ROHIT ATMARAMBHAI PATEL & 10....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance:
MR GUNVANT R THAKAR, ADVOCATE for the Petitioner(s) No. 1 - 11 MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1 MR MJ MEHTA, ADVOCATE for the Respondent(s) No. 4 NOTICE SERVED for the Respondent(s) No. 2 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 23/06/2015 ORAL ORDER
1. Rule returnable forthwith. Mr. Rohan Yagnik, the learned AGP waives service of notice of rule for and on behalf of the respondents nos.1, 2 and 3. Mr. M.J. Mehta, the learned advocate waives service of notice of rule for and on behalf on behalf of the respondent no.4Gujarat Public Service Commission.
2. By this writapplication under Article 226 of the Constitution of India, the petitioners who have been placed in the waitinglist for the posts of Commercial Tax Inspector have prayed for the following reliefs: "7(a) allow this petition with costs;
(b) pending admission and final hearing of this petition, direct the respondent no.1 and 2 to request the respondent no.4GPSC by sending proposal for operation of waiting list dated 26/11/2013 for 51 vacant posts from 610 advertised posts for Commercial Tax Inspector; and/or Page 1 of 8 C/SCA/16534/2014 ORDER
(c) pending admission and final hearing of this petition, direct the respondent no.4GPSC to send the recommendation for 51 vacant posts from the advertised posts for Commercial Tax Inspector from the waiting list dated 26/11/2013 after receiving proposal from respondent no.1 and 2; and/or
(d) Pending admission and final hearing of this petition, direct the respondent no.1 and 2 to issue appointment orders forthwith after receiving recommendation from respondent no.4GPSC to fill up 51 vacant posts from 619 advertised posts from the waiting list; and/or
(e) direct the respondent no.1 and 2 to make proposal to respondent no.4GPSC to recommend name of the wait listed candidates for 26 posts (General Category) + 12 posts (SEBC) + 6 posts (SC) + 7 posts (ST) = Total 51 vacant posts from 619 advertised posts from the waiting list immediately; and/or
(f) direct the respondent no.4GPSC to recommend for appointment to respondent no.1 and 2 and direct respondent no.1 and 2 to fill up 26 posts (General Category) + 12 posts (SEBC) + 6 posts (SC) + 7 posts (ST) = Total 51 vacant posts from 619 advertised posts from the waiting list immediately; and/or
(g) grant any other relief in the nature of interim relief or pass any other 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 case of the petitioners may be summarized as under: 3.1 The State Government framed Recruitment Rules for the post of Commercial Tax Inspector, ClassIII vide Notification No.GN40/VVK 12031017TH3, dated 12.09.2008. On 24.12.2008, the General Administration Department issued a Circular on the subject of time limit and utilization of the waiting list prepared by the Gujarat Public Service Commission in the case of direct recruitment. On 12.10.2011 the State Government in its Finance Department amended the Recruitment Rules, 2008 for the post of Commercial Tax Inspector. On 25.11.2011, the respondent no.4G.P.S.C. issued an advertisement for the posts of Commercial Tax Inspector. In all 619 posts were advertised. On Page 2 of 8 C/SCA/16534/2014 ORDER 26.11.2013, the respondent no.4G.P.S.C. declared the result and a waiting list was prepared. It is the case of the petitioners that almost 51% of the posts could not be filledup despite the fact that the select list of 619 candidates was prepared as many of those did not report after being appointed. The petitioners found place in the waiting list. It is their case that as almost 51% of the candidates failed to report the Government should be directed to operate the waiting list and fillup the posts.
4. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the State Government should be directed to operate the waiting list.
5. What is a waiting list, has been succinctly explained by the Supreme Court in the case of 'Gujarat State Deputy Executive Engineers Association Vs. State of Gujarat' reported in 1994 (Supp 2) SCC 591. Two questions fell for the consideration of the Supreme Court i.e. (i) Could the waiting list be treated as a source of recruitment from which candidates may be drawn as and when necessary? and (ii) How long could it operate.
6. I may quote with profit the observations of the Supreme Court made in paragraphs8 and 9 as under:
8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is Page 3 of 8 C/SCA/16534/2014 ORDER its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared.For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. 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 no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.
9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."
C/SCA/16534/2014 ORDER
7. What is discernible from the aforenoted judgment of the Supreme Court is 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 no right to claim appointment to any future vacancy which may arise unless the selection was held for it.
8. Mr. Rohan Yagnik, the learned AGP appearing for the respondent State, after obtaining the necessary instructions from Mr. G.H. Vaishnav, the Under Secretary (Incharge), Finance Department submitted that there are vacant posts as on today. Almost 51% of the candidates from the selectlist for one reason or the other did not report after being appointed.
9. In one of the recent pronouncements of the Supreme Court in the case of 'Manoj Manu And Another Vs. Union of India And Others' reported in (2013) 12 SCC 171, the same issue regarding the operating of the waitinglist has been explained. The Supreme Court took into consideration two situations; (A) where candidates who had initially joined, but subsequently resigned/quit or were promoted, thus resulting in creation of vacancies again and (B) where out of the recommended candidates some candidates do not join at all. The Supreme Court clarified the position by explaining that it is only in Situation (A) that the recruiting authority may be justified in not forwarding names from the reserved/supplementary list as there is culmination of the recruitment process with exhaustion of the notified vacancies and Page 5 of 8 C/SCA/16534/2014 ORDER vacancies arising thereafter should be filledup by fresh examination. However, in Situation (B), nonforwarding of names from the waiting list may not be justified, especially when there is a specific requisition by the appointing authority.
10. The present case falls within the category of Situation (B). This aspect is also made clear by Mr. Yagnik, the learned AGP. I may quote with profit the observations of the Supreme Court made in Paragraphs9, 10, 11, 12 and 15 as under:
9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality the UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoP&T had approached UPSC "within a reasonable time" to send the names, we do not see any reason or justification on the part of the UPSC not to send the names.
10. We are conscious of the legal position that merely because the name of a candidate finds place in the select list, it would not give him/her indefeasible right to get appointment as well. It is always open to the Government not to fill up all vacancies. However, there has to be a valid reason for adopting such a course of action. This legal position has been narrated by this Court in Ms.Neelima Shangla vs. State of Haryana (1986) 3 SCR 785. In that case:
"The appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test.
Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as Page 6 of 8 C/SCA/16534/2014 ORDER qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Govt. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to the Govt., a complete list of qualified candidates arranged in order of merit. How should Govt., act is stated by the Supreme Court in the following words:
'2....Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks." (Emphasis supplied)
11. The Court after making reference to the decision of the Supreme Court in the case of State of Haryana vs. Subhash Chander Marwah reported in (1972) IILLJ266 SC further observed as under:
"2....However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Govt., and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless." (Emphasis supplied)
12. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.
C/SCA/16534/2014 ORDER
15. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S.Hooda & Ors. Vs. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates for reasons of the nonappointment of some of the candidates and they ought to have been appointed if they come within the range of selection."
11. Thus, having regard to the position of law and the factual position, I am of the view that the Government should operate the waiting list in accordance with its policy laid down in the resolutions issued timetotime.
12. In the result, this application succeeds and is hereby allowed. The respondents are directed to operate the waiting list of the Commercial Tax Inspector and complete the exercise within a period of eight weeks from the date of receipt of the writ of the order. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 8 of 8