IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 91 of 1992 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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 ?
========================================================= SURESHBHAI B. PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR MM PRAJAPATI for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 3, ========================================================= HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 11/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This petition under Article 226 of the Constitution has been preferred with the following Prayers:
“13.
(a) Your Lordships may be pleased to issue appropriate writ, directions or orders directing the respondents to consider the case of the petitioner for appointment to the post of ATD Teachers as per his number in the select list and not to supersede the claim of the petitioner for appointment by any subsequent selectee for the said post and be pleased to direct the respondents to operate the said select list till the same is exhausted by making appointment on all the available vacancies.
(b) Be pleased to direct the respondents to consider the case of the petitioner for appointment to the post of ATD Teacher from the date the vacancies become available as per his turn in the select list and to confer upon the petitioner all benefits accordingly;
(c) Be pleased to grant such other and further reliefs as may be deemed just and proper by the Hon'ble Court in the facts and circumstances of this case.
(d) Be pleased to allow this petition with costs.”
Facts relevant for the purpose of deciding this petition can be summarized as under:
Petitioner claims that he is a qualified and trained teacher. According to him he has been constrained to knock the doors of this Court being aggrieved by illegal action on the part of the respondent authorities in not considering his case for appointment as ATD teacher though the petitioner figures in the select list and despite various vacancies available for the said post. It is a case of the petitioner that respondent no.3 published an advertisement on 26.12.1987 inviting applications from eligible candidates for the posts of PTC, ATD and DTC teachers. Petitioner applied for the same on 27.12.1987 giving details of his qualifications for the post of ATD teacher. Petitioner was called for interview on 13.09.1988. The select list was thereafter prepared by the respondent authorities. The select list for ATD teachers contained 56 candidates and the petitioner was placed at Sr. No.39 in the said select list. It is his case that the respondent authorities prepared separate select list for PTC and DTC teachers. The grievance redressed in the petition is that the respondent operated the said select list for the ATD teachers only up to Sr. No.35. No other candidate has been appointed after Sr. No.35. It is his case that there are various vacancies but the respondents stopped giving appointment from the said select list under the pretext that the respondent intend to prepare fresh select list for the ATD teachers. It is at this stage that the petitioner thought fit to prefer this petition with a prayer that appropriate writ, directions or orders be issued upon respondents to operate the select list further and appoint the petitioner to the post of ATD teacher.
I) Contentions of the petitioner :
Mr.M.M. Prajapati, learned advocate appearing for the petitioner vehemently submitted that when the vacancies for the posts in question were very much there and when no fresh select list was prepared then in that case the respondent ought to have operated the select list which was in existence till the same got exhausted. According to him action on the part of the respondent in not operating the said select list is absolutely illegal and contrary to the principle of promissory estoppel. Mr. Prajapati submitted that petitioner was selected for the post in question and was also placed in the select list at Sr. No.39. If the authorities thought fit to appoint candidate at Sr. No.35 then in that case they should have continued with the appointments further till the list would have got exhausted. Mr. Prajapati relying on an unreported judgment of this Court rendered by learned Single Judge (Coram:R.C. Mankad, J.) in SCA Nos.2944, 6311, 6512 of 1986 decided on 14.10.1987 submitted that if the select list is in operation and the vacancies are available, the appointments should be made and such orders not to make the appointment from the select list would be absolutely illegal and unjust. He further submitted that once the said select list is operated and acted upon to a certain extent, cancellation of names of the candidates from the said select list affects the civil rights of such candidates and hence before taking the decision of not operating the select list further the authorities ought to have given an opportunity of hearing to the petitioner.
Mr. Prajapati in support of his contention relied upon the following judgments of the Supreme Court:
1. S. Govindraju v. KSRTC and anr., reported in 1986 LAB I.C. 1191 (SC)
2. State of Gujarat v. Ramanlal Keshavlal Soni, reported in AIR 1984 SC 161
3. T.R. Kapur and Ors. v. State of Haryana and Ors., reported in 1987 (2) LLJ 25 (SC)
4. Prem Prakash v. Union of India and Ors., reported in AIR 1984 SC
II) Per contra, learned Advocate Mr.H.S.Munshaw appearing for the respondent No.3, District Primary Education Officer submitted that the petitioner cannot claim appointment as a matter of right. He submitted that mere inclusion in the select list does not confer any right to be selected even if some of the vacancies remained unfilled. He submitted that in response to the advertisement which was issued in the newspaper in December, 1987 thousands of applications were received by the Banskantha District Primary Education Committee for the recruitment of trained teachers (PTC, ATD, Music teachers and CP Ed. teachers). He submitted that after personal interview, select list and waiting list was prepared purely on the basis of the merits of the candidates i.e. marks quoted in the marksheets of SSC and subsequent examinations of PTC or ATD. He submitted that no written test or other interview was held. For ATD teachers, select list of 92 candidates was prepared wherein the break up is as under:
1) General Quota 56 candidates
2) Schedule Tribe 1 candidate
3) Handicap 3 candidates
4) Baxi Panch 16 candidates
5) Schedule Caste 16 candidates Total 92 He further invited our attention to the fact that the waiting list of ATD teachers was also prepared of 69 teachers. The said select list was prepared on 3rd May,1989 and was operated till 1st August,1991. The last appointment was issued on 1st August, 1991 and thereafter no ATD teacher was appointed. He thereafter invited our attention to the fact that first appointment was made on 30th June, 1989 and by 1st August, 1991 in all 127 teachers were appointed. According to him entire select list of 92 candidates was operated and exhausted. Even subsequently, a waiting list was operated and in all 35 candidates from the said waiting list have been appointed as under:
1) General Quota 24 candidates
2) Baxi Panch 3 candidate
3) Schedule Caste 8 candidates Total 35 Mr.Munshaw invited our attention to the fact that so far as the petitioner is concerned he was in the waiting list and not in the select list as asserted by the petitioner in his petition. According to Mr.Munshaw it is a misleading statement on the part of the petitioner that he was at Sr. No.35 in the select list. According to Mr. Munshaw the petitioner was at Sr. No.39 on the waiting list. The waiting list was not operated after 1st August, 1991 and no candidate after Sr. No.35 in the waiting list has been appointed by Respondent No.3 as ATD teacher.
III) Analysis :
Thus, the only question for our consideration in this petition is as to whether petitioner has any legal right to assert that he should have been appointed as a PTC teacher by continuing to operate the select list or the waiting list. We are of the view that the position of law on the subject in question is no longer res-integra. Merely because the name of the petitioner was included in the panel indicating his provisional selection, he did not acquire any indefeasible right for appointment even against the existing vacancies and the respondents were under no legal duty to fill up all or any of the vacancies. We may profitably refer to and rely on a Constitution Bench's decision in case of Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47. Para 7 of the said judgment reads thus:
“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recuirtment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla v. State of Haryana [(1986) 4 SCC 268] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122].”
Same view has been reiterated in subsequent decision of the Supreme Court in the case of Pubjab State Electricity Board and others. v. Malkiat Singh reported in 2005 (9) SCC 22. Supreme Court took the view that High Court committed an error in proceeding on the basis that respondent had got vested right for appointment and that could not have been taken away by the subsequent change in the policy. Supreme Court held that it is settled law that mere inclusion of name of the candidate in the select list does not confer on such candidate any vested right to get an order of appointment.
There is one additional aspect which we would like to take into consideration. We have noticed that there was no life prescribed so far as the select list or waiting list in question is concerned. The select list cannot be permitted to be operated for an indefinite period of time or till the same is exhausted. The validity/currency of select list must be for a particular period. In our opinion, it cannot be for more than two years depending upon the rules governing the same. That is a salutary principle, behind that rule so that after the selections are made and appointments to be made may take longtime, it is possible that new candidates may have become available who are better or more qualified then those selected, and if they are appointed it would be in the best interest of the institution. We may profitably quote a Supreme Court decision on this issue in the case of Babita Prasad and others v. State of Bihar and others reported in 1993 Supp(3)SCC 268. We quote para 25 and 26 which read as under:
“25.We find force in the submission of Mr. Sibal that the purpose of the panel prepared in the instant case was only to finalise a list of eligible candidates for appointment. The panel in the instant case was too long and was intended to last indefinitely barring the future generations for decades from being considered in the vacancies arising much later. In fact the future generations would have been kept out for a very long period had the panel been permitted to remain effective till exhausted. A panel of the type prepared in the present case cannot be equated with a panel which is prepared having corelation to the existing vacancies or anticipated vacancies arising in the near future and for a fixed time and prepared as a result of some selection process. As is apparent, the names of the some of the teachers in the panel have existed for more than 16 years. A panel of this nature, in our opinion, cannot be treated as conferring any vested or indefeasible right to the teachers to be appointed as laid down by the Constitution Bench in Shankarsan Dash case.
26. The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on vacancies. Such a panel did not create any vested or indefeasible right on the empanelists to be appointed.”
We have also looked into the judgments which have been relied upon by the petitioner in support of his contentions. In the case of S.Govindraju (Supra) Supreme Court took the view that once the candidate is selected for appointment and his name is included in the select list, he gets right to be considered as and when vacancies arises. Supreme Court also took the view that on removal of his name from the select list serious consequences entail as his future right of employment gets forfeited. In para Supreme Court held as under:
“ Once a candidate is selected and his name is included in the select list for appointment in accordance with the regulation, he gets a right to be considered for appointment as and when vacancy arises. On the removal of his name from the select list serious consequences entail as he forfeits his right to employment in regulations do not stipulate for affording any opportunity to the employee, the principles of natural justice would be attracted and the employee would be entitled to an opportunity of explanation though no elaborate inquiry would be necessary. Giving an opportunity of explanation would meet the bare minimal requirement of natural justice.”
It would not be out of place to state that in the present case the name of the petitioner was not deleted from the select list but as a matter of fact the name of the petitioner was in the waiting list and it is not the case of the petitioner that his name was deleted from the waiting list. This is the distinguishable feature so far as the facts of the case before the Supreme Court is concerned and the facts in the present case.
In the case of State of Gujarat (Supra) Supreme Court had to consider the constitutional validity of the proviso to Section 102 Clause(1)Sub Clause(a) of the Gujarat Panchayat Act, 1961 as introduced by the Gujarat Panchayat (third amendment) Act, 1978 with retrospective effect and sought to extinguish the status of secretaries, officers and servants of the Gram and Nagar Panchayat who become members of service under the State on being allocated to the Panchayat Service. Supreme Court observed as under:
“Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Principal Act of 1961, the exmunicipal employees who had been allocated to the Panchayat Service as Secretaries, Officers and servants of Gram and Nagar Panchayats, had achieved the status of government servants. Their service were not terminated in accordance with the provisions of Article 311 of the Constitution. Not was it permissible to single them out for differential treatment. That would offend Article 14 of the Constitution.”
The issue in the case of T.R.Kapur & Ors (supra) the challenge was to the constitutional validity of a notification issued by the State Government of Haryana in the Public Works Department(Irrigation Branch) dated 22.06.1984 purporting to amend Rule 6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964 with retrospective effect from July 10,1964 as violative or Articles 14thorities took decision to stop operation of the select and 16(1) of the Constitution. By the impugned notification, a degree in Engineering was made an essential qualification for promotion of Assistant Engineers in the Irrigation Branch, a Class II service under Rule 6(b) of the class I Rules and thereby rendering the petitioners of that case ineligible for promotion to the post of Executive Engineer in Class I Service. In such facts of the case and the issue involved, Supreme Court held in para 12 and 16 as under:
“12. It followed that the conditions of servie applicable immediately before the appointed day to the case of any person referred to in Sub Sections (1) or (2) of Section 82 of the Act could be varied to his disadvantage except with the previous approval of the Central Government. That being so, the impugned notification issued by the State Government purporting to amend Rule 6(b) of the Class I Rules with effect from July 10, 1964 which rendered members of Class II service who are diploma holders like the petitioners ineligible for promotion to the post of Executive Engineer in Class I Service making a degree in Engineering essential for such promotion although they satisfied the condition of eligibility of 8 year's experience in that class of service, must be struck down as ultra vires the State Government, being contrary to Section 82(6) of the Punjab Reorganisation Act,1966.”
16. It is equally wellsettled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits required under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules lying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Article 14 and 16 (1) of the Constitution.”
In the case of Prem Prakash(supra), the petitioners as members of Scheduled Caste prayed for a writ of mandamus directing the respondents to appoint them against the vacancies reserved for members of Scheduled Castes and Scheduled Tribes in the Delhi Judicial Service. They also prayed for writ of prohibition to the effect that the respondents should not fill up the reserved vacancies for which they competed either by holding a fresh examination or by appointing candidates who had qualified in any previous examination. In such facts of the case and the issue involved the Supreme Court held as under:
“Normally recruitment whether from the open market or through a Departmental Competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates. However, there is a likelihood of vacancies arising in future in case names of selected candidates are already available there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies for the next examination should take into account the number of persons already in the list of selected candidates awaiting appointment. Thus there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies either by the method of direct recruitment or through a Departmental Competitive Examination.
Once a person is declared successful according to the merit list of selected candidates which is based on the declared number of vacancies the appointing authority has the responsibility to appoint him even if the number of the vacancies undergoes a change after his name has been included in the list of selected candidates. Thus where selected candidates are awaiting appointment recruitment should either be postponed till all the selected candidates are accommodated of alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appointment from a fresh list from the subsequent recruitment or examination.”
Having considered all the four decisions of the Supreme Court which have been relied upon by the learned Counsel for the petitioner, we are not in a position to appreciate how these decisions will be of any assistance to the petitioner as a wait-listed candidate. Each of the decision is, in the peculiar facts and circumstances of the case and the principles which have been propounded, will not carry the case of the petitioner any further.
The issue as to whether a candidate included in a select list has an indefeasible right to appointment or not, even if a vacancy exists was set at rest by Constitution Bench judgment of Five Judges in the case of Shankarsan Dash (supra) which we have referred to above. The Constitution Bench clearly held that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons.
Apart from this, we may also state that a waiting list prepared does not furnish a source of recruitment. The petitioner was in the waiting list at Sr. No.39. The waiting list 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, Government may, as a matter of policy decision pick up persons in order of merit from the waiting list.
In the case of Gujarat State Deputy Executive Engineers' Association v. State of Gujarat reported in 1994 Supp (2) SCC 591, Supreme Court had an occasion to consider the question what is a wait list? Supreme Court also considered the question as to whether such a waiting list can be treated as a source of recruitment from which candidates may be drawn as and when necessary and the third question how long can it operate. We find it profitable to refer and rely upon Paras 8 and 9 of the said judgment. In paras 8 and 9 Supreme Court held as under:
“8...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 its nature may be governed by the rules. Usually it is linked with the selection or examination 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.”
What can be deduced from the judgment of Dy. Executive Engineers' Association (Supra) is that a waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised. Supreme Court did not approve the view of the High Court that since vacancies have not been worked out properly, therefore, candidates from the waiting list were liable to be appointed. In clear terms Supreme Court has held that candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reasons and the waiting list is still operative. Thus, decision of the Supreme Court in Gujarat State DY. Executive Engineers' Association (Supra) which has been followed subsequently in the case of Surinder Singh v. State of Panjab reported in 1997 (8) SCC 488 and Surinder Singh (Supra) has been further referred and relied upon in a recent pronouncement of the Supreme Court in the case of State of Bihar and ors. v. Anirudhkumar Mishra reported in 2006 (12) SCC 561 is a authority for the proposition that even the waiting list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.
Applying the principle as laid down by the above referred authoritative pronouncements, we have no hesitation in coming to the conclusion that the petitioner has no indefeasible right of appointment. No fundamental right or any legal right can be said to have been infringed in the present case.
In view of the aforesaid, the petition fails and the same is hereby dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.
(BHASKAR BHATTACHARYA, ACTG. CJ.) (J. B. PARDIWALA, J.) mehul