1. Heard learned advocates for the parties.
2. Petitioners, by way of this petition prayed as under:
(a) allow this petition with costs in favour of the petitioners; and/or
(b)declare that impugned action of respondent no.1 authority deciding to make recruitment /appointment to two posts of Deputy Municipal Commissioner as per Annexure - A is illegal and in violation of fundamental rights of the petitioners under Article 14 and further be pleased to quash Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER and set aside the same; and/or
(c) restrain the respondent no.1 from implementing, enforcing or acting in furtherance of the advertisement at Annexure - A dated 04.09.2012;
and / or
(d) direct the respondent no.1 authority to fill up the vacancies of Deputy Municipal Commissioner by way of promotion considering the existing policy of the respondent no.1 who are having requisite experience and preferential qualification till the respondent no.1 frame the recruitment rules following procedure as required by the Act; and/or
(e) direct respondent no.1 authority to frame the recruitment rules for all the post of Class-I cadre on the establishment of respondent no.1 considering the facts and grounds as mentioned above; and/or
(f)direct respondent no.1 authority to send appropriate proposal to the respondent no.2 to approve the recruitment rules as prayed for in prayer (d) and (e) above; and/or
(g) direct respondent no.1 authority to send appropriate proposal to respondent no.2 considering GAD Resolution dated 21.02.2009 (Annexure - N) for restructuring the cadres in Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER Ahmedabad Municipal Corporation and also send proposal to respondent no.2 on the line of Resolution dated 10.04.2012 issued by respondent no.2 providing higher pay scale after completion of 12 years of service as given to the officers of the Rajkot Municipal Corporation; and/or
(h) pending admission and final hearing of this petition direct and restrain respondent no.1 authority from implementing, enforcing and acting in furtherance of the advertisement at Annexure - A to this petition; and/or
(i)grant any relief in the nature of interim relief or pass any order in the nature of interim order which the Hon'ble Court may consider as just and proper in the facts and circumstances of the case."
3. The Court on 19.12.2012 has passed following order:
"Learned Counsel for the petitioners has invited this Court's attention to the earlier orders passed by this Court at the behest of the petitioners similarly situated and agitating that without there being any set, declared and known method for recruitment either in form of recruitment rules or a declared explained policy similarly spelling out the methodology of recruitment. The petitioners, similarly situated have always to be in realm of uncertainty qua their service or career road map and the petitioners have put up their candidature is not going beyond any proper result as Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER this time also the selection procedure is not articulately defined. He submitted that on earlier occasion of such recruitment, the Court has always quashed such attempt. The petitioners have applied in pursuant to the advertisement dated 04.09.2012 and examinations are going to be held on 22.12.2012. Let their be a notice returnable on 21.12.2012. Direct service is permitted today as the notice is issued on a particular submission, it was expected from the authority to bring forthwith justification, if any, for not accepting the prayer of interim relief which had been infact granted earlier in similar petitions. Learned Counsel for the petitioner has ensured the Court that if the direct service is available today, the same will be effected latest by 1'o clock on 20.12.2010. Direct Service is permitted today."
4. After the notice was served and reply-affidavits have been placed on record. The Court has noticed that the petition is required to be admitted on account of the complains raised with regard to lack of Rules as there appears to be prima-facie case. Hence, Rule.
5. For many reasons, the Court is not inclined to grant any further relief except relief whereby the selection /appointment which may take place on account of advertisement dated 9/2012-13 be made subject to final outcome of this petition.
6. The reasons for not giving any further relief in this Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER matter are recorded hereunder:
6.1 The fact that petitioners have challenged the recruitment procedure of the advertisement which is issued on 04.09.2012 and in that advertisement the clarifications and methodology is clearly mentioned. The petitioners have themselves state in the memo of petition that recruitment procedure are followed by way of prevailing Act. They are also in fray when the petitioners have themselves chosen to initiate the proceedings when there is no case of the petitioners. The advertisement is challenged only on account of lack of promotion avenues to the petitioners. The lack of Rule for appointment to the post upon the provisions of Gujarat State Municipal Corporation Act in itself would militate the corporation's power to recruitment.
6.2 The affidavit-in-reply contains sufficient persuasion in not granting prohibitory relief in favour of the petitioner, which are to be set out as under:
"15. Keeping in mind the aforesaid facts and circumstances, it is evident the petitioners have not been able to make out a prima facie case in their favour. The balance of convenience is also not in their favour and the petitioners will suffer any irreparable harm if the interim relief is not granted in their Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER favour. The Honourable Court may take into consideration the following aspects:
a) The petitioners have participated in the very same recruitment process in the year 2008-09 for the very same posts i.e. for the posts of Deputy Municipal Commissioner and were unsuccessful in clearing the same and their own counterparts from the respondent Corporation were selected to the post of Deputy Municipal Commissioner. The fact has not been disclosed by the present petitioners.
b) The petitioners had the opportunity or challenging the recruitment procedure in the year 2008-09, however they did not do so. Even in the present case, the advertisement no.9/2012-13 has been issued for the same posts on 04.09.2012 and the recruitment procedure is also the same and the petitioners were aware about the same since September, 2012 but did not raise any grievance and proceeded to fill up the forms and participate in the recruitment procedure.
c) The petitioners after having received their call letter dated 03.12.2012 for the written examination to be held on 22.12.2012, sat tight over the same and did not approach this Hon'ble Court and just two days before the written examination, the petitioners have filed the captioned petition, got the same circulated on 19.12.2012 and are seeking to restrain the respondent Corporation from proceeding in pursuance to the impugned advertisement.
examination being conducted by the IIM i.e. Indian Institute of Management, Ahmedabad and the entire recruitment procedure is being done through the same institute and in such circumstances when the written examination is being held on 22.12.2012, any adverse order or any order staying further procedure pursuant to the impugned advertisement would be detrimental to the future of the remaining 32 candidates. The most important aspect of the subject matter is that out of the total 38 candidates who are appearing for the written examination and participating in the selection procedure, 32 candidates are at present officers of the respondent Corporation and only 4 candidates are from out side and not the officers of the respondent Corporation."
6.3 The glaring factors mentioned thereunder have persuade the Court to prima-facie hold that there exist no justification for granting any prohibitory order the promotees and or in service candidates have given sufficient space and opportunity to compete as they are forming and showing the Constitution as there can be a lack of Rule is not pleaded at all, as if the same be the ground then the second petitioner and/or petitioners except the first one would themselves not be eligible to compete as they have also put their candidature Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Jan 31 22:55:26 IST 2018 C/SCA/16706/2012 ORDER pursuant to the advertisement.
7. The averments on para 9 at page 112 of affidavit-in-sur-
rejoinder filed by respondent - Corporation also clearly indicate that non-granting of provisional relief at this stage would in any manner imped the Court of justice and hence in view of this fact no elaborate reasons required at this stage or least but sufficient to say that the Court is not inclined to grant provisional relief except directing the Corporation that candidates who received appointment order that may be selected and appointed, there appointment is subject to outcome of this petition.
8. At this stage the request is made to continue the arrangement of not taking the final decision for a week from today which has been strongly opposed by Sr. Counsel for the Corporation on the ground that for the very aim of arguing about the process of examination, wherein as many as 32 of total 36 candidates are there from the Corporation.
Direct Service is permitted.
(S.R.BRAHMBHATT, J.) dks Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Jan 31 22:55:26 IST 2018