Acharya Mihilkumar ... vs State Of Gujarat
2023 Latest Caselaw 2190 Guj

     C/SCA/9135/2008                                       JUDGMENT DATED: 10/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9135 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                                         Sd/-
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1     Whether Reporters of Local Papers may be allowed                              No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                       No

3     Whether their Lordships wish to see the fair copy                             No
      of the judgment ?

4     Whether this case involves a substantial question                             No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                  ACHARYA MIHILKUMAR RAMESHCHAN-DRA
                                 Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR RC JANI(357) for the Petitioner(s) No. 1
MR AYAAN PATEL AGP for the Respondent(s) No. 1,2(i)
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                Date : 10/03/2023
                                ORAL JUDGMENT

The present Special Civil Application is filed praying for the

following relief:-

        "14     (A)    admit and allow this petition;


                (B)    issue appropriate writ, order or directions;
                       (i)    declaring    that     the   letter    dated       19.03.2008

addressed by the respondent no.2 as well as the

C/SCA/9135/2008 JUDGMENT DATED: 10/03/2023

Resolution dated 01.05.2007 issued by the Finance Department, are not applicable to the case of the petitioner on the ground that both these documents mention regarding the appointment on part time basis, whereas the petitioner has been shown in the Select List at Sr. No.6 for regular and permanent post;

(ii) direct the respondents herein to appoint the petitioner on regular and permanent post as per the select list dated 18.12.2004;

(C) pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents herein to initiate proceedings for appointment of the petitioner on regular and permanent basis in view of the select list dated 18.12.2004 and further may be pleased to direct the respondents herein to keep one post vacant so that the case of the petitioner herein may be considered;"

2. The factual matrix in the present case is that, the name of

the petitioner figured in the select list for the post of Peon in the

establishment of the Gujarat Public Works Arbitration Tribunal,

Ahmedabad ["Tribunal" for short]. The Tribunal had given

advertisement on 26.9.2001 for the recruitment of Peon (Class-

IV) six posts in existing as well as future vacancies. The

petitioner had applied to the same. The petitioner's name figured

at Sr.No.6 in the select list dated 18.12.2004. Despite the

correspondence of the respondent No.1, only five posts came to

be sanctioned for the post of Peon in the Tribunal. Since the

C/SCA/9135/2008 JUDGMENT DATED: 10/03/2023

petitioner was at Sr.No.6, the petitioner could not get any

appointment. The respondent No.1 requested the respondent

No.2 to sanction the 6th post of Peon, however, the same is not

sanctioned till date.

Aggrieved, the petitioner has filed the present Special Civil

Application.

3. Mr. R.C.Jani, learned advocate appearing for the petitioner,

submits that the petitioner had successfully qualified the

selection process and figured in the select list for the 6 posts of

Peon advertised by the respondent No.1. He submits that only

five posts came to be sanctioned and the 6 th post was not

sanctioned by the respondents and therefore, the petitioner,

though, was eligible and selected could not get appointment to

the said post. He submits that the Tribunal has in its

communication to the State Government requested that the 6 th

post of Peon is required and the 6 th post of Peon be granted

sanction. However, as no sanction was accorded by the

respondent No.2 - State Government, the said 6 th post of Peon

could not be filled-up by the select list. He, therefore, submits

that appropriate direction ought to be passed and the petitioner

be directed to be appointed to the 6th post of Peon after due

C/SCA/9135/2008 JUDGMENT DATED: 10/03/2023

sanction from the respondent - State Government.

4. Per contra, Mr. Ayaan Patel, learned AGP appearing for the

respondents, submits that though the respondent No.1 had in

its communication dated 18.6.2007 submitted that six posts of

Peon were advertised, out of which, only five posts have been

sanctioned by the State Government. He submits that as

sanction was not accorded for the 6 th post, the said post could

not be filled-up by the respondents. He further submits that the

select list prepared by the authority has to be operated within a

period of 2 years and the same expires after completion of 2

years period. In the present case, no post came to be sanctioned

and the select list has since expired after 2 years. He, therefore,

submits that the present Special Civil Application be dismissed.

5. Heard learned advocates for the parties and perused the

evidence on record.

6. The record reveals that the Tribunal had advertised for six

posts of Peon. Accordingly, select list of 14 persons came to be

published on 18.12.2004. A perusal of the correspondence

between the respondent No.1 and respondent No.2 shows that

C/SCA/9135/2008 JUDGMENT DATED: 10/03/2023

despite repeated requests of respondent No.1, the 6 th post of

Peon was not sanctioned by the State Government and therefore,

only five posts could be filled-up. The petitioner was placed at Sr.

No.6 in the select list. Admittedly, the select list had expired in

December 2006. The petitioner was only a selectee. He has no

right whatsoever to the post of Peon. In the present case, 6 th post

was never sanctioned and therefore, there was no post to which

the petitioner herein could have been appointed. In view thereof,

the prayers of the petitioner cannot be granted. No direction can

be issued for creation and sanction of the post. Even otherwise,

the select list has expired in the year 2006 long before the filing

of the present Special Civil Application and the same cannot be

made operative. By passage of time, the prayers of the petitioner

are rendered infructuous.

The present Special Civil Application is devoid of merits

and is disposed of accordingly.

7. Mr. R.C.Jani, learned advocate for the petitioner, submits

that the petitioner may be permitted to make appropriate

representation to the State Government for considering his case

for appointment.

If such a representation is made by the petitioner, the

C/SCA/9135/2008 JUDGMENT DATED: 10/03/2023

same shall be decided on its own merits and in accordance with

law uninfluenced by the disposal of the present Special Civil

Application. Such representation may be disposed of within a

period of 4 weeks upon its receipt.

Present Special Civil Application accordingly stands

disposed of. Rule is discharged.

Sd/-

(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN