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SCA/3038/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3038 of 2010
=========================================================
PATEL
GARGIBEN RAMESHBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MS
VARSHA BRAHMBHATT for Petitioner(s) : 1,
MS ASHAH BRAHMBHATT for Petitioner(s) : 1,
MR NEERAJ SONI
AGP for Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 09/03/2010
ORAL
ORDER
Draft
amendment granted. The learned counsel for the petitioner shall carry
out the amendment accordingly.
Rule
returnable on 29.03.2010.
In
the meantime, the respondent-State will follow the order passed by
the Division Bench of this Court in Letters Patent Appeal No.
153 of 2010 in Special Civil Application No. 293 of 2010 with Civil
Application No. 981 of 2010, dated 04.02.2010, which reads as
under :-
Heard
learned counsel for the parties. Rule returnable on 8.3.2010.
In the meanwhile, this has been borne out from the arguments which
have been advanced at the bar that prior to 2004 there was a
conscious decision of the State Government that the marks which are
obtained at the internal examination will not be included for
consideration of judging merit for appointment of the candidates. By
a decision of the State Government dated 3.9.2004 produced as
Annexure-C of the petition, the State Government took a conscious
decision that the marks obtained at the internal examination will be
considered for judging merit of the candidate. Subsequent to this,
yet another decision was taken by the State Government on 7.7.2008
produced as Annexure-D to the petition it makes a change in the
Rules. This change has to be observed from the year 2008-2009. It
was decided by the State Government that except that of the written
and practical examinations, rest of the activities and their marks
will not be included in the mark-sheet. In the process of
appointment these marks will not be considered. This order dated
7.7.2008 clearly envisaged that this will come into operation from
2008-2009.
When the process of the present selection was under consideration, an
Explanation has been issued by the State Government on 15.1.2010 that
while preparing the merit , the marks for internal assessment would
not be considered for all candidates. On the strength of this,
learned counsel appearing for the respondents submitted that the
petitioners are not entitled to be considered. The case of the
petitioners was that the order dated 7.7.2008 is clear and
unambiguous and it says that the decision taken on this date would be
applicable only from the year 2008-2009. This would mean that those
students who have taken examination prior to this date and after
2004, they will be governed by the order dated 3.9.2004, wherein the
marks obtained at the internal examination have been ordered to be
included in judging the merit.
Learned
Counsel for the respondents has relied on the decisions of Hon’ble
Supreme Court in the matter of PUNJAB UNIVERSITY VS. SUBASH CHANDER
AND ANOTHER reported in (1984) 3 SCC 603 and DHAMPUR SUGAR (KASHIPUR)
LTD. VS. STATE OF UTTARANCHAL & OTHERS reported in (2007) 8 SCC
418. Suffice it to say that law laid down by the Hon’ble Supreme
Court is clear and unambiguous. Changed law will hold the field but
in the instant case the change in law has been made prospective as
per order dated 7.7.2008 and it has not been given retrospective
effect. Therefore, those students who have taken examination after
the year 2004, they cannot be governed by the prospective law which
was passed on 7.7.2008. In any case the Explanation dated 15.1.2010
is post advertisement and in the advertisement there was nothing like
what is being contended on behalf of the order dated 15.1.2010. That
being the position, the law governing the selection is the statements
made in the advertisement wherein no such condition has been
incorporated.
Having
given our thoughtful consideration, we are of the opinion that a
direction is required to be issued to the State Government that in
view of the order dated 3.9.2004 and prospective effect being given
to the order dated 7.7.2008, the Explanation issued by the State
Government dated 15.1.2010 will not have the effect of debarring
these candidates from being judged on the basis of the combined marks
of their internal and external examination. Therefore, they should be
judged only in accordance with the decision of the State Government
dated 3.9.2004 and merit of the students should be prepared
considering the case of the petitioners and in light of the order of
the State Government dated 3.9.2004. If the petitioners come in merit
on such consideration then posts will be kept vacant for them.
Appointments, if made, will be subject to the final decision of the
present appeal. To that extent, the effect and operation of the order
of learned Single Judge dated 28.1.2010 shall remain stayed during
the pendency of the appeal.
It
is, however, observed that the above referred order passed by the
Division Bench of this Court will also apply in case of the
petitioner, subject to the order passed in Letters Patent Appeal No.
153 of 2010.
[K.S.
JHAVERI, J.]
/phalguni/
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