Delay In Appointment Due To No Fault Of The Candidate Cannot Be Allowed To Result In Delayed Promotion: Gujarat High Court
A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate. Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board...
A single judge bench of the Gujarat High Court consisting of Justice Biren Vaishnav held that delay in appointment, when entirely attributable to the employer and caused due to no fault of the candidate could not be allowed to result in a delayed promotion for the said candidate.
Briefly, the facts of this case are that the Gujarat Panchayat Services Selection Board issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (Male). The petitioner applied for the same online. He was placed at Serial No. 677, as his written test marks were 55.80 and he got additional 2.79 marks for sports, making his total 58.59.
He was later called for verification of documents. Here he presented himself with a certificate issued by the Principal of Shri Saraswati Vidya Mandir certifying the petitioner's proficiency in cricket. The Rajkot District Panchayat Services Selection Board informed him that he would not be entitled to the additional 2.79 marks for sports as the certificate was of a school. The petitioner wrote a letter to the respondent indicating that even if his marks for the sports were not considered, he would still be on merit, therefore, he did not insist on the additional marks.
The petitioner was not issued an order of appointment on 01.10.2012 like other candidates who were able to join by 03.10.2012. Instead, he was offered an appointment on 08.07.2013 which he accepted and joined on 09.07.2013. Based on this date of joining, the petitioner was placed at merit seniority No. 184 in the seniority list. This petition was filed challenging the said seniority list as the petitioner contended that his placement should not be at Serial No. 184 in list, rather, it should be at Serial No. 105- A
The counsel for petitioner submitted that the candidates who were offered appointment along with the petitioner and who joined on 03.10.2012 were placed on the seniority list at Serial No. 105 , merit order 985 and at Serial No. 106 merit no. 1053. Since the petitioner had a higher merit than the candidate at 106, he was entitled to placement at 105-A. The candidates shown at 106 and 107 have subsequently been based on this placement promoted as Multi-Purpose Health Supervisors by an order of 08.03.2019. The petitioner thus submitted that there was no delay on his part which could go against him as it was a delay purely attributable to the respondents who, despite the petitioner accepting the stand of the respondents of not insisting a certificate of cricket issued an appointment order only after nine months and eight days.
Per contra, the counsel for respondent submitted that since the petitioner could not produce the Sports Certificate in accordance with the rules, he was addressed a letter dated 03.10.2012 to submit the same within four days. He did not do so. Though the petitioner was not holding a requisite Sports Certificate for availing the benefit of additional marks, he had misrepresented his case while submitting his application by providing incorrect information for availing employment. Thus, it was submitted that the delay was solely on account of the petitioner for which the authorities could not be held responsible.
The court held that the delay could not be attributed to the petitioner who had immediately within four days offered himself without insisting for the Certificate of Cricket and on consideration of the merit at 55.80 minus the score of 2.79 percent of cricket. The court relied upon the observations of the Supreme Court in the case of M.C.D vs. Veena (2001) 6 SCC 571 in which, the Supreme Court on facts found that even when the OBC certificate was not produced, the respondent was considered in the general category.
Thus, the court held that–
"Immediately, after offering appointment to the petitioner, the petitioner stepped back accepting the stand of the respondents in not insisting for his Sports Certificate being considered. The respondents reacted and responded in appointing the petitioner only on 08.07.2013 which was a delay purely attributable to the respondents. Pending the petition, the candidates at serial numbers 106 and 107 have been appointed as Multi Purpose Health Supervisors. The petition is allowed, accordingly. The consequential effect of quashing the placement at 184 of the petitioner would entitle the petitioner for being promoted to the post of Multi Purpose Health Supervisor with effect from 08.03.2019 with all consequential benefits including arrears of pay."
Case Title : BHALODIYA RAVIKUMAR JAYNATILAL Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 226