Hitesh Chandubhai Jakasaniya vs Gujarat Energy Transmission ...
2023 Latest Caselaw 8846 Guj

Gujarat High Court

Hitesh Chandubhai Jakasaniya vs Gujarat Energy Transmission ... on 29 December, 2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21887 of 2023

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                 HITESH CHANDUBHAI JAKASANIYA
                            Versus
         GUJARAT ENERGY TRANSMISSION CORPORATION LTD.
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 29/12/2023

                              ORAL ORDER

1. By way of present petition, the petitioner has prayed for following reliefs :-

"A. To admit and allow this petition:

B. To issue a writ of mandamus or any other appropriate writ, order or direction, if the Hon'ble Court may deemed fit by quashing and setting aside the notice issued by the respondent on it website on 19.12.2023 Annexure- F and subsequent notice dated 21.12.2023 Annexure-H cancelling the entire concluded process of appointing the petitioner in the respective circle office on the post of Electrical Assistant (Vidyut Sahayak) for the reasons stated in the memo of petition;

C. Pending admission, hearing and final disposal of this petition, be pleased to staying the respondents from taking any examination pursuant to the notice dated 19.12.2023; Annexure-F

D. Pending admission, hearing and final disposal of this petition, be pleased to allow the petitioner to resume the service in the respective office where he has allocated by the respondents.

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         E.    To grant any other relief/s as may deem fit proper, in the
         interest of justice."



2.       Brief facts of the case are as under :-

2.1. The petitioner has been selected on 19.08.2006 for apprentice lineman (transmission) at the office of Executive Engineer (Gujarat Energy Transmission Corporation Ltd., Dhrangadhra) and petitioner had completed two years training and petitioner came to be relieved by Executive Engineer (Transmission) GETCO, Dhrangadhra from 220KV, Sub Station Halvad on 22.08.2008. The petitioner is belonging Economical Weaker Section Society and has submitted the certificate of the same. That after completion of apprenticeship, the petitioner was asked to submit the documents for being recruited to the cadre of Vidyut Sahayak, pursuant thereto, the petitioner has submitted the details in prescribed format to the respondents.

2.2. The petitioner states that after verification of details furnished by the petitioner, the petitioner was called for Pole Climbing Test vide letter dated 21.02.2023. Pursuant to the said letter, the petitioner appeared for Pole Climbing Test as per the procedure prescribed by GETCO at Surendranagar on 06.03.2023. The petitioner was not called for written examination and therefore, the petitioner has approached this Hon'ble Court by filing Special Civil Application No. 15361 of 2023 and by an order dated 06.09.2023, the respondent - GETCO appeared before the Hon'ble High Court and made a statement through their lawyer that the petitioner will be permitted to appear in the written examination. Pursuant thereto, call letters issued by the respondent No.3, the petitioner appeared in the written

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examination on 09.09.2023. That after completion of examination, the petitioner was asked to undergo Medical Fitness Test. The petitioner appeared before the Resident Medical Officer, Civil Hospital at Surendranagar. That the Resident Medical Officer has forwarded the report of the petitioner to the respective Circle Office of GETCO namely at Surendranagar. As the petitioner has passed successfully written examination, the petitioner had been selected and after selection only, the petitioner has been sent for medical examination for Physical Fitness Test for GETCO service. It is submitted that it is very much mentioned in the letter itself that the petitioner has been appointed as a technical and maintenance work in Class-4 cadre as Electrical Assistant. That thereafter, the respondent authority has not allowed the petitioner to resume at the respective post mentioned in the letter issued by the respective Superintendent Engineer in their medical examination for Physical Fitness Test. That there is no complaint at all about the pole test or written examination. Everything was completed as per the norms. All of a sudden, the petitioner came to know on checking the website that the entire process of selection recruitment for the post of Electrical Assistant/ Vidyut Sahayak has been cancelled on 19.12.2023. That the petitioner and other similar situated persons approximately 1224 are disturbed because a manner in which, surreptitiously entire recruitment process has been cancelled having been after selected. Not only that, once again the respondent No.3 has published an advertisement in the newspaper that once again, Pole Climbing Test will be taken on 28.12.2023 and 29.12.2023 for the candidates of Surendranagar Circle. While Pole Climbing Test for Amreli Circle is concerned, it will be taken at 400KV, Jetpur Sub Station. Therefore, the petitioner has preferred present petition.

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3. Heard learned advocate Mr.B.T.Rao for the petitioner and learned advocate Mr.Dipak Dave appearing on caveat for respondent.

4. Learned advocate Mr.Rao for the petitioner after taking through facts of the case would submit that the petitioner was appointed as Apprentice Lineman on 19.08.2006 in the office of respondent and has successfully completed 2 years of training. He would submit that the petitioner was relieved on 21.08.2008. He would submit that after completion of Apprenticeship, the petitioner was asked to submit documents for recruitment in the cadre of Vidyut Sahayak. The petitioner therefore has submitted his details in prescribed form. He would submit that later on the respondent has commenced process of selection and appointment of Vidyut Sahayak and pursuant to such process, poll climbing test was conducted. Letter dated 21.02.2023 for purpose has been issued and later on poll climbing test was conducted at Surendranagar on 06.03.2023 at GETCO. He would submit that in view of Annexure - H, pole climbing test mark was to be given on the same day. The petitioner has successfully completed poll climbing test but was not called for written examination. The petitioner therefore, approached this Court by filing Special Civil Application No.15361 of 2023. The petition was disposed of on 06.09.2023 upon statement of learned advocate for the other side that the petitioner will be permitted to appear in the written examination for recruitment for the post of Vidyut Sahayak to be held on 09.09.2023 from EWS category. It is submitted that pursuant to such statement, the petitioner was permitted to appear in the examination. The petitioner has successfully cleared written examination and therefore, vide letter dated 17.10.2023 (Annexure- E), the petitioner was appointed as Vidyut Sahayak and after completion of examination, the petitioner was asked to undergo

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Medical examination. He would submit that since the petitioner has completed all the stage of selection process and was appointed as Vidyut Sahayak, selection process cannot be cancelled subsequently by the respondent without following process of law including issuance of notice. He would submit that there is clear discrimination played by the respondent and in order to help some other persons, the respondent has found out reason that some irregularity has taken place in the selection process and therefore, respondent are cancelling entire selection process. He would submit that it is not permissible in law, selection process once completed cannot be reverted by one or two lines. He would submit that said selection process is taken in accordance with service rules and to offer someone, there is breach of service rules as well as natural justice. The petitioner has successfully cleared selection process and therefore, appointed as Vidyut Sahayak vide Annexure E. It is submitted that once the petitioner is appointed as Vidyut Sahayak, after completion of selection process, he cannot be removed from the post on the words that some irregularity has taken place in Rajkot, Bharuch and Mehsana Zone in selection process. It amounts to removing persons newly appointed without following due process of law. Above submissions are made to issue notice and to call the respondents to file detailed reply for alleged mal-practice said to have been done in selection process.

5. On the other hand, learned advocate Mr.Dipak Dave who is appearing on caveat for the respondent would submit that initially the petitioner was in select list as he has successfully completed Apprenticeship. He was called to join selection process along with 6200 other aspirants who had successfully cleared Apprenticeship. He would submit that pole climbing test and written examination was

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conducted for selection process and there were 1220 persons named in the select list as they have cleared both pole climbing test and written examination. Thereafter, the persons who appeared in the selection list were called for medical examination by issuing letter. The petitioner was one of them who was called for medical examination. He would submit that only if candidate clears medical examination, then he could be appointed as Vidhyut Sahayak. Without clearing medical examination, he cannot be appointed as Vidhyut Sahayak. Therefore, he submitted that present petitioner was never appointed as Vidhyut Sahayak but was called for medical examination at Surendranagar. He would submit that no appointment letters are issued for any of the persons who are named in the select list. He would submit that yet final list is not prepared but meanwhile, the respondent found some irregularity in pole climbing test in different zones and therefore, it is decided to re-take entire selection process and later on it is decided to only take re-pole climbing test. It is submitted that it is policy decision of the respondent and it cannot be allowed by writ seeking mandamus. He would submit that the petitioner has no locus standi. The petitioner is not appointed. Therefore, he has no vested right to challenge policy decision taken by the respondent. He would submit that petitioner appeared in pole climbing test again which took place yesterday but could not make out to the standard. He would submit that since the petitioner was one of the person in select list, he cannot insist that he should be appointed.

5.1. As far as Annexure - E is concerned, it is submitted that it is poorly drafted letter. It is not appointment letter but communication addressed to Medical Officer for conducting medical examination. The petitioner has not been issued any appointment letter ever. He

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submitted that the petitioner cannot take shelter of poorly drafted letter to say that he has been appointed. He would further submit that no appointment letter is issued to any of the persons whose names appeared in the select list total in number 1220 including present petitioner. He submitted that the respondent has not played any discrimination.

5.2. Upon above submissions, and relying on judgement of Hon'ble Supreme Court in the case of Union of India v/s. Kali Dass Batish [2006 (1) SCC 779, more particularly para 15, 16 and 17] as well as judgment of Hon'ble Supreme Court in the case of S.S.Balu v/ s. State of Kerala [2009(2) SCC 479, more particularly para 15 and 16] it is submitted that the petitioner has no vested right to challenge policy decision of respondent. He submitted that the petition has no merit even to issue notice. Thus, he submits to dismiss the petition.

6. No other and further arguments are canvassed.

7. Having heard learned advocates for the parties, at the outset, it appears that the petitioner has relied upon Annexure E for entire case to say that he has been appointed. Annexure E is written by Superintending Engineer (TR), Surendranagar to the Residential Medical Officer, Surendranagar directing him to conduct medical examination of the present petitioner. Annexure E for better understanding is reproduced as under :-

To, The Residential Medical Officer, Civil Hospital, Surendranagar

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Sub : Issue Medical Fitness certificate. Dear Sir,

We have depute Shri Jakasaniya Hitesh Chandubhai who was newly appointed in Vidhyut Sahayak Electrical Assistant at GETCO, Circle Office, Surendranagar for medical examine.

You are kindly requested to please examine his and issue necessary fitness certificate as per rules. Your Cooperation is requested.

Yours faithfully,

Superintending Engineer (TR) Surendranagar

8. What appears that this letter is poorly drafted addressed to Residential Medical Officer. It is stated to conduct medical examination of the petitioner. Now, learned advocate Mr.Rao for the petitioner has picked up line "who was newly appointed in Vidhyut Sahayak" from the letter to submit that the petitioner was selected and appointed as Vidhyut Sahayak. If that is so, the petitioner must have appointment letter with him and must have produced along with present petition, but no such appointment letter is produced along with the petition. Learned advocate Mr. Dipak Dave without mincing word has clearly stated at bar that no appointment letter is issued to any of the persons who featured in select list total in number 1220. Learned advocate Mr.B.T.Rao for the petitioner is not in position to controvert the statement. In absence of any appointment letter or final result, the petitioner cannot claim that he has been appointed as Vidhyut Sahayak and cannot claim that Annexure E is appointment letter, which is just a communication from Superintending Engineer

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to Residential Medical Officer. By no means, it can be treated as appointment letter, which permit the petitioner to agitate the dispute. It is important to note that the petitioner appeared in poll climbing test which took place yesterday, if he has been appointed as Vidhyut Sahayak, he could not have attended pole climbing test again. Annexure E is poorly drafted letter and it cannot be termed as appointment letter. It is mere communication from Superintending Engineer to Medical Officer. Picking up line from that letter cannot construe as appointment of the petitioner. The whole case of the petitioner thus fails. Mandamus cannot be issued in favour of the petitioner to disturb selection and appointment process. Appointment cannot be made by such communication. It is appointment by GETCO and it must have been completed through result and specific appointment letter. To be noted that initially 6200 aspirants appeared in pole climbing test and written examination and only 1220 cleared examination. However, no appointment letters are issued to any of them. No discrimination is even visible. Learned advocate Mr.Rao has failed to point out any discrimination.

9. At this stage, I may refer to judgment of the Hon'ble Supreme Court in the case of Kali Dass Batish (supra), para 15, 16 and 17 reads as under :-

"15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.

16. In Punjab State Electricity Board and Ors. V/s. Malkiat Singh,

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this Court reiterated the observations of the Constitution Bench of this Court in Shankarsan Dash V/s. Union of India as under:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana V/s. Subhash Chander Marwaha, Neelima Shangla V/ s. State of Haryana or Jatinder Kumar V/s. State of Punjab."

(emphasis supplied) This, in our view, is the correct approach to be adopted in dealing with a matter of this nature.

17. In K. Ashok Reddy V/s. Government of India and Ors., this Court indicated that however wide the power of judicial review under Arts. 226 or 32 is, there is a recognised limit, albeit self- recognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative Law (Second Edn., p.

291)., vide Paragraph 21, as under: "The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof.....The traditional position has however now been modified by the decision in the GCHQ case. Their Lordships emphasised that the reviewability of discretionary power should be dependent upon the subject-matter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject- matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory ...." The observations of Lord Roskill, referred to above are from Council of Civil Service Unions V/s. Minister for the Civil Service (GCHQ case) as under:

"But I do not think that right of challenge can be unqualified. It

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must, I think, depend upon the subjectmatter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject- matter are such as not to be amenable to the judicial process."

10. Another judgment in the case of S.S.Balu (supra), the Hon'ble Supreme Court in para 15 and 16 has held as under :-

"15. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar & ors. V/s. Raja Narasaiah Zangiti & ors., 2006 10 SCC 261).

16. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya Bank V/s. Pallab Kumar & ors., 2004 9 SCC 100)

In Shankarsan Dash V/s. Union of India, 1991 3 SCC 47, a Constitution Bench of this Court held:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of thevacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the

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comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

In State of Haryana V/s. Subash Chander Marwaha, 1974 3 SCC 220, this Court held: "The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect...

11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur V/s. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."

In Pitta Naveen Kumar V/s. Raja Narasaiah Zangiti, 2006 10 SCC 261, this Court held: "....A candidate does not have any legal right to be appointed. He in terms of Art. 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise..."

In State of Rajasthan & ors. V/s. Jagdish Chopra, 2007 8 SCC 161, this Court held: "9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although R. 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner.

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Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar V/s. Amrendra Kumar Mishra, 2006 12 SCC 561, this Court opined:

(SCC p.564, para 9)

"9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."

It was further held:

"13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."

11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash V/s. Union of India, 1991 3 SCC 47, and Asha Kaul V/s. State of J&K, 1993 2 SCC 573)".

11. At the cost of repetition, it can be said that status of present petitioner is no more than candidate or aspirant. He has no vested right to be appointed. He cannot seek mandamus that he should be appointed. The petitioner who is no more than candidate or aspirant cannot seek any relief to challenge policy decision of cancelling selection procedure. Jurisdiction of this Court is limited to take cognizance when selection process for appointment had been departed from settled rules. In the present case, no such deviation has been alleged or established.

12. For the foregoing reasons, there is no merit in the present petition. The petition is dismissed at admission stage.

(J. C. DOSHI,J) SATISH