Akbar Majidbhai Kachara vs State Of Gujarat
2021 Latest Caselaw 18165 Guj

      C/SCA/14265/2019                                   JUDGMENT DATED: 07/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 14265 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                                  NO

2      To be referred to the Reporter or not ?                               YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                      NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?                                NO

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                           AKBAR MAJIDBHAI KACHARA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1,2,3
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 07/12/2021
                      ORAL JUDGMENT

1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.

2. In the present writ petition, the petitioner is seeking a direction on the respondent authorities to recommend his name for the appointment to the post of Motor Vehicle Prosecutor (Class-II).

3. The brief facts of the case are as under:-

3.1 The Gujarat Public Service Commission (GPSC) had issued an advertisement inviting applications for recruitment to the post of Motor Vehicle Prosecutor (Class-II) by way of direct selection. By way of the said

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advertisement, in all 7 posts were advertised out of which one post was reserved for a candidate belonging to SEBC category.

3.2. Thereafter, the petitioner was informed to appear in the preliminary examination which was scheduled on 06.09.2015. Accordingly, the petitioner had appeared in the preliminary examination. On 18.04.2016, the GPSC had published the result of the preliminary examination, wherein the name of the petitioner was duly included as a successful candidate.

3.3. Thereafter, the petitioner was informed to remain present for personal interview on 27.03.2017. Accordingly, the petitioner had appeared for the oral interview. The GPSC had published the result of the recruitment process on 28.09.2017. From the perusal of the said result it is evident that the name of the petitioner was kept on the waiting list for SEBC category at serial No.1. One Mr.Kalyansinh Sukhdevan Gadhvi, who was recommended by the GPSC to the Government for appointment as SEBC category candidate was appointed by the State Government and he had joined the services on 20.03.2018. The said candidate had also cleared the examination for appointment to the post of Assistant Public Prosecutor, Class-II and accordingly he was appointed to the said post by the State Government. Upon appointment to the post of Assistant Public Prosecutor, Class-II, he had left the service from the post of Motor Vehicle Prosecutor, Class -II on 12.03.2019, i.e. within a period of one year from the date of joining service.

4. Learned advocate Mr.V.A.Vyas, while inviting the attention of this Court to the impugned communication dated 08.06.2019, has submitted that the case of the petitioner has been solely rejected in view of the provisions of circular dated 24.12.2008. While referring to the circular dated 24.12.2008, more particularly, paragraph no.1 thereof, he has submitted that the Coordinate Bench of this Court in the order dated 27.12.2011 passed in

C/SCA/14265/2019 JUDGMENT DATED: 07/12/2021

Special Civil Application No.4238 of 2011 has held that such operation of the waiting list would be discriminating and violating of Article 14 of the Constitution of India. He has submitted that once the candidate has resigned and the post has fallen vacant, as per the directions issued by this Court vide order dated 24.12.2011, the respondents have to recommend the name of the petitioner for the appointment of the concerned post. It is submitted by him that after interim relief dated 27.12.2011, the State appointed the concerned petitioner and by the order dated 16.07.2012, the said writ petition was disposed of.

4.1 Learned advocate Mr.V.A.Vyas has further submitted that while responding to the contents raised by the petitioner in the writ petition, in the affidavit the respondent-State has placed reliance on the resolution dated 27.07.2018 issued by the General Administration Department (GAD). He has submitted that in fact the aforesaid resolution would take care all the grievance of the petitioner, however the same is not applied in the case of the petitioner only because the respondents have construed the said resolution being prospective in nature. Further, reliance has been placed by him on the judgment dated 21.10.2016 passed in Special Civil Application No.15682 of 2014 and allied matters. The same is further challenged in Letters Patent Appeal Nos.1566 and 1027 of 2015, however, no stay is granted. Thus, he has submitted that the case of the petitioner has not been recommended for the post of Motor Vehicle Prosecutor, Class-II on the misreading of the aforesaid resolutions and hence, appropriate directions may be issued.

5. Per contra, learned AGP Mr.Hardik Mehta, while placing reliance on the affidavit filed by the respondent, has submitted that the petitioner will not have any right on being appointed or his name being recommended for the aforesaid post in view of the circular dated 24.12.2008. It is submitted

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by him that the subsequent resolution dated 27.07.2018 will not apply in case of the petitioner as the same will have prospective effect. He has submitted that the result of the GPSC was declared on 28.09.2017 and the waiting list could have remained in operation for two years upto 28.09.2019 and one candidate - Kalyansinh Sukhdevan Gadhvi, who joined service on 20.03.2018 had left the job on 12.03.2019 since he was appointed to the post of Assistant Public Prosecutor, Class-II. It is submitted that as per the provisions of the circular dated 24.12.2008, such benefit would only be available to those candidates, who are being appointed in medical field. No further submissions are advanced.

6. I have heard the learned advocates appearing for the respective parties.

7. The facts, as narrated hereinabove, are not in dispute that the petitioner was selected and placed in the waiting list on the post of Motor Vehicle Prosecutor, Class-II. It is not in dispute that the result was declared on 28.09.2017 and as per the policy of the State Government introduced with a circular dated 24.12.2008 and resolution dated 27.07.2018, the waiting list remained in operation for two years i.e. upto 28.09.2019. One of the candidates Mr.Kalyansinh Sukhdevan Gadhvi, who joined service on 20.03.2018 had left the job on 12.03.2019 since he was appointed to the post of Assistant Public Prosecutor, Class-II. Thus, on being relieved, the post fallen vacant within a period of 2 years during the subsistence of the waiting list. It is also not in dispute that the next candidate, who would be eligible for the appointment is the present petitioner. When the petitioner requested the respondent authorities to appoint him on the vacant post vide communication dated 18.06.2019, his case for appointment was rejected by placing reliance on the circular dated 24.12.2008, more particularly, in view of paragraph no.1. The same reads as under:-

      C/SCA/14265/2019                                          JUDGMENT DATED: 07/12/2021



         "(1)    In the case of competitive examination or direct selection without

examination, if any candidate out of the candidates recommended by the Commission does not join, the Department can demand the equal number of candidates from the waiting list. But, the posts of medical and education included in direct selection have more mobility. Therefore, when the candidate recommended by the Commission does not join in the case of direct recruitment, the concerned Department can demand the candidate from the waiting list to fill such post and to fill the post being vacant after the candidate resigns post joining duty and during the probation period or he is relieved for any other reasons."

8. It is the case of the respondent authorities that such benefit would only be available to the candidates, who had applied in medical and teaching fields. It is specifically stated in the impugned communication that the post of Motor Vehicle Prosecutor, Class-II does not fall within the educational field or medical field and hence, any post, which has fallen vacant within one year cannot be filled in.

9. At this stage, it would be apposite to refer to the observations made by this Court in the interim order dated 27.12.2011 passed in Special Civil Application No.4238 of 2011. This Court while interpreting the aforesaid clause of the circular dated 24.12.2008 has observed thus:-

"5) Having considered rival submissions and record of the case, it is not in dispute that a candidate respondent no.3 who was appointed on the post of Account Officer, Class-II, on her appointment as Section Officer, Class- II, is already relieved as per order dated 12.5.2011 and in view of what is held by the Hon'ble Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) in para-8 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 not right to claim appointment to any future vacancy which may arise unless the selection was held for it".

Thus, in the facts of the case, respondent no.3 who was on probation, having joined the duty on the post of Account Officer, Class-II, was relieved since she was already appointed on the post of Section Officer, Class-II and thus a clear vacancy had arisen on the post of Account Officer, Class-II and benefits carved out in a case of direct selection pertaining to medical and education, where the operation of waiting list is permitted in a case where even the candidate who resumed the duty and, thereafter, is relieved for any good reason, is not made

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applicable to the candidate appointed for the post of Account Officer, Class-II, prima facie, appears to be discriminatory and violative of Article 14 of the Constitution of India. It is without any rational or logic that why a candidate to be appointed on the post of Account Officer, Class-II in the department of Finance or any such department is to be deprived of the benefit of appointment from the waiting list by assigning priority. Thus, what is held by the Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) and provision of circular dated 24.12.2008 since waiting list is operating, certain benefit to a candidate of direct recruitment for medical and education and depriving the candidate for the post of Account Officer, Class II with regard to the operation of waiting list is irrational and, therefore, I direct respondents to consider case of the petitioner so as to appoint the petitioner on the post of Account Officer, Class-II on now vacant post. Subject to further order that may be passed by this Court, the matter is adjourned to 8th February 2012."

This Court, while placing reliance on the judgment of the Supreme Court in the case of Gujarat State Deputy Executive Engineers' Association vs. State of Gujarat and Ors., 1994 (0) GLHEL-SC-10019 has held that such discrimination of the candidates on the ground of medical and education fields with regard to appointment of the candidates would be violative of Article 14 of the Constitution of India. It appears that thereafter pursuant to the interim direction issued by this Court, the concerned petitioner was appointed by the order dated 16.07.2012, hence the writ petition was disposed of by observing that the parties will governed by the interim relief dated 27.12.2011. Thus, the aforesaid observations made by this Court with regard to very same provisions of the circular dated 24.12.2008 have become final and hence, the respondent authorities cannot take shelter against the said provisions for denying the case of the petitioner for the appointment to the post of Motor Vehicle Prosecutor, Class-II. It is interesting to note that the aforesaid resolution was also subject matter of challenge in Special Civil Application No.15682 of 2014 and allied matters and by the comprehensive judgment dated 21.10.2016, this Court has set aside the circular dated 24.11.2008 and declared its arbitrary and violative of Articles 14 and 16 of the Constitution of India by observing thus:-

"48. For the foregoing reasons, the present petitions are hereby allowed. The circular dated December 24, 2008 issued by the General

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Administration Department, Government of Gujarat, is held to be unjust, arbitrary and violative of Articles 14 and 16 of the Constitution of India insofar as it restricts the operation of waiting list for filling up the posts in the eventuality of resignation of the candidates or of those who have left or those who have been relieved from the posts, in Education and Health Departments only."

Thereafter, the GAD issued a resolution dated 27.04.2018 incorporating the provisions with regard to operation of waiting list. The same reads as under:-

"(2) In respect of all the services/post in one cadre of the State Government to be filled by competitive examination for recruitment or by direct selection when the candidate recommended by the Commission or by the prescribed Recruitment Selection Board resigns within one year of his joining or leaves the job due to death or any other reasons or he is relieved for any other reasons, and if the post remains vacant, such post can be filled from the waitlisted candidates. But, the posts of medical and education included in direct selection have more mobility. Therefore, when the candidate recommended by the Commission does not join in the case of direct recruitment, the concerned Department can demand the candidate from the waiting list within the prescribed time limit of such waiting list only to fill such post and to fill the post being vacant after the candidate resigns post joining duty and during the probation period/death or he is relieved for any other reasons and the post remain vacant."

10. The grievance of the petitioner will get satisfied in view of the aforesaid provision, however, the benefit of the said resolution is not extended to the petitioner for the reason that the same has prospective effect. Thus, the respondent authorities have accepted that in case the post falls vacant during the subsistence of the waiting list, the same is required to be filled-in by the candidate from the waiting list. Assuming that the resolution dated 27.07.2018 has a prospective effect, the same will not dilute the proposition of law enunciated by this Court in the aforenoted judgments and orders. The judgment dated 21.10.2016 passed in Special Civil Application No.15682 of 2014 and the interim order dated 27.12.2011 passed in Special Civil Application No.4238 of 2011 will squarely cover the issue raised in the writ petition. Before the impugned order dated 18.06.2019 was passed, the aforesaid judgment was already declared and even implemented.

C/SCA/14265/2019 JUDGMENT DATED: 07/12/2021

11. In view of the foregoing analysis and observations, the writ petition is allowed. The impugned communication dated 08.06.2019 is hereby quashed and set aside. The respondents are directed to appoint the petitioner to the post of Motor Vehicle Prosecutor, Class-II from the date with effect from 12.03.2019 i.e. the date when the post fell vacant or any suitable date. Appropriate orders shall be passed appointing the petitioner on the said post within a period of two months from the date of receipt of the writ of this order. It is clarified that the intervening period shall only be counted or considered for the purpose of seniority and pay fixation only. Rule is made absolute.

                                                                       Sd/-     .
                                                               (A. S. SUPEHIA, J)
ABHISHEK/74