Gujarat High Court
Chirag Kishorbhai Joshi vs State Of Gujarat on 2 March, 2022
Bench: Biren Vaishnav
C/SCA/10549/2020 ORDER DATED: 02/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10549 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 12416 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12416 of 2020
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CHIRAG KISHORBHAI JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR VAIBHAV A
VYAS(2896) for the Petitioner(s) No. 1
MS SURBHI BHATI, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 1,2
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 02/03/2022
ORAL ORDER
1. In both these petitions, under Article 226 of the Constitution of
India, the petitioners have prayed to direct the respondents to forthwith
give appointment on the vacancy which has arisen to the petitioner of
Special Civil Application No. 10549 of 2020 and 12416 of 2020 as Joint
Charity Commissioner, Class-I and Assistant Charity Commissioner,
Class-I respectively pursuant to Gujarat Public Service Commission's
advertisement.
2. It is the case of the petitioners that pursuant to an advertisement
issued by the Gujarat Public Service Commission (GPSC) being
Advertisement No. 49/2017-18 recommendations were made by the
Commissioner for appointment to the respective posts. The final result
was published by the GPSC on 11.07.2019. For the post of Joint Charity
C/SCA/10549/2020 ORDER DATED: 02/03/2022
Commissioner, the petitioner of Special Civil Application No. 10549 of
2020 was waitlisted candidate no. 1 whereas the petitioner of Special
Civil Application No. 12416 of 2020 was waitlisted candidate no. 1 for
the post of Assistant Charity Commissioner. Having opted for
appointments on the respective posts, the candidate no. 1 of the select list
opted out of the race by opting for an appointment in the lower
judiciary/resigned from the post to go back to parent cadre as the case
may be.
2.1 As a result of the vacancies so falling in the respective posts, the
government by a communication dated 02.07.2020 requested the GPSC
to operate the wait list in accordance with the resolution dated
27.07.2018. To this, the GPSC in its response dated 21.08.2020 opined
that the resolution that will govern the advertisement was that of
24.12.2008 and not 27.07.2018. The stand of the State in not operating
the waiting list and granting benefit of appointment to the petitioners on
their respective posts is that even if the resolution dated 24.12.2008 be
taken into consideration, operating of the waiting list was only restricted
to posts which were connected to the education and medical fields as
there was large scale mobility on such posts. The affidavit-in-reply filed
by the State and referred by Ms. Bhati learned AGP reiterates the stand of
the State accordingly.
3. Mr. Shalin Mehta, learned Senior Counsel appearing with Mr.
Vaibhav Vyas, learned advocate for the petitioners would rely on the
decision of this Court rendered in Special Civil Application No. 15682 of
2014 and allied matters wherein a co-ordinate bench in para 48 has held
that the resolution dated 24.12.2008 insofar as it restricts the operation of
the wait list for filling up the posts in the eventuality of resignation of the
C/SCA/10549/2020 ORDER DATED: 02/03/2022
candidates of the Education and Health Department violates Articles 14
and 16 of the Constitution of India. Para 48 reads as under:
"48. For the foregoing reasons, the present petitions are
hereby allowed. The circular dated December 24, 2008
issued by the General 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.
The respondents are directed to appoint the present
petitioners, who form the part of the waiting lists prepared
on completion of process of recruitment, in training on the
vacancies which have fallen vacant due to non-availability of
the candidates, in view of the circular dated December 24,
2008 issued by the Government of Gujarat, forthwith, to the
extent of posts advertised in the respective advertisement, on
the respective posts in respect of the respective
advertisement.
All the petitions stand disposed of accordingly. Rule is
made absolute to the extent aforesaid. There shall be,
however, no order as to costs.
Direct Service is permitted."
4. Similarly, this court in Special Civil Application No. 4238 of 2011
vide order dated 27.12.2011 has considered the decision of the Apex
Court in the case of Gujarat State Deputy Executive Engineers
Association vs. State of Gujarat reported in 1994 (0) GLHEL-SC
10019 and in para 5 has held as under:
"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
C/SCA/10549/2020 ORDER DATED: 02/03/2022
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 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
C/SCA/10549/2020 ORDER DATED: 02/03/2022
further order that may be passed by this Court, the matter is
adjourned to 8th February 2012."
5. Even as recently as on 07.12.2021, while considering the
interpretation of the circular dated 24.12.2008 in context of the
appointments to the post of Additional Public Prosecutors and Motor
Vehicle Prosecutors, Class-II, a co-ordinate bench of this court in Special
Civil Application No. 14265 of 2019 has held as under:
"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:-
"(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
C/SCA/10549/2020 ORDER DATED: 02/03/2022
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, ClassII, 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
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
C/SCA/10549/2020 ORDER DATED: 02/03/2022
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 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
C/SCA/10549/2020 ORDER DATED: 02/03/2022
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.
11. In view of the foregoing analysis and observations, the
writ petition is allowed. The impugned communication dated
C/SCA/10549/2020 ORDER DATED: 02/03/2022
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."
6. Ms. Surbhi Bhati, learned AGP would rely on a decision of the
Apex Court in the case of State of Orissa vs. Rajkishore Nanda and
others [(2010) 6 SCC 777] to submit that a candidate on the waiting list
would not get a right to be appointed. She would also rely on the
decision of the Apex Court in the case of State of Punjab vs. Raghbir
Chand Sharma and Another [AIR 2001 SC 2900] and Dinesh Kumar
Kashyap vs. South East Central Railway reported in (2019) 12 SCC
798. In support of her submission that mere existence of vacancies or
empanelment does not create any indefeasible right to appointment, she
has relied on a decision of the Apex Court in the case of Kerala SRTC
vs. Akhilesh V.S. [(2019) 14 SCC 96].
7. Considering the facts on hand, it is clear that this court on more
than one occasion has held that restricting the applicability of the circular
dated 24.12.2008 only to the fields of medical and education departments
violates Articles 14 and 16 of the Constitution of India. In the case of
Akbar Majidbhai Kachra vs. State of Gujarat rendered by this court in
Special Civil Application No. 14265 of 2019, considering all these
decisions, the co-ordinate bench of this court has also opined the same.
Admittedly, the advertisement is issued before 27.07.2018.
C/SCA/10549/2020 ORDER DATED: 02/03/2022
8. Accordingly, the petitions are allowed. The respondents are
directed to appoint the petitioners on the post of Joint Charity
Commissioner and Assistant Charity Commissioner as per their cases.
The petitioner of Special Civil Application No. 10549 of 2020 shall be
appointed with effect from 03.07.2019 and the petitioner of Special Civil
Application No. 12416 of 2020 shall be appointed with effect from
13.06.2020 on the said posts. Appropriate orders shall be passed
appointing the petitioners on the said posts within two months from the
date of receipt of the writ of the order of this court. It is clarified that the
intervening period shall be counted or considered for the purposes of
seniority and pay fixation only. Civil application is disposed of.
(BIREN VAISHNAV, J)
DIVYA
