learned AGP that the process of revision of the merit is still going on and all appointment orders are not finalised inasmuch as large number of candidates have yet to join and all have not joined the post.
Under the circumstances, we find that when it is not clear about the candidate who may be affected on account of the revision of the merit list and all posts are not filled up, the petitioner can be considered while offering appointment for the post in question.
In view of the aforesaid observations and discussions, the respondents are directed to consider the petitioner as eligible for the post in question having secured 46.70 as merit in the category of SC candidate and to consider the petitioner for the purpose of offering the appointment while finalising the select list of SC candidate for the post in question. The aforesaid shall be finalised and the decision shall be communicated including that of offering appointment, if any, at the appropriate place within a period of three weeks from the date of the receipt of the order.
The impugned judgment of the learned Single Judge is quashed and set aside. The appeal is allowed to the aforesaid extent. No order as to costs.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy Page 7 of 7