The applicant herein is the writ petitioner in Special Civil Application No.2652 of 2012.
2. In the said writ petition, the petitioner has prayed for below mentioned reliefs/directions:-
"13(A) Quashing and setting aside the advertisement dt. 2.2.2011 inviting applications for the post of Assistant Manager unreserved category.
(B) Directing the respondent to appoint the petitioner to the post of Assistant Manager for which he was selected and placed in the waiting list.
(C) During the pendency and final disposal of this petition, the respondent may be restrained from proceeding with the advertisement dt. 2.2.2011."
3. As can be seen from the reliefs prayed for by the applicant - writ petitioner in the said writ petition that the writ petitioner approached the Court against the recruitment process undertaken by the respondent Corporation of issuing advertisement dated 2.2.2011 under which applications for the pot of Assistant Manager were invited.
The applicant claimed that he should be appointed on the post of Assistant Manager.
4. After hearing the petitioner and the respondent, the Court passed below mentioned order on 13.7.2011:-
"1. Heard learned advocate Mr. AS Supehia on behalf of petitioner, learned advocate Mr. KV Gadhia appearing for respondent.
2. I have considered submissions made by both learned advocates. The question raised and involved in present petition would require detailed examination. Hence, Rule. Whatever selection/appointment is subject to result of present petition.
3. It is open for petitioner to submit his application for post of Assistant Manager as per advertisement dated 2/2/2011 page 8 without prejudice to his rights and contentions raised in present petition. In case if respondent receive such application from petitioner, let respondent may consider it according to Recruitment Rules. It is made clear by this Court that there is no stay granted by this Court against Recruitment process which is to be carried out in pursuance to advertisement dated 2/2/2011 in post of Assistant Manager."
5. So far as the relief prayed for in the petition is concerned, the Court has vide order dated 13.7.2011 provided sufficient safeguards by making observations that whatever selection and appointment is made, it will be subject to the result of the petition.
6. Thus, it is clear that the Court was not convinced to and was not inclined to interfere with the process of selection and recruitment and the Court was also not inclined to restrain the employer's right to select and appoint appropriate person for the post in question. Therefore, the said observations in para-2 of the order were made. The Court also allowed the petitioner to participate in the selection process and also clarified that the respondent should consider the application, if submitted by the petitioner, in accordance with applicable recruitment rules.
6.1 It appears that pursuant to the said order, the petitioner - applicant herein participated in the selection / recruitment process. It further appears that the corporation, after completing the selection process, issued appointment order in favour of one of the candidates viz. Shri Vatsal Hemantbhai Patel.
6.2 The appointment order dated 2.2.2012 was issued by the respondent in favour of the said Shri Vatsal Hemantbhai Patel. It is in connection with the said appointment order and the subsequent development that the applicant herein - writ petitioner has taken out present application.
7. It appears that though the said appointment letter dated 2.2.2012 stipulated that the selected candidate shall have to report for duty and take charge within 7 days, the selected candidate did not report for duty within 7 days.
8. Taking advantage of the said situation, the applicant immediately rushed to this Court with present application claiming that since the said selected candidate has not reported for duty within 7 days, as per the stipulation in Clause 1 of the appointment letter, now, it is his right to claim appointment on the said post because his name appears at Sr.No.1 in the waiting list. On such claim, present application has been preferred by the original petitioner.
9. In response to the notice issued by the Court, the respondent corporation has filed reply affidavit wherein it is clarified that before expiry of 7 days, the selected candidate had made an application putting forward the request for extension of time to report for duty. It is also mentioned in the reply affidavit that after considering the application and the reasons and circumstances explained by the said selected candidate, the respondent corporation had accepted and granted extension of time. The respondent corporation has, then, stated that subsequently the said selected candidate has within the extended period of time, reported for duty and he has been accordingly appointed and allowed to resume his duties.
Thus, the post in question, is filled up by the duly selected candidate.
However, surprisingly, the applicant herein still continues to prosecute present application.
10. Now, the applicant goes to the extent of claiming that the said action of the respondent corporation of allowing the duly selected candidate to resume his duties after period of 7 days should be set aside and consequently, the appointment of the said selected candidate also should be set aside.
11. The only reason which the applicant urges is that though the appointment letter issued in favour of the said candidate clearly required the said candidate to join the service within period of 7 days, he failed to do so and that therefore, the said selection and appointment should be cancelled and the Court should direct the respondent corporation to cancel the said appointment and direct the respondent corporation to appoint the applicant.
Such request cannot be accepted and granted.
12. At this stage, it is necessary to refer to the details mentioned by the respondent corporation in para 3 to 6 of the affidavit dated 9.3.2012, which read thus:-
"3. At the outset, I say and submit that pursuant to the advertisement dated 02.02.11 the written examination of candidates was taken on 29.01.12 and on the basis of the merits of the written examination selected candidates were called for oral interview on 02.02.2012. I further say and submit that on the basis of merits of the written examination as well as the oral interview Mr. Vatsal Hemantbhai Patel had topped the list and therefore he was appointed vide order outward No.1577 dated 02.02.2012.
4. I say and submit that it is true that Mr. Vatsal Patel was to report within seven days of the order but vide his application dated 09.02.2012 he had sought for extension of time from seven days to thirty days as per norms of his ex-employer. The said letter is attached here to and marked as Annexure-R1. The said request of Mr. Vatsal Patel was approved accordingly. I say that since the request for extension of time was made within seven days, the Corporation, granted the request as prayed for. I say that the said extension was granted bona-fide and the discretion was to exercise, keeping the interests of the Corporation and without any intention of over-reaching the orders of this Honourable Court. I say that even otherwise, the order of the Honourable Court did not preclude the Corporation from undertaking a fresh exercise of selection, which the Corporation undertook, in good faith, bonafide and the applicant also participated in such selection but the candidate found more meritorious was selected and appointed.
5. I say and submit that Mr. Vatsal Patel has subsequently joined the services with the opponent herein on 03.03.2012 vide his letter inward no.2455. The copy of the said joining report is annexed hereto and marked as Annexure-R2.
6. I say and submit that as far as the appointment being subject to the outcome of the main petition i.e. SCA No.1370/2011 is concerned, the same was left out in the appointment order through oversight. Subsequently the said order was rectified and the said condition was inserted at Sr.No.14. The copy of the amendment order is annexed hereto and marked as Annexure-R3.
I say that as the candidate who has been selected has joined, no relief in the application and the petition can be granted, without the candidate who has been appointed being made a party to the main petition. Even otherwise the same would be a fresh cause of action beyond the scope of the present application and therefore, in my respectful submission the present application ought to be dismissed."
12.1 The above mentioned details stated by the respondent corporation clarifies that the respondent corporation had, in exercise of its rights and discretion, allowed extension of time in favour of the selected candidate for joining the duty. The said decision of the respondent corporation cannot be faulted in any manner whatsoever, more particularly in collateral proceedings by way of present application.
13. It is pertinent to note that any rejoinder affidavit countering the details mentioned by the respondent corporation in the reply affidavit has not been filed. The details mentioned by the respondent corporation has remained uncontroverted. On consideration of the details mentioned by the respondent corporation, the decision of the respondent corporation does not appear to be arbitrary or irrational or unjustified or malafide.
14. Under the circumstances, the Court is not inclined to interfere with the said decision in present proceedings. Any ground or justification which may convince the court to grant relief as prayed for by the applicant is not made out. The order dated 13.7.2011 passed by the Court in Special Civil Application No.1370 of 2011 did not prohibit the corporation from exercising such right and discretion.
14.1 Therefore, in view of the foregoing discussion and for the reasons mentioned above, any case to interfere with the decision and discretion exercised by the respondent corporation is not made out. To say the least, the attitude and claim of the applicant made in present application is unjustified. The applicant wants the Court to exercise jurisdiction to set aside the appointment of duly selected candidate who came to be selected and appointed after due process, in accordance with applicable rules. The claim in this application is made only on the ground that the said selected candidate could not join the services within period of 7 days (and had requested for extension of time), which was granted by the corporation. The claim made by the applicant in present application is, to say the least, unjustified and cannot be entertained.
Therefore, the application is rejected and stands disposed of accordingly.
(K.M.Thaker, J.) kdc Top