Gujarat High Court
Mehulkumar Girishbhai Rohit vs State Of Gujarat on 17 December, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/LPA/245/2014 CAV ORDER DATED: 17/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 245 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 17363 of 2013
==========================================================
MEHULKUMAR GIRISHBHAI ROHIT Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1 MR MANAN MEHTA, AGP (1) for the Respondent(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 3 RULE SERVED(64) for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : /12/2021 CAV ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned advocate Ms.Lilu K. Bhaya for the appellant and learned advocate Mr.H.S.Munshaw for the respondent No.3. Rule is served on respondent No.2- Gujarat Panchayat Shikshan Board, but none appears.
2. The appellant- original petitioner has called in question by filing the present Letters Patent Appeal, the order dated 28.11.2013, whereby learned Single Judge dismissed the Special Civil Application.
2.1 What was prayed by the petitioner in the Special Civil Application was to set aside the decision reflected in the communication dated 3/7.10.2013 of the District Health Officer, Page 1 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022 C/LPA/245/2014 CAV ORDER DATED: 17/12/2021 District Panchayat, Anand, whereby, the said authority denied the appointment to the petitioner to the post of Multipurpose Health Workers (Male) - Class-III, on the ground that the petitioner did not produce the certificates relating to his qualification as ex-army man. It was further prayed to direct the respondents to revise the merit list treating the petitioner to be the candidate in Schedule Caste category and to give appointment to him on the basis of his merit.
2.2 The developments during the pendency of the appeal may be noted at the outset, it appears that the petitioner came to be granted appointment on the post by respondent authorities by order dated 22.4.2012. The Court noted the said factum of appointment in order dated 24.4.2014.
2.3 It appears that the petitioner came to be given the appointment pursuant to the order of admission of the appeal passed on 7.3.2014 with following observations.
"Learned advocate invited the attention of the Court to the mistake committed by the present appellant, original petitioner while filling up the form. The learned advocate effectively brought out that there was an inadvertent error in answering the two columns. Whether he is an Ex-service man or whether he is in Government Service. The answer which was required to be given in the column was whether he belongs to Ex-service man or whether he is in Government Service.
2. The learned advocate also invited the attention of the Court to merit list; wherein, it is mentioned that the present appellant, original petitioner secured 50.50% in written test as against that candidates who secured only 46.70% were also called for interview.
3. The learned advocate for the appellant submitted that moment the appellant received the communication from the authorities that he shall Page 2 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022 C/LPA/245/2014 CAV ORDER DATED: 17/12/2021 come and produce the documents that he being Ex- service man, he realized the mistake committed and immediately he wrote on 17.6.2013 to the Authorities about the said mistake. The learned advocate for the appellant submitted that instead of taking lenient view, in the matter, the authorities have taken stricter view in the matter and decided not to call him in the interview. This order of the authority was challenged before the learned Single Judge which came to be dismissed by the learned Single Judge by judgment and order dated 28.11.2013.
4. The learned advocate relied upon a decision of this Court in the matter of Darpankumar Jashbhai Desai Vs. State of Gujarat in Letters Patent Appeal No.1487 of 2012 dated 23.1.2013 (Coram: Hon'ble Mr.Justice Jayant Patel and Hon'ble Mr.Justice Mohinder Pal) [one of us]. Incidentally, this judgment also arose from the very similar selection; wherein, Letters Patent Appeal is allowed with following observations:
"....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 finalizing the select list of SC candidates for the post in question. The aforesaid shall be finalized 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"."
2.4 Furthermore, in the course of hearing of the appeal, it was stated that the petitioner service has already been regularized and the petitioner is in service. Also produced was the copy of order dated 10.10.2019 by which the petitioner who was on initial fixed pay came to be granted the pay scale. This benefit was conferred on the petitioner as he cleared the requisite computer proficiency examination.
3. Now, adverting to the facts and the merit aspects of the Page 3 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022 C/LPA/245/2014 CAV ORDER DATED: 17/12/2021 controversy, the petitioner when applied for the post of Multipurpose Health Worker (Male) - Class-III on 4.8.2011 pursuant to the public advertisement, he fared in the Schedule Caste category. He had passed written test on 15.7.2012 with 50.50 marks. The petitioner was included in the selection list and in the common merit list his name figured at serial No.1886. The petitioner was called upon to produce the original certificate of his educational qualification, more particularly, his experience as ex-service man.
3.1 It is the case of the appellant that while filling up online application form, he had inadvertently committed mistake by writing details in the respective columns. In columns "ex-service man", the candidate was required to say 'Yes' or 'No' and in the next column it was needed to be stated that whether the candidate was in government service, in order to give the date of joining such service. Out of hurry, the appellant committed mistake, instead of mentioning 'No' in the ex-service man, he mentioned 'No' against the date of joining in the government service. In the column of ex-service man, 'Yes' was mentioned. It was a mistake of interchanged details. A copy of the print out of the online application form of the appellant figures on the record which shows the details written in above manner.
4. Highlighting the above error, it was submitted by learned advocate for the appellant that it was a sheer mistake and slip of pen on part of the appellant. It was stated that the appellant immediately addressed letter dated 9.11.2012 to respondent No.2 authority to apprise him about the mistake, however, the authority called upon the appellant to show the details about the status of his ex-service man, which could not be produced by the appellant as he did not have such status. Resultantly, the Page 4 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022 C/LPA/245/2014 CAV ORDER DATED: 17/12/2021 appointment was denied to the appellant.
4.1 On the basis of the contents of the affidavit-in-reply filed on behalf of the respondent No.3- Chief District Health Officer, learned advocate for the appellant submitted that the verification of documents of the appellant was necessary and since he had mentioned the category to be ex-service man, he was asked to produce certification in that regard. He could not produce anything. As per the submission, the details filled up in the application form were wrong and misleading which rendered the appellant disqualified to be appointed. It was submitted that since the details were filled in the application form, projecting to be an ex-army man, the appellant was bound to substantiate such cause and status.
5. The case of the petitioner stands to reason that there was bonafide inadvertent mistake on his part. At the outset, it is to be stated that no benefit was to accrue to the petitioner by his mentioning as category as ex-service man, there was no such category in the recruitment to the post. It is entirely logical when it is stated by petitioner against the columns the information was interchanged and by slip of pen 'Yes' was mentioned against the status of ex-service man, the petitioner belongs to the Schedule Caste, nor the petitioner gain any advantage by committing mistake. He scored 50.50 marks whereas the merit of the last appointee was 46 marks.
5.1 It may be stated that the case of the said Darpankumar Jashbhai Desai (supra) referred to in the order dated 7.3.2014 abovequoted, arose out of the very recruitment process. The said candidate had obtained 46.70 marks in SC category. The petitioner stands identically situated, and has obtained 50.50 Page 5 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022 C/LPA/245/2014 CAV ORDER DATED: 17/12/2021 marks.
5.2 In the present case, there was no question of obtaining any wrongful gain by the petitioner by mentioning the details. It was bonafide mistake of such nature, thereby, the candidate who committed mistake did not reap any benefit nor could have obtained any benefit nor any other candidate would stand prejudiced if mistake is allowed to be ignored. It was an ignorable mistake. It was also a curable mistake when without prejudice to anybody the petitioner could stand on its own merits to claim the appointment. For such nature of mistake the petitioner could not have been penalized. Subsequently, he has been rightly taken in service, as noted above.
6. Learned Single Judge while dismissing the petition ignored all the above aspects. The reasoning of the learned Single Judge could not be sustained as is too technical to be countenanced. The criteria of substantive justice has to outweigh in the facts of the present case.
7. The prayers made in the Special Civil Application are granted. The petitioner is already in employment with benefits conferred as above. The impugned order of learned Single Judge dismissing the Special Civil Application is set aside. The Letters Patent Appeal is allowed accordingly.
(N.V.ANJARIA, J) (SANDEEP N. BHATT,J) Manshi Page 6 of 6 Downloaded on : Wed Jan 12 11:36:32 IST 2022