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SCA/13044/1994 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13044 of 1994
=========================================================
RAMILABEN
HARJIVANDAS LEUVA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
BN RAVAL for
Petitioner(s) : 1,
MR R.A. RINDANI AGP for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 2,
MR RC JANI for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 19/03/2010
ORAL
ORDER
1. This
matter was ordered to be heard with S.C.A. No.4743/1995. The said
matter came to be disposed of vide judgment and order dated
01.03.2005, which reads as under;
1. This petition, under
Article 226 of the
Constitution of India, seeks mandamus to be issued to
respondent authorities for appropriate direction that the
post of English Lecturer in the institute viz. Shri M.H.
Patel Gramseva Mahavidyalaya, Samoda Ganwada to be filled
by the reserved category for Baxi Panch candidates and
further to call for the petitioner for interview of the
said post. The petitioner has further prayed that the
respondents be restrained from filling up the said
vacancy for the post of English Lecturer from any other
category then Baxi Panch.
2. It is the case of the petitioner that after
having acquired qualifications of Master of Arts with
English as a main subject and bachelor in education B.Ed.
examination, the petitioner had applied for the post of
English Lecturer pursuant to the advertisement issued by
the institution and he was called for interview on
28-08-1992, where the petitioner was declared successful
and was given appointment on probation for a period of 01
(one) year. That thereafter the said period of probation
was extended for a further period of 01 (one) year.
However, the service of the petitioner was not found
satisfactory and, therefore, it was put to an end by the
institution vide order dated 15-10-1994.
3. Since the service of the petitioner was put to an
end in view of the unsatisfactory performance of the
petitioner as a probationer, a sanction was sought by the
institution from the concerned competent authority to
fill up the said post of English Lecturer and by order
dated 12-05-1995 Director of Higher Education,
Gandhinagar had given permission to the institution to
fill up the vacancy for the post of English Lecturer in
view of the Roster Point No.7 as provided by Government
Resolution of General Administration Department dated
30-09-1994 and Schedule-III annexed therewith. According
to the said letter of sanction, issued by the Director of
Higher Education dated 12-05-1995, the post of English
Lecturer was to be filled in as per Roster Point No.7 by
unreserved category candidate. The petitioner
apprehended that pursuant to the said sanction given by
the Director of Higher Education vide letter dated
12-05-1995, the necessary exercise for selection of the
candidate will be undertaken by the institute and since
the said post was reserved for general category
candidate, the case of the petitioner for the said post
being a Baxi Panch candidate would be sidelined.
4. Pursuant to the Notice and subsequent Rule issued
by this Court, respondent authorities have filed their
affidavit-in-reply and submitted that the post in
question viz. Lecturer for the subject of English is
rightly earmarked for the unreserved candidate as per the
provision of the Government Resolution dated 30-09-1994
and Schedule-III attached therewith. The Roster Point
Nos.6 and 7 are applicable to unreserved category
candidate only and once the petitioner who was appointed
earlier on probation and whose service came to be
terminated on the ground of unsatisfactory performance
could hot have agitated his claim further and
alternatively it was open to the petitioner to contest
and applied for the post earmarked for unreserved
candidate.
5. Shri L.B.Dabhi, learned A.G.P. appearing for the
respondent – State, has relied upon affidavit-in-reply
filed by Shri K.L.Tabiyad, Senior Superintendent of
Higher Education, Gandhinagar and submitted that the case
of the petitioner is premature and the selection
procedure undertaken by the institution on the basis of
sanction by the Director of Higher Education vide letter
dated 12-05-1995 cannot be said to be unreasonable or
arbitrary or discriminatory in any manner and no
fundamental right of the petitioner is violated qua the
appointment for the post of lecturer in the subject of
English. He has further submitted that as far as
probation of the petitioner is concerned, it was a matter
between the institute viz. Shree Saraswati Gram Vidya
Peeth, Samoda Ganwada and the petitioner in accordance
with law when work of the petitioner was not found
satisfactory, his probation period put to an end.
Therefore, according to Mr.Dabhi, learned AGP, the
petition deserves to be rejected.
6. So far as Shree Saraswati Gram Vidya Peeth,
Samoda Ganwada, the respondent No.1 – Institute is
concerned, an affidavit-in-reply is filed. They have
also averred that they were given sanction by the
competent authority vide letter dated 12-05-1995 and the
said post is required to be filled up by considering the
Roster Point No.7 which belongs to unreserved category
and, therefore, the selection procedure undertaken by the
authority cannot be said to be in any manner illegal and
no fundamental right of the petitioner is violated. More
particularly when the service of the petitioner as a
probationer in the very same institute on the post of
English Lecturer for the subject of English was not found
satisfactory. It was submitted that the petition is
premature and does not deserves any interference by this
Hon’ble Court.
7. Having heard the learned advocates for the
parties. The case of the petitioner is not well-founded
on the ground that the respondent No.1 – Institution has
in fact made an attempt and when the said post of
lecturer for the subject of English, which was reserved
for Baxi Panch Community as per Roster Point No.5 which
was prevailed at that point of time, the petitioner was
appointed by order dated 13-11-1992. Even subsequently
also the petitioner was sounded to prove his performance
but it did not yield any result and on the ground of
unsatisfactory performance, service of the petitioner was
terminated by an order dated 15-10-1994, which is not the
subject matter of challenge in this petition.
8. That the sanction letter issued by the Director
of Higher Education dated 12-05-1995 and the Government
Resolution dated 13-09-1994 along with Schedule-III
annexed by the deponent with affidavit-in-reply clearly
mention that the post was earmarked for unreserved
candidate of applicability of Roster Point No.7 and,
therefore, no legal right accrued to the petitioner to
seek mandamus from this Court in exercise of power under
Article 226 of the Constitution of India. Therefore, no
illegalities appears to have been committed on perusal of
the records, it cannot be said that the respondent
authorities have acted unreasonably, arbitrary or
violative of provisions of Articles 14 and 16 of the
Constitution of India.
9. No case is made out for interference by this
Court in view of the fact that the post for English
Lecturer is rightly earmarked for unreserved category
viz. general category candidate on applicability of
Roster Point No.7 as provided by Government Resolution of
General Administration Department dated 30-09-1994 and
Schedule-III and no fundamental right, much less any
other legal rights of the petitioner is infringed, and,
therefore, this is not a fit case where this Court should
exercise its extraordinary jurisdiction under Article 226
of the Constitution of India.
10. The petition is failed. Rule discharged. There
shall be no order as to costs.
2. Hence, this petition also stands disposed of in terms of the aforesaid order. Rule is discharged. Interim relief, if any, stands vacated.
[K.S.JHAVERI, J.]
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