Naisarg Sandeep Dixit vs The State Of Gujarat
2022 Latest Caselaw 7623 Guj

    C/SCA/16372/2021                                 JUDGMENT DATED: 07/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16372 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 ?

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                       NAISARG SANDEEP DIXIT & 8 other(s)
                                   Versus
                       THE STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. G.M.JOSHI, SENIOR ADVOCATE WITH MR. ANAND V
THAKKAR(7091) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 07/09/2022

                               ORAL JUDGMENT

1 Rule returnable forthwith. Mr. Kurven Desai,

C/SCA/16372/2021 JUDGMENT DATED: 07/09/2022

learned Assistant Government Pleader, waives service of

notice of rule on behalf of respondent No.1, Mr.Chaitanya

Joshi, learned advocate, waives service of notice of rule

on behalf of respondent No.2. With consent of the learned

advocates for the respective parties, the matter is taken

up for final hearing today.

2 The prayer in this petition is that the respondents be

directed to recommend the name of the present

petitioners for appointment to the post of Assistant

Engineer (Civil), Class-II, by operating the list to the

extent of the vacancies in respective categories that have

arisen through the life time of the Wait List and further

be pleased to direct the respondents to appoint the

present petitioners accordingly.

3 Facts in brief would indicate that the advertisement

was issued by the Gujarat public Service Commission in

the year 2018-2019 for the posts of Assistant Engineer

(Civil), Class-II. 285 vacant posts were so advertised.

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3.1 The petitioners belong to various categories i.e.

General Category, E.W.C and S.E.B.C category. Written

examinations came to be conducted on 23.06.2019. Final

result was published on 06.11.2019.

3.2 Mr.G.M.Joshi, learned Senior Advocate, would

therefore submit that the currency of the Wait List would

be till 05.11.2021. The names of the petitioners figured in

the Waiting List at serial numbers 9 to 11, 13, 15 and 18

respectively. The petitioner No. 7 was shown as in the

waiting list at serial No.1 in the EWS category, whereas

the petitioner Nos. 8 and 10 were shown in the waiting

list of SEBC category at serial Nos. 1 and 3.

3.3 It is the case of the petitioners that the Waiting List

were operated on two occasions, on 08.10.2020 and on

04.01.2021 on account of resignations which occurred

within one year from the date of the final result i.e.

06.11.2019. It is brought on record by further affidavit of

the petitioners that 19 posts are still vacant pursuant to

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the resignations given by these selected candidates as a

result of their selection to the post of Dy. Executive

Engineers (Civil), Class-II and Executive Engineers

(Civil), Class-I.

3.4 Mr.Joshi, learned Senior Advocate, would further

submit that since the vacancies have occurred within two

years from 06.11.2019, the respondents are bound to

operate the Waiting List.

4 Mr.Kurven Desai, learned Assistant Government

Pleader, has tendered an affidavit-in-reply filed on behalf

of the Under Secretary, Government of Gujarat. Reading

the affidavit would indicate that the respondents have

operated the Waiting List as per the Resolution dated

27.07.2018 which particularly states that those

candidates who have been given appointment as per final

merit list, if those candidates resign or leave job within

one year from the date of the appointment, then the

waiting list is to be operated. That was done while

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operating the waiting list on 08.10.2020 and 04.01.2021.

In case of the 17 posts having fallen vacant beyond the

period of one year, in light of the resolution dated

27.07.2018, if such resignations occur beyond a period of

one year, the waiting list is not to be operated is the

stand taken by the respondents.

5 In Special Civil Application No. 752 of 2022, vide

CAV Judgement on 06.09.2022, the Court, in light of facts

akin to the present one, held as under:

"6.1 This interpretation of the resolution, in the opinion of the court, is directly contrary to the intent of the resolutions so passed by the State on 10.08.2016 and 27.07.2018. The master resolution which these two resolutions refer to is that of 24.12.2008 which clearly indicates that the currency of the waiting list is two years or the next advertisement, whichever is earlier. Admittedly on hand, the wait list and select list were prepared on 31.08.2019. The currency, therefore, in absence of a new advertisement was upto 31.08.2021. Merely because the candidates who were selected and appointed resigned beyond a period of one year on 21.08.2021 does not truncate the currency of the waiting list which otherwise had a life of two years i.e. upto 31.08.2021. Even based on the additional affidavit/rejoinder filed, it is evident that the waiting list was operated by appointing two candidates therefrom on 26.05.2022.

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7. Even one has to take into consideration the decision of this court in the case of Nirav Dipakchandra Rana and Others vs. State of Gujarat dated 22.07.2019 rendered in Special Civil Application No. 12056 of 2018 with Special Civil Application No. 12248 of 2018. There the petition was contested on the ground that the list expired on 01.08.2018 and the petition was filed on 31.07.2018 which had become infructuous. Taking into consideration the recruitment results which were published on 31.08.2018 and that the vacancies had become available on 12.07.2017, the court opined that if the vacancies arose within a span of two years, the right would accrue to such wait listed candidates to seek appointment, since the wait list was live as the time limit of two years as contemplated in the circular had not expired. The relevant paras of the decision Nirav Dipakchandra Rana (supra) need to be reproduced:

"3. The petitioners have been aspiring appointment to the post having participated in the process pursuant to Advertisement No.74/2013-14 published by respondent No.3 - GPSC which was for the post of Lecturer, Electronics & Communications Engineering, Class-II. Total 76 posts were advertised, out of which 06 meant for Scheduled Caste Category, 16 for Scheduled Tribe Category and 32 posts were earmarked for Socially and Educationally Backward Class Category. The petitioners succeeded in the preliminary examination held by the GPSC on 13th July, 2014. After the preliminary examination, a list of the candidates whose applications were verified, came to be published on 13th December, 2014. Names of the petitioners figured therein. The petitioners submitted documents for verification, interview call letters were received by the petitioners and the petitioners remained present for interview which took place between 07th September, 2015 and 11th

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September, 2015.

3.1 The result of the interview was declared on 01st August, 2016 by the GPSC. Names of the petitioners stood included in the waiting list of their respective category. The petitioners were intimated by communication dated 04th October, 2016 accordingly, wherein it was also stated that the wait list would remain in existence for two years from 11th August, 2016 or until the declaration of result of the next advertisement for the same post, whichever occurs earlier.

3.2 It was stated by the petitioners that thereafter selected candidates were placed under the Commissioner of Technical Education for the purpose of appointment and the appointment orders came to be issued in favour of the selected candidates by the Commissioner of Technical Education on 27th October, 2016.

3.3 As per the undisputed case of the petitioners, after the appointment of selected candidates, the respondent authorities operated the wait list for five candidates, of which two candidates each from S.T. Category and S.E.B.C. Category whereas one candidate from General Category were recommended on 08th May, 2017 by the GPSC to the State Government for appointment. It was stated that three more candidates from S.E.B.C. and General Category were thereafter given appointment by the State Government. It was further stated by the petitioners that as per their information, as many as 11 more seats fell vacant because of the fact that the candidates joined another post of Assistant Professor.

3.4 Thus, what is stated and pleaded by the petitioners is that several selectees who were offered appointment for the Lecturer, Electronics &

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Communications Engineering, came to be subsequently selected on the post of Assistant Professor pursuant to another advertisement and they joined the service there. It was stated that post of Lecturer, Electronics & Communications Engineering, thus fell vacant because of the said reason of candidates leaving the post to join another post. The petitioners produced on record the relevant order of one of the candidates who left the post of Lecturer, Electronics & Communications Engineering.

3.5 The General Administrative Department of the State Government has issued Circular dated 24th December, 2008 in respect of the validity period and operation of wait list for direct recruitment undertaken by the Gujarat Public Service Commission, which inter alia provides that the wait list shall remain in operation in case of competitive examination as well as in case of direct recruitment, for two years or until the date previous to the declaration of result of the subsequently held examination, whichever is earlier. Resolution dated 27th July, 2018 provides for the same terms for operation of the wait list.

3.6 It is the case of the petitioners that since the vacancies became available, the wait list in which they were placed was required to be operated to be given appointment to them. The petitioners relied on Circular dated 24th December, 2008 and the aforementioned Resolution which provided for guideline for operating the wait list as well as Resolution dated 27th July, 2018 also issued in the subject.

4. The petition was contested by filing affidavitin- reply by respondent No.2. Mentioned in the affidavit-in-reply the Resolution dated 27th July, 2018 of the State Government which lay down the

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policy pertaining to operation of the wait list to provide that the wait list would operate only upto two years from the date of the Resolution declared. It was stated that the result was declared in respect of the recruitment instant in question on 01st August, 2016 and the two years' period would be expired on 01st August, 2018. Learned Assistant Government Pleader relying on the contents of the affidavit-inreply submitted that since the period of wait list expired on 01st August, 2018 and the petition was preferred on 31st July, 2018, it had become infructuous.

5. While the contention of the respondents about petitions becoming infructuous on the ground that two years period expired on 01st August, 2018 for operation of the wait list and the petition was preferred on 31st July, 2018, is stated to be rejected as wholly misconceived, in the affidavit-in-reply, following was stated on oath to admit the position that the vacancies were available and that due to arising of vacancies subsequently, the wait list was operated.

".... it may relevant to take note that for the faculty in question that is Electronics and Communication Engineering 76 posts were requisitioned pursuant to which from the selected list, appointment orders were issued to all 73 candidates as 3 candidates at sr no.30, 31 and 65 of the list had not approached to the office of Directorate of Technical Education for their document verification. It is further stated that thereafter 2 candidates belonging to ST category mentioned at sr no.60 and 76 of the list did not joined the relevant colleges for their appointment, hence overall 5 posts were vacant and hence appointment orders were issued to relevant candidates from waiting list vide office orders dated 08.5.2017 and 21.06.2017."

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5.1 In the process of the instant recruitment, result was declared on 01st August, 2016. It was stated by the authorities in the communication sent to the petitioners that wait list would remain in operation for two years from 11th August, 2016, therefore the date of expiry of the wait list would be 11th August, 2018. Now, it could not be disputed that the authorities operated the wait list on 21st June, 2017 by appointing candidates therefrom in view of the vacancies becoming available. Thereafter vacancies became available on 12th July, 2017, when 11 candidates who received appointment orders, resigned during their probation period from the post in question, that of Lecturer, Electronics & Communications Engineering, Class-II, to join the post of Assistant Professor for which they were selected.

5.2 These above stated vacancies arose within span of two years calculated from 01st August, 2016/11th August, 2016. The petitioners have approached within reasonable time by filing this petition seeking a plea that their right to be appointed had accrued since the wait list was live as the time limit of two years as contemplated in the Circular and the Resolution had not expired.

5.3 A submission was sought to be raised by the respondents for not operating the wait list, that All India Council for Technical Education constituted under the AICTE Act, 1987 has laid down the norms for student-faculty ratio which has been changed from 1:20 to 1:25, which has the result of curtailing the requirement of Lecturer and that the Lecturers have become surplus due to the change of ratio. However, there is no substance in this submission since the ratio was proposed to be implemented from Academic Year 2018-19 whereas the recruitment in question was for the earlier year. In the rejoinder affidavit it was uncontrovertedly

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pointed out by the petitioners that the AICTE itself had clarified that restriction on the downsizing of the faculties at the cost of excellence in technical education would not be permitted. In any view, the said factor could not be germane for operating the wait list prepared pursuant to the recruitment process taken out earlier.

6. When the vacant posts of Lecturer, Electronics & Communications Engineering, Class-II, arose within two years from the date of result of the recruitment process as per the respondents' own policy as contemplated under Circular dated 24th December, 2008 read with Resolution dated 27th July, 2018, the wait list was required to be operated. Therefore, when the wait list was live and could be operated, the petitioners, whose names figured in the wait list, are entitled to benefit to be considered for appointment to the post. 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.

7. As a result of the above discussion, both the petitions deserve to be allowed. The respondent authorities are directed to operate the wait list published by the respondent - Gujarat Public Service Commission on 01st August, 2016 for the post of Lecturer, Electronics & Communications Engineering, Class-II in the Government Polytechnic, and consider the case of the petitioners whose names figure in the wait list for appointment to the vacant available posts, in order of merit position, within 10 days from the date of service of this order upon the respondents. The petitions stand allowed in the aforesaid terms. Direct service is permitted."

8. As a result of the discussion hereinabove, the petition is allowed. The respondents are directed to

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operate the wait list for the posts in question which had fallen vacant due to the resignation of the selected candidates and the respondents are further directed to consider the case of the petitioners for being appointed to the post of Jamadar, Class-III in pursuance of the advertisement in question, ignoring the provisions and the disqualification based on which their cases have been rejected. Rule is made absolute. No costs."

6 In view of the aforesaid CAV Judgement, the petition

is allowed. The respondents are directed to operate the

wait list for the posts in question which had fallen vacant

due to the resignation of the selected candidates and the

respondents are further directed to consider the case of

the petitioners for being appointed to the post of

Assistant Engineers (Civil), Class-II, in pursuance of the

advertisement in question, ignoring the provisions and

the disqualification based on which their cases have been

rejected. Rule is made absolute. Direct service is

permitted.

(BIREN VAISHNAV, J) BIMAL