Padma Babubhai Patni vs State Of Gujarat
2022 Latest Caselaw 4227 Guj

    C/SCA/6196/2021                               CAV JUDGMENT DATED: 19/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6196 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 or any order made thereunder ?

========================================================== PADMA BABUBHAI PATNI Versus STATE OF GUJARAT ========================================================== Appearance:

MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 19/04/2022

CAV JUDGMENT

1. Rule, returnable forthwith. Mr. Krutik Parikh, learned

Assistant Government Pleader waives service of notice

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

of Rule for the respondents.

2. With the consent of the learned advocates appearing for

the respective parties, the petition was taken up for its

final disposal.

3. The petitioner, a Socially and Educationally Backward

Class (hereon after referred to as `SEBC') category

candidate has prayed for a direction to complete the

process of filling up all 285 vacancies of Staff Nurse,

Class-III notified vide advertisement dated 28.8.2018.

She has further prayed that the remaining 47 vacancies

which have remained unfilled on 22.10.2020 be also so

filled. Further direction is prayed that the respondents

give appointment to the petitioner as Staff Nurse,

Class-III as per her merit marks 39.900.

4. Facts in brief would indicate that the petitioner belongs

to the SEBC category. Pursuant to an advertisement

dated 8.8.2018 for recruitment of 285 staff nurse Class

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

III, she applied for appointment. 73 vacancies were

notified for SEBC category. After having cleared her

selection process, according to the petitioner she was

placed at Sr. No.326 in the provisional merit list of 521

candidates published on 10.1.2019. When the final list

was published of 285 candidates on 8.2.2019, the

petitioner did not find her name in it.

5. It is the case of the petitioner that an additional final

selection list was published and on 12.10.2020,

additional 90 vacancies were notified of which 28 were

for SEBC. Only 43 vacancies were filled in and out of 28

vacancies of SEBC, only 11 SEBC candidates were

appointed. One SEBC candidate with a similar merit

mark at Sr. No.324 was given appointment. Hence, the

petition.

6. Mr. K.B. Pujara, learned advocate for the petitioner

would submit 285 vacancies were notified for Staff

Nurse, Class-III. 73 of them were for the SEBC

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

category, to which the petitioner would belong.

Drawing the attention to the provisional merit list of

521 candidates prepared by the Gujarat Panchayat

Service Selection Board, Mr. Pujara would submit that

the name of the petitioner in the provisional merit list

dated 10.1.2019 appeared at Sr. No.326 in the category

of SEBC female. Name of one Rubinabanu Abdulrazak

Mansuri appeared at 324, also a female SEBC

candidate, who had 39.900 marks, same as that of the

petitioner.

6.1. Mr. Pujara would further submit that a final

merit list was prepared of 285 candidates on

13.2.2019 wherein neither the petitioner's name or

that of said Rubinabanu Abdulrazak Mansuri at Sr.

No.324 figured.

6.2. Mr. Pujara would submit that the Board

asked for an additional final select list of total 90

vacancies of which 28 was for the SEBC category. He

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

would submit that reading the advertisement or

requisition would indicate that it was the second

additional final selection list of 12.10.2020. Pursuant

to the additional requisition on 22.10.2020, a list of

district allotment was prepared wherein the name of

Rubinabanu Abdulrazak Mansuri figured at Sr. No.28.

Of the 90 vacancies notified, only 43 were filled in. Of

43, 28 were notified for SEBC of which only 11 were

filled in and 17 vacancies of SEBC category remained

unfilled.

6.3. Mr. Pujara, learned counsel for the

petitioner would submit that reliance placed on the GR

dated 23.7.2020 which provided for preparing the

waiting list to the extent of 35% of notified vacancies

as if the petitioner was on the waiting list was wrong.

Relying on the decision in the case of State of Jammu

and Kashmir v. Sat Pal reported in 2013(11) SCC,

737, he would submit reading out paras 10 and 11

thereof that waiting list would start to operate when

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

the offers of appointment have been issued to those

emerging on the top of the merit list. It operates after

the vacancies for which the recruitment process has

been conducted have been filled up. He would submit

that the aforesaid decision has been followed by this

Court in a decision rendered on 24.2.2015 in SCA

No.17288 of 2013 which was confirmed by a Division

Bench, by its Oral Judgment dated 15.10.2018 in

Letters Patent Appeal No.1306 of 2015.

6.4. Reliance was also placed on a decision in

the case of Jai Narain Ram v. State of Uttar

Pradesh reported in 1996(1) SCC 322. Relying on

this decision, Mr. Pujara would submit that four posts

of reserved quota had remained unfilled as is evident

from reading the facts of the Judgment. Four posts had

remained unfilled because the selected candidates did

not join. The Hon'ble Supreme Court held that the

denial of appointment to the next four qualified

candidates on the ground that there was no requisition

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

by the State was held to be bad. He would therefore

submit that the facts of the case of the present

petitioner are covered. A direction be given therefore

that the petitioner be appointed.

7. Mr. D. G. Shukla, learned counsel for the respondent -

Panchayat Services Selection Board would also rely on

the affidavit in reply and the written submissions filed.

He would submit that the Board issued an

advertisement for 285 posts of Staff Nurse, Class-III,

out of 285 posts, 73 were reserved for the SEBC

category. The petitioner belonged to SEBC. She

appeared in the written test on 25.11.2018. A

provisional merit list of 521 candidates was prepared.

He submitted that inclusion of the name in the

provisional list should not be construed as inclusion in

the final list. The petitioner had secured 39.900 marks.

The name of the petitioner was not included in the list

which was made final as in the order of merit, her name

did not figure. An additional select list was prepared on

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

21.9.2019, in which 59 candidates of which 15 were

SEBC, were included. Thereafter, on a request made by

the State, a Government Resolution dated 23.7.2020

was issued to declare waiting list upto 35% of the total

vacancies. As there were 73 vacancies of the Staff

Nurse, the Board could fill in 26 vacancies; 35% of the

73 in number by further publishing an additional select

list. As some of the candidates did not report for duty,

of the 43 candidates, 11 were of SEBC category. In the

final select list, the last selected candidate in the SEBC

category was Rubinabanu Abdulrazak Mansuri, who

was at Sr. No.433 on the provisional merit list, her Date

of Birth being 1.2.1994. The petitioner whose name

figured at Sr. No.438 on the provisional merit list could

not be appointed as Rubinabanu Abdulrazak Mansuri

was older in age and since just one post was available,

she was appointed.

7.1. Mr. D. G. Shukla would further submit that

as per the decisions of the Hon'ble Supreme Court in

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the case of K. Jayamohan v. State of Kerala and

another reported in AIR 1997 SC 2619, it is a

settled legal position that merely because candidate is

selected and kept in the waiting list, such a candidate

would not acquire an absolute right for appointment.

Reliance was also placed on the decision in the case of

Government of Government of Orissa v.

Haraprasad Das & another reported in AIR 1988

SC 375, paragraph No.8 thereof. He would submit

that the Judgments relied upon by Mr.Pujara would

not be applicable and the judgment of the case in Jai

Narain Ram (Supra) will also not apply to the facts

of the case as it deals with recruitment of the

competitive examinations where waiting list is not

prepared.

8. Having considered the submissions made by the

respective parties, what appears from the facts as

submitted by the learned advocates for the respective

parties is that, initially, 285 posts were advertised for

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the Staff Nurse, Class-III. Of the total advertised posts,

73 were for the SEBC category. In the provisional merit

list, the name of the petitioner figured at 438, her Date

of Birth was 17.12.1995. That of one Rubinabanu

Abdulrazak Mansuri who also secured the same marks

as the petitioner and was also female SEBC found her

name at Sr. No.433 on the provisional merit list. The

reliance placed on the table and showing the merit in

Mr. Pujara's submission as 326 and 324 is not correct

because when the provisional merit list and the

appropriate table head is read, the provisional merit

number of the petitioner is at 438 whereas that of

Rubinabanu Abdulrazak Mansuri is at 433.

9. An additional final select list was called for and

prepared on 22.10.2020 where Rubinabanu Abdulrazak

Mansuri found her place on being selected. The case of

the petitioner is that since 17 vacancies were remained

unfilled, and had those 17 vacancies been filled the

petitioner would have found her place in the select list

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

for appointment and not operating the list to fill in all

the vacancies violated Articles 14 and 16 of the

Constitution of India. Great emphasis was laid by the

learned counsel for the petitioner in a decision in the

case of Sat Pal (Supra) to submit that once the

recruitment process is conducted and the vacancies are

filled in, the waiting list would commence to operate

and therefore the stand of the Government in

truncating the appointment process based on the

Government Resolution dated 23.7.2020 at 35% was

wrong. The decision of Sat Pal (Supra), was a case

where the respondent therein had approached the High

Court as his name figured in a merit list of the SC

candidate. He made representations to the respondents

stating that one Triloknath was one of the selected

candidates who had been offered appointment had not

joined and since name figured immediately after

Triloknath, he be appointed.

10. Before the High Court the respondent relied on the

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Rule which envisaged that the merit list of candidates

in continuation would constitute the waiting list and

will be valid for one year. The High Court directed the

respondent to take a decision on the representation in

respect of the appointment. Pursuant to the direction

issued by the High Court, the State passed an order and

the representation was rejected on the ground that the

waiting list had out lived utility and, therefore

vacancies could not be filled in. What was filed was a

contempt petition rather than file a writ petition. The

Court gave certain directions, aggrieved by which the

State went in appeal.

11. Before the High Court and the Hon'ble Supreme Court

it was not a matter of dispute that Sat Pal (Supra) who

had participated in the selection figured in the merit

list. Triloknath, the candidate immediately above him

refused appointment and, therefore, the case of the

respondent before the Hon'ble Supreme Court was that

he should have been offered appointment immediately.

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

It is in these facts that the Hon'ble Supreme Court held

that it was not a case where the controversy regarding

operating a waiting list had a reason. In the recruitment

process which was conducted, vacancies were never

filled up since the person higher in the merit did not

join. It was in this context that the decision of Sat Pal

(Supra) was delivered.

12. Even on a perusal of the decision dated 24.2.2015

passed in Special Civil Application No.17288 of 2015

and allied matters of the Division Bench of this Court in

the case of Patel Anuradhaben Arjunbhai and

others v. State of Gujarat, adverting to the facts

before that Court, what is evident is that a waiting list

could not be operated because of the suspension of

selection process as the model code of conduct having

come into force. The waiting list could not be operated

because of such a model code and suspension of

appointment by the government. Reliance there also

was placed on the decision in the case of Sat Pal

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

(Supra). Considering the decisions rendered by the

Hon'ble Supreme Court in the case of Sat Pal (Supra)

and others which were relied by the learned counsel for

the petitioners therein, the Court observed that in the

decision of Sat Pal (Supra), what was observed was

that a waiting list would start to operate only after the

posts for which the recruitment have been filled up.

The Coordinate Bench observed that as held by the

Hon'ble Supreme Court, the date of filing of the

representation or the date when the authority chooses

to fill up the vacancies is of no consequence. The Court

further observed that it would be a different proposition

if the appointing authority decides not to fill up an

available vacancy, despite the availability of candidates

in the waiting list. In the case on hand, the authorities

had issued call letters inviting the petitioners to remain

present. The waiting list could not be operated on

account of the model code of conduct and stay orders.

Therefore, the case relied upon by Mr. Pujara, learned

counsel for the petitioner is a case where the

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candidates like the petitioners therein were invited for

appointment and the waiting list was actually to be

operated and not a case where a decision was taken not

to fill up the vacancies as in the present case. It is in

this context that the Government Resolution dated

23.7.2020 relied upon by Shri Shukla, learned counsel

for the respondent - Board needs to be appreciated.

13. The Government by the Resolution of 23.7.2020

truncated the strength of the waiting list to 35% of the

notified SEBC vacancies. In other words, 26 candidates

were to be selected by publishing the additional waiting

list. It was not a case where the name of the petitioner

figured on the list and she could not be appointed. The

name of the petitioner was only on the provisional merit

list and did not figure on the final select list.

14. When the additional vacancies were filled in,

Rubinabanu Abdulrazak Mansuri much higher in the

merit at 433 looking to her age got priority in

C/SCA/6196/2021 CAV JUDGMENT DATED: 19/04/2022

appointment. As held by the Hon'ble Supreme court in

the case of K. Jayamohan (Supra), merely because

the candidate is selected and kept on the waiting list

would not acquire an absolute right for appointment.

Here was a case where the authority decided not to fill

in the vacancies or make further appointments due to

the reason of the Circular of 23.7.2020. The decision

therefore not to go further and appoint candidates even

because there were additional room for appointing

candidates in the 17 vacancies was taken by virtue of

the Circular of 23.7.2020 cannot be said to be an

arbitrary act because whether to fill up a post or not is

the decision of the State which cannot be faulted.

15. Accordingly, the petition is dismissed. No order as to

costs. Rule is discharged.

[BIREN VAISHNAV, J.] VATSAL S. KOTECHA