Gujarat High Court
Priyankabaa Jitendrasinh Jadeja vs State Of Gujarat on 2 December, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/13811/2021 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13811 of 2021
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PRIYANKABAA JITENDRASINH JADEJA
Versus
STATE OF GUJARAT
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Appearance:
MR SM KIKANI FOR MR M S PADALIYA(7406) for the Petitioner(s) No. 1
. for the Respondent(s) No. 1
MR UTTKARSH SHARMA ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/12/2021
ORAL ORDER
1. Heard learned Advocate Shri S.M. Kikani for learned Advocate Shri M.S.Padaliya on behalf of the petitioner and learned Assistant Government Pleader Shri Uttkarsh Sharma on behalf of the respondents.
2. Issue Rule returnable forthwith. Learned AGP waives service of rule on behalf of the respondents.
3. By way of this petition the petitioner has prayed for the following prayers:
9(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction and thereby be pleased to hold that the petitioner is eligible for the post in question on the basis of her merit;
(C) Your Lordships may be pleased to issue an appropriate writ,
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order or direction, directing the respondent no.2 authority to consider the case of petitioner for the post in question, forthwith, in the interest of justice.
(D) Your Lordships be pleased to stay the further proceedings of the advertisement at Annexure- 'A' for the recruitment of Staff Nurse
- Class III pending admission hearing and final disposal of the petition.
(E) Your Lordships be pleased to direct the respondent no. 2 to keep vacant one post for the present petitioner. Pending admission, hearing and final disposal of the petition, in the interest of justice and equity.
(F) Your Lordships may be pleased to pass such other and further orders as may be deemed fit in the facts and circumstances of the case in the interest of justice.
4. It is the case of the petitioner that the petitioner had applied for selection as a Staff Nurse Class III with regard to an advertisement published by respondent no.2 in the month of December 2020 for a total of 700 posts which was thereafter extended upto 3000 posts. The petitioner had applied on the official website of the respondent no.2 on 16.02.2021 and whereas according to the petitioner at the relevant point of time the petitioner had uploaded a document showing her status as a candidate belonging to the Economically Weaker Section ( EWS) a copy of the said document is annexed with the present petition. It is the case of the petitioner that the document which had been uploaded by the petitioner was not in order. It would be pertinent to mention here that after the examination conducted by the respondent on 20.06.2021 results had been published on 01.08.2021 and whereas 4460 candidates were declared Page 2 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022 C/SCA/13811/2021 ORDER DATED: 02/12/2021 successful and the present petitioner had been declared successful in the category of Economically Weaker Section more particularly her name figuring at Sr. No. 131 of the list of EWS candidates. It is the case of the petitioner that since the marks obtained by the petitioner i.e 116.25 marks was more than the cut off marks for candidates in the general category i.e 105.5 marks, in a subsequent list published by the respondent no.2 being a merit cum provisional select list, the name of the petitioner figured at Sr. No. 749, her category being shown as general (EWS) category. It is the case of the petitioner that on 02.08.2021, the petitioner was called for document verification and whereas the first document which was annexed by the petitioner being a certificate issued by the Mamlatdar, Morbi dated 05.08.2020 was not accepted by the Document Verification Committee and whereas the petitioner was directed to produce appropriate EWS certificate. It is the case of the petitioner that the petitioner had rushed to the office of the Mamlatdar and upon a request to the concerned authority a certificate certifying that the petitioner belonging to the Economically Weaker Section had been issued by the Mamlardar on the date of document verification itself i.e on 02.08.2021. It is the case of the petitioner that the petitioner had submitted the said document to the officer in-charge of document verification on the same day. It is the case of the petitioner that while the petitioner had been informed vide a telephone call from the office of respondent no.2 on 28.08.2021 that her candidature was cancelled since the petitioner did nor produce the EWS certificate at the time of filling up of the form. Thereafter the respondent no.2 had published final select list on 01.09.2021 in which list the name of the petitioner did not figure. The petitioner had submitted a representation to the respondent no.2 and since such representation having not been considered by the respondent no.2, the petitioner has preferred this petition.
5. Learned Advocate Shri Kikani on behalf of the petitioner would Page 3 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022 C/SCA/13811/2021 ORDER DATED: 02/12/2021 submit that as it is the petitioner was finding her place in the select list in the general category on basis of the marks obtained by the petitioner in the examination and therefore, irrespective of the fact as to whether the petitioner did submit her EWS certificate or not, the same ought not to have made a difference and the petitioner ought to have been offered an appointment letter.
5.1 Learned Advocate Shir Kikani would further submit that as regards the EWS certificate that while uploading the document, an erroneous document had been uploaded by the present petitioner being certificate of being in the General Category issued by the Mamlatdar and whereas at the stage of document verification since the petitioner had been informed that a certificate specifying that the petitioner belonging to EWS category was required to be produced, the petitioner having requested and obtained such certificate had produced the same before the officer in-charge of the document verification i.e. on 02.08.2021 itself and under such circumstances the respondents ought to have considered her case as an EWS candidate.
5.2 Learned Advocate Shri Kikani would submit that in either contingency the fact remains that the petitioner had found her name in the select list for unreserved candidate and therefore denying the appointment to the petitioner on such technical ground ought to be interfered by this Court.
6. As against the same learned AGP Shri Sharma has vehemently contested this petition. Learned AGP has relied upon the affidavit-in-reply filed on behalf of the respondent no.2 and would submit that the petitioner had undoubtedly produced the form of belonging to the EWS category but at the same time the fact of the petitioner having produced such certificate at a belated stage has also to be taken into consideration.
Page 4 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022C/SCA/13811/2021 ORDER DATED: 02/12/2021 6.1. Learned AGP would further submit that the petitioner also could not be considered as a general category candidate since at the time of filling up of the form, the petitioner had submitted her candidature as an EWS candidate and had availed concession of fee. Learned AGP therefore would submit that no case for interference is made out and hence this Court may not interfere in the present petition.
7. In rejoinder learned Advocate Shri Kikani would submit that the submission of learned AGP ought not to be considered inasmuch according to learned Advocate Shri Kikani the petitioner had not produced the EWS certificate belatedly rather the petitioner could produce the certificate on the date of document verification itself. Learned Advocate Shri Kikani would further submit that as regards the petitioner having filled up the form as an EWS candidate and therefore the petitioner not being entitled to be considered as a general category candidate that the law on this subject is now well settled. Learned Advocate would submit that a candidate who has applied for selection as a reserved category candidate could not be treated as such even if the candidate finds her position higher in the merit and not in the reserved category list. Learned Advocate Shri Kikani would submit that in the instant case since the cut off marks for general category/ unreserved category was 105.5 marks and the petitioner admittedly having obtained more marks being 116.25 marks, therefore the respondents while preparing the merit cum provisional selection list had rightly placed the petitioner in the said list at Sr. No. 749. Learned Advocate would submit that the respondents had while preparing the list rightly appreciated the legal position and hence it is not open for them to now contend otherwise.
8. Heard learned Advocates for the parties.
9. The only issue which requires consideration of this Court is whether the case of the petitioner is required to be considered for appointment either Page 5 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022 C/SCA/13811/2021 ORDER DATED: 02/12/2021 as an EWS candidate or a general category candidate. In the considered opinion of this Court, the petitioner would be entitled to be considered selected cum both those categories.
10. As far as the aspect of being considered as a candidate selected under the EWS category is concerned in the considered opinion of this Court documents would reveal that the petitioner had uploaded a certificate issued by the Mamlatdar which showed her as belonging to the unreserved category. Averments would show that document verification was conducted by the respondent no.2 on 02.08.2021. Averments also would show that at the stage of document verification the petitioner was informed about an erroneous certificate being uploaded by the petitioner and the petitioner was directed to get a proper certificate. That the petitioner could submit to the concerned officer a certificate of belonging to the EWS category on 02.08.2021 is also not denied by the respondents in their affidavit-in-reply rather in the affidavit-in-reply it is clearly submitted that while the petitioner had submitted certificate of belonging to EWS category on 02.08.2021 but the same was belated as by the time the result was already declared on 01.08.2021. In the considered opinion of this Court, merely because an erroneous certificate had been uploaded by the petitioner, the petitioner would not lose her right to be considered when even otherwise on the date of document verification itself the candidate could produce a certificate certifying and corelatable to the category in which she had applied for.
11. In the considered opinion of this Court, the first certificate produced by the present petitioner has to be considered in context of the fact that by producing the same, the petitioner did not receive any undue benefit or advantage which she otherwise would not be entitled to. The certificate issued by the same authority which was empowered to issue certificate under the EWS category, the same could be treated to be a genuine error committed by the petitioner. The petitioner having produced a certificate Page 6 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022 C/SCA/13811/2021 ORDER DATED: 02/12/2021 belonging to the EWS category and having submitted the same to the authority concerned on the date of document verification itself, the benefit of being considered for appointment ought to have been given to the petitioner.
12. Insofar as the contention of the respondent that the petitioner could not be considered as a general category candidate since the petitioner had applied as an EWS candidate and taken benefit of the same, in the considered opinion of this Court, this issue is no more res integra. As a matter of fact it would be pertinent to mention herein that the respondent themselves had understood and appreciated the correct legal position and therefore, at the first instance in the merit cum provisional select list published by the respondent on 20.06.2021 the name of the present petitioner had figured at Sr. No. 749 amongst candidates of unreserved category/merit category. That having understood and applied the law in its proper perspective, the respondents in order to justify their act of not granting an appointment order to the present petitioner are now falling back upon an argument, which has been rejected on number of occasions by the Hon'ble Apex Court and which proposition of law has been followed by this Court in case of Rajeshkumar Daria vs. Rajasthan Public Service Commission reported in (2007) 8 SCC 785 . The Hon'ble Apex Court who was dealing with an issue of considering horizontal reservation in conjunction with vertical reservation yet the observations of the Hon'ble Apex Court in this regard more particularly at paragraph no. 8 would be relevant:
"8.We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts". Obviously, there is, and there can be, no reservation category of 'male' or 'men'.Page 7 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022
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12.1 In view of the law laid down by the Hon'ble Apex Court, relying
upon the pronouncement of the Hon'ble Apex Court in earlier decision, the stand taken by the respondent in this regard cannot be countenanced.
13. In view of the discussion hereinabove, in the considered opinion of this Court the action on part of the respondents of not considering the petitioner eligible and not offering an appointment order to the petitioner, is declared to be illegal. That the petitioner is directed to be placed at her appropriate position, in the list published by the respondent on 01.09.2021 i.e. the final select list and appropriately the respondents shall also issue appointment order to the present petitioner with effect from the date of appointment offered to the candidate just below the present petitioner in the select list. The seniority of the petitioner shall also be counted as such. The salary of the petitioner shall also be calculated appropriately by the respondents as granted to the candidate just below the present petitioner in the final select list dated 01.09.2021 and while the petitioner shall not be entitled to any arrears of salary and whereas the arrears of salary shall be treated as notional for the purpose of counting the same towards future benefits.
With these directions present petition is disposed of as allowed. Rule is made absolute.
(NIKHIL S. KARIEL,J) NIRU Page 8 of 8 Downloaded on : Wed Jan 12 06:39:42 IST 2022