SCA/24535/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24535 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = PATEL HARESHKUMAR RAMESHBHAI Versus THE STATE OF GUJARAT AND OTHERS ========================================= =Appearance : MR KB PUJARA for the Petitioner, MR SP HASURKAR, ASSTT GOVERNMENT PLEADER for Respondent Nos. 1& 2. MR HS MUNSHAW for Respondent No.3 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 29/04/2008 ORAL JUDGMENT 1. RULE. Mr. S.P. Hasurkar, learned Assistant Government for respondent Nos. 1 and 2, and Mr. H.S. Munshaw, learned advocate for respondent No.3, waive service of Rule. 2. The case of the petitioner is that 1% mark has been wrongfully SCA/24535/2007 2/4 JUDGMENT deducted from his entitlement. According to the learned counsel for the petitioner, the policy, which the State Government has envisaged for selection of Vidhyasahayaks in the year 1998-1999, nowhere mentions that, 'if a candidate takes up more than one attempt in SSC examination, then marks allotted to him for being qualified the SSC, would be deducted by 1%'. In the instant case, 1% mark has been deducted for the reason that he having first attempted in Science stream, had taken another attempt in General Stream and, thus, unfavourable situation has been created against the petitioner by deducting 1% mark, which has resulted into rejection of his selection. 3. After having heard the learned counsel for the parties and having looked the communication of the Government placed on record of this case, wherein certain questions, raised during the course of hearing, which are formulated by respondent No.3 and sent to the Director of Primary Education for answer, have been answered by the Director of Primary Education. In answer to question No.4, the Director of Primary Education has said at his own wisdom that he has ordered for deduction of 1% marks where Vidhyasahayak Recruitment is concerned, for the purposes of determining the merit, if the candidate has taken more than one attempt. When source was sought to be identified, in 1998-1999 Scheme, it was not found anywhere. There has been no source available to make such orders to the Director over and above the SCA/24535/2007 3/4 JUDGMENT Government Policy. It is noticed that such change was also not notified in the advertisement or otherwise by the respondents. The power exercised by the Director and admitted by him in communication dated 19.3.2008, shows that it has over-reached the State Government policy. He has no power to formulate any such Scheme, whereby the established schemes of the Government turn prejudicial to the candidate. Such kind of exercise of power, can be seen as the attempt to usurp the power not vested with the authority. Having done so, the petitioner has been disfavourably considered. In that view of the matter, the order deserves to be quashed and the case of the petitioner will be rejudged by adding 1% marks in his merit and accordingly, the decision will be taken by respondent Nos. 2 and 3 considering that the deduction of 1% mark was illegal and uncalled for. 4. The petition is disposed of. Rule made absolute accordingly. The learned counsel for the petitioner prays that the petitioner should be appointed and paid salary from the date his juniors were appointed. Asking for pay will be too much of the asking because such prayer cannot be countenanced due to the principle of 'No work No Pay'. Since the question of seniority is concerned, that will be considered by respondent No.3. While passing the appointment order, a deemed date may be given. Direct service is permitted. SCA/24535/2007 4/4 JUDGMENT (BHAGWATI PRASAD, J.) omkar