Gujarat High Court
Ashwin Ishwarbhai Vaghela vs District And Sessions Court And Others on 26 November, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/4082/2013 JUDGMENT DATED: 26/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.4082 of 2013
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
YES
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ASHWIN ISHWARBHAI VAGHELA
Versus
DISTRICT AND SESSIONS COURT AND OTHERS & ANR.
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Appearance :
MR SHIVGAR P GOSAI for the Petitioner.
VIKAS V NAIR for the Respondents No.1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 26/11/2025
ORAL JUDGMENT
1. Today it is reported that learned advocate Mr. Shivgar
Gosai has filed sick note. The Court has time and again considered
leave note / sick note filed by learned advocate Mr. Gosai and
adjourned the matter. The list showing different dates on which
the matter was notified and sick note / leave note was filed by
learned advocate Mr. Gosai is as under :-
Notified Date Action Next Date
23.01.2025 Sick Note 28.02.2025
28.02.2025 Sick Note 01.04.2025
01.04.2025 21.04.2025
21.04.2025 Leave Note 30.04.2025
30.04.2025 Leave Note 19.06.2025
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19.06.2025 02.07.2025
02.07.2025 09.07.2025
09.07.2025 Leave Note 16.07.2025
16.07.2025 23.07.2025
23.07.2025 30.07.2025
06.08.2025 Leave Note 13.08.2025
13.08.2025 Leave Note 20.08.2025
20.08.2025 03.09.2025
03.09.2025 10.09.2025
10.09.2025 17.09.2025
17.09.2025 Leave Note 24.09.2025
24.09.2025 01.10.2025
01.10.2025 Leave Note 08.10.2025
08.10.2025 Leave Note 15.10.2025
15.10.2025 12.11.2025
12.11.2025 Leave Note 19.11.2025
19.11.2025 Leave Note 26.11.2025
26.11.2025 Sick Note
2. The Court usually respects the leave note / sick note
filed by advocates though the same is not applicable in respect of
Criminal Cases, Special Civil Application and matters specially
fixed for hearing or expedited by the order of the Court and
matters on the daily Board. Rule 132 of Gujarat High Court Rules,
1993 is reproduced as under :-
"132. Hearing to be stayed for non-
attendance of advocate owing to illness or
other causes. --
(i) When an Advocate is prevented from
attending the Court on any day by reason of illness,
he shall, for the purpose, send an intimation, either
in writing to the Registrar General or through
online application system, available on website of
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the High Court, before 10.30 a.m. on that day only,
for being processed, approval and circulation
before the Honourable Court. The hearing of the
case in which such advocate is engaged may be
adjourned for the day provided that such advocate
is the only advocate representing the party. This
sub- rule shall apply only where intimation of illness
is filed only for one day. If an advocate is prevented
-by reason of illness from attending the Court for
more than one day, he may file a note praying for
leave, of absence as provided in sub-rule (ii).
(ii) When an advocate is prevented from
attending the Court for a period exceeding one day
by reason of illness or other sufficient cause, he
shall, for the purpose, send an intimation, either in
writing to the Registrar General or through online
application system, available on the website of the
High Court, before 1.30 p.m. only, 24 hours (one
working day) in advance, for being processed. The
Administrative Judge may, grant leave for such
period not exceeding one week as he may deem
proper or may refuse such leave. The cases in
which such advocate is the only advocate
representing the party shall stand adjourned during
the period of leave. Such cases shall however,
retain their place on the Daily Board with the
necessary note as to the date to which such cases
are adjourned.
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Nothing in this sub-rule shall apply to Criminal
Cases, Special Civil Applications and matters
specially fixed for hearing or expedited by the order
of the Court and matters on the daily Board.]"
3. In view of the above Rule, the present matter being
specifically fixed as the matter is critically old and, therefore, the
matter is specifically kept for hearing and is being rotated for final
hearing since long and the above tabular chart would indicate that
as soon as last at least 10 occasions, learned advocate Mr. Gosai
has filed sick/leave notes which would prima facie give an
indication that sick/leave notes are being filed only with a view to
avoid the hearing of the matter and, therefore, the shelter provided
to the counsel from non-attending the matter on account of their
illness or other reasons would not be applicable in the present case
as prima facie, it seems that continuous filing of sick/leave notes
without there being any reason would not be considered by the
Court just to perpetuate the ill-intention of the advocate for the
petitioner of not conducting the matter. Accordingly, though
learned advocate Mr. Gosai is absent today, the matter was taken
up along with Special Civil Application No.10509 of 2012 which
was argued by learned advocate Mr. T. R. Mishra, as the subject
matter of the said petition and the present petition is the same and
the petitioner herein is included in the Select List for the post of
Bailiff in respect of the same recruitment of the year 1999 at Serial
No.11 and as the facts are identical, the submissions of learned
advocate Mr. T. R. Mishra made in Special Civil Application
No.10509 of 2012 wherein the petitioner was at Select List No.10,
were considered for the purpose of this petition as well.
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4. By way of the present petition, the petitioner has
prayed to direct the respondents to immediately issue appointment
orders pursuant to the communication dated 22.3.2011 (Annexure
F to this petition) for the post of Bailiff and to issue posting order
forthwith.
5. It is the case of the petitioner that pursuant to an
advertisement issued in the year 1999 for the post of Bailiff, the
petitioner had applied for the same and he was selected at Serial
No.11 in the Select List. However, the Select List was operated
only upto Serial No.8 and thereafter, it stopped operating and,
therefore, the present petition was preferred with the aforesaid
prayer.
6. From the record, it appears that at present, the
petitioner is aged 50 years and the recruitment in question is of the
year 1999. Hence, in this backdrop, the matter was taken up.
7. Mr. T. R. Mishra, learned advocate appearing for the
petitioner submitted that when the select list has operated upto
Serial No.8 and thereafter it stopped operating, it was the duty of
the respondents to inform the petitioner about the reasons as to
why the select list was not operated further. He further submitted
that even as per Circular No.1458 of 1979 dated 19.12.2011, the
petitioner being in the Select List, he ought to have been appointed
on contractual basis as the aforesaid Circular provides for
contractual appointment. However, even that also was not done by
the respondents.
8. Learned advocate Mr. Mishra relied upon three
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decisions. The first decision of this Court in the case of R. P. Jani
v. Union of India and another, 1982 G.L.H. 1102 wherein this
Court has taken a view that if the name of a candidate is deleted
from the Select List or removed from the Select List, he must be
heard or at least an opportunity of hearing must be given to him to
point out his version of matter. By relying upon the said decision,
Mr. Mishra submitted that the petitioner was never heard nor even
informed about the reasons behind his removal from the Select List
and, therefore, the aforesaid action of the respondents of not
appointing the petitioner can be termed as bad in law and,
therefore, the same is required to be quashed and set aside and the
petitioner may be appointed on the post of Bailiff.
9. Mr. Mishra further relied upon the decision of the
Hon'ble Supreme Court in the case of S. Govindaraju v. K. S. R.
T. C. and another, AIR 1986 SC 1680 wherein it is held that
even the temporary / Badli appointment given to a candidate whose
name was selected in select list is also required to be considered
for promotion as and when the vacancy arises. By relying upon the
aforesaid decision, Mr. Mishra submitted that at the relevant point
of time, as per the information sought under the RTI Act in the year
2012, there were several vacancies available in Amreli District for
the post of Bailiff and, therefore, the respondents ought to have
appointed the petitioner on the post of Bailiff.
10. Lastly, Mr. Mishra relied upon the decision of the
Hon'ble Supreme Court in the case of Pawan Kumar Tiwary v.
Jharkhand State Electricity Board (Now Jharkhand Urja
Vikas Nigam Limited), 2025 (0) AIJEL - SC 75757. Mr. Mishra
submitted that once the petitioner is selected for the post of Bailiff,
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his appointment ought not to have been cancelled.
However, the aforesaid decision is in respect of
appointment whereas in the instant case, the petitioner has not yet
been appointed that is the distinguishing factor.
Mr. Mishra, therefore, prayed for allowing the present
petition.
11. Mr. Vikas Nair, learned advocate appearing for the
respondents has placed on record further affidavit on behalf of the
respondent No.2 dated 26.11.2025 which is taken on record.
Learned advocate Mr. Nair submitted that the petitioner's inclusion
in the Select List would per se not create any right in favour of the
petitioner to get appointment.
12. Mr. Nair further submitted that Full Court of this Court
has resolved at the relevant point of time not to operate any
existing Select List of direct recruitment in any cadre and,
therefore, pursuant to the aforesaid decision, letter dated
26.7.2012 was issued by the Registrar General to all the Principal
District Judges / Principal Judge, City Civil Court / the Chief
Metropolitan Magistrate, Ahmedabad / the Chief Judge, Small
Causes Court, Ahmedabad directing them not to operate any Select
List of direct recruitment in any cadre pending on their respective
establishment and instead, liberty was granted to them to engage
persons on purely temporary, adhoc and contractual basis on their
establishment as per the instructions issued by this Court vide
Circular No.B.1458/79 dated 19.12.2011 and B.1458/79 dated
22.2.2012.
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13. Mr. Nair further submitted that it is a well settled
principle of law that ultimately, once a candidate's name is found to
be on select list, that would not confer any right in his favour and,
therefore, he cannot seek appointment as a matter of right and
whether to issue an appointment order or not is a matter purely
within the domain of Recruiting Body which would act as per their
requirement. He further submitted that this Court in the
recruitment related to the year 1997 in similar set of facts in the
case of Jadav Ajitkumar Bhailalbhai v. High Court of Gujarat
through Registrar Recruitment, vide order dated 9.11.2012
in Special Civil Application No.15248 of 2012 has rejected the
petition by taking into consideration and relying upon the decision
of the Hon'ble Supreme Court in the case of Shankarsan Dash v.
Union of India, (1991) 2 SCC 47 wherein Constitution Bench of the
Hon'ble Supreme Court has held that appearance of name of a
candidate in the Select List does not give him a right of
appointment. Mere inclusion of candidate's name in the select list
does not confer any right to be selected. Even if some of the
vacancies remained unfilled, the candidate concerned cannot claim
that he has been subjected to hostile discrimination.
By making the above submissions and relying upon the
aforesaid decision, he prayed for dismissal of the petition.
14. I have heard learned advocates appearing for the
respective parties and perused the record. On perusal of the
record, I found that the petitioner's name figures at Sr. No.11 in
the Select List for the post of Bailiff pursuant to an advertisement
issued in the year 1999 and the Select List was operated upto Sr.
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No.8 and thereafter, the respondents decided not to operate the
Select List. It is only on the basis of the petitioner's inclusion in
the Select List at Serial No.11, the present petition is preferred. I
have also considered the fact that in view of the letter dated
26.7.2012 issued by the Registrar General to all the Principal
District Judges / Principal Judge, City Civil Court / the Chief
Metropolitan Magistrate, Ahmedabad / the Chief Judge, Small
Causes Court, Ahmedabad directing them not to operate any Select
List of direct recruitment in any cadre pending on their respective
establishment and instead, liberty was granted to them to engage
persons on purely temporary, adhoc and contractual basis on their
establishment as per the instructions issued by this Court vide
Circular No.B.1458/79 dated 19.12.2011 and B.1458/79 dated
22.2.2012, the Select List in question was not operated. Therefore,
the question for consideration of this Court would be whether a
person whose name is included in the Select List would confer any
right to get appointed.
15. According to learned advocate Mr. T. R. Mishra, in view
of the decision of this Court in the case of R. P. Jani v. Union of
India and another (Supra), such right would accrue in favour of
the petitioner. However, in the said decision, this Court in
paragraph 7 has explained as to why the petitioner was required to
be heard. The Court noted that even after getting adhoc
promotion, he continued as adhoc and his juniors were promoted
later on as their names appeared below the petitioner's name in the
selection panel. Therefore, under that circumstances, when the
petitioner's name was deleted from the Selection panel on the
principles of fair play, he was required to be heard. In the instant
case, the Select List stopped operating from Serial No.8 onwards
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and no person junior than the petitioner was ever appointed and,
therefore, the aforesaid decision would not help the petitioner in
any manner.
16. As far as the decision relied upon by learned advocate
Mr. Mishra in the case of S. Govindaraju v. K. S. R. T. C. and
another (Supra), in that case, facts were totally different as
compared to the case on hand and, therefore, the said decision is
not applicable to the facts of the present case.
17. As far as the decision relied upon by learned advocate
Mr. Mishra of the Hon'ble Supreme Court in the case of Pawan
Kumar Tiwary v. Jharkhand State Electricity Board (Now
Jharkhand Urja Vikas Nigam Limited) (Supra) is concerned,
there the issue was that the petitioners were given appointments to
the Class III posts and subsequently that was cancelled. In the
instant case, no appointment order was ever issued to the
petitioner and, therefore, there is no question of cancelling any
appointment given to the petitioner. The Select List has operated
upto Serial No.8 and thereafter stopped operating as per the
instructions issued by this Court and, therefore, no person junior to
the petitioner was ever appointed and, more particularly, when the
petitioner's name is on the Select List, he cannot claim
appointment as a matter of right.
18. As far as the decision of this Court relied upon by
learned advocate Mr. Vikas Nair in the case of in the case of Jadav
Ajitkumar Bhailalbhai v. High Court of Gujarat through
Registrar Recruitment (Supra), it is observed in paragraphs 4
and 5 as under :-
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"4.0 Heard the learned Advocates for the
petitioners. The issue involved in the present
petition is squarely covered by the decision of the
Apex Court in the case of Shankarsan Dash Vs.
Union of India reported in (1991) 2 SCC 47,
wherein, a constitution Bench of the Supreme Court
held that appearance of the name of a candidate in
the select list does not give him a right of
appointment. Mere inclusion of the candidate's
name in the select list does not confer any right to
be selected. Even if some of the vacancies remained
unfilled, the candidate concerned cannot claim that
he has been subjected to hostile discrimination.
5.0 Thus, it is well settled law that merely
because a candidate has been put in the waiting list,
he does not get any right to an appointment. A
person whose name appeared in the select list does
not acquire any indefeasible right of appointment.
Empanelment at the best is a condition of eligibility
for purpose of appointment and by itself does not
amount to selection or create a vested right to be
appointed."
19. Further, the decision which was relied upon by this
Court in the above referred decision of the Hon'ble Supreme Court
in the case of Shankarsan Dash v. Union of India, (1991) 2
SCC 47 (Supra), the Hon'ble Supreme Court has observed in
paragraph 7 as under :-
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"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. Subhash Chander
Marwaha and Others, [1974] 1 SCR 165; Miss
Neelima Shangla v. State of Haryana and Others,
[1986] 4 SCC 268 and Jitendra Kumar and Others v.
State of Punjab and Others, [1985] 1 SCR 899."
20. Considering the above view taken by the Hon'ble
Supreme Court as well as followed by the coordinate Bench of this
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Court in respect of similar recruitment drive which has undertaken
in the year 1999, the petitioner cannot be said to have any vested
right to get appointment on the post of Bailiff, merely because his
name was included in the Select List. Accordingly, the petition is
required to be dismissed and the same is dismissed. Rule is
discharged. No order as to costs.
(NIRZAR S. DESAI,J)
SAVARIYA
