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MCA/511/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 511 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3966 of 2009
=================================================
U
A VORA - Applicant(s)
Versus
DESAI
NAYANKUMAR LALABHAI & 1 - Opponent(s)
=================================================
Appearance :
MR
PARESH UPADHYAY for Applicant(s) : 1,
MS PREETI S PARMAR for
Opponent(s) : 1,
MR SV PARMAR for Opponent(s) : 1,
MR DAKSHESH
MEHTA for Opponent(s) :
2,
=================================================
CORAM:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 26/04/2011
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
This
review application has been preferred by the applicant – U.A. Vora
for review and recall of the order dated 11th August 2009 passed by a
Division Bench of this Court in Special Civil Application No. 3966 of
2009. The said case was preferred by the 1st respondent – Desai
Nayankumar Lalabhai – the writ petitioner for direction on the
respondent – Union Public Service Commission (U.P.S.C.) to rectify
the selection procedure for promotion to the Indian Forest Service as
was held in the year 2004. In the said case, on notice, the
Commission appeared and filed a counter-affidavit, and admitted that
certain mistake has been committed in recording the overall grading
of the 1st respondent as `good’ instead of `very good’. However, in
absence of any specific authority, the Commission was not empowered
to review its decision. Taking into consideration the aforesaid
stand taken by the respondent – U.P.S.C., the Division Bench observed
as follows:-
“Once
the Commission has admitted that it had committed mistake, there is
no reason why the Court should not direct the Commission to rectify
the error. The Commission must face the consequences.
In above
view of the matter, we allow this petition. The respondent –
Union Public Service Commission is directed to reconsider the
selection procedure for promotion to the Indian Forest Service for
the year 2004.
The
aforesaid exercise shall be completed within eight weeks from today.
If, as a result of such exercise, consequential order is required to
be made, such order shall be made as early as possible preferably
within six months from today.
Rule is
made absolute in the above terms. The parties will bear their own
cost.”
The
review application was preferred by the applicant on the ground that
it will affect the promotion and seniority of the applicant, who had
been promoted pursuant to 2004 selection. It was stated that the
order was passed by the Division Bench without hearing those who may
be affected, including the applicant – U.A. Vora.
On
11th March 2011, this Court directed the counsel for the U.P.S.C. to
inform whether the impugned order of the Division Bench dated 11th
August 2009 has already been implemented, and whether after necessary
correction, any notification of promotion has been issued.
Learned
counsel appearing on behalf of the U.P.S.C. submitted that the
Court’s order has already been implemented. The case of the 1st
respondent – writ petitioner Desai Nayan Kumar Lalabhai was
considered, and on re-consideration, he was found `unfit’ for
promotion after following the guidelines of the Commission.
Learned
counsel appearing on behalf of the 1st respondent – writ petitioner
submitted that the matter is pending consideration before the Bench
hearing contempt matters. It is not clear as to how in a contempt
proceeding the question of legality and propriety of the decision of
U.P.S.C. can be determined by this Court. However, we leave the
question open for decision by the Court hearing contempt proceeding.
We give liberty to the applicant U.A. Vora to bring this order to the
notice of the Court hearing the matter and may intervene in the said
matter. In view of the decision already taken by the U.P.S.C., we
are not inclined to review the order, but in case the decision of the
U.P.S.C. is altered, it will be open to the petitioner to ask for
appropriate relief before appropriate forum. The Miscellaneous Civil
Application stands disposed of.
(S.J.
MUKHOPADHAYA, C.J.)
(K.M.
THAKER, J.)
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