1. By this O.A. the applicant has challenged the selection of respondent No. 2 as EDDA and has sought the following relief (s): (i) The impugned order, selection of Respondent No. 2 be please treated as illegal, void and bad in law and against the recruitment rules and be please quash and set aside.
(ii) The Respondent authority be please directed to redo the selection procedure strictly keeping the instructions of the department in mind and considering the qualifying when passed S.S.C by more than one attempt having exemptions in any subject as per university rules and regulations.
2. The applicant's case is that after Shri M.J. Shukla retired, the post of EDDA was filed on provisional basis by appointing Shri J.H.Bhatt and after terminating the services of Shri J.H. Bhatt the applicant was appointed on provisional basis with effect from 2.6.2000.
However, his services were terminated with effect from 3.8.2000 and Shri P.J. Ratnotar, respondent No. 3, was appointed as EDDA on provisional basis with effect from 3.8.2000 (Annexure A-1). Thus applicant's first arguments is that provisional appointee can not be replaced by another provisional appointee therefore his termination is bad in law and the appointment of Shri P.J. Ratnotar be quashed and set aside. The next contention is that when applications were called for the post of EDDA on 5.1.2000 (Annexure A-2) he had also applied for the said post as he fulfilled all the conditions. Therefore, when respondent No. 2 was appointed the applicant had questioned the appointment, however he was informed by the authorities the respondent No. 2 has more marks, therefore, he is selected candidate. According to the applicant the selection of respondent No. 2 is wrong and respondent No. 2 had passed SSC in two trials therefore, his marks cannot be treated as more than 35% and he has no income or property in his own name and was also facing a criminal case C.R. No. 80/98 dated 3/4.12.98 and respondent No. 2 had even attended the Court also on 19.8.2000, 6.9.2000 and 10.10.2000 in the criminal case, thus such a person could not have been selected. On the other hand the applicant has stated that he had passed 12th standard and S.Y. B.Com and also had experienced of two years, apart from having income and property in his own name therefore, according to the applicant by all comparison the applicant is a better candidate than the respondent No. 2 and shall have been appointed as EDDA.3. The respondents have opposed the O.A. and haveexplained that the post fell vacant on 24.5.2000 on superannuation of Shri M.J. Shukla, till regular selection was to be completed the post could not have been kept vacant so it became necessary to fill the post on provisional basis and as per the instructions issued by the Department the provisional appointment was changed after two months accordingly three persons were given provisional appointment. As far as regular selection is concerned, they have submitted that requisition was sent to the employment exchange and a local notification was also issued but there was no response from the employment exchange even though seven applications were received in response to the local notifications. Out of these seven, four candidates were found to possess preferential educational qualifications including the applicant herein but no further scrutiny it was found that Shri Bhatt Jatin Hasmukhray was under aged so he was not considered for the post and only three persons were considered. They have further explained that minimum required qualification for the post of EDDA is 8th Standard pass and weightage is to be given to the candidates had passed matriculation, therefore, the preferential qualification was taken to be SSC and since all three candidates had passed SSC in second attempt, therefore, their marks in SSC were seen for making the selection and the respondent No. 2 had scored the highest marks in SSC apart from fulfilling the other eligibility conditions therefore he was selected. They have further submitted that it is correct the respondent No. 2 had not mentioned about the criminal case in his attestation form but when the attestation form was forwarded to the District Magistrate Bhavnagar for verification of character and antecedents on 18.9.2000 it was returned on 5.12.2000 with no adverse notings against the applicant except that an offence was registered against the applicant under Section 506 (2), 504 r.w. Section 114 of IPC but vide order dated 12.10.2000 delivered by the District Magistrate, the applicant was acquitted of the charge.
Accordingly a regular order dated 2.1.2001 has been issued appointing the respondent No. 2 as regular EDDA. They have also annexed the income certificate duly verified by ailoverseer (Annexure A-5). The respondents have thus stated that there is no illegality in the orders passed by the respondents and the O.A. may be dismissed.
4. We have heard both the Counsel and perused the pleadings. The Counsel for the applicant had stressed on three points which shall be dealt with one by one. The first contention was that one provisional appointee could not have been replaced by another provisional appointee and since applicant was replaced by Shri P.J. Ratnothar on provisional basis, applicant's termination was bad in law and the same is liable to be quashed. It is correct that the Courts have generally been taking the view that one provisional appointee could not be replaced by another provisional appointee and if this is strictly adhered to in the instate case, then applicant's appointment itself has to be held illegal as he had also replaced Shri Bhatt who was also appointed on provisional basis, however since Shri J.H. Bhatt never challenged his termination or the appointment of applicant herein, we need not go into that aspect at all. Therefore, we have to see whether respondents were resorting to provisional appointment and whether there was any malafide or arbitrariness in their actions. The respondents have explained that after the regular incumbent Shri M.J. Shukla had retired on 24.5.2000 the respondents had already given requisition to the employment exchange in advance on 5.1.2000 itself but till the regular selection was finalised they could not have kept the post vacant so relying on the instructions issued by the respondents, they gave provisional appointment to persons for two months only. In the mean time the regular selections were being processed so even though the instruction to give appointment on provisional basis is held to be in consonance with the judgments of Courts, "yet we do not find any malafide or arbitrariness in the actions of respondents as they have explained their actions to our satisfaction. More over the private respondents has already been given a regular appointment also so in a way this contention has become infructuous at this stage. Nevertheless the respondents are directed to observe the principle that provisional appointee should not be replaced by another provisional appointee unless there some justified reasons. Admittedly the applicant was relieved from the post and the other person had taken over charge who has since been regularly selected and appointed also, therefore the first argument would not apply in this case. The second contention was that since the private respondents did not disclose that he was involved in a criminal case and he had even attended the criminal court on, three dates he could not have been appointed as he had suppressed this material fact from the authorities. It is correct that suppression of facing criminal case is a material fact and it ought to have been disclosed but whether pendency of any such criminal case itself would be sufficient to deny the applicant is arguable. It is for the employer to analyse the facts of each case after looking at the judgment and if they are satisfied that inspite of criminal case a person concerned can be given appointment the Courts cannot say that such a person should not be given appointment. In the instant case it is seen from Annexure R-1 that respondents had clearly inquired from the District Magistrate to specifically report whether the candidates was suitable for giving job or not and if not the grounds for expressing the opinion, Annexure R-2 the report of District Magistrate clearly states nothing adverse was noticed against Ralmodar Pravinbhai however, an offence under Section 506 (2), 504, 114 was registered against the applicant vide C.R. No. 80/98. However, the offence under Section 504, 114 were compromise was recorded, while offence under Section 506 (2) he was acquitted by the Court similar report was sent by the office of D.G. of Police Intelligence Gujarat (Annexure R-3) and the judgment was also enclosed along with the report. Counsel for the respondents had also placed copy of the judgment before the Court but the same is in Gujarat since both of us did not know Gujarat we wanted an English translation of same but since both the Counsel agreed to translate the said order in English without any dispute we accepted the said order and placed it on record. The translation as done by the respondents Counsel conveyed that the offence under Section 504, 114 were compromised and in view of the compromise accused were acquitted and as far as offence under Section 506(2) was concerned, the accused was tried, but in the absence of any evidence he was acquitted of the charge on merits. This position was not disputed by the applicant's Counsel. Now the question that comes for consideration is who is to decide whether applicant should be given appointment in given facts or not. Our reply is definitely the power lies with the appointing authority and once the appointing authority comes to the conclusion on analysing the judgment that a person acquitted in a criminal case can still be given appointment, the Courts cannot say such a person should not be appointed nor can we hold such appointment as illegal because such decision is taken by the competent authority consciously. We definitely cannot sit on appeal on the decision taken by the appointing authority. Therefore, the second contention of applicant's Counsel is also not sustainable. The third contention of applicant's Counsel was that since the applicant was more qualified than the private respondent and the private respondent did not have any income in his own name, his selection is bad in law and applicant being the better candidate ought to have been appointed as EDDA. Here again since the minimum qualification required for the post of EDDA is 8th class pass preference was to be given to the matriculates, the respondents rightly took the decision that the SSC is to be the preferential education and since all the candidates had passed the SSC in second attempt. In our opinion they rightly took the marks of SSC for selecting the candidates. Simply because the applicant was over qualified or more qualified than the SSC, he could not have been given any extra marks for the same. We have seen the proceedings which clearly shows that respondent No. 2 has scored the highest marks in SSC and we have been shown the income certificate issued by the Talati-cum-Mantri and Sarpanch of Poprali Gram Panchayat which was duly verified by the Mail Overseer also. Therefore, we do not find any illegality in the selection of respondent No. 2. The law is well settled that an eligible person only has a right for consideration and it is seen that the applicant was duly considered by the selection committee he can not claim appointment as a matter of right because that would depend on the selection which depends on the highest marks and since respondent No. 2 had got the highest marks naturally he has been selected by the selection committee. The applicant has not selection committee, therefore, there is no reason to interfere even otherwise in the selections made by the selection committee.
5. In view of the above discussion we find no case has been made for interference by the Tribunal, therefore, the O.A. is dismissed with no order as to costs.