Kalpanaben Pravinbhai Patel vs State Of Gujarat
2021 Latest Caselaw 1249 Guj

         C/SCA/10676/2020                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 10676 of 2020

                               With
          CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 10676 of 2020
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              KALPANABEN PRAVINBHAI PATEL & 4 other(s)
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR GM JOSHI, SR. ADVOCATE with VYOM H SHAH(9387) for the
Petitioner(s) No. 1,2,3,4,5
MS JYOTI BHATT AGP (1) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

                            Date : 28/01/2021

                             ORAL ORDER

1. Heard Mr. Gautam Joshi, learned Senior Advocate assisted by Mr. Vyom Shah, learned advocate for the petitioners and Ms. Jyoti Bhatt, learned AGP for the respondent.

2. The present petition is taken up for final disposal with the consent of the learned advocates for the parties as the issue involved moves in a narrow compass.

3. The petitioners have preferred the present petition under Articles 14, 16 and 226 of the Constitution of India praying for the following substantive reliefs:

"6(A) This Honourable Court may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, direction or order directing the respondent

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authorities to issue appointment orders to the petitioner on the by operating the general category wait list further.

(B) During the admission, pendency and final disposal of the petition, pleased to direct the respondent authorities not to issue fresh recruitment advertisements for the said posts of Nurse Staff class 3."

4. The brief facts giving rise to the present petition are as under:-

4.1 The respondent published an advertisement for the posts of Staff Nurse Class-III for filling up 1466 vacant posts. The petitioners applied for the said posts against general category. Upon the applications of the petitioners being accepted, they were called for the written examination which came to be conducted on 5.8.2018. Pursuant thereto, a provisional list came to be published on 17.10.2018 in which the names of the petitioners were included in the wait list. Thereafter the petitioners were called for documents verification and the documents of the petitioners were approved by the respondent. Thereafter, the respondent published a final merit list and a wait list on 28.1.2019. The names of the petitioners were reflected in the wait list prepared for general category at Serial No.24, 26, 29, 30 and 34.

4.2 By an order dated 14.2.2019, the appointment orders were issued to all the candidates whose names were reflected on the select list. Due to non-joining of some of the candidates, the respondent authority had to operate the wait list and the candidates upto Sr. No.21 in the wait list for general candidates were given appointment orders. Thereafter, in the months of August and September 2019, 14 general category candidates appointed under the same recruitment process had tendered their resignations from the posts and the said general category posts fell vacant

C/SCA/10676/2020 ORDER

which information the petitioners obtained under the Right to Information Act. Thereafter, the petitioners requested the authorities to fill in the said vacancies by operating the wait list further. The respondent in the reply dated 15.7.2020 stated that they have decided not to fill up the vacancies by operating the wait list. It is the case of the petitioners that the said action of the respondent was not in consonance with the Government Resolutions dated 24.12.2008 and 10.8.2016 which clearly stipulate that if there are resignations from any post within one year of issuance of the appointment order, the same can be filled in by operating the wait list. Hence, the petitioners have preferred the present petition.

5. The respondent has resisted the present petition by filing affidavit- in-reply.

6. Mr. Joshi, learned senior advocate submits that the issue involved in this petition is squarely covered by the decisions of the coordinate bench of this court dated 2.7.2019 rendered in Special Civil Applications No.12056 and 12248 of 2018 and dated 28.11.2019 rendered in Special Civil Application No.9813 of 2018. It is his further submission that both these decisions of the learned Single Judge are upheld by the Division Bench in Letters Patent Appeals No.212 and 250 of 2020 and Letters Patent Appeal No.35 of 2021 respectively. It is his further submission that it is not in dispute that the names of the petitioners were placed in the wait list dated 28.1.2019. It is his further submission that in view of the circular dated 24.12.2008 the life of the wait list is two years or publication of the result of subsequent examination, whichever is earlier. He submits that the respondent has operated the wait list upto Sr. No21 and thereafter though there are vacancies available and the wait list is still current, the respondents have decided to fill up the vacant posts by outsourcing. He, therefore, submits that in view of the decisions of the coordinate bench of this court, the petition may be allowed and the

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respondent may be directed to offer appointment to the petitioners as Staff Nurse Class-III.

7. On the other hand, Ms. Jyoti Bhatt, learned AGP has opposed this petition. She submits that the petitioners are not eligible for appointment. She submits that paragraphs 9, 10, 12 and 14 of the affidavit-in-reply may be considered as her submissions which read as under:-

"9. It is respectfully submitted that on computing the eligibility of all candidates in all categories as per revised merit list dated 28.1.2019, there was a vacancy of 49 seats which were considered and operated from the waiting list dated 28.1.2019. In the operation of the waiting list 17 candidates of general category having were found eligible with 88 cut off marks in paper-1 and paper-2.

10. It is respectfully submitted that considering the fact that large number of posts were going vacant in view of the standard and merits decided by the department for the purpose of considering the qualifying standards, the department reviewed the recruitment process and had come to the conclusion that the merit standards were required to be reduced to ensure that posts are filled up and such reduction of merit standards would not cause any prejudice to any one and therefore, the standards were revised and ultimately the recruitment process was carried out. However, once such recruitment process has already been carried out upon conclusion if an eventuality arises with reference to operating the waiting list, an individual cannot claim it as a matter of right as it was not one of those standard waiting list which was prepared on the basis of original merits and standards and, therefore, in the peculiar set of circumstances, it cannot be said that the individual

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candidates in the waiting list have further rights. Therefore, the Department was not inclined to fill up the vacant post by operating the waiting list and would rather prefer issuance of fresh advertisement to get more qualitative candidates for the vacant posts.

12. It is submitted that as per the merit list, the cut off marks for General category for Paper-1 and Paper-2 were 88 marks. However, the petitioners No.1, 3, 4 and 5 namely Kalpanaben P. Patel, Mamtaben S. Patel, Priyankaben S. Dave and Vanraj B. Chauhan were having marks less than the minimum cut -off marks of 88 in Paper-1 and Paper-2 and hence, they were not eligible for appointment. In the case of the petitioner No.2 Hemali P. Patel, the petitioner though had 88 marks in Paper-1 and Paper-2 was not considered eligible for appointment because a candidate namely Malaben Devani was senior to the petitioner and had obtained the same marks and therefore was considered for appointment.

14. It is submitted that considering the current situation of pandemic, the urgent requirement due to deficiency of staff nurse was filled by way of outsourcing and therefore, the respondent authority has published advertisement dated 16.12.2020 for fresh recruitment of 700 staff nurses which is utmost necessary in dealing with the pandemic and its effects on public health."

8. Therefore, it is submitted that the petitioners are not entitled to any of the reliefs prayed for in the petition and the same be dismissed in limine.

9. The undisputed facts which are emerging from the pleadings are

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that the petitioners who belong to general category applied for the post of Staff Nurse Class-III in response to advertisement dated 9.6.2018. The petitioners thereafter appeared in the written examination which was conducted on 5.8.2018 and thereafter a final merit list as well as wait list came to be published on 28.1.2019. The names of the petitioners are included in the wait list prepared for general category at Sr. No.24, 26, 29, 30 and 34. It is also an undisputed fact that the wait list is operated till Sr. No.21.

10. The respondent has not controverted in the affidavit-in-reply that in the months of August and September 2019, 14 general category candidates appointed under the same recruitment process have resigned and, therefore, 14 general category posts have fallen vacant.

11. The Government of Gujarat in the General Administration Department has issued a circular dated 24.12.2008. The circular is regarding the validity period and operation of wait list for direct recruitment undertaken by the Gujarat Public Service Commission. The circular provides that the wait list shall remain in operation in case of competitive examination as also in case of direct recruitment for two years or until the declaration of the result of subsequent examination, whichever is earlier. This circular also provides for the terms for operation of the wait list.

12. The submission of the respondent that the petitioners are not eligible for the post of Staff Nurse Class-III cannot be countenanced for the simple reason that the petitioners had participated in the recruitment process and on the basis of their performance they were put in wait list. Moreover, it is an undisputed fact that the wait list is operated till Sr. No.21 and when the turn of the petitioners came for the appointment, the respondents have taken a stand that they are not eligible for the post

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concerned to deny them the benefit of the appointment.

13. This court vide order dated 2.7.2019 passed in Special Civil Applications No.12056 and 12248 of 2018 and judgment dated 28.11.2019 passed in Special Civil Application No.9813 of 2018, while considering the similar issue, has held that if the vacancies have occurred during the currency of the wait list, as contemplated under circular dated 24.12.2008 read with resolution dated 27.7.2018, the wait list was required to be operated and, therefore, when the wait list was live and could be operated, the petitioners whose names figure in the wait list are entitled to the benefit to be considered for appointment to the post which have occurred during the currency of the wait list. It is also held that the stand of the authorities in refusing to operate the wait list could not be countenanced as it stands in breach of tenets of Articles 14 and 16 of the Constitution.

14. The offshoot of the above discussion is that the petition deserves to be allowed and the same is, accordingly, allowed. The respondent authorities are directed to operate the wait list published on 28.1.2019 and consider the case of the petitioners for the post of Staff Nurse Class- III in order of their merit in the wait list.

14. The petition stands allowed accordingly.

15. In the light of the above order, the civil application does not survive and stands disposed of accordingly.

(A.G.URAIZEE, J) Z.G. SHAIKH