IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 268 of 2009
With
SPECIAL CIVIL APPLICATION No. 3929 of 2009
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DALAL ABDULJAVID MUSTUFA - Petitioner(s) Versus PRINCIPAL DISTRICT JUDGE & 2 - Respondent(s) =========================================================
Appearance :
MR PM LAKHANI for Petitioner(s) : 1,MRS RP LAKHANI for Petitioner(s) : 1, MR MEHUL S SHAH for Respondent(s) : 1 - 2. LAW OFFICER BRANCH for Respondent(s) : 2, GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 28/08/2012 C.A.V. JUDGMENT 1.00. As common question of facts and law arise and with respect to common select list, both these petitions are heard, decided and disposed of together by tis common Judgement and Order.
2.00. Special Civil Application No. 269 of 2009 has been preferred by the petitioner for appropriate writ, order and/or direction to quash and set aside the impugned select list dtd.29/7/2008 and to direct the respondent to prepare fresh select list including the name of the present petitioner.
2.01. By way of amendment the petitioner has prayed for appropriate writ, order and/or direction directing the respondent No.2 – Registrar, High Court of Gujarat to frame and fix the specific rules, regulations and formula for recruitment, advertisement, selection procedure, selection list, reservation and period to keep the waiting list operative etc. for the recruitment of staff in lower/subordinate courts and its set up.
2.02. It is also further prayed to issue appropriate writ, order and/or direction directing the respondent No.3 – State Government to approve and to take necessary decision with respect to Draft Rules submitted by the Hon’ble High Court within reasonable time and to all needful in this regard.
2.03. It is also further prayed for appropriate writ, order and/or direction to inquire about the way and method adopted by the respondent Nos.1 and 2 in preparing the list of candidate eligible for the post as per the advertisement and also to inquire that why and under what circumstances, the petitioner’s name has been deleted which was already in the select list.
3.00. Special Civil Application No. 3929 of 2009 is preferred by the petitioner serving as a Part-time Sweeper in the court of learned Civil Judge, Judicial Magistrate (First Class), Sahera, District Panchmahals, to quash and set aside the impugned select list dtd.10/10/2009 for the post of Peon, Class-IV prepared by the respondent No.3 herein for the post of Peon, Class-IV in the District Court, Panchmahals as well as subordinate courts in the District Panchmahals.
3.01. It is also prayed for appropriate writ, order and/or direction to hold that the action on the part of the respondent authorities in not including the name of the petitioner for the post of peon is illegal and arbitrary.
3.02. It is also prayed for appropriate writ,order and/or direction to quash and set aside the selection procedure adopted by the concerned respondent authority in giving appointment to the post of peon, class-IV and also in preparing the impugned select list dtd.10/10/2008 and also filling up the post of peon, class-IV as and when vacancies arise in future from amongst the candidate whose names have been figured in the impugned select list dtd.10/10/2008.
4.00. A grievance voiced in both these Special Civil Applications is that the concerned respondent authorities inclusive of the Hon’ble High Court of Gujarat has not framed any rules for recruitment of staff in subordinate courts in Class-II, Class-III and Class-IV and still Government Resolution of the year 1957 is followed for the appointment of the employees in Class-III and Class-IV in subordinate courts in the State.
5.00. It is the case on behalf of the petitioners that the applications were invited without specifically mentioning the number of actual vacant posts and anticipated posts to be vacant in future. It is submitted that even long select list / waiting list has been prepared and the same is implemented for years together. Therefore, it is the case on behalf of the petitioners that recruitment is being made in the subordinate courts in Class-II, Class-III and Class-IV illegally and arbitrarily.
5.01. It is further submitted that even in the present cases though applications were invited in the year 2001, select list has been prepared in the year 2008, which is nothing but arbitrary action. It is submitted that in the meantime so many persons might have become eligible and on account of preparing the select list after inordinate delay after inviting applications, rights of the candidates who have become eligible subsequently have been adversely affected.
5.02. It is the case on behalf of the petitioners that as such though they were selected and even appointed as Part- time Sweepers, their names are not included in the impugned select lists in question for no reason. It is submitted that there is no procedure followed and the recruitment is made which leads to arbitrariness. Therefore, it is requested to quash and set aside the impugned select list and/or direct the concerned respondent authorities to include the names of the petitioners and to appoint them.
6.00. In response to the notice issued by this Court, Affidavit-in-reply is filed on behalf of the High Court administration pointing out that as such the High Court on its administrative side has already proposed draft recruitment rules for recruitment in Class-III and Class-IV in subordinate courts in the State of Gujarat named Subordinate Courts (Class-III and IV) Services Recruitment Rules, 1995 and the same have been forwarded to the State Government with a request that necessary notification framing recruitment rules be issued. It is submitted that however, many objections / queries were raised by the State Government which have been answered by the High Court and thereafter the same is pending with the State Government for its approval.
6.02. It is also reported that as such High Court on its administrative side had taken a decision to scrap all the select lists prepared by the District Courts in the State with respect to recruitment of staff in Class-II, Class-III and Class-IV and fresh process has already been issued for filling up the post of Class- II, Class-III and Class-IV in the subordinate courts on the basis of the guidelines approved by the Chamber of the High Court.
6.03. It is submitted that as such the prayer of the petitioners to include their names in the select list cannot be granted.
6.04. It is submitted that so far as the prayers of the petitioners to quash and set aside the impugned select list and appointments made thereunder also cannot be granted in absence of the persons who are likely to be affected. It is submitted that as such as the select lists in question have been scrapped and process has been initiated, as such both the petitions have become infructuous except for the relief directing the appropriate authorities to frame the rules for recruitment in the subordinate courts which is under active consideration by the High Court administration as well as the State Government.
7.00. Heard the learned advocates appearing on behalf of the respective parties at length.
8.00. At the outset, it is required to be noted that a grievance is made by the petitioners that even after a period of 50 years of establishment of this Court, Government Resolution of the year 1957 is followed for the recruitment in subordinate courts in the State in Class-III and Class-IV. It is also true that as such the select lists / waiting lists were being prepared irrespective of vacant posts available at the time when the advertisements were issued and applications were invited and even the said waiting lists were being implemented for number of years. The petitioners are also justified in making grievance that the select lists in question are prepared in the year 2008 on the basis of applications invited in the year 2001 and in between number of candidates might have become eligible. However, from the Affidavit-in-reply filed on behalf of the concerned respondent inclusive of the High Court Administration, it appears that as such corrective measures are already taken and even draft recruitment rules are also proposed which is pending with the State Government for approval. It is also reported that as such the select list which are sought to be set aside are already scrapped by the High Court on its administrative side and fresh process for recruitments have been initiated on the basis of the Chamber decision of the High Court. Under the circumstances, now when the High Court administration has taken a decision to scrap all the select lists inclusive of the select lists in question, no further order is required to be passed with respect to the impugned select lists in question.
9.00. Now, so far as the prayer of the petitioners to direct the concerned respondents to include the name of the petitioners in the select lists is concerned, the aforesaid cannot be granted. No such direction can be granted straightway directing the concerned respondent authorities to include the name of the petitioners in the select list. As stated above, it is reported that fresh selection process has already been initiated and therefore, it will be open for the petitioners to apply for the same and their cases can be considered in accordance with law and on merits.
9.01. Now, so far as the prayer of the respective petitioners directing the concerned respondent authorities inclusive of the High Court administration and the State Government to frame Rules for appointment / recruitment of the employees in the subordinate Courts in the State in Class- II, Class-III and Class-IV is concerned, as per the reply filed on behalf of the High Court, it is reported that draft rules are already proposed, however, there were some queries raised by the State Government which have been cleared and the same is under active consideration and pending with the State Government for approval and therefore, suitable direction can be issued to expedite the framing of the rules for recruitments of the staff in subordinate courts in the State in Class-II, Class- III and Class-IV.
10. In view of the above and for the reasons stated above, so far as the prayer of the petitioners to quash and set aside the impugned select lists is concerned, the same have become infructuous inasmuch as a decision has already been taken by the Chamber of the High Court to scrap all the select lists prepared by the District Courts in the State for recruitments. Even otherwise, no relief can be granted to the petitioners to quash and set aside the entire select lists / waiting lists as those who are already appointed pursuant to the impugned select lists are not joined as party respondents in these Special Civil Applications and therefore, in absence of them, the relief to quash and set aside the impugned select list, cannot be granted.
10.1. So far as the prayer of the petitioners to direct the concerned respondent authorities to include the names of the petitioners in the select list and appoint them is hereby rejected.
10.2. So far as the prayer of the respective petitioners to issue appropriate writ, order and/or direction directing the concerned respondent authorities including the High Court administration and the State Government to frame the recruitment rules for the recruitments of the staff in the subordinate courts in Class-II, Class-III and Class-IV is concerned, both these Special Civil Applications are disposed of by observing that Gujarat High Court Administration as well as the State Government shall see to it that the draft recruitment rules which are proposed by the Gujarat High Court Administration which are pending with the State Government for approval, are duly considered and finally approved and the recruitment rules for the same are framed at the earliest.
10.3. With this, both these Special Civil Applications are dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik