BHATT SNEHABEN MAHESHKUMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, direction and/or order to quash and set aside impugned order of termination dated 22.05.2009 (Annexure -O); to quash and set aside condition no.3 and 4 of appointment order dated 22.11.2008 (Annexure - I) and consequently it is prayed to direct reinstatement of the petitioner in service with continuity and all other consequential benefits. By way of amendment the petitioner has also prayed for appropriate Writ, direction and /or order quashing and setting aside State Government, Education Department's order dated 13.12.2001 and Government Resolution dated 16.03.1996 (Annexure S & T) in so far as to the extent to which they are contrary to the mandate of Hon'ble Supreme Court in the case of K.N.Shreenivasan v/s. Officer Commanding in Chief reported in 1996 (7) SCC 73 and to hold and declare that in the matter of recruitment of Vidya Sahayak / Primary teachers if no candidate from reserved category is available then procedure to be followed is to convert post into non-reserved post and offer the same to the candidate from non-reserved category and carry forward the post for the reserved category for which it was meant if carry forward rule exists and so permits.

(2.) Facts leading to the present Special Civil Application in nutshell are as under :-

(3.) Mr.K.B.Pujara, learned Advocate for the petitioner has submitted that even no proper percentage of reservation was maintained while issuing advertisement dated 25.01.2007 for recruitment of 15 vacancies. It is submitted that respondent no.3 issued advertisement on 25.01.2007 for recruitment of 15 Vidya Sahayaks possessing C.P.Ed qualification and out of 15 vacancies 1 was reserved for SC, 2 for ST, 8 for SEBC and only 4 were earmarked for open category candidates like the petitioner. It is submitted that in doing so respondent no.3 provided more than 50% of vacancies for reserved category which was clearly unconstitutional and contrary to law laid down by the Hon'ble Supreme Court in the case of Indira Sawhney v/s. Union of India reported in AIR 1993 SC 477. It is submitted by Mr.Pujara, learned Advocate for the petitioner that petitioner was ranked at Sr.No.5 in open category but as only 4 vacancies were notified in open category, the petitioner was placed at Sr.No.1 in waiting list of open category. It is submitted that if respondent no.3 had duly and correctly implemented the reservation policy at the relevant time by providing not more than 50 % for reserved category, in that case, the petitioner would have found place in selection list and there would not have been any occasion for this litigation.