POPATBHAI RAMJIBHAI MOGHARIYA Vs. DISTRICT JUDGE SURENDRANAGAR

JUDGEMENT

(1.) The three important questions which have surfaced for consideration in group of the present three petitions are - firstly, ''Whether in a case wherein the candidate stand to satisfy the requisite criteria as regards the age limit for appointment to any post on the date of publication of advertisement in the newspaper, and thereafter also, at the time of publication of the 'Select list' of such candidate for appointment, can he ever be denied the appointment only on the ground that subsequently on the actual date of his appointments, he has crossed the upper age limit so prescribed and that too for no fault of his own ? Secondly "Whether any candidate duly enlisted on the Select List if he is dropped from being considered for appointment on the ground of having crossed the upper age limit at the relevant time of his appointment, then whether he has any right to be informed about the same, by way of corresponding obligation on the appointing authority of its own to immediately inform him ?" and thirdly, "Whether the High Court in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution of India while issuing the writ of mandamus directing the respondent to give appointment to the petitioners with retrospective effect, is also competent to give further direction for payment of full hack-wages to the appointees?" 1.1 The facts and circumstances constituting the back-drop of aforesaid three questions are stated as under : .... ..... .... ....

(2.) Factual back-ground : In response to the advertisement dated 27- 2-1984 given by Mr. B. M. Trivedi, District Judge, Surendranagar which appeared in Gujarati daily "Gujarat Samachar" on 2-3-1984 for the post of English Section Writers, three petitioners herein, namely; (i) Popatbbai R. Moghariya, (ii) Jayshriben R. Pancholi, and (iii) Anil R. Sanghvi, applied for the same, and thereafter, subsequently qualifying the proficiency test, were called for interview. Thereafter, having passed all the requisite tests, petitioners were selected as English Section Writers to be appointed according to their respective numbers as mentioned in the Select List which came to be published on 19-1-1985 (Annexure "E"). In the said Select List, petitioners were listed at Serial Nos. 31, 16 and 30 respectively, they were so communicated by separate letters dated 19-1-1985. According to the petitioners, out of the selected 35 candidates, 15 were appointed in two batches somewhere in the year 1985-86, and accordingly, rest of the 20 candidates were to be appointed as and when appropriate orders of appointment were to be made, according to the administrative convenience and expediency. It is further the case of the petitioners that though their names were at Sr. Nos. 31, 16 and 30 in the Select List, yet to their utter surprise on 5-6-1989 leaving them aside, 11 other candidates, quite below their serial numbers in the Select List, came to be appointed vide appointment order dated 5-6-1989 (Annexure ' C"). The surprising part is that instead of the present three petitioners who were at Sr. Nos 31, 16 and 30 in the said Select List, other candidates, namely; (1) Rajnikant V. Shah, (2) Rajesh C. Vyas, (3) Jayant R. Balsania, (4) Kum. Kumud N. Bhatt, (5) Pratap J. Goshalia, and (6) Jitendra G. Ahmedabad at Sr. Nos. 32, 33, 18, 23, 26 and 28, respectively came to be appointed. On coming to know about the illegal appointments of the aforesaid candidates, Mr. Moghariya (one of the petitioners herein) voicing the grievance made a representation dated 7-6-1989 before the learned District Judge, Surendranagar. This was replied to vide letter dated 12-6-1989 stating therein that as the petitioner had crossed the upper-age limit, and accordingly not eligible for appointment, and therefore, he was not given appointment. It is under these circumstances that the petitioners have been constrained to approach this Court by way of filing the present writ petitions, inter alia praying - (i) to declare the Circulars dated 8-2- 1988 and 22-2-1988 issued by the High Court of Gujarat to the District Judge illegal and inoperative as violative of Art. 14 of the Constitution of India, and (ii) to issue writ of mandamus giving direction to the District Judge, Surendranagar to immediately give them their due appointments as English Section Writers from 5-6-1989, the date on which other candidates of the Select List from Sr. No. 16 onwards were given appointment, with all consequential reliefs.

(3.) Mr. Rupen M. Shah, the learned Advocate for the petitioners while challenging the impugned discriminatory action of the respondents submitted that the same was patently arbitrary, illegal and unjust. It was further submitted by Mr. Shah that the petitioners on coming to know that they have passed the interview and their names have figured in the Select List of 35 candidates, were hopeful enough expecting that after the first 15 candidates, they also in due course of time and turn would be given appointment. Mr. Shah further submitted that labouring under this hope, petitioners did not make any efforts to find out any employment elsewhere to maintain themselves and their family members. According to Mr. Shah thereafter till 1989 no appointment was made as the ban was imposed by the State Government on new appointments, and accordingly, the petitioners were hopefully further waiting for the ban to be lifted to get their rightful turn of appointment. In the year 1989, some of the candidates from the said Select List from Sr. No. 16 onwards came to be appointed, leaving the present petitioners to their utter misfortune. When this grievance was made before the learned District Judge, he expressed his inability to help the petitioners on the ground that on the said date of appointment, they had already crossed the upper age limit of 28. According to the learned District Judge, vide two circulars dated 20-11-1987 and 22-2-1988 issued by the High Court of Gujarat he was directed not to appoint any candidate who had crossed the upper age limit on the date of appointment. While attacking these two circulars, Mr. Shah submitted that the same were ex-fade unjust and illegal being quite against the settled legal position on the point. Under the circumstances what is now contended before this Court is that once the candidate stood to satisfy the requisite criteria as regards the age limit on the date of publication of advertisement, and thereafter also at the time of publishing the Select List of such candidates for appointment, merely because for the circumstances entirely beyond the control and for no fault of their, if the petitioners came to cross the upper age limit, that by itself cannot be made a ground to deny them their rightful appointment. Mr. Shah also submitted that at no point of time, the petitioners were informed by the learned District Judge that since they have already crossed the upper age limit, they were not entitled to get appointment. It is only when one of the petitioners made a representation to the learned District Judge that they were informed of their becoming ineligible to get appointment on the ground of having crossed the upper age limit. This according to Mr. Shah has caused great deal of prejudice to the future prospects of the petitioners. Mr. Shah further submitted that had indeed the petitioners been informed well in advance, or thereafter at appropriate time that since they have crossed the prescribed upper age limits, they will not be entitled to get appointment, the petitioners would have either tried their luck elsewhere, and perhaps, by this time might have settled in their respective jobs and/or would have challenged the impugned action at the earliest before this Court seeking redressal of their grievance. Mr. Shah further submitted that having been enlisted on the Select List and thereafter if their case was not to be considered, the petitioners had certainly a right to be informed that they were found not eligible for consideration to the appointment for which they have in fact passed the requisite proficiency test and interview. On the basis of the above submissions, Mr. Shah finally urged that all these petitions deserve to be allowed, and accordingly, the learned District Judge be directed to give appointment to the present petitioners from the date their names as par the Select List came to be superceded, alongwith other consequsntial benefits.