1. When the application is called out and taken up for hearing, learned advocate Mr. Oza for the applicant is not present. However, learned advocate Mr.Yogesh Shelat has appeared for the applicant. Learned advocate Mr. Joshi has appeared for respondent no.2.
2. In present application, the applicant has prayed for below mentioned relief/direction:
"(A) That this Hon'ble Court may kindly be pleased to open the sealed cover and declare the result of the petitioner and to fix the date for final hearing of the matter."
3. So as to consider and appreciate the relief prayed for by the applicant in present application it is necessary to take into account the subject matter of the petition being Special Civil Application No.15439 of 2011.
4. In the said petition, the petitioner i.e. present applicant has prayed for below mentioned reliefs and directions:
"9(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents their agents and servants to consider the petitioner for appointment on the basis of his first appointment letter dated 18/1/2010 at Annexure-D.
OR IN THE ALTERNATIVE 9(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents their agents and servants not to declare the final results of the interview or to keep one post of Medical Officer, Class-II vacant till the petitioner is given an opportunity of being considered for appointment by taking his interview."
5. After considering the submissions by the petitioner and the defence of the respondents, the Court (Coram:A.S.Dave, J.) passed order dated 21/11/2011 in the said petition. The said order reads thus:
"Heard learned advocates for the parties.
Mr. Bhushan Oza, learned advocate for the petitioner relied on Clause 6 pertaining to age relaxation for the employees in the service of Government of Gujarat on permanent or temporary basis continuously for a period of six months and in such a case age limit is to be considered from the first date of the appointment and if such an appointment is within age limit, case of the candidate is to be considered pursuant to subject advertisement for the post of Medical Officer (Allopathy) Class-II as advertised by respondent NO.2. It is also submitted that the petitioner was called for the interview and thereafter his name came to be deleted.
Against the above submissions, Mr. Premal Joshi, learned advocate for the GPSC relied on the affidavit-in-reply and submits that after the above initial appointment on ad hoc basis for 11 months which was on 18.1.2010, a break in service was given and thereafter again on the same terms and conditions w.e.f. 28.12.2010, the petitioner was given a fresh appointment.
If the above factual aspect is considered in the backdrop of proviso of Rule 8(5) of Gujarat Civil Services Qualification and Recruitment (General) Rules, 1967, the upper age limit prescribed for purpose of recruitment in such rules shall not apply to a candidate provided such candidate had not crossed the age limit prescribed for the concerned post at the time of his previous appointments and, therefore, in the last appointment the petitioner was over age and had crossed 35 years.
The above proviso needs to be interpreted in light of Clause (6) of the advertisement which refer to requisite age limit of a candidate at the time of first appointment. The matter deserves consideration.
Hence, Rule returnable on 15th December, 2011.
Meanwhile, by way of ad-interim relief respondent NO.2 is directed to interview the petitioner for the subject post. However, the result be kept in sealed cover and action to be taken subject to order that may be passed by this Court.
Direct service is permitted."
6. It is noticed that by the said order, the Court has admitted the petition and made rule returnable on 15/12/2011.
7. By the same order, the Court also granted interim relief directing the respondent no.2 to interview the petitioner, however, the result is directed to be maintained in sealed cover. It is also clarified that any action which may be taken by respondent no.2 shall be subject to the order that may be passed by the Court in the petition.
8. Despite the said order, now the applicant has come out with present application seeking above mentioned relief i.e. direction to the respondent to open the seal cover and declare the result of the petitioner. If the said relief is granted, then it would amount to modifying the interim relief granted by the Court earlier i.e. to maintain the result in the sealed cover. Any reason to justify or modification of the interim relief granted after hearing the contesting parties, is not made out. Besides this, having regard to the nature and scope of the petition and subject matter of the petition, the Court is not inclined to grant such relief at this stage particularly when the Court has considered the defense of the respondent while admitting the petition. Therefore, the relief for direction to open the sealed cover is not accepted and not granted.
9. However, so far as the petitioner's request to fix the matter for final hearing is concerned, the registry is directed to take into account the fact that the Court has, under order dated 21/11/2011 made the process of rule returnable on 15/12/2011. Therefore, the office shall take necessary steps to list the matter in cause list of final hearing according to its seniority, however, after keeping in focus the direction by the Court while admitting the matter and making the rule returnable.
10. With the aforesaid clarification, the Civil Application stands disposed of.
(K.M.THAKER, J.) (ila) Top