1. The petitioner is aggrieved by non-selection to the post of Tutor-General Anatomy Class-II. She has, therefore, filed the present petition praying to quash and set aside the selection process of the Selection Committee based on interview dated 24.04.2000 pursuant to the advertisement dated 15.12.1989. She has also prayed for direction to the respondent- authorities to select her for the post of Tutor Class-II and to declare the selection of the respondent No.4 to the post of Tutor Class-II as illegal.
2. It is the case of the petitioner that the petitioner is a qualified dentist and holding degree of B.D.S. An advertisement was issued on 09.07.1985 for the post of Tutor in General Anatomy and she was selected for the post of Tutor at the Government Dental College and Hospital at Ahmedabad. Appointment order dated 18.01.1986 was issued and she was appointed as a Tutor in the pay scale of Rs.700-1300 and as on the date of finalisation of the selection, she was holding the said post. It is further stated in the petition that after her appointment, she got herself registered as a post graduate student in General Anatomy in M.Sc.(Medicine) in General Anatomy and she continued as a registered student of the post graduate course in M.Sc.(Medicine) in the subject of General Anatomy. She had narrated the circumstances under which, she could not complete post graduate course. As further stated in the petition, her services were terminated by order dated 01.05.1997 without assigning any reasons and, therefore, she had filed Special Civil Application No.3831 of 1997 challenging the order of termination wherein, she was granted protection by interim order whereunder, she was permitted to continue on the post of Tutor- General Anatomy with the respondent No.2 unless and until the post held by her was filled in either by transfer or by appointment of Tutor, duly selected by the Gujarat Public Service Commission (hereinafter referred to as the 'G.P.S.C.'). It is further the case of the petitioner that one advertisement came to be published by respondent No.3 being advertisement No.94 dated 15.12.1999 for the post of Tutor- General Anatomy, Class-II as per which, person holding qualification of degree of B.D.S. and registration as post graduate student in the concerned subject was required to be given first preference and the person holding the degree of MBBS or holding any qualification prescribed in the first or second schedule to the Indian Medical Council Act, 1956 was to be given second preference. She had applied for the same post and was called for interview held on 24.04.2000. As per her information, she was the only candidate, who was holding the qualification of B.D.S. and registration as post graduate student in the concerned subject. However, she was not selected for the post of Tutor in General Anatomy in Gujarat State Services Class-II.
3. That respondent No.4, who was holding qualification of M.B.B.S. and serving as ad-hoc Tutor at the Government Medical College at Surat, was selected. The petitioner had assailed the selection of respondent No.4 mainly on the ground that respondent No.4 could have been selected only when no candidate holding the qualification of B.D.S. and registered as post graduate student in the concerned subject was available. Since the petitioner was holding the requisite qualification, she was entitled to selection especially when she was also having experience of 15 years as Tutor.
4. The respondent No.2 has filed affidavit-in- reply opposing the petition mainly on the ground that the appointment of the petitioner initially on 23.01.1986 as Tutor was purely on ad-hoc basis till the regularly selected candidate was made available through G.P.S.C. It is stated that the petitioner was required to complete her post graduate course in the concerned subject during the period of post graduate registration for which she had already given undertaking vide her letter dated 31.01.1986 and since she did not fulfill the conditions of the ad-hoc appointment, her services were required to be terminated. However, she was continued under the protection granted by this Court in her earlier petition being Special Civil Application No.3831 of 1997.
It is further stated in the reply that the post of Tutor was required to be filled in by regular candidate for which the post was advertised by G.P.S.C. and in the interview conducted by G.P.S.C., she was not found fit to be appointed, considering the fact that she did not appear in the examination though she was registered for M.Sc.(Medicine) in General Anatomy. Accordingly, G.P.S.C. did not recommend the name of the petitioner and, therefore, respondent No.4, who was found qualified, came to be recommended by the Commission and selected for the post of Tutor.
5. The learned advocate for the petitioner has submitted that the petitioner was already serving on the post of Tutor and she had acquired long experience on the said post. He has further submitted that the petitioner was already having qualification of BDS and also was initially registered in post graduate course with the Gujarat University and it was her unfortunate that the said course was not continued. It may be noted that when the post was advertised for the purpose of regular selection, the petitioner was registered student for the post graduate course, and she was very much eligible for being selected to the said post and, therefore, non-selection of the petitioner was arbitrary and unreasonable and just to deny the petitioner her claim to the post of Tutor. He has further submitted that the respondent No.4, at least, though qualified, was not having preference over the claim of the petitioner and, therefore, since the petitioner had already claimed to the post of Tutor and fulfilled the requisite qualification, the respondent No.4 was not required to be selected and, therefore, the selection of the respondent No.4 to the post of Tutor Class-II was illegal and such selection of respondent No.4 is required to be declared as illegal and is required to be quashed and set aside.
6. As against the abovesaid arguments, learned advocate for respondent No.4 has submitted that the petitioner was not qualified to be appointed to the post of Tutor Class-II as required by the advertisement. Long before the advertisement, the petitioner ceased to be a registered student for the post graduate course. He submitted that respondent No.4 was very much qualified and he was found fit to be appointed to the said post by the G.P.S.C. He submitted that, therefore, the G.P.S.C. has not committed any illegality in selecting and recommending the name of respondent No.4 to the post of Tutor-Class-II. Since there is no illegality committed in the selection process, the prayer of the petitioner for declaring the selection of respondent No.4 as illegal cannot be granted.
7. Learned A.G.P. for the rest of the respondents has while adopting the arguments made on behalf of respondent No.4, submitted that from the record, it is clearly found that the petitioner was not qualified to be appointed to the post of Tutor Class-II. Learned A.G.P. has taken this Court through the averments of the petition as also judgment dated 22.04.2002 as well as the requirement of qualification, as provided in the advertisement. Learned A.G.P. submitted that since the G.P.S.C. did not find the petitioner qualified and suitable for being recommended to the post of Tutor, the petitioner cannot make any grievance about such selection process. The learned A.G.P. has further submitted that since respondent No.4 was undoubtedly qualified and suitable candidate found by the Commission, no illegality could be said to have been committed in recommending the name of respondent No.4 for the post of Tutor Class-II. He, therefore, urged that the petition, being devoid of any merits, is required to be dismissed.
8. It appears that earlier this Court passed judgment dated 22.04.2002 and refused to grant any interim relief in favour of the petitioner. The said order reads as under:-
“Heard the Ld. Advocates. Ld. Advocate Mr.Asim J Pandya appearing for the respondent no.3 Gujarat Public Service Commission is not present on call. Though the petition is pending for admission for more than 2 years, no counter has been entered by the Public Service Commission. Hence, Rule.
2. The petitioner is a Tutor in General Anatomy in the Government Dental College, Ahmedabad appointed as such on temporary basis by way of adhoc arrangement. Pursuant to the advertisement dated 15th December, 1999 published by Gujarat Public Service Commission, the petitioner had applied for appointment to the post of Tutor in General Anatomy in GSS Class II. The petitioner was, however, not selected by the Gujarat Public Service Commission and instead, the respondent No.4 has been selected for the said post. It is the grievance of the petitioner that though the petitioner possesses the requisite qualification of B.D.S. and has been registered for Post Graduation, she has not been selected whereas the respondent no.4 who does not possess the qualification of B.D.S. has been selected. According to the advertisement dated 15.12.1999, the requisite qualification for appointment to the post of Tutor in General Anatomy is a degree in Dental Surgery of a recognised University and a Post Graduation registration in the concerned subject. It is further mentioned that in case the persons possessing the requisite qualification is not available, a person having the qualification in the said subject and a degree of MBBS of a recognised University or person possessing qualification as mentioned in the Schedule I or II of Indian Medical Council Act, 1956 would be considered. Obviously, the petitioner has not been found suitable by the Gujarat Public Service Commission and therefore, the respondent no.4 who falls within the second category has been selected. It further transpires that though the petitioner was registered for Post Graduate course as far back in the year 1986, she has not completed her Post Graduation. She was due for examination in the year 1989. However, she did not fill up the form nor did she submit dissertation. Thus, it appears that the petitioner has abandoned her Post Graduate study. Besides, the petitioner had never been selected by the Public Service Commission nor was she ever appointed on regular basis. The petitioner's adhoc appointment also came to an end on 1st May, 1997. Feeling aggrieved, the petitioner had preferred Special Civil Application No.3831 of 1997 before this Court. I am informed that the said writ petition is still pending for hearing. While admitting the said petition to final hearing, this Court (i.e. myself) had made the order as under:-
“Rule. Notice as to Interim Relief returnable on 20.06.1997. By way of Ad Interim Order, it is directed that the petitioner shall be continued on the post of Tutor-General Anatomy in the Respondent No.2, unless and until the post held by the petitioner is filled in either by transfer or on appointment of Tutor duly selected by the Gujarat Public Service Commission. Direct Service permitted.”
The protection of service granted to the petitioner under the above order was limited till the person duly selected by the Public Service Commission was available for appointment to the post in question. Now, that the respondent no.4 is duly selected by the Public Service Commission for the post in question and she is available for appointment, it would not be fair to continue the petitioner in service on adhoc basis and deprive the respondent no.4 of her rightful appointment on the post in question. Hence pending this petition, the interim relief is refused. Ad interim relief granted on 18th May, 2000 is vacated. Ld. Advocate Mr.Joshi requests that the ad interim order made on 18th May, 2000 be extended for a period of 15 days. The request is granted. Ad interim order dated 18th May, 2000 shall stand extended upto 26th May, 2002.”
9. In the above said order, this Court has recorded that the initial appointment of the petitioner was ad-hoc till the regularly selected candidate was made available through the G.P.S.C. and the petitioner was registered for post graduate course as back as in the year 1986 but did not complete her post graduate course. She was due for examination in the year 1989 but did not fill up the form and abandoned her post graduate study. The petitioner was never selected by G.P.S.C. nor was she appointed on regular basis. As stated further in the above said order, the protection was granted to the petitioner till person duly selected by the G.P.S.C. was available for appointment to the post in question and the respondent No.4 was duly selected by the G.P.S.C. for the post in question and it would not be fair to continue the petitioner in the service on ad-hoc basis and deprive the respondent No.4 of her right to be appointed on the post in question. The interim relief which was granted earlier, came to be vacated but extended at the request of the learned advocate for the petitioner till 26.05.2002. Thus, the petitioner is not in service right from 26.05.2002. There is no other evidence brought to the notice of the Court so as to point out that the petitioner continued to hold the post of Tutor even after 26.05.2002.
10. By now, more than 10 years have passed. The challenge in the petition is to the selection process undertaken by the Selection Committee and to declare the selection of the respondent No.4 to the post of Tutor Class-II as illegal. At this stage, it is required to be noted that the qualification required for appointment to the post of tutor was a degree of BDS from recognised university and registration in the post graduate course in the concerned subject with Gujarat University and if candidate of such qualification is not available then, the candidate holding qualification of MBBS or qualification under the Indian Medical Council Act could be appointed. As recorded in the interim judgment dated 22.04.2002, the petitioner did not continue her registration in post graduate study. She was already due for examination in the year 1989. However, she did not fill in form nor did she submit dissertation. Thus, the petitioner did not continue to be a registered student with Gujarat University for post graduate study in the concerned subject. In fact, the petitioner herself has stated that it was not within the control of the petitioner to continue to be registered in post graduate course and to appear in the examination as the Gujarat University has discontinued the course of M.Sc.(Medicine) in General Anatomy. In fact, for this very reason, for not fulfilling the condition of passing the said examination, her services came to be terminated by order dated 01.05.1997. Meaning thereby, when the advertisement was issued for filling up the post of Tutor on regular basis, the petitioner was not registered with Gujarat University or in the course of post graduate in the concerned subject and, therefore, the G.P.S.C. did not recommend her name and recommended name of respondent No.4 and selected him for the post of Tutor in question.
11. In view of the above stated facts and circumstances of the case and in view of the fact that the petitioner did not continue to be a registered student in post graduate course with Gujarat University and did not make any attempt to appear in the examination in the year 1989 and, in fact, virtually abandoned her interest to continue to be registered and pass out the post graduate course, I do not find any illegality in the selection process of the Selection Committee in selecting respondent No.4 to the post of Tutor Class-II.
Even otherwise, since more than 10 years have passed, after the respondent No.4 was selected to the post of Tutor and since the petitioner was appointed initially on ad-hoc basis till regularly selected candidate was made available through G.P.S.C., the petitioner cannot be granted relief, as prayed for, in the present petition.
12. In view of the above, this petition is required to be dismissed and is accordingly dismissed. Rule is discharged.
Hitesh (C.L.SONI, J.)