IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9786 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ?
========================================================= JOSHI KEYURKUMAR MAHESHKUMAR & 21 - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 1 - Respondent(s) ========================================================= Appearance :
MR PR ABICHANDANI for Petitioner(s) : 1 - 22.MR VAIBHAV A VYAS for Petitioner(s) : 1 - 22.
GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1, MR DG SHUKLA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/06/2012
ORAL JUDGMENT
1. By way of this petition, the petitioners have prayed for the following relieves:
“The petitioners respectfully pray that, on the basis of the facts and circumstances as mentioned herein above and which may be urged at the time of hearing, the Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to:-
(A) direct the respondent authorities to consider the case of the petitioners for appointment and also give appointment to the petitioners, on the posts of Assistant Public Prosecutor, Class-II which are remaining vacant, pursuant to the advertisement No: 15 of 2008-09, and
(B) pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioners for appointment, on the posts of Assistant Public Prosecutor, Class-II which are remaining vacant, pursuant tot eh advertisement No:15 of 2008-09, and
(C) award the cost of this petition.”
2. The brief facts leading to filing of the present petition are that the Gujarat Public Service Commission had published an advertisement No:15/2008- 09 inviting application for appointment of the post of Assistant Public Prosecutor, Class-II. The total number of posts advertised were 242, out of which 122 posts were unreserved, 15 posts were reserved for Scheduled Caste category candidates, 36 posts were reserved for Scheduled Tribe category candidates and 69 posts were reserved for Socially and Educationally Backward Class category candidates. Pursuant to the said advertisement, the petitioners had made an application for appointment on the said post and had appeared in all the stages of examination i.e. written test and personal interview and after due process of selection, the Gujarat Public Service Commission declared the result of the said recruitment process on 16.07.2009 wherein out of the 242 posts advertised, 203 candidates were selected for appointment. The names of the petitioners were included int eh waiting list prepared by the Gujarat Public Service Commission.
3. Out of the 203 candidates whose names were included in the select list, 199 candidates were issued appointment orders by the Government upon the recommendations of the Gujarat Public Service Commission dated 23.07.2009. As per the information of the petitioners, pursuant to the issuance of the said appointment orders, pursuant to the issuance of the said appointment orders, at least 18 posts have remained vacant for one or the other reason. The said information in this regard was obtained under the Right to Information Act and as per the information of the petitioners few more posts are likely to fall vacant. As per the policy of the Government and the settled position of law, the seats falling vacant should be offered to the candidates whose names are included in the waiting list. In this regards various representations, including applications under the Right to Information Act were made to the respondent authorities to give appointment to the petitioners on the posts which have remained vacant by operating the waiting list. Pursuant to one such application under the Right to Information Act, the respondent authorities informed that the issue regarding the operation of the waiting list was under the consideration of the authorities, which would be evident from the information provided by the Legal Department vide letter dated 04.04.2011.
4. Under the above referred circumstances and due to inaction on the part of the respondent authorities, the petitioners (except No.5) had approached this Hon'ble Court by way of filing a petition being Special Civil Application No.7168 of 2011, which came to be disposed of by this Hon'ble Court (Coram: Hon'ble Smt. Justice Abhilasha Kumari) vide order dated 17.06.2011 directed to the respondent No.1 to consider and decide the representation made by some of the petitioners on 09.04.2011. Pursuant to the said order dated 17.06.2011, the petitioners made a further representation to the respondent authorities on 20.06.2011.
5. Thereafter, by the communication dated 06.07.2011, the respondent authorities had informed that only two posts are available for operating the waiting list and therefore, except the candidate at Sr. No.1 and 5 in the waiting list, the other petitioners could not be appointed. Hence, present petition.
6. Ld. Counsel for the petitioner contented that for the 242 posts GPSC issued an advertisement for recruitment and GPSC recommended 242 posts and people were appointed. He submitted that subsequently 13 JMFC have resigned. Even then, the State Government has not operated the waiting list and has deprived the petitioners of their legitimate right to be appointed. The learned Counsel for the petitioner Mr.V.A. Vyas has strongly relied upon the order of this Court dated 27.12.2011, page 80, more particularly para 5, which reads as under:
“ 5) Having considered rival submissions and record of the case, it is not in dispute that a candidate-respondent no.3 who was appointed on the post of Account Officer, Class-II, on her appointment as Section Officer, Class-II, is already relieved as per order dated 12.5.2011 and in view of what is held by the Hon'ble Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) in para-8 that “a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has not right to claim appointment to any future vacancy which may arise unless the selection was held for it”.
Thus, in the facts of the case, respondent no.3 who was on probation, having joined the duty on the post of Account Officer, Class-II, was relieved since she was already appointed on the post of Section Officer, Class-II and thus a clear vacancy had arisen on the post of Account Officer, Class-II and benefits carved out in a case of direct selection pertaining to medical and education, where the operation of waiting list is permitted in a case where even the candidate who resumed the duty and, thereafter, is relieved for any good reason, is not made applicable to the candidate appointed for the post of Account Officer, Class-II, prima facie, appears to be discriminatory and violative of Article 14 of the Constitution of India. It is without any rational or logic that why a candidate to be appointed on the post of Account Officer, Class-II in the department of Finance or any such department is to be deprived of the benefit of appointment from the waiting list by assigning priority. Thus, what is held by the Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) and provision of circular dated 24.12.2008 since waiting list is operating, certain benefit to a candidate of direct recruitment for medical and education and depriving the candidate for the post of Account Officer, Class-II with regard to the operation of waiting list is irrational and, therefore, I direct respondents to consider case of the petitioner so as to appoint the petitioner on the post of Account Officer, Class-II on now vacant post. Subject to further order that may be passed by this Court, the matter is adjourned to 8th February 2012.”
7. Ld. Counsel for the petitioner has also relied upon the decision of the Apex Court, reported in AIR 2000 (SC) 1097, pg. 77. More particularly, para 10, which is reproduced herein below:
“10. Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalized in the month of November, 1996 and the writ petition was filed by the respondent in the month of October, 1997, i.e. before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. We may place on record that during the course of hearing of SLP before this Court, on 29-9-1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4-11-1999 and filed before this Court it is stated that as on 14-10-1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh.”
8. The learned counsel for the petitioner further contended that the Government has not operated select list, though there is a need.
9. One M.G. Dave, Deputy Secretary, Legal Department filed affidavit in reply, in which it is stated as under:
“6. It is submitted that GPSC has prepared selection list for 203 candidates. The appointment has been given to 199 candidates out of that selection list. Out of 203, four candidates are not given appointment due to as against two candidates case is pending in the Hon'ble Court., one is not medically fit and one is not given appointment for administrative reasons. It is further submitted that out of 199 candidates, one Mrs. Nilaben D. Goswami at Serial No.124 at selection list has not resume duty. But this post is for S.E.B.C. and as GPSC has not prepared selection list for S.E.B.C. No right can be conferred by candidate of general category and S.C., this vacant post will be advertised in due course.
7. It is submitted that 199 candidates who are selected have resumed therein duty. Amongst 199 candidates, 13 Assistant Public Prosecutors have left the duty place as they have been selected in JMFC, one has left as he joined as Mamlatdar. Thus, 14 Assistant Public Prosecutors have left the duty place. It is further submitted that they are from different category and as candidates who is selected and joined duty and then left the duty place. Therefore, as per Government Resolution dated 24.12.2008, those post are considered to be filled up and no claim can be made by candidates whose name is in waiting list.
8. It is submitted that as per serial no.(1) of Government Resolution dated 24.12.2008, wherein instructions are issued regarding time limit for operation waiting list, clearly indicates two years. In the present case, result for Assistant Public Prosecutor advertisement of 15/2008-09 has been declared on 24.7.2009, the two years period is completed on 23.7.2009 and therefore, operation of waiting list cannot be made in view of above referred Government Resolution dated 24.12.2008. Annexed hereto and marked as ANNEXURE-R-I is the copy of the Government Resolution dated 24.12.2008 which is self explanatory. Therefore, no post can be filled up from the waiting list pursuant to advertisement dated 15/2008-2009. It is respectfully further submitted that the resolution of GAD dated 24.12.2008 cannot be made to be applicable in the case of petitioners because the said resolution speaks about the operation of waiting list on account of post falls vacant on account of resignation by any candidate or other reasons to fill up the said post only in the cases of medical and educational services posts are required to be filled up. The post Asst. Public Prosecutor, Class II is not the post of medical or educational services post therefore even if the post falls vacant on account of resignation by or for another reasons the petitioner cannot be appointed on the said post from the merit list.”
10. I have heard learned counsel for the petitioner Mr. Vyas and Learned counsel for the respondent Mr. Shah.
11. Considering the evidence on record, in my view waiting list people have no right to claim for the said post, unless, the posts shown in the advertisement are not filled in. The petitioners were not found eligible on the date of interview and the posts, which have remained vacant, the Government is not required to fill in those posts. It is a settled position of law that empanelment of candidate in the select list is only a condition of eligibility and does not create a vested right of appointment and that it is not a rule of universal application that whenever vacancy exists, persons who are in the merit list perforce have to be appointed and much would depend upon the statutory provisions governing the field.
12. In my view, for the reasons stated in the affidavit in reply, the petitioners cannot claim their appointment as a matter of right on the posts which fell vacant.
12. Hence, the petition is devoid of any merits and the same is dismissed.
[K S JHAVERI, J]
Ankit*