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SCA/512819/1990 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5128 of 1990
=========================================================
KISHORE
N SAPARIA - Petitioner(s)
Versus
H
R SHELAT, DISTRICT JUDGE & 1 - Respondent(s)
=========================================================
Appearance
:
NOTICE
SERVED for
Petitioner(s) : 1,MR NAGIN N GANDHI for Petitioner(s) : 1,MR GM JOSHI
for Petitioner(s) : 1,
LAW OFFICER BRANCH for Respondent(s) :
1,
MR JB PARDIWALA for Respondent(s) : 1,
RULE SERVED for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 10/10/2008
ORAL
ORDER
1. By
way of this petition, the petitioner has prayed for directing the
respondent no.1 to appoint the petitioner as Peon/Water Server with
effect from the date of the order i.e. 30.03.1990 reverting the
respondent no.2 from that post.
2. It
is the case of the petitioner that the petitioner was duly selected
for the post of Peon/Water Server post interview conducted on
03.09.1986 and his name was posted at serial no. 12 in the selection
list. The respondent no.2 herein was selected and his name was
posted at serial no.13. By order dated 30.03.1990, the respondent
no.1 informed the petitioner that as he had not complete qualifying
age of 25 on 01.05.1988 he was not eligible for being appointed as
Peon/Water Server and that his name was deleted from the select list.
Being aggrieved by the said order, the petitioner made a written
representation which was rejected by the respondent no.1, however,
since no action was taken the petitioner has approached this Court.
3. Mr.
G.M. Joshi, learned advocate appearing for the petitioner has
submitted that the relevant date for the age would be the date when
the selected candidate’s name is inserted in the select list and once
the candidate when selected is within the age limit, his subsequent
crossing of the age limit would be no bar to the right to the
appointment, when his turn for the appointment comes.
3.1 Mr.
Joshi, submitted that the matter is covered by a decision of the
Hon’ble Apex Court in the matter of Ashok Kumar Sharma & Ors.
vs. Chander Shekhar & Anr., reported at (1997) 4 S.C.C. 18
wherein the Honourable Apex Court was pleased to hold that,
"Where applications are called for, prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. ... ..."
(emphasis supplied)
3.2 Mr. Joshi also submitted that this Court has taken a similar view in the matter of Jigneshkumar Chimanlal Bhatt & Anr. vs. State of Gujarat & Ors., reported in 2001(1) G.L.R. 432 and has also relied upon order dated 06.05.2005 passed by the Division Bench of this Court in Letters Patent Appeal No. 347 of 2000. He submitted that in that view of the matter, the learned District Judge could not have deleted the name of the petitioner from the select list by the communication dated 30.03.1990.
3.3 Mr. Joshi has also relied upon a decision of this Court wherein this Court, in similar facts and circumstances of the case, vide order dated 16.07.2004 passed in Special Civil Application No. 9747 of 1994 has allowed the petition and given certain directions.
4. Learned advocate appearing for the respondents could not dispute the facts narrated in the petition that on the date of application, on the date of the interview and on the date the name of the petitioner was placed in the select list, he was not over-age and therefore the name of the petitioner could not have been deleted on the ground that before the appointment order could be issued to him, he has become overage. The date of birth of the petitioner as borne out from the records is 01.05.1963. In that view of the matter, he had completed 23 years when his name was placed in the select list on 03.09.1986 which is very much in accordance with law and as per the rules. As a result of hearing and perusal of records, this Court is of the view that for the reasons recorded in the judgment of this Court in the case of Jigneshkumar Patel(Supra) and order dated 16.07.2004 passed in SCA 9747 of 1994, this petition also requires to be allowed.
5. For the foregoing reasons, petition is allowed. The respondents are directed to consider the case of the petitioner for giving appointment and posting within four weeks from the date of receipt of this judgment. It is further directed that the appointment and posting be given from the date the petitioner was eligible to get the appointment i.e. just prior to his immediate junior in the select list. It is clarified that the deemed date of the appointment shall be for the purpose of seniority and other allied benefits and not for arrears of salary. Rule is made absolute to the aforesaid extent. No order as to costs. Direct Service is permitted.
(K.S. JHAVERI, J.)
Divya//
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