1. Mr.T.R.Mishra, learned advocate for the petitioners has requested the Court to takeup this matter for final disposal as the pleadings are completed and controversy is in narrow compass. Shri Manish J. Patel, learned advocate appearing for the respondent submitted that there can not be any objection to such request, as now there is nothing more to add by way of any further affidavit and the pleadings are over. Hence, Rule. The service of Rule is waived by Shri Manish J. Patel, learned advocate for the respondent. Rule is fixed at the consent of the learned advocates for the parties.
2. The petitioners by way of this petition have approached this Court invoking Articles 14, 16 and 226 of Constitution of India with following prayers.
(A) That Your Lordships be pleased to issue an order, direction or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to immediately issue appointment orders to the petitioners for the post of Multipurpose Health Worker (Male) and be pleased to direct the respondent to pay and continue to pay the salary from 27/09/2012, the date on which other selected candidates have been allowed to resume their duties;
(B) That Your Lordships be further pleased to declare and hold the impugned action of the respondent in not allowing the petitioners to resume duty only on the ground that the petitioners have passed Diploma in Sanitary Inspector’s course from outside Gujarat, as illegal, arbitrary, discriminatory, violative of Articles 14 and 16 of the Constitution of India;
(C) Pending admission and final disposal of this petition, Your Lordships be pleased to direct the respondent to immediately allow the petitioners to resume duty forthwith.
3. The facts in brief as could be culledout from the memo of the petition deserves to be setout as under for the sake of convenience.
3.1 The petitioners are holding valid Certificates of passing “Sanitary Inspector” examination from the University setup under the Act of State legislature namely “Manav Bharti University”, Solan under the Act of 22 of 2009 passed by the State Legislature of Himachal Pradesh as Private University. Pursuant to an advertisement dated 05/08/2011 inviting candidates for the post of Multi Purpose Health Worker (Male) ClassIII, by the Gujarat Panchayat Service Selection Board, the petitioners putup their candidature and after undergoing the test, written test etc., they were declared successful. Though, petitioners were declared successful and should have been appointed, no appointment orders were issued, whereas other candidates figuring in the result were given appointment from 21st September, 2012. The petitioners approached the authorities, but without any avail, as they were told that the appointment letters are to be issued only after verifying the status of the University where from the Certificate is issued with regard to passing of Sanitary Inspector’s examination. The petitioners were thus, not given any appointment orders, they were constrained to file this petition invoking Articles 14, 16 and 226 of Constitution of India on the grounds mentioned in the memo of the petition.
4. Learned advocate for the petitioner invited this Court’s attention to the averments made in paragraphs no.3 and 4 of the petition and contended that there was no earthly ground available for making an inquiry, which would have justified nonissuing of the order of appointment to the petitioners. Infact, the document at page26 dated 23/10/2009 issued by the State Government is very clear qua the admissibility and acceptability of the certificates issued by Universities and Deemed Universities for the purpose of appointment to the post of Sanitary Inspector. This document is dated 23/10/2009 and the same is therefore, could not have been overlooked by anyone much less by the person who is under obligation to act in accordance with law and who happens to be the appointing authority so far as the post is concerned.
5. Learned advocate for the petitioners thereafter invited this Court’s attention to the documents in form of Circular dated 16th January, 1978 and submitted that even on plain reading of the said Circular would also indicate that the document at page26 is in consonance with the aforesaid Circular and therefore, the authorities did not have any reason for nourishing any doubts qua admissibility or eligibility of the certificate of the candidates as such.
6. Learned advocate for the petitioners contended that the reply affidavit and the documents annexed thereto clearly indicate that for reasons, which cannot be justified, the appointment orders were not issued. Counsel invited this Court’s attention to page38, which is a communication dated 29th September, 2012 addressed by the Chief District Health Officer of Panchayat to Additional Director, Health & Medical Services and Medical Education, State of Gujarat seeking clarification and annexing therewith communication dated 17th November, 2009 which is actually a letter and by circulating the same, the Additional Director, Health has invited all the concerned that as per the Government Resolution dated 23rd October, 2009 (which is the document produced at page26) the course is run by the Universities recognized by University Grants Commission (U.G.C.) under the University Grants Commission Act and the institution, which are deemed to be Universities under Section3 of U.G.C. Act are acceptable and accepted as valid courses for the purpose of appointment to the District Multi Purpose Health Worker (Male). This communication dated 29/09/2012 contains clear reference to the communication dated 17/11/2009, but for the reasons best known to the author of the communication dated 29/09/2012, he has overlooked the clear direction, otherwise there was no occasion to issue the letter dated 29/09/2012. The nonissuance of the appointment order is thus clearly on account of reason, which cannot be said to be legal and/or justified from any angle and therefore, the action is nothing but arbitrary, capricious and accentuated on account of malafide on the part of the concerned authorities.
7. Learned advocate for the petitioners thereafter, invited this Court’s attention to page40 and submitted that this document clearly indicate that the concerned authority or the officers working under him or the panchayat officers were bent upon postponing and/or stalling the eventuality of issuance of appointment order as the Director, Labour and Employment and Training would be not the authority, who could have guided or issued any direction to the concerned panchayat.
8. Learned advocate for the petitioners thereafter invited this Court’s attention to page45, which is produced by the authority themselves, wherein it is clear that the institute in question namely “Manav Bharty University” is an institution duly figuring in the list published by U.G.C. on its website. The communication addressed to U.G.C. is also nothing but an exercise undertaken for delaying the eventuality of issuance of appointment orders.
9. Learned advocate for the respondent submitted that the University, where from the Certificate is obtained is not deemed University by the U.G.C. under Section3 of the U.G.C. Act. The University is not covered by Section3 of the U.G.C. Act and therefore, a specific letter is addressed to Additional Director, Health, on 29th September, 2012, and his guidance was requested. Learned advocate for the respondent also pleaded that the appointment orders have not been processed on account of the clarification, which were requested from various authorities and in the mean time, the communication was received on 16th October, 2012 from Gujarat Seva Pasandgi Board for stopping the recruitment as the select list was required to be revised on account of orders passed by the Court and it was further pleaded that on account of declaration of Assembly Election in the State, the Code of Conduct did not permit appointment of the petitioners and therefore, petitioners are not entitled to any relief.
10. Learned advocate for the respondent, however, could not controvert from the record that the certificate accompanying the candidature and application of the petitioners was issued by “Manav Bharti University” and said University is established as State Private University under the State Legislature Act No.22 of 2009 of Himachal Pradesh and notified under Section2 (f) with a right to confer degrees as per Section22 of 2009 of U.G.C. Act. The said certificate is not in any manner disputed qua its contents. But, as it is not one of the deemed University under Section3 of U.G.C. Act, the concerned authorities were required to make more probing into this aspect, which has resulted into delaying in issuance of appointment orders.
11. Learned advocate for the respondent had to concede to the fact that the communication at page26 that is circular dated 23/10/2009 indicate unequivocally that the Health Sanitary Inspector’s course run by Universities recognized by U.G.C. and the institution recognized as deemed University by virtue of Section3 of U.G.C. Act are recognized to be valid course for appointment to the post of Sanitary Inspector. Therefore, he submitted that the Court may pass appropriate order.
12. The Court has heard learned advocates for the parties and perused the documents.
13. Before adverting to the rival contentions, it is most essential to setout following undisputed aspects emerging from the record as under :
(i) The petitioners have submitted Certificate issued by “Manav Bharti University”, which is a University established as State Private University under the State Legislature Act No.22 of 2009 of Himachal Pradesh and the said certificate contains the following : (Established as State Private University under State Legislature Act No.22 of 2009 of Himachal Pradesh and notified under section 2(f) with the right to confer degrees as per section 22 of the UGC act, 1956, Govt. of India) Thus, it is not under dispute that the certificate, which was produced by the petitioners unequivocally contain facts, which could not have been doubted and which are not infact doubted by the authority, as it is not the case as the Certificates are forged or they are not obtained after following due procedure. In short, the veracity of the certificate is not a question before the authority in any manner. What is question before the authority is whether the course which led to issuance of certificate was recognized by the State Government for the purpose of making appointment on the post of Multi Purpose Health Worker (Male) (hereinafter referred to as M.P.H.W. for the sake of brevity).
(ii) The State has infact issued circular on 16th January, 1978 for the purpose of all the recruiting agencies concerned in respect of recognition of Decree/Diploma/ Certificate for the purpose of recruitment to the post and services under the State Government. This circular contains absolutely unequivocal direction, which is required to be setout as under :
(a) In case of Degrees/Diplomas awarded by Universities in India which are incorporated by an Act of the Central or State Legislature in India and other educational Institutes by an Act of Parliament or Declared to be deemed as Universities under Section 3 of the University Grants Commission Act (1956), no formal orders recognising such degrees/diplomas should be issued by Government. Such degrees/ diplomas should be recognised automatically, for the purpose of employment under the State Government.
(b) Similarly, no orders are required for the formal recognition of any certificate or diploma awarded by Boards of Secondary and Intermediate Education duly set up and recognised by the Central or the State Government concerned.
Thus, it would become amply clear that since 1978 their exists general direction issued by the State through its circular by the General Administration Department that in case of Degree/Diploma Certificate awarded by Universities in India, which are incorporated by Act of the Central or State Legislature in India and other educational institutions established by an Act of Parliament or declared to be deemed as Universities under Section3 of the U.G.C. Act, no formal orders recognizing such degree/ diploma should be issued by the Government. Such degrees/diploma should be recognized automatically for the purpose of employment under the State Government. (emphasis supplied)
(iii) The petitioners have produced document issued by the Health and Family Welfare Department, State of Gujarat especially in respect of Sanitary Inspector Course recognition dated 23/10/2009, which could be said to be clear and unequivocal direction to all the concerned in respect of recognition by the State of the Course of Health Sanitary Inspector run by University recognized by U.G.C. and Universities, which are deemed to be Universities under Section3 of the U.G.C. Act.
(iv) The documents annexed at AnnexureH, page28 is a document dated 17th November, 2009, which is document issued by the Commissioner, Health & Medical Services and Medical Education, which reiterates the contents of the letter and document, which is referred to hereinabove dated 23/10/2009 and which is in terms referred to communication at item no.2 under the heading reference.
(v) The respondents have not comeout with any other pleadings, which would have justified their action of nonissuance of appointment orders. In other words, the appointment orders are not issued to the petitioners only on account of doubt nourished by the respondent qua the status of “Manav Bharti University”, which led him to undertake inquiries in this behalf.
(vi) The averments made in paragraph no.3 of the petition have not been controverted by the concerned authority or the respondents in any manner. The averments made in para3 clearly indicate that other similarly situated successful candidates were given appointment orders and pursuant to this order, they resumed their duties from 21/09/2012. Thus, had the authority read the documents in its true perspective and not raised doubt qua “Manav Bharti University”, then the petitioners also would have been permitted to resume their duties on 27/09/2012. The similarly situated candidates of the said select list were issued letters of appointment and all of them resumed duties on 27/09/2012. Therefore, it is prayed in the memo of petition that the petitioners are deprived of their legitimate right to be appointed for no valid reasons, hence, appropriate relief should be granted.
(vii) The petitioners have placed on record the document in the form of information issued by the department, which have not been controverted in any manner, which indicates that the list of Universities issued and placed by the U.G.C. on its website have been accepted and recognized by the General Administrative Department also. The same document further contains that the degree/diploma issued by Universities established by Parliament or State Legislature or the institution established by law, and recognized deemed Universities have been recognized to be valid degree/diploma for the purpose of recruitment in the State. This information was obtained by concerned person, which is placed on record so as to support the case of the present petitioners also.
(viii) Learned advocate for the respondent has not pointed out anywhere as to on what count the University i.e. “Manav Bharti University” is not to be treated as recognized University. In other words, learned advocate for the respondent has not indicated as to under which provision of law the respondent authorities could brushed aside the certificate issued by “Manav Bharti University”. As the documents adduced by respondent on the record also contains the name of this University as could be seen from page45. However, it was attempted to show that as it is a private University, which was required to be recognized as deemed University.
14. Against the backdrop of the aforesaid factual aspects, this Court is to examine the contentions raised in the petition and the reply.
15. The respondents case is not that the University is not recognized nor is it a case of the respondent that the University is not setup by the Act of State Legislature in form of Act of 22 of 2009, State of Himachal Pradesh. Bearing this facts in mind, if one looks at the provision of U.G.C. Act namely Section2 F and Section3, it would become amply clear that no further recognition in any other form is required or warranted. These facts and provision of law is required to be viewed from the various circulars, resolutions issued by the State of Gujarat. The first in point of time so far as present controversy is concerned could be profitably referred to Circular dated 16th January, 1978, wherein also it is unequivocally provided that the Course run by such Universities are accepted to be valid course for recruitment in the State of Gujarat. The same proposition is time and again reiterated and clarified so as to eradicate any possibility of doubt in any manner. The communication dated 23/10/2009, page26 is again unequivocally clear on this aspect. The communication dated 17th November, 2009 is also reiterating the same by in terms referring to communication dated 23rd October, 2009. The information given to citizen under communication dated 29/09/2007 placed on record at page17 also unequivocally indicate that the same is in consonance with the Circular of the year 1978. When all these documents are there and when the Certificates accompanying the applications of the petitioners are not said to be forged, then in my view there was no justification whatsoever for doubting the status of the University. The exercise, which is undertaken following the reply of examining the U.G.C. Website could have been sufficient and there was no requirement of seeking further clarification from the authorities as could been seen from the documents on record. The contentions with regard to malafide omission in issuing the order to the petitioners cannot be discarded at all, as the respondents have chosen not to deal with the averments made in paragraphs no.3 and 4 of the petition. The tenor of replyaffidavit, an attempt to press into service the direction issued by the Selection Board and commencement of Code of Conduct on account of declaration of election betrays uncanny and unjustified attitude of public authority in illegally depriving the citizens like petitioners of their legitimate right to be employed, as there was absolutely no reason for nourishing any doubt qua the status of “Manav Bharti University” as such. The status of “Manav Bharti University” is unequivocally clear and the degree/diploma certificate given by “Manav Bharti University” could not be in question in any manner. The creation of doubt qua the status of “Manav Bharti University” and subsequent attempts to receive information from concerned and nonresponse or reply from the concerned and the omission to issue appointment order, in my view is nothing but an attempt to justify the omission of not issuing the order without any legal reason. The Court is of the considered view that therefore, this petition is required to be accepted and allowed and the prayers made thereunder are required to be granted.
16. The question arise as to whether the prayer qua emolument from 23/10/2009 could be granted or not. In these facts and circumstances of the case, the Court is of the view that ordinarily when there is some semblance of doubt and justification of such doubt is existing, then the candidates may not be entitled to claim wages as if they were appointed and therefore, such a prayer could not have been accepted. However, in a peculiar circumstances of the present case, whether the documents mentioned hereinabove unequivocally make it clear that there was no room of any doubt so far as the status of “Manav Bharti University” is concerned, then only on account of figment of imagination on the part of the concerned authority, which did not have any justification in law, has resulted into depriving of the petitioners from their wages from the date from which they would also have started earning their wages from 27/09/2012. The date 27/09/2012 is the date, which is mentioned in the memo of petition and it is mentioned by the petitioners clearly on oath that other similarly situated selectees received appointment orders and pursuant thereof they resumed on 27/09/2012. The petitioners were willing and ready to resume on 27/09/2012, and if the doubt was not raised, then, they would have been permitted to resume as the counsel has submitted at bar that their appointment orders were infact ready, but were not issued on account of the doubt, which was unfortunately raised by the concerned authority, which persuaded him not to issue appointment orders. The doubt nourished by the authority is absolutely not a ground for denying the legitimate right of the petitioner or else it will act as denial of the right to the petitioners under Article14 of the Constitution of India.
17. However, there was not any justifiable reason or any semblance of justification in the omission to issue appointment order, then certainly the Court is consider it proper to grant wages from 27/09/2012. The denial to issue appointment orders for absolutely unjust, improper and imaginary reason has resulted into depriving petitioners of their right to earn wages from the date when other similarly situated selectees have been appointed and receiving their wages. Therefore, this Court is of the considered view that the petition is required to be allowed and it is hereby allowed and ordered that the respondent shall issue appointment orders to the petitioners forthwith treating them to be at par with others and give them wages for the period for which they were kept forcibly out of employment. The State would be at liberty to recover the said amount from the concerned officer, who has deprived petitioners of their legitimate right to be appointed on the post from 27/09/2012 and it would be open to the State to inquire and hold inquiry against the said officer and in case, if it is found to be reasonable to impose appropriate penalty, then it may include recovery of said amount from the wages and monitory benefits available to the officer concerned. With these observations, this petition is allowed. Rule made absolute. No order as to costs.
Rathod...
(S.R.BRAHMBHATT, J.)