(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI) 1. We have heard learned counsel Mr.K.M.Antani for the appellant and Mr.Urshit Oza, learned AGP for the respondents.
2. This Letters Patent Appeal has been filed challenging the judgment of the learned Single Judge dated 5.11.2012 passed in Special Civil Application No.12039 of 2012. It is not disputed that in pursuance of an advertisement, results were declared on 16.9.2011. The petitioner could not be declared successful, as he had obtained only 8 marks in Computer Practical whereas he was required to obtain 10 marks. The select list was published on 16.9.2011 and its validity was only for one year. One candidate, namely, Kalpeshkumar Natvarlal Patel resigned on 22.3.2012, which was accepted on 29.6.2012. The respondents have issued a call letter to the petitioner, but instead of selecting the petitioner, they have issued a fresh advertisement.
3. The learned counsel for the appellant has urged that once the respondents have called the petitioner for the post, which fell vacant due to resignation of Kalpeshkumar Patel, the petitioner should have been appointed on that post.
4. We are not in agreement with the learned counsel for the appellant for the reasons that if Mr.Kalpeshkumar Patel or any other candidate would not have joined the post, then the vacancy could be been filled form the waiting list. But once the candidate joined the post, then the vacancy is deemed to be filled and if resignation is tendered thereafter, then such post has to be filled in by issuing fresh advertisement.
5. Learned counsel for the appellant has relied upon two decisions rendered by the Hon’ble Apex Court, namely, AIR 1998 SC 2779 – National Buildings Corporation Ltd. Vs.S.Raghunathan and AIR 2010 SC 1955 – Secretary, Cannanore District Muslim Education Association, Kanpur Vs.State of Kerala. Legitimate Expectation may not arise where a post is filled and, thereafter, vacancy falls, such vacancy has to be filled in the subsequent selections. For the reasons, the decisions cited by the learned counsel for the appellant are not applicable to the facts of the case and, therefore, the Doctrine of Legitimate Expectation’ will not come into play.
6. For the aforesaid reasons, we do not find any illegality in the impugned order passed by the learned Single Judge. This appeal, therefore, lacks merit and is accordingly dismissed.
(V.M.SAHAI, J.) (binoy) (S.G.SHAH, J.)