Gujarat High Court
Desai Mittal Baldevbhai vs State Of Gujarat on 24 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 131
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/11509/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11509 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV Sd/-
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1 Whether Reporters of Local Papers may be allowed toNo see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of lawNo as to the interpretation of the Constitution of India or any order made thereunder ?
=========================================================== DESAI MITTAL BALDEVBHAI Versus STATE OF GUJARAT & 1 other(s) =========================================================== Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS AISHWARYA GUPTA, ASST. GOVERNMENT PLEADER (99) for the Respondent(s) No. 1 MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2 =========================================================== CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 24/01/2020 CAV ORDER
1. In this petition, under Article 226 of the Constitution of India, the prayers of the petitioner read as under:
"(a) to direct the respondents to include the petitioner's name as SEBC (Female) candidate with 148 marks in the selection list or in the waiting list for the posts of Deputy Section Officer / Page 1 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER Deputy Mamlatdar, Class III pursuant to the advertisement No.51/2014-15 dated 12.3.2015 as per Annexure A and to give her appointment as such, with all the consequential benefits as if the petitioner was given appointment alongwith the first candidate of the said recruitment process;
(b) to quash and set aside the impugned illegal actions of the respondents resulting into denial of appointment to the petitioner as SEBC (Female) candidate with 148 marks for the posts of Deputy Section Officer / Deputy Mamlatdar, Class-III pursuant to the advertisement No.51/2014-15 dated 12.3.2015 as per Annexure `A';
(c) to direct the respondents to make appointments of 65 SEBC (Female) candidates and total 195 SEBC candidates, as Deputy Section Officer / Deputy Mamlatdar, Class-III as provided in the advertisement No.51/2014-15 dated 12.3.2015 as per Annexure A in addition to the meritorious SEBC candidates who find place on their own merit in the selection list of 376 vacancies notified for open category, and thereby give appointment to the petitioner with all the consequential benefits as if she was given appointment alongwith the first candidate of the said recruitment process;
2. The facts in brief are as under: Page 2 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020
C/SCA/11509/2017 CAV ORDER 2.1. The petitioner is born on 6.10.1992 and she belongs to the SEBC category. The Gujarat Public Service Commission (for short `GPSC') issued an advertisement on 12.3.2015 for 733 posts of Deputy Section Officers / Deputy Mamlatdar, Class III. The last date for the application was 31.3.2015. Of the 733 notified vacancies, 195 posts were reserved for SEBC category and out of which 65 posts were reserved for SEBC (Female) candidates. The petitioner applied online. On the result being declared, 733 candidates were recommended for appointment and waiting list of 368 candidates was prepared. The petitioner appeared in the list of candidates at Sr. No.1301 comprising of a separate list of non selected candidate. 2.2. It is the case of the petitioner that a cut off marks of 148 (upto birth date 16.6.1986) was included in the select list and though the Page 3 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER petitioner had 148 marks, she has been denied a place in the select list or in the waiting list. The petitioner has further pleaded that even after actual appointment orders were issued by the State Government, 13 SEBC (Male) candidates and 11 SEBC (Female) candidates have not joined duty and the 11 vacancies which amongst to have been filled up by SEBC (Female) candidates have been filled up by male candidate.
2.3. The petitioner has alleged violation of statutory reservation of 33% of posts in the category. Reliance is placed on Government Resolution dated 10.8.2016 to submit that vacancies remaining unfilled due to non joining of candidate shall be filled up by the candidate of the same category from the waiting list and since the petitioner has secured 148 marks, which also is of the last selected SEBC (Female) candidate, the petitioner is entitled to be appointed. Page 4 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020
C/SCA/11509/2017 CAV ORDER Representation has been made which has not been decided.
3. Mr.K.B. Pujara has appeared for the petitioner and submitted as under:
3.1. He drew my attention to the advertisement at page No.17 to submit that 65 posts in SEBC (Female) candidates were reserved. Drawing my attention to the list of successful candidates, he submitted that the cut off marks for SEBC (Female) candidates was
148. He submitted that based on the list of the successful candidates on the waiting list, it was apparent was that a list of 733 selected candidates was prepared and a waiting list of 368 was prepared.
3.2. Relying on the Resolution dated 10.8.2016 with regard to the policy of waiting list candidates, Mr.Pujara would submit that Clause Page 5 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER 6 of Government Resolution provided that in the event, a person from the select list does not join then a person from the same category should be appointed from the waiting list.
3.3. Mr.Pujara further submitted that in the representation made by the petitioner it was evident that the waiting list is operated and 64 candidates were appointed. 13 male and 11 female candidates' vacancies remained unfilled and female candidates' vacancies were filled in by male candidates.
3.4. Inviting my attention to the various Government Resolutions with regard to the policy of reservation, Mr.Pujara would submit relying on Gujarat Civil Services (Reservation of Posts for Women) Rules, 1977 that if there is a short fall of women candidates in a category, the requisite number of women belonging to such category shall have to be taken.
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C/SCA/11509/2017 CAV ORDER 3.5. He would further submit that a
candidate at Sr. No.644, one Ms.Pooja Bhatiya, SEBC (Female) with birth date 16.6.1986, whose name was deleted from the select list and then kept at Sr. No.308A of the waiting list was subsequently appointed. The respondents are therefore taking a contrary stand on the one hand holding that there is no waiting list for SEBC (Female) Candidates and on the other, appointing the candidate at Sr. No.308A. 3.6. Mr.Pujara places reliance on the decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Dariya v. Rajasthan Public Service Commission reported in 2007(8) SCC 785 and relied on the decision referred to therein in the case of Anil Kumar Gupta v. State of U.P. reported in 1995(5) SCC 173 to submit that the respondents were required to prepare firstly, list of Open Category Page 7 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER 376 candidates then prepare list of 55 SC candidates, 107 ST candidates and 195 SEBC candidates. He would further submit that even 35 SEBC candidates who have otherwise been appointed on merit are considered against reserved category and thereby 35 SEBC candidates against reserved quota have been denied appointment. The respondents have given appointments to 129 SEBC Male and 65 Female candidates in the open category. It is in this context, the prayer is made in the petition. 3.7. Mr.Pujara has taken me to the reply of the GPSC and the State that the petitioner's case has not been considered as not having qualified because the cut off marks of 148 was considered in context of the date of birth in accordance with the Government Resolution. According to Mr.Pujara, it is incumbent for the State and GPSC to fill in the vacancies. Reliance is placed on the decision of the Hon'ble Supreme Court in Page 8 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER the case of State of Punjab v. Manjit Singh reported in 2003 (11) SCC 559 and 133 State of Jammu and Kasmir v. Sat Pal reported in 2013(11) SCC 737.
4. Mr.Premal Joshi appearing for the GPSC would submit that the petitioner has no right to be appointed as she did not fulfill the qualifying standards and though had secured 148 marks looking to her date of birth, she was found to be less meritorious and below the cut off and, therefore, not rightly selected.
5. Ms.Aishwarya Gupta has appeared for the State and submitted that since the merit list is prepared by the GPSC, the State has a limited role to play. The affidavit in reply filed on behalf of the State places on record various notifications providing for 30% / 33% reservation in favour of women and submits that it is presumed that the GPSC has considered such Page 9 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER circular. She supports the decision taken by the GPSC.
6. Having considered the submissions of the learned advocates for the respective parties, certain undisputed facts need to be considered. 6.1. The advertisement for the posts of Deputy Section Officers / Deputy Mamlatdar Class-III was for 733 posts of which 376 were reserved for SEBC category. Of this 376 posts, 195 were reserved for SEBC (Male) and 65 for SEBC (Female).
6.2. Clause 4 of the advertisement clearly stipulated that in the event, where women were not available in the reserved category then such posts shall be filled in by the concerned category of male candidates.
6.3. Clause 15 of the advertisement also Page 10 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER provided that the wait list shall comprise of half the total number of selected candidates whose names appear in the select list. Therefore, it is apparent that the wait list that was of 366 candidates should comprise of 98 SEBC candidates of which 33 should be for SEBC (Female) candidates 6.4. What is evident from reading the select list at Annexture `C' is that 35 SEBC (Male) candidates have found place in the open category and 14 SEBC (Female) candidates have found their place in the open category. The list further suggest that in all, 130 SEBC (Male) candidates are on the select list and 65 female candidates of the SEBC are on the select list. In all therefore, 165 SEBC candidates have found place on the select list of which 49 have found place in the merit above the cut off marks of 163 for open category.
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C/SCA/11509/2017 CAV ORDER
6.5. What is further evident from the
representation of the petitioner at page No.91 which finds support from the communication dated 20.4.2017 placing on record the affidavit-
in-reply of the State, is that out of 733 vacancies advertised, 64 persons did not join. Of this 64 vacancies that occurred due to not joining of such candidates, 13 were of SEBC male and 11 were of SEBC (Female) candidates. What the State has done is that the 10 vacancies which remained unfilled under the pretext of the non- availability of SEBC (Female) candidates have been filled in by SEBC (Male) candidates and the one vacancy of SEBC (Female) has been filled in by appointing Ms.Pooja Bhatiya who was shown to be in the waiting list.
7. The Resolutions in force annexed to the petition, especially, the one dated 22.5.1997 would indicate that only when there is unavailability of SEBC (Female) candidate, should such post be Page 12 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER transferred and SEBC (Male) candidate be appointed.
8. On an entire over view of the select list and the waiting list, which is annexed at Annexture `C' to the petition, what is evident is that 35 male SEBC candidates and 14 Female SEBC candidates who have been appointed on merit are counted against reserved respective categories and though the petitioner was available and eligible to be included in the waiting list, has not been so included. That 10 posts of SEBC (Female) candidates were available on such candidates not joining has been supported by way of the communication dated 20.4.2017.
9. The apprehension of the petitioner so voiced in the representation on such lines has been vindicated.
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C/SCA/11509/2017 CAV ORDER 9.1. The other contention of the GPSC that since there was no other female candidate available on the waiting list also appears to be unjustified.
9.2. Keeping in view the principle enunciated in the case of Rajesh Kumar (Supra), the GPSC could not have counted the 14 female candidates appointed on open category who have occupied the reserved posts of SEBC (Female) category and in consonance with the reservation rules, due to short fall, the requisite number of women should have been taken by deleting the corresponding number of candidates on the bottom of the list with a view to fulfill the criteria of women's reservation.
10. In other words, when the respondent GPSC operated the waiting list by reshuffling the name of Ms.Pooja Bhatiya from that of the select list to Page 14 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER the waiting list and then appointed her as the only SEBC (Female) candidate available, the petitioner also had secured 148 marks which was equivalent to the cut off marks for the SEBC female category.
11. Keeping in view the decisions in the case of Manjit Singh (Supra) & Sat Pal (Supra), it is apparent that the petitioner was available and entitled to be included in the waiting list and being next available eligible candidate possessing the qualifying standard it was not open for the GPSC and the State to appoint 10 male candidates against the available vacancies for the reserved category of female candidates when petitioner was available as an eligible candidate having possessed the requisite marks.
12. The petition is accordingly allowed. While including the petitioner's name as the next available candidate satisfying the merit of cut off Page 15 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020 C/SCA/11509/2017 CAV ORDER in the SEBC (Female Category), the respondents are directed to appoint the petitioner on the post of Deputy Section Officer / Deputy Mamlatdar, Class-III as being a meritorious SEBC (Female Category) candidate forthwith with all the consequential benefits as if she was given appointment alongwith the first candidate of the said recruitment process. The directions shall be complied with by the respondents within a period of six weeks from today.
Direct Service is permitted.
Sd/-
(BIREN VAISHNAV, J) *** VATSAL Page 16 of 16 Downloaded on : Sat Jan 25 23:48:57 IST 2020