{"id":65517,"date":"2010-04-29T00:00:00","date_gmt":"2010-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sangitaben-vs-state-on-29-april-2010"},"modified":"2019-03-19T22:38:16","modified_gmt":"2019-03-19T17:08:16","slug":"sangitaben-vs-state-on-29-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sangitaben-vs-state-on-29-april-2010","title":{"rendered":"Sangitaben vs State on 29 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sangitaben vs State on 29 April, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/5277\/2010\t 2\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5277 of 2010\n \n\n \n \n=========================================================\n\n\n \n\nSANGITABEN\nKANTILAL PATEL & 1 - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nHARNISH V DARJI for\nPetitioner(s) : 1 - 2.MR.H M.PATEL for Petitioner(s) : 1 - 2. \nMS.\nKRINA CALL AGP for Respondent(s) : 1, \nNone for Respondent(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 29\/04\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
By
\n\tway of this petition the petitioners have prayed to quash and set
\n\taside order dated 15.11.2008 passed by the respondent and further to
\n\tdirect respondent authority to give appointment to petitioner on the
\n\tposts of  Vidya Sahayak.\n<\/p>\n
\t\tThe
\n\tbrief facts of the case are as under :-\n<\/p>\n
2.1
\n\t\t As per the say of the petitioners, in response to the
\n\tadvertisement published by the respondents, the petitioners  had
\n\tapplied  for the post of Primary Teacher. The petitioners were
\n\tappointed.\n<\/p>\n
2.2
\n\t\t Vide order dated 15.2.1995, the respondent no.3 had terminated
\n\tservices of 118 persons on the ground of large scale irregularities
\n\tand illegalities  committed in appointment. The said order was
\n\tchallenged before this Court and this Court had  quashed and set
\n\taside the said order.\n<\/p>\n
2.3
\n\t\tRespondent no.3 authorities again terminated their services. The
\n\tsaid order was also challenged and the same was also quashed and set
\n\taside. Against the said order the respondent had filed Letters
\n\tPatent Appeal bearing no. 539 of 1995, which came to be admitted by
\n\tthis Court. The petitioners had filed Special Civil Application
\n\tbearing no. 6377 of 1999, which came to be dismissed by this Court
\n\twith a liberty to file fresh petition.\n<\/p>\n
2.4
\n\t\tThe petitioners made several representations to the respondent
\n\tauthority from time to time. The petitioners had again filed Special
\n\tCivil Application bearing no. 17893 of 2007, which came to be
\n\tdisposed of with a direction to the petitioners, to make a detailed
\n\trepresentation. The petitioners made representation, but the same
\n\tcame to be rejected.\n<\/p>\n
2.5
\n\t\tThis Court has passed an order in L.P.A. 539 of 1995 and
\n\tthereafter, the petitioners made representation to the respondent
\n\tauthorities. The said representation came to be rejected vide order
\n\tdated 15.11.2008 by the respondent authorities. Hence this petition.\n<\/p>\n
\t\tHeard
\n\tlearned advocates for the respective parties and perused the
\n\tdocuments on record.\n<\/p>\n
\t\tOn
\n\t9th September 2008, this Court in L.P.A. 539 of 1995 and
\n\tallied matters, has passed following order:\n<\/p>\n
 \t\tThese
\nappeals are filed by the appellants against the common oral judgement
\npassed by the learned Single Judge on 15th\/24th
\nSeptember, 1994.\n<\/p>\n
2.\t\tThe
\nfacts of the case in a nutshell are that The Sabarkantha District
\nPanchayat Education Committee issued public advertisement, dated
\n10.4.1991 through the District Primary Education Officer advertising
\nthe vacant posts of Primary Teachers in the Primary Schools under the
\ncontrol of District Education Committee, Sabarkantha. Such
\nadvertisement stipulated the qualifications expected of the
\ncandidate, age limit as on 1.7.1991, pay scale and other terms and
\nconditions to be fulfilled by the applicant. One of such conditions,
\ninter alia, stipulated that the selected candidate shall have to
\nreport for duty at a post where he is directed to report for duty and
\nhe shall have to execute a bond to continuously serve for a period of
\n3 years failing which to pay an amount of Rs. 10,000\/-. It is also
\nstipulated that such candidate shall have to surrender his original
\ncertificates of educational qualifications to the District Primary
\nEducation Officer for a period of three years at the time of
\nreporting for duty.\n<\/p>\n
3.\t\tSuch
\nadvertisement did not specify the number of vacancies in various
\nschools under the control of District Education Committee,
\nSabarkantha. It also did not specify the seats or vacancies reserved
\nfor or to be reserved for candidates belonging to SC, ST, Baxi Panch
\ncommunity or other socially and educationally backward classes as
\nwell as physically handicapped candidates. The selection took place
\npursuant thereto and a select list was prepared and appointments
\nfollowed.\n<\/p>\n
4.\t\tSuch
\norders of appointment which were identical in cases of all the
\nincumbants they, inter alia, stipulated that the appointment of the
\ncandidate was purely temporary and was liable to be terminated in
\ncase vacancies were not sanctioned or approved by the Government.
\nCondition No. 8 clearly required the candidate that on receipt of
\norder of appointment the candidate, if he was continuing in service
\nat another place shall tender his resignation, shall get his
\nresignation sanctioned, and thereafter only he shall report for duty
\non the specified date.  In case of his failure to report for duty the
\norder of appointment shall be treated as cancelled. Condition No. 13
\nstipulated that the candidate shall have to submit his certificates
\nof educational qualifications, age as well as his marks-sheet in
\noriginal to the office of the District Primary Education Officer
\nwithin seven days and the same shall be retained by the office for a
\nperiod of three years. Condition No. 14 stipulated that the candidate
\nshall have to work at least for a period of three years at the place
\nof his appointment and he shall have to compulsorily serve for three
\nyears. In case such candidate would desire to leave the job earlier
\nthan three years he shall have to deposit rs. 10,000\/- in cash within
\nseven days or he shall execute a security bond for the said amount
\nwithin seven days.\n<\/p>\n
5.\t\tOn
\n15th February, 1995 i.e. within a period of ten months
\nfrom the order of appointment the District Primary Education Officer,
\nSabarkantha District Panchayat issued orders of termination
\nterminating service of approximately 118 persons who joined as
\nteachers inter alia stating in said orders of termination that the
\nappointee has in his application for recruitment referred to
\nadditional qualification. It is further stated in said orders of
\ntermination that such candidate was entitled to specified number of
\nmarks only. While the Staff Selection Committee has allotted more
\nmarks (2\/4 more marks). It is further stated that large scale
\ncomplaints were received alleging irregularities and illegalities in
\nrecruitment\/appointment of Primary Teachers and therefore by
\nResolution dated 2nd\/8th July, 1992 passed by
\nthe General Board of the District Panchayat investigation was
\nentrusted to the President of Sabarkantha District Panchayat who has
\non private investigation found that additional marks allotted to the
\nappointees were wrongly allotted. It was further stated in such order
\nof termination that the appointee was not entitled to such additional
\nmarks which were given and that allotment of such additional marks
\nwas contrary to the Government Circular dated 7.8.1989, and that
\ntherefore in the case of appointee irregularity, illegality and\/or
\nfraud was committed, and that therefore, appointment was wrongly
\ngiven. It was further stated in such order of termination that after
\nsuch additional marks were excluded the appointee was not entitled to
\nbe appointed, and that therefore, the appointment was liable to be
\ncancelled and was therefore terminated with immediate effect. Such
\ncancellation was challenged and was set aside and the matter was
\nremanded for fresh consideration. Once again the authorities
\nterminated the services. There was a fresh challenge. The orders were
\nonce again set aside. The appellants have challenged such order of
\nsetting aside the order of termination.\n<\/p>\n
6.\t\tLearned
\nSingle Judge noticed that when this group of petitions was initially
\nnotified before this Court, after hearing the petitioners as well as
\nthe respondents, it was felt that the main objecton on behalf of the
\nrespondents was that the then Selection Committee committed
\nillegalities\/irregularities in allotting additional marks for
\nadditional qualifications. It was felt that if the marks are allotted
\nby the Selection Committee scrupulously as per the circular issued by
\nthe Government dated 7.8.1988 and if the marks in the special
\nsubjects are allotted on the basis of requisite qualification on the
\ndate of interview and if some independent agency is also directed to
\nremain present at the point of time when Selection Committee prepares
\nthe merit\/select list then such list would be beyond any dispute or
\nchallenge, and that the appointing authority shall abide by such
\nselect list. Accordingly, by order dated 28.12.1993 a Special
\nCommittee was constituted with the consent of all the advocates and
\nfurther directions were also stipulated in the said order which are
\nas under:\n<\/p>\n
 It
\nis agreed that for special subjects where 10 marks are to be allotted
\nthe candidates must possess such qualification on the date of
\ninterview which in the present group of petitions admittedly took
\nplace on 28.2.1992. If the candidates possessed prescribed
\nqualification in any of the special subjects on the date of
\ninterview, i.e. 28.2.1992 on his producing such original certificate
\nand\/or xerox copies thereof with undertaking to get confirmation from
\nappropriate authority before whom he has produced the original
\ncertificate within time to be directed by the Committee entitlement
\nof such candidate for allotment of additional marks shall be
\naccepted .\n<\/p>\n
7.\t\tPartly
\nin conformity with the directions issued by this Court, though not
\nwithin stipulated time, the respondents  prepared five separate merit
\nlists i.e.  (i) general merit list of all candidates based on the
\nmarks obtained by them (totalling to 3474) (ii) separate list of
\ncandidates belonging to Scheduled Castes (553), (iii) separate list
\nof candidates belonging to Scheduled Tribe (62), (iv) candidates
\nbelonging to Baxi Panch (665), (v) Physically handicapped (108), thus
\ntotalling to 4862.\n<\/p>\n
8.\t\tThe
\nappointment of the petitioner was set aside on the ground of
\nmisrepresentation etc. Thus arose the question which has been
\nanswered by the learned Single Judge.\n<\/p>\n
9.\t\tAre
\noriginal petitioners or anyone of them said to be guilty of
\nmisrepresentation? The original petitioners have produced
\ncertificates of marks-sheets of examinations they have passed.
\nWhether the original petitioners were entitled to additional two
\nmarks for passing examination in special subjects or not was the
\nquestion which was the centre point of controversy between the
\nappllants on one hand and the respondents on the other hand. What was
\nthe relevant date on which the candidate must possess such
\nqualification was the question that was argued at length before the
\nlearned Single Judge initially. At that point of time it was
\nsubmitted before the Court by the respondents that by giving 2\/4\/6
\nadditional marks for passing examination in special subjects two
\ncandidates who were not entitled to such additional marks  the
\nSelection Committee has manoeuvred the select list and has thereby
\nwrongly included large number of candidates who were not entitled to
\nthe allotment of additional marks and therefore not entitled to be
\nincluded in the select list. In order to see that wrong allotment of
\nadditional marks for passing examination in special subjects do not
\nresult into exclusion of meritorious candidates, this Court with the
\nconsent of learned advocates for parties passed interim order on
\n28.12.1993. The order was self explanatory. At that time, it was felt
\nboth by the petitioners as well as respondents that if the marks are
\nallotted by the Selection Committee scrupulously as per circular
\ndated 7.8.1989 and if marks in the special subjects are allotted on
\nthe basis of possession of requisite qualification on the date of
\ninterview  and if same independent agency is also directed to remain
\npresent at a point of time when the select list is prepared,
\npreparation of such select-list would be beyond dispute and\/or
\nchallenge and that the petitioners as well as respondents shall abide
\nby such select list.\n<\/p>\n
10.
\nIt was in that situation that a Special Committee was constituted by
\nthe Court and such Committee was  directed to prepare the select list
\nafresh. The Committee was directed that for passing examination in
\nspecial subjects where two marks per examination were to be allotted
\nmust be allotted, but the candidate must possess such qualification
\non the date of interview which in the present group of  petitions
\nadmittedly took place on 28.2.1992. If the candidate possessed
\nprescribed qualification in any of the special subjects on 28.2.1992
\non his producing such original certificate and\/or xerox copies
\nthereof with undertaking to get confirmed from appropriate authority
\nbefore whom he has produced the original certificate within time to
\nbe stipulated by the Committee entitlement of such candidate for
\nallotment of additional marks was to be accepted. Accordingly,
\nSpecial Committee has undertaken the exercise and has produced the
\nfresh select list before this Court.\n<\/p>\n
11.
\nAs pointed out hereinabove the Committee has, in all, prepared 5
\nseparate lists. From out of 74 petitioners who instituted petitions
\nin this Court four petitioners were falling within the merit list
\nbecause of addition of two additional marks and such petitions being
\nSCA Nos.  10295, 10246, 10228 and 10237 of 1993 were allowed and with
\nthe consent of learned advocates for the parties orders of
\ntermination passed against those petitioners were directed to be
\nquashed and set aside. The Court was left with balance 70 matters
\nwhere because of orders of stay granted by K.G. Shah, J, the
\npetitioners are continued in service and are as on date continuously
\nworking from the date of their appointment as primary teachers in the
\nprimary schools run by Sabarkantha District Primary Education
\nCommittee.\n<\/p>\n
12.\t\tFurther
\ndevelopment took place during the course of hearing which has been
\nnoticed by  learned Single Judge. It is agreed between the parties
\nthat the Court may proceed to decide the rival submissions on the
\nbasis that 442 vacancies are required to be filled from the select
\nlist prepared by the Committee.\n<\/p>\n
13.\t\tLearned
\nSingle Judge after examining the arguments found that in the
\naforesaid fact situation, the course of action adopted by the
\nadministration was the only permissible course, if on the ground of
\nlarge scale irregularities allegedly committed by the Selection Board
\nthe entire select list is to be cancelled, such course of action in
\nthe context of irregularities may be upheld. However, in the facts
\nbefore this Court the respondent authorities did not want to set at
\nnaught the entire process of selection. They did not want to cancel
\nthe entire select list. They did not want to affect those meritorious
\ncandidates who were already appointed pursuant to their selection.
\nThey only wanted to confine their course of action vis-a-vis those
\ncandidates to whom additional marks for passing examination in
\nspecial subjects were wrongly allotted.\n<\/p>\n
14.
\nIt was orally contended by the authorities before the learned Single
\nJudge  that large number of meritorious candidates though applied
\nwere not at all called for interview and were therefore excluded from
\nconsideration but that ground ground was not pressed into service for
\ncancellation of the select list. Therefore, because of the stand of
\nthe respondent authorities before the learned Single Judge, it was
\nnot found  possible  to hold that the select list prepared by the
\nSelection Committee was unfair or injudicious or that it was vitiated
\nas a whole.  It was contended that the select list prepared by the
\nCommittee shall have to be operated partially and the aforesaid
\ndecision of the Supreme Court, in fact, would not support the
\nrespondents because they themselves have taken up the stand that the
\nentire select list is not vitiated. The auathorities want to defend
\nthe select list vis-a-vis those meritorious candidates who were
\nalready appointed but they wanted to challenge it vis-a-vis the
\ncandidates like petitioners to whom additional marks for passing
\nexamination in special subjects were allegedly allotted by the
\nSelection Committee.\n<\/p>\n
15.\t\tIt
\nwas seen that in none of the orders of termination except alleging
\nirregularity, any specific misconduct  is attributed to the
\ncandidate. In fact, no foundation was laid for holding that fraud was
\ncommitted by any of the candidates. Learned Advocate for authorities
\nalso could not substantiate the allegation of fraud as in none of the
\norders of termination specific fraud is attributed to anyone of the
\ncandidates nor is any element of fraud stated in the order or proved
\nbefore the Court. No specific allegation of nepotism or favourtism
\nwas made against any of the candidates. In the absence of such
\nallegations, question of proving the same could not arise. In cases
\nof most of the petitioners the stand of the  authorities was that two
\nmarks were wrongly allotted by the Selection Committee. In some of
\nthe cases the allegation is that more meritorious candidates were
\nleft out and appointments were given to the petitioners. When learned
\nAdvocate for authorities was confronted with a straight question as
\nto who are the candidates more meritorious and left out by the
\nSelection Committee the answer was that such candidates were not at
\nall called for interview. If such an allegation was to be accepted,
\nthe respondent authorities ought to have cancelled the entire process
\nof selection, but that exercise they have not undertaken. Those
\ncandidates who have allegedly applied, secured more marks and not
\ncalled for interview had not made any grievance before this Court or
\nbefore any other Court. They did  not bother to come to Court of law
\nat all. In this group of petitions, therefore, in the opinion of
\nlearned Single Judge, it was not  just and proper to take into
\nconsideration those candidates who were allegedly more meritorious
\nand who were not called for interview despite their better merits.
\nWhen such persons did not make any grievance before this Court or
\nbefore the respondent authorities and when they had not instituted
\nany proceeding in the Court of law it had to be assumed that they had
\nwaived their right and\/or they were not vigilant about enforcement of
\ntheir right if there can be said to be any. In this position,
\ntherefore, in the opinion of learned Single Judge it was  just and
\nproper to ignore consideration of such candidates who were allegedly
\nmore meritorious, who had applied for the posts but who were not
\ncalled for interview at all by the Selection Committee.  The
\nadvertisement is of 1991. One round of litigation was already over in
\nthe Court when C.K. Thakkar J, quashed the order of termination and
\nremanded the matter to respondents. At no stage since 1991, such
\nallegedly more meritorious candidates had challenged their
\nnon-consideration or exclusion from consideration.\n<\/p>\n
16.\t\tIn
\nthe show cause notice as well as impugned order of termination it is
\nalleged against the petitioners that they were guilty of
\nirregularity. Once again, the question is as to whether any
\nirregularity could be attributed to the petitioners. The only
\nfunction of the petitioners in the entire process of selection is to
\nmake application pursuant to advertisement along with necessary
\ncertificates and testimonials and marks-sheets. Based on such
\napplication and the marks obtained in relevant examination the
\nSelection Committee is to work out the total number of marks. Under
\nthe Govt. Circular also the Selection Committee had no power to allot
\nmarks beyond allotting marks for passing SSC, PTC examinations and 10
\nadditional marks for passing in special subjects such as Drawing,
\nPhysical Training, Sewing etc. The Selection Committee therefore also
\ndoes not possess any power to allot any marks for performance at
\ninterview and in fact it is not the case of the respondents that
\nmarks were allotted by the Selection Committee for performance at
\ninterview. In view of this peculiar method of selection which is more
\nor less objective and in which subjective element does not appear at
\nany stage, it is very difficult to appreciate as to how the
\npetitioners can be said to be guilty of any irregularity.\n<\/p>\n
17.
\nThe relevant date for considering the eligibility for additional
\nmarks was to be fixed by the Selection Committee. The candidates have
\nsimply submitted their certificates and marks sheets either in
\noriginal or xerox copies thereof. One fails to understand as to how a
\ncandidate can be said to be guilty of any irregularity if he has
\nsubmitted marks-sheet or certificate of passing examination
\nsubsequent to the date of advertisement but prior to the date of
\ninterview. The Selection Committee has with open eyes allotted marks
\nfor passing examination in special subjects. Irregularity, if any,
\ncan be said to have been committed by the Selection Committee. The
\ncandidates cannot be visited with penal consequences for such
\nirregularities allegedly committed by the the District Primary
\nEducation Officer or other members of Selection Committee or
\nsubordinate staff. In case of no petitioner, it is specifically
\nattributed to him that anyone  of the officers was related to the
\npetitioners or had taken special interest in the case of petitioner
\nfor extraneous considerations or has acted at the instance or under
\nthe influence of the petitioner. In the absence of any allegation of
\nthis nature it would be difficult for this Court to come to
\nconclusion that the petitioners were guilty of irregularity
\nattributed to them in the process of selection. From the nature of
\naffidavit-in-reply and the steps taken by the respondents against
\nerring officers it prima facie becomes clear that the fault lay at
\nthe doors of the authorities and not at the doors of the candidates.
\nThe authorities are absolutely justified in taking action against
\nsuch erring officers which they have already taken by initiating
\ndepartmental proceedings. This Court has no manner of doubt that in
\ncase the charges are established against such erring officers the
\nrespondents shall take appropriate action against such officers.
\nHowever, for any misconduct on their part irregularity of the nature
\nalleged cannot be attributed to the candidates and learned Single
\nJudge was of the opinion that the orders of termination of services
\nwhich are solely based on such allegation of alleged irregularity
\nwere not justified.\n<\/p>\n
18.\t\tIt
\nis contended by the candidates before the Court that even under the
\nprinciple of promissory estoppel the respondents should be estopped
\nfrom terminating the services of the petitioners inasmuch as acting
\non the printed order of appointment issued in their favour they have
\nacted to their detriment inasmuch as firstly some of the
\npetitioners resigned from service where they were already serving
\nwith a view to join the school at which postings were offered to them
\nby the respondents, secondly some
\nof the petitioners received appointment orders in other schools
\nsubsequent to the orders of appointment received from the respondent
\nauthorities and they preferred to continue with the respondent
\nauthorities and did not join the other posts of appointment, thirdly
\nsome of the petitioners received interview calls from various other
\nDistrict Panchayats for the post of Primary Teachers under their
\ncontrol, but they could not respond to such interview calls as they
\nwere already employed in the schools run by the respondents and
\nsecondly their original documents\/certificates\/testimonials and
\nmarks-sheets were retained by the respondent authorities for three
\nyears under the order of appointment and therefore in the absence of
\nsuch documentary evidence they could not appear before the other
\nauthorities in other Districts, fourthly
\nthey have already executed bond for an amount of Rs. 10,000\/- to
\nperform their part of contract i.e. to continue to serve as primary
\nteachers in the schools run by the respondents for three years and
\ntherefore they having changed their position to their detriment the
\nrespondents are now estopped from terminating their services.\n<\/p>\n
19.\t\tIt
\nwas further noted by learned Single Judge that petitioners of
\nfollowing SCAs are those who resigned from their existing job to join
\nthe services of the respondents or who despite receipt of their
\nappointment orders from other districts could not join.\n<\/p>\n
Special
\nCivil Application Nos. 1233, 10236, 10485, 10306, 10310, 10281,
\n10304, 10222 of 1993.\n<\/p>\n
20.\t\tSCA
\n10537\/92 –  The petitioner of this petition has actually received
\nappointment order from Kutch, Amreli and Baroda districts but could
\nnot resume in view of employment with respondents.\n<\/p>\n
21.\t\tSCA
\nNo. 11032\/93  –  The petitioner of this petition has actually
\nreceived appointment letter from Ahedabad District Panchayat but
\ncould not join in view of employment with respondents.\n<\/p>\n
22.\t\tPetitioners
\nof the following SCAs are those who actually received interview calls
\nfrom other district panchayats but could not report or join duties as
\nthe original documents were retained by respondent authorities:\n<\/p>\n
SCAs
\n18186, 10608, 10320, 10521, 10180, 10533, 10538 and 10536 of 1993.\n<\/p>\n
23.\t\tArguing
\nthe appeals, learned counsel for the appellant contended that
\nillegality as alleged is  writ large. Those who have been held
\nselected have been awarded marks they were not entitled to.\n<\/p>\n
24.\t\tLearned
\ncounsel contended that among appointment beyond 257 candidates was
\nimpermissible. The appointment of only such candidates could be made
\nas per Rule.\n<\/p>\n
25.\t\tAny
\nappointment which is the consequence of a process which is illegal
\ncannot in any way have the legitimacy. Any illegality be not
\npermitted to be continued.\n<\/p>\n
26.\t\tInvoking
\nof the doctrine of promissory estoppel is also not conducive in the
\nfacts of the present case.\n<\/p>\n
27.\t\tPer
\ncontra learned counsel for the candidates submitted that the
\ncandidates are in service since their first appointment. Any amount
\nof illegality in award of marks would not be sufficient to undo the
\nexperience they have gained in teaching. Their years of service and
\nthe experience gained would be lost if they were to be thrown out of
\nservice now.\n<\/p>\n
28.\t\tIt
\nwas further contended that those who could possibly be appointed in
\nplace of the incumbent have not raised any grievance at any point of
\ntime. They have abdicated in favour of the present incumbents. There
\nare no persons to be adjusted in place of the petitioners.\n<\/p>\n
29.\t\tIt
\nwas also pointed out that learned Single Judge has taken note of the
\nsituation wherein it is obvious that most of the original
\npetitioners, had they been not appointed by the selection in question
\nthen, had alternatives available to them. Now with the passage of
\ntime they will be left high and dry. They will not only not be able
\nto have any other employment but will have to remain jobless wasting
\nthe experience gained by them.\n<\/p>\n
30.\t\tIn
\nthe whole process no single incident has been indicated by
\nauthorities that the candidates ever intended to play any mischief.
\nIf they have been bona fide thrown out for reasons other than for the
\nreasons communicated by the officials they be not punished.\n<\/p>\n
31.\t\tWe
\nhave given our careful consideration to the facts of the case.  The
\nmost important aspect which stands out boldly is that the only
\nallegation against the appointments is that they could not have been
\nawarded 2\/4 marks which were awarded to them by authorities.\n<\/p>\n
32.\t\tIf
\ntheir question is objectively considered then it is more than obvious
\nthat the candidate had no say in the process at all. Whatever was
\ndone was done by the authorities without there being any active or
\npassive aid or involvement of the candidates. If the involvement of
\nthe candidate is excluded then any mala fide on the part of the
\nauthorities gets excluded positively.\n<\/p>\n
33.\t\tThe
\nresultant effect of the alleged wrong award of marks was that the
\nmeritorious candidates were excluded. They have never raised any
\ngrievance. In their absence if the candidate has occupied the
\nposition for almost fifteen years  then their shortcomings, if any,
\nwould get compensated by their experience.  In this background when
\nwe see that the candidates while joining the service in question had
\naltered their position to a level where they in some cases resigned
\ntheir present occupation then their case is required to be judged in
\nthat background also.\n<\/p>\n
34.\t\tIt
\nis also noteworthy that the original certificates were taken over by
\nthe authorities. This prevented the incumbents from pursuing their
\ncause for another employment. Thus, they rendered their services in
\nhapless situation.\n<\/p>\n
35.\t\tWhere
\nno active or passive wrong is attributable to the candidates, the
\ninfringements have to be attributed to the authorities. The result is
\nnot affected by the rightful claimants. Then disturbing the position
\nat this distance of time appears to be a very tough situation. It was
\nnoticed that a belated attempt at challenging the judgement is made
\nin the form of Letters Patent Appeal Nos. 1145, 1146 and 1147 of 1996
\nby the candidates who were excluded from consideration; but no
\nfurther attempt appears to have been made for even an early hearing
\nof the appeals. Therefore, even assuming that they were entitled to
\nconsideration for being more meritorious than the respondents, they
\ncould not be granted any relief by disturbing the impugned judgement
\nso as to accommodate them in service without their through a fresh
\nprocess of selection which, in any case, is impractical now.\n<\/p>\n
\t36.\t\tThus
\n\tin the peculiar facts and circumstances of this case where the
\n\tperson who could claim has not come forward in time, the defect was
\n\tof the system followed by authorities over which petitioners had no
\n\tcontrol. The situation has forced the candidates in a position where
\n\tif they are removed a greater injustice would  ensue. The defect was
\n\tvery minimal. No fraud or nepotism  was established. We would
\n\tcountenance the situation and would consider that in this particular
\n\tcase no interference be made. Thus, these appeals deserve no
\n\tconsideration. The same are, therefore, dismissed. The judgement of
\n\tlearned Single Judge is upheld.  Civil Applications are also
\n\tdisposed as not surviving. No costs.\n<\/p>\n
\t\tIn
\n\tview of above, no relief can be granted in this petition.  Hence
\n\tpetition is rejected.\n<\/p>\n
[K.S.Jhaveri,J.]<\/p>\n
*Himansu<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sangitaben vs State on 29 April, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print SCA\/5277\/2010 2\/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5277 of 2010 ========================================================= SANGITABEN KANTILAL PATEL & 1 – Petitioner(s) Versus STATE OF GUJARAT & 2 – Respondent(s) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-65517","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSangitaben vs State on 29 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sangitaben-vs-state-on-29-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sangitaben vs State on 29 April, 2010 - 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