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SCA/7373/1992 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7373 of 1992
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 ?
=========================================================
D
S CHAVDA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MURALI N DEVNANI for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 04/03/2010
ORAL
JUDGMENT
1. The
petitioner herein has prayed to declare the action of the respondent
in not appointing the petitioner to the post of Public Health Nurse
and thereby appointing other persons who are Junior to the petitioner
both by way of experience and required qualification and further to
direct the respondent to appoint the petitioner for the post of
Public Health Nurse.
2. The
petitioner was appointed as Staff Nurse by the respondent authority
as per letter dated 04.11.1981 in the pay scale of Rs. 380-560/- at
Cotej Hospital, Khamba and thereafter transferred to K.T. Children
Hospital, Rajkot. The petitioner cleared the examination of Public
Health Nurse in the year 1990. The petitioner made a representation
vide letter dated 10.08.1992 to the respondent authority to appoint
her to the post of Public Health Nurse. It is the case of the
petitioner that the respondent authority appointed a person who was
junior to the petitioner and also completed the course after the
petitioner. Being aggrieved by the said action, the present petition
has been preferred by the petitioner.
3. Learned
advocate appearing for the petitioner has submitted that the
petitioner is fit for the post in question considering her seniority
cum merit and also is qualified to be appointed for the post of
Public Health as no inquiry is pending against her. It is submitted
that the respondent has purposely ignored the petitioner’s case by
giving appointment to Juniors and also those who have completed the
course after the petitioner due to political influence thus
prejudicing the petitioner’s rights which is against the principles
of natural justice.
4. Learned
AGP appearing for the respondent State has supported the stand of the
respondent authorities and submitted that considering the averments
made in the affidavit-in-reply the action of the respondent
authorities cannot be questioned and therefore this court may not
cause interference in this matter.
5. This
court has heard learned advocates for the respective parties and
perused the papers on record. Paras 4 & 5 of the
affidavit-in-reply read as under:
4.
…I submit that so far as the appointment to the post of Public
Health Nurses concerned the seniority in lower cadre is not the only
criteria but the merits i.e. marks obtained in P.H.N examination is
also required to be considered. It is further submitted that the
petitioner has passed the diploma in P.H.N. on 22nd
October, 1990 and has obtained 50% marks as a repeater. It is
further submitted that the petitioner has furnished the caste
certificate on 10th August, 1992. Against this, it is
submitted that Smt. J.R. Agravat has passed Diploma in P.H.N as per
result declared on 30.7.91 and obtained 59.3% marks. It is further
submitted that the said Agravat belongs to S.E.B.C and the necessary
caste certificate was furnished on 29.2.92 by the said Agravat. It
is submitted that she was appointed as Public Health Nurse vide
order dated 5th August 1992 on the back-log of SEBC.
It
is further submitted that Smt. M.M. Baghtariya has passed diploma in
P.H.N as per result declared on 30.7.91 and has secured 58.1% marks.
She also belongs to SEBC, and the necessary caste certificate was
submitted on 1st October, 1991 by the said Smt. Baghtariya
and she was appointed as P.H.N vide order dated 20-2-92 on the
back-log of SEBC.
5.
Thus, from the above facts it has made clear that both the posts were
of SEBC and were reserved for candidates belong to scheduled caste or
scheduled tribe category. It is further submitted that both the
aforesaid posts were to be filled in on the basis of back-log of the
previous years. It is further submitted that when the respondent
authorities had considered the cases for appointment on the aforesaid
posts, the said Smt. Agravat and Smt. Baghtariya had submitted their
caste certificates well in advance and even so far as the marks in
P.H.N examination is concerned both had secured higher percentage of
marks thank the petitioner. It is further submitted that when the
said Smt. Agravat and Smt. Baghtariya were given appointments, the
petitioner had not submitted her caste certificate before the
respondent authorities, as the petitioner had submitted the caste
certificate only on 10th August 1992. In view of the
aforesaid position, the office of the respondent No. 2 had also
informed the petitioner on 10th August 1990 that she had
submitted caste certificate only on 10th August, 1992 i.e.
after the orders of appointment of Smt. Agravat and Smt. Baghtariya
were issued. Therefore, there was no question of giving appointment
on the aforesaid post to the petitioner. Thus, it is submitted that
on the day when the respondent had considered the cases of the
candidates for filling up the aforesaid post, the petitioner did not
belong to reserve category and therefore, she was not given
appointment on the aforesaid post.
6. Considering
the aforesaid averments made in the affidavit-in-reply which is not
denied/clarified by the petitioner even by way of rejoinder, this
court is not inclined to substitute the opinion of the selection
committee more particularly, after a period of almost 18 years. The
selection committee does not seem to have made any error in giving
appointments to the incumbents. The petition is devoid of any merits
and deserves to be dismissed.
7. For
the foregoing reasons, petition stands dismissed. Rule is
discharged. Interim relief, if any, stands vacated.
(K.S.
JHAVERI, J.)
Divya//
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