Gujarat High Court Case Information System
Print
SCA/3290/1994 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3290 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=============================================================
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 ?
=============================================================
COMMISSIONER
OF HIGHER EDUCATION - Petitioner(s)
Versus
RATHOD
BALUBHAI VASHRAMBHAI & 3 - Respondent(s)
=========================================================
Appearance
:
GOVERNMENT
PLEADER for
Petitioner(s) : 1,
MRS VASAVDATTA BHATT for Respondent(s) : 1,
MR
HARESH J TRIVEDI for Respondent(s) : 2 - 3.
MR JT TRIVEDI for
Respondent(s) : 2 - 3.
RULE SERVED for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 26/03/2010
ORAL
JUDGMENT
By
way of present petition, the petitioner has inter alia prayed for
quashing and setting aside the judgment and order dated 10th
March 1993 passed by the Gujarat Affiliated Colleges Services
Tribunal in Application No.23 of 1992.
It
is the case of the petitioner that the respondent No.1 was working
as lecturer in K.V. Parikh Science College, Mahuva, Bhavnagar, with
effect from 25th November 1988. On 30th
December 1991, No Objection Certificate has been issued for
filling in the post of lecturer in various subjects by the
Department. Thereafter, on 01st January 1992 a new No
Objection Certificate was issued by the Department making change
that the post of Chemistry Lecturer is to be filled in by appointing
a candidate belonging to Scheduled Caste as per the Government
Resolution. However, the learned Tribunal vide impugned judgment and
order dated 10th March 1993 allowed the application
preferred by the respondent No.1 declaring that the respondent No.1
is entitled to be permitted and appointed to the post of full-time
lecturer in Chemistry with effect from 01st April 1993.
Hence, present petition.
It
is further the case of the petitioner that a full-time appointment
is an appointment where the selection procedure would come into play
and a part-timer cannot be promoted as a matter of rule from his
part-time position to that of a full-timer in the subject. It is
submitted that the Tribunal has exceeded his jurisdiction while
directing that the respondent No.1 is to be appointed as a full-time
lecturer in the respondent-College and his salary as a full-time
lecturer should be held admissible for the purpose of grant. It is
submitted that the post was reserved for S.T./ S.C. candidate and,
therefore, the impugned judgment and order is bad in the eye of law.
Ms.Vasavdatta
Bhatt, learned advocate for the respondent No.1, has relied upon the
affidavit-in-reply filed by the respondent No.1 and has submitted
that the impugned direction is against the respondent-College and
not against the State and, therefore, the petition at the instance
of petitioner-State is not maintainable in the eye of law. It is
submitted that no backward class candidate had applied in response
to two advertisements given by the college for inviting
applications for the subject of Chemistry. It is submitted that the
procedure tangles cannot override the powers of the Tribunal under
the provisions of the Act. Thus, the order passed by the Tribunal is
just and proper.
Having
considered the contentions raised by the learned advocates for the
respective parties, documents produced on record as well as the
averments made in the petition as well as the affidavit-in-reply, it
clearly transpires that the selection committee, including
representative of the Education Department had to note that no
candidate is available from the backward class category for the post
of lecturer in Chemistry. Hence, it is rightly observed by the
Tribunal that the view of the department that the interest of
backward class candidate can best be served by rightly fixing a
subjectwise backward class post, does not appear to be sound.
Equality and equal opportunities are to be afforded to equals. A
part-timer who is serving in the college is little distinguished
from other seekers of employment. He is an unequal. Therefore, if an
unequal opportunity is afforded to him, it cannot be said to be
breach of opportunity of equality. In view of the same, the view
taken by the Tribunal is just and proper. The Tribunal has assigned
cogent and convincing reasons while arriving at the conclusion.
Further,
the learned advocate for the petitioner has failed to dislodge the
reasons assigned by the respondent in order to convincing me to take
a different view contrary to the one already taken by the Tribunal.
Therefore, I am of the opinion that the impugned order is just and
proper. The present petition is devoid of any substance and merit
and the same is required to be dismissed.
In
view of aforesaid observations and discussion, the present petition
fails and is, accordingly, dismissed. Rule is discharged with no
order as to costs. Interim relief, if any, stands hereby vacated.
(K.S.
Jhaveri, J)
Aakar
Top