COMMISSIONER OF HIGHER EDUCATION Vs. PRAJAPATI AMRUTBHAI SOMABHAI

JUDGEMENT

(1.) This Special Civil Application under Art. 226 of the Constitution of India has been filed by the Commissioner of Higher Education against the decision of the Gujarat Affiliated Colleges Services Tribunal rendered on 28- 1-1994.

(2.) The respondent No. 1 was serving as Accounts Clerk at Sabar Arts and Commerce College, Prantij. Advertisement was issued by respondents Nos. 2 and 3 inviting applications for appointments on the post of Accounts Clerk and the respondent No. 1 applied for the same in response to the notice inviting applications dated 7-8-1992. For making recruitment against the posts advertised vide Notification dated 7-8-1992, the office of the Commissioner of Higher Education, i. e., the present petitioner had issued No Objection Certificate on 27-7-1992. Not only that, the representative of the petitioner also participated when the interviews were held on 29- 12-1992. The respondent No. 1 was selected for the said post and appointment order was issued on 7-1-1993 in favour of respondent No. 1 by respondents Nos. 2 and 3 giving appointment to him on the post of Accounts Clerk. Despire the appointment order dated 7-1-1993 the respondent No. 1 was not allowed to join on the ground that on 19-1-1993 a Circular was issued that 10 per cent of the posts should not be filled in and if that Circular was to be acted upon, the respondent No. 1 could not be appointed. At this juncture, the respondent No. 1 approached the Gujarat Affiliated Colleges Services Tribunal. The Tribunal has decided the matter in favour of the respondent No. 1 on 28-1-1994 and, thereafter, the respondent No. 1 joined as Accounts Clerk on 11-2-1994 after being relieved from Sabar Arts and Commerce College, Prantij, District Sabarkantha on 10-2-1994. The respondent No. 1's case is that he has been working since 11-2-1994 but no salary is being paid to him and the respondent No. 1 filed a contempt petition before the Division Bench of this Court and a notice was issued returnable on 16-8-1994 calling upon the petitioner to show cause. That contempt petition is yet pending and it came up before the Court after 16-8-1994 on 31-8-1994 and was adjourned to 12-9-1994. In the meantime after a lapse of about eight months, the petitioner preferred this Special Civil Application on 2-9-1994 and the argument of respondent No. 1 is that obviously this Special Civil Application has been filed as a counter to the contempt petition.

(3.) The factual position, as narrated above, is not in dispute. However, the argument of the learned A.G.P. for the petitioner is that the Circular dated 19-1-1993 requiring 10 per cent of the posts to be kept unfilled was issued in pursuance of the Finance Department Resolution dated 28- 10-1991 and, therefore, respondent No. 1 could not have been appointed on 7-1-1993. The argument of the learned A.G.P. for the petitioner is that the Gujarat Affiliated Colleges Services Tribunal's order dated 28-1- 1994 suffers from an error apparent on the face of the record inasmuch as the Circular dated 19-1-1993 cannot be said to be giving retrospective effect because it was issued in pursuance of the Finance Department Resolution dated 28-10-1991 whereas the appointment order was issued on 7-1-1993 and further that no employer could be forced to fill up the vacant posts.