RAJENDRASINGH AMRUTLAL RAO vs. STATE OF GUJARAT

C/LPA/1290/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/LETTERS PATENT APPEAL NO. 1290 of 2018 In R/SPECIAL CIVIL APPLICATION NO. 15022 of 2018 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2018 In R/LETTERS PATENT APPEAL NO. 1290 of 2018 ========================================================== RAJENDRASINGH AMRUTLAL RAO Versus STATE OF GUJARAT ========================================================== Appearance: MR VAIBHAV A VYAS(2896) for the Appellant(s) No. 1 MS MANISHA L SHAH, GOVERNMENT PLEADER for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV

Date : 18/06/2019

ORAL ORDER (PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) 1. Conscious we are that we are exercising jurisdiction under Clause 15 of the Letters Patent in an intra court appeal, that too, when the learned Single Judge has exercised jurisdiction not to extend the discretionary relief under Article 226 of the Constitution of India. However, the facts in the present case indicate that the petitioner deserved discretion. Extension to join at the appointed place was denied by cancelling the appointment. The petitioner, due to pressing domestic circumstances, when his wife had undergone the trauma and was recuperating from Carcinoma requested that he being the sole male member, be given time to join at the Page 1 of 11

C/LPA/1290/2018 ORDER place of his posting. The authorities refused to do so, hence the petitioner invoked Article 226 of the Constitution of India. 1.1 Compassion and consideration of equity and justice have not been banished from the proceedings under Article 226 of the Constitution of India. Power of the writ Court in its very nature is aimed at doing substantial justice. In the words of Justice Krishna Iyer, rule of law is not to petrify life or be inflexibly mulish. The State while cancelling the appointment of the petitioner refused to consider the extenuating circumstances faced by him which could have been considered by extending the time to join due to the pressing domestic circumstances, which it did not. Under these circumstances, on facts and reasons hereinafter we have thought that complete justice needs to be done in granting the relief in favour of the appellant. 2. This appeal, under Clause 15 of the Letters Patent, arises out of the oral order dated 27/09/2018 passed by the learned Single Judge in the Writ Petition, wherein the petitioner - appellant had challenged the order dated 15/09/2018 passed by the State Authorities, by which, the appointment given to the appellant - petitioner to the post of District Jail Superintendent, Class-II came to be cancelled. The learned Single Judge upheld the order of cancellation and dismissed the petition. 3. The facts which are not in dispute can be profitably reproduced from the judgement of the learned Single Judge and they are as under: Page 2 of 11

C/LPA/1290/2018 ORDER “3. It appears that pursuant to process of recruitment undertaken by the Gujarat Public Service Commission for the post of District Jail Superintendent, Class II, petitioner having participated successfully, his name came to be recommended in the category of Socially and Economically Backward Class, for appointment. Pursuant to the recommendation of GPSC dated 03rd May, 2018, a communication was addressed by the State Government asking him to report as District Jail Superintendent at Palara Jail, Bhuj, within 30 days. In that letter it was unequivocally stated that failure of reporting to duty at the place mentioned

would

necessarily

entail

the consequences of deletion of name of the petitioner from the list of selected candidates and that no correspondence would be entertained in that regard. 3.1 It appears, however, that petitioner requested for extension of time to join by writing a letter dated 06th August, 2018. The reason cited was the surgery of his wife which took place on 15th September, 2017, before one year, but urging that certain follow up care was necessary and therefore, requesting for extension of time for 30 days. The authorities acceded to the request to grant 15 days time. In view of this extension, the petitioner was required to report on 23rd August, 2018. 3.2 The petitioner did not join but again addressed a letter dated 20th August, 2018 seeking further extension of 30 days. The Department acted lenient towards the request of the petitioner and as a last opportunity, gave further time of seven days so that the petitioner may report to join the duties of the post to the appointment of which he was recommended. The petitioner still did not join even after getting the repeated extension. His last date for joining was 04th September, 2018. Instead of joining, the petitioner again requested by letter dated 04th September, 2018 to allow further extension for 90 days to join. The respondents were very much liberal and asked the petitioner to join as a last chance on or before 11th September, 2018. The petitioner did not avail this third opportunity Page 3 of 11

C/LPA/1290/2018 ORDER too.” 3.1 By the impugned order, the learned Single Judge held that, had the appellant a genuine reason not to report, he could have first reported by joining and requested for leave. According to the learned Single Judge on all occasions the appellant disregarded his obligation to join and abide by the extended time limit which was granted thrice. 4. Mr. Vaibhav Vyas, learned Counsel for the appellant has taken us through the records of the petition and the accompanying annexures. He submitted that the entire process of recruitment for the post was carried out after a long time and the post had remained vacant for long and it was not the case of the department that there was shortage of supervisory staff and that the administration was suffering. The order cancelling the appointment according to Mr. Vyas does not state that the termination is due to administrative exigency. He further submitted that the order of termination was hastily passed and sent by a personal messenger. 4.1 Mr Vyas further submitted that the learned Single Judge erred in observing that the appellant had no intention to join. Had it been so the appellant would not have asked for extension of time. The extensions were asked for as a result of serious ailment of the wife and her subsequent treatment and therefore there were genuine reasons to ask for such extensions. The result of the cancellation of the appointment would be that the appellant would now never be able to apply as he would be rendered ineligible due to being overage. Page 4 of 11

C/LPA/1290/2018 ORDER 5. Ms Manisha Lavkumar, learned Government Pleader has supported the order of the learned Single Judge. It is her submission that the GPSC would now like to operate and appoint the next candidate in line and therefore pendency of the appeal is thwarting the administration from filling up the post of the District Jail Supreintendent and the work is suffering. She further submitted that the department had shown enough indulgence and had extended the time limit thrice and therefore the learned Single Judge was right that having given three extensions the respondent State had shown enough indulgence. 6. Having considered the submissions of the respective advocates, at the cost of repetition, we need to appreciate the circumstances under which the appellant had asked for extensions to join on the post and the unfortunate fall out of the appointment being cancelled. a) On the appellant's selection to the post of Superintendent, District Prison-Class-II in the SEBC category, the respondents issued an appointment order dated 9.07.2008. The appellant was to be posted on the supernumerary post of District Jail Superintendent- Class-II at Palara (Bhuj). As per one of the conditions of the appointment order, the appellant was required to join the service within a period of 30 days from the date of the appointment order. Therefore, it was incumbent upon him to join on or before 8.08.2018. b) The appellant wrote a letter dated 6.08.2018 requesting the respondent authority to extend the period Page 5 of 11

C/LPA/1290/2018 ORDER of joining by 30 days. The letter needs to be read so as to appreciate the context in which it was so written. It was pointed out in the letter that the appellant's wife was suffering from Papillary CA Thyroid. A medical certificate of Dr. Devendra Patel was attached showing that she had undergone surgery on 1/08/2017. The medical advise was that after treatment she was going to be under observation and was required to undergo follow-up scan of the whole body on 13.08.2018 and thereafter she would need 30 days to recuperate. It was under these circumstances that the appellant asked for extension of time for 30 days. c) By a communication dated 10.08.2018, the time was extended for 15 days. d) On 20.08.2018, the appellant informed the respondent that the appellant's wife had undergone whole body iodine dose treatment at Ahmedabad on 15.08.2018 for Carcinoma Thyroid and was to be kept under observation for 30 days. Therefore, a second extension was sought for for a period of 30 days. Necessary Medical Certificate was annexed. d) By a letter dated 29.08.2018, the appellant was asked to join duties within 7 days. e) The appellant once again by a letter dated 4.09.2018 pleaded that circumstances were unavoidable and therefore he being the only male member in the family time to join be extended by 90 days. Page 6 of 11

C/LPA/1290/2018 ORDER f) By a letter dated 6.09.2018, the appellant was informed to join duty on or before 11.09.2018. g) In the background of these facts, the respondent by the impugned communication dated 15.09.2018, received through a special messenger terminated the appointment of the appellant. 7. The impugned communication reveals that the according to the authority despite two extensions the appellant had not joined. He could have joined and asked for leave which he did not and on the contrary asked for further extension of 90 days. Having not done so the appointment was cancelled. 8. It is specifically averred in the petition and in the appeal memo that prior to the recruitment process pursuant to which the appellant was appointed the earlier recruitment process for appointment to the post in question was undertaken by the GPSC before a period of a decade. The statement is not refuted by the respondents. Be that as it may. Letters of extensions written by the appellant together with the medical papers annexed thereto indicate that the appellant was facing adverse family circumstances. His wife was battling a serious ailment and had undergone a surgery for Carcinoma Thyroid. Just when the appointment order's first joining time was to expire on 8.08.2018, the wife during that period was to undergo whole body scan and iodine scan, which she did on 15.08.2018. The medical advise specifically stated that she would need 30 days to recuperate after that. In this context, the extensions were sought for. Admittedly as the same is not Page 7 of 11

C/LPA/1290/2018 ORDER denied, the appellant was the only male member in the family who could take care of his wife, who was battling the debilitating disease. With respect to the view taken by the learned Single Judge, such adverse family circumstances could not be labelled as showing that he had no intention to join the duties. 9. It may have been perceived by the authorities that in the event the appellant had genuine reasons, he could have joined and then asked for leave. Possibly the department could have or may not have sanctioned leave, that is in the realm of surmises and conjectures, not for us to judge. What needs to be seen is, the appellant had genuine adverse family circumstances when his wife was undergoing the trauma of recuperating from Carcinoma. The appellant was the sole caretaker. Had he joined, as perceived by the department, there was no guarantee that leave could be granted immediately on his joining the post. Alternatively if the department was amenable to sanction leave as so made out from the termination order, then it could have been more compassionate to the realities and extended the tenure of reporting. It was not therefore a case that the administration was suffering. If the post had remained vacant as no recruitment in the recent past had been made and that the perception of the respondent was that the appellant could have asked for leave, then the discretion, in the circumstances, that the appellant faced, could have been exercised in favour of the appellant. 10. The present is not a case where a candidate selected and appointed was weighing other better options and therefore Page 8 of 11

C/LPA/1290/2018 ORDER seeking extensions. Nor is it a case that the circumstances that the appellant faced were fanciful or irrelevant. The man had an ailing wife who needed care. The department ought to have looked at the case from the point when, the candidate had genuine pressing circumstances, knowing that granting of extensions would not jeopardise the administration, which evidently was not the case, if the post had remained vacant and the department was willing to give leave. 11. That, whether the Court, in exercise of powers under Article 226 of the Constitution Of India should have granted the relief in the peculiar facts of the present case that the petitioner prayed for? In our opinion, yes it could have and, in the facts of the case, ought to have. 12. It will be in the fitness of things to quote the observations of the Apex Court in the case of Dwarka Nath vs Income Tax Officer,Special Circle,D Ward,Kanpur AIR 1966 SC 81 which read as under: “Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised was designedly used by the Constitution. The High Court can issue writs in the nature of prerogative writs as understood in England, but the scope of those writs also is widened by the use of the expression "nature", which expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. The High Courts are enabled to Page 9 of 11

C/LPA/1290/2018 ORDER mould the reliefs to meet the peculiar and complicated requirements of this country” 12.1 The case on hand is one where the discretionary relief ought to be exercised in favour of the appellant. The compelling circumstances, genuine and pressing required the appellant to seek extensions to report pursuant to the Appointment Order issued on 9.07.2018. Applications for extension are vocal enough of the genuineness so reflected. It cannot be said that the appellant had no intention to join on the appointed post. Discretion ought to have been exercised with compassion in granting extension of time to join the post, as prayed for, rather than cancel the appointment by the impugned order. In exercise of powers under Article 226 of the Constitution Of India it was a case where the appellant had reached out to seek justice and it ought to have been rendered by moulding the relief looking to the facts and circumstances of the case. 13. The factors which in short have weighed with us are that the wife of the appellant was undergoing a serious ailment, he was posted at Bhuj whereas he resided at Gandhinagar and therefore looking to the distance between two cities it would not even be possible that the appellant could have joined duty and simultaneously taken care of his wife suffering from an ailment which also needed post operative care and therapy. We have also considered the fact that now he is overage and therefore denying him the relief sought for would be a grave injustice to him as he has been selected after rounds of examinations. Considering the genuineness of the reasons cited by the appellant, we deem it fit to give him one last opportunity to join his duties on the post he is so selected. Page 10 of 11

C/LPA/1290/2018 ORDER 14. For the reasons as aforesaid, in the peculiar facts and circumstances of the present case, we quash and set aside the oral order dated 27/09/2018 passed by the learned Single Judge dismissing the Petition. The order dated 15/09/2018, impugned before the learned Single Judge cancelling the appellant's appointment is also quashed and set aside. The respondents are directed to permit the appellant to join the post of District Jail Superintendent, Class II, at Palara (Bhuj), Special Jail, forthwith, pursuant to a fresh appointment order which may be issued by the respondents within a period of one week from today. Considering the fact that the post is vacant for the last one year pursuant to the issuance of the appointment order, the appellant is directed to join the post, in consequence of the directions given to the respondent to appoint the appellant on the post, without any further delay, within a period of one week from the date of receipt of the appointment order. The appeal is accordingly allowed. Civil Application stands disposed of. (ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 11 of 11