In present petition, the petitioner has prayed for below mentioned reliefs/directions:- “8(a) Issue a writ of mandamus or a writ in the nature of the mandamus or any other appropriate writ, order or direction quashing and setting aside the clause 2(b) of the impugned Resolutions dated 25.02.1980 and 11.10.2005 passed by the Respondent No.1 & 2 to the extent that it seeks to reduce the marks obtained by the open category candidate placed last in the select list;
(b) Issue a writ of mandamus or a writ in the nature of the mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned Resolutions dated 25.02.1980 and 11.10.2005 passed by the Respondent No.1 & 2 as it does not prescribe for any percentage or number of seats reserved in favour of sports candidates; or
(c) In the alternate direct that the impugned Resolutions ought to be read down to mean that the total reservation, for all categories including sports, does not exceed 50% of the seats for which the recruitment process is undertaken in accordance with the ratio laid down in the Indra Sawhney case by the Apex Court;
(d) In the alternate direct the Respondent No.1 to amend the impugned Resolutions and prescribe a fixed percentage or number of seats which would be reserved for sports candidates in any recruitment process;
(e) Direct Respondent Authority to reinstate the Petitioner in service retrospectively at the post where the Petitioner was last serving or at any other post which this Hon'ble Court deems fit along with back wages from the date of removal of Petitioner from service i.e. from 22.11.2010; &”
2. So as to consider and appreciate the abovementioned relief prayed for by the petitioner in present petition, it is relevant and necessary to take into account some of the relevant facts involved in present petition.
2.1 It emerges from the record that in April-2008, the respondent State Government had issued and published an advertisement for conducting selection process for the post of ATD Vidhya Sahayak.
2.2 The petitioner herein had participated in the said selection process by submitting his application.
2.3 At the end of the selection process, the petitioner was selected and placed at Sr.No.7 in the final select list.
2.4 Subsequently, appointment order in favour of the petitioner was issued and accordingly, the petitioner joined the service as Vidhya Sahayak. He was granted posting at Harduli Primary School, Ta. Nirjad, Dist. Tapi. He accepted the said appointment and joined the service as Vidhya Sahayak at the said school.
2.5 It also emerges from the record that around that time one of the candidates viz. Mr. Vijaykumar Prabhudas Patel who had also participated in the said selection process which was conducted pursuant to the advertisement issued in April-2008.
The said candidate Mr. V.P.Patel was aggrieved by the final select list and that therefore, he preferred a writ petition being Special Civil Application No.888 of 2010 mainly on the ground that he was a sports person and that therefore, in view of the Government Resolution dated 25.2.1980, the benefit of the policy as per said GR dated 25.2.1980 ought to have been granted to him and instead of addition of 5% marks in the total marks obtained by him, actually 5 marks from the marks obtained by the last candidate ought to have been reduced.
The said petitioner in Special Civil Application No.888 of 2010 was aggrieved because the marks were not calculated in the manner which he considered to be appropriate as per the GR dated 25.2.1980.
Hence, he preferred the said petition wherein about 7 candidates including present petitioner were impleaded as party respondents.
2.6 The learned Single Judge considered the said petition and vide order dated 21.10.2010, after considering the said GR dated 25.2.1980, allowed the petition in favour of the said petitioner i.e. Mr. V.P.Patel.
2.7 It is pertinent to mention even at the cost of repetition that the present petitioner was party respondent in the said writ petition being Special Civil Application No.888 of 2010 and the said GR and its effect were also considered by the Court while deciding said petition.
At this stage, it is necessary to mention that the learned Single Judge, in the said order, after hearing the concerned parties including present petitioner and after considering the GR dated 25.2.1980 came to the conclusion that the appellant Mr. V.P.Patel was wrongly deprived of appointment and that the last candidate of the list (respondent No.11 in the said petition) i.e. present petitioner will be the affected person and his appointment will have to be cancelled and instead the petitioner i.e. Mr. V.P.Patel will have to be offered appointment.
Accordingly, as a result of the said decision, the appointment of present petitioner was directed to be cancelled, and consequently, it came to be cancelled.
2.8 It was present petitioner who challenged the said order dated 21.10.2010 passed by the learned Single Judge in the said petition by way of Appeal viz. Letters Patent Appeal No. 2643 of 2010.
2.9 The Hon’ble Division Bench heard and considered the said appeal preferred by present petitioner and after hearing, the said appeal was dismissed.
2.10 The petitioner herein, felt aggrieved by the decision in the appeal, hence present petitioner carried the matter before the Apex Court.
After hearing, the Apex Court upheld the order of the Hon’ble Division Bench and the Special Leave Petition was rejected.
Now, when the said order has attained finality and present petitioner is, in view of and on account of the directions contained in the said order dated 21.10.2010 is out of service upon being relieved in compliance of the said order, he has come out with present petition seeking above mentioned reliefs/directions.
It deserves to be recalled at this stage that it was the petitioner who had preferred Letters Patent Appeal and the Special Leave Petition before the Division Bench and the Apex Court against the decision by the learned Single Judge declaring his appointment contrary to the GR. Accordingly, present petitioner has prosecuted the issue until final stage and the decision has attained finality.
3. It can be seen from the relief prayed for by the petitioner in present petition and particularly para-8(E), the petitioner has prayed for relief of reinstatement in service retrospectively at the post where he was last serving.
4. As noticed earlier, present petitioner’s appointment came to be set aside by decision dated 21.10.2010 in Special Civil Application No.888 of 2010 and the said decision has, after the order passed by the Hon’ble Apex Court, attained finality.
5. Now, under the guise of challenging the validity of GR dated 25.2.1980 which was duly considered by the learned Single Judge and the Division Bench while hearing and deciding the petition being Special Civil Application No.888 of 2010 and Letters Patent Appeal No.2643 of 2010, the petitioner herein is claiming reinstatement which implies that this Court should now, impliedly put at naught the order passed by the learned Single Judge in Special Civil Application No.888 of 2010 which came to be confirmed by the Division Bench and the Special Leave Petition against which has been rejected.
6. If the relief prayed for by the petitioner in present case is granted, it would amount to indirectly and impliedly setting aside the orders passed in Special Civil Application No.888 of 2010 and the subsequent proceedings which ensued therefrom.
Needless to state that this Court cannot pass such an order.
7. It is pertinent that the challenge in the petition being Special Civil Application No.888 of 2010 was raised by the said petitioner Mr. V.P.Patel in light of and on the strength of the GR dated 25.2.1980 and on the basis of the provisions contained therein, the petitioner in the said petition had claimed the relief.
After consideration of the provisions contained in the said GR dated 25.2.1980, the learned Single Judge came to the conclusion that the appointment of present petition was required to be cancelled and the petitioner in the said writ petition being Special Civil Application No.888 of 2010 was required to be granted appointment.
Therefore, now, under the guise of challenging the validity of said GR, the petitioner cannot approach this Court and raise contentions on the ground of resolution’s validity with a view to substantiating and supporting his claim for reinstatement. The aspects related to present petitioner's appointment and his termination are concluded finally in the previous petition i.e. Special Civil Application No.888 of 2010 and that therefore, the relief prayed for by the petitioner in present petition cannot be entertained.
8. In view of and as a result of foregoing discussion, I am not inclined to entertain present petition in view of the decision dated 21.10.2010 in Special Civil Application No.888 of 2010, as confirmed by the Hon’ble Division Bench and then upon rejecting of Special Leave Petition by Apex Court, this Court cannot entertain present petition which indirectly and implied seeks appointment / reinstatement of the petitioner which is ordered to be cancelled by the Court in the aforesaid order.
The petition therefore fails and deserves to be rejected and is accordingly rejected.
(K.M.Thaker, J.) kdc