Gujarat High Court
Nai Ishwarlal Jethalal vs State Of Gujarat & 3 on 16 September, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12801/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12801 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see No
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 law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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NAI ISHWARLAL JETHALAL....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR US BRAHMBHATT, ADVOCATE for the Petitioner(s) No. 1
MR DM DEVNANI, LEARNED ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 16/09/2014
ORAL JUDGMENT
1. Rule. Mr.D.M. Devnani, learned Assistant Page 1 of 14 C/SCA/12801/2014 JUDGMENT Government Pleader, waives service of notice of Rule on behalf of the respondentState.
2. This petition under Article 226 of the Constitution of India, has been preferred with the following prayers:
"(A) Admit and allow this petition, and be heard day to day basis, looking to the facts and circumstances and violation of Articles 14, 16, 16(4) and 21 to protect fundamental constitutional rights of the petitioner herein.
(A) Your Lordships be pleased to call for the entire details unfilled backlog vacancies from Class I to IV forthwith including the petitioner.
(B) Your Lordships be pleased to pass such other and further order in the facts and circumstances of the case and in the interest of justice."
3. The case of the petitioner, as emerging from the memorandum of the petition, is that he belongs to the OBC category and is also deaf and dumb. An advertisement was issued by respondent No.3Gujarat Subordinate Selection Board, on 29/30.01.1996, pursuant to which the petitioner applied for the post Page 2 of 14 C/SCA/12801/2014 JUDGMENT of Clerk. He appeared in the examination and was declared successful, vide Notification dated 31.01.2000. He was placed at Serial No.91 of the Select List. However, in the second Notification dated 01.05.2000, the petitioner was placed at Serial No.94. According to the petitioner, the advertisement, a copy of which is not produced in the petition, was for filling up the posts of Clerk that had arisen due to backlog of reserved categories. The petitioner claims that he is entitled to reservation under the 3% quota for disabled persons, as he is deaf and dumb, and is also entitled to a separate quota belonging to the OBC category. The petitioner is relying upon an order passed by a Division Bench of this Court dated 07.07.1998, in a Public Interest Litigation (PIL), being Special Civil Application No.1647 of 1998. It may be noted that the said PIL was filed by the learned advocate for the petitioner in his personal capacity. In that order, the Division Bench, in view of the affidavitinreply filed by the State Government, directed the State Government to take all reasonable steps to fill up the backlog vacancies of reserved categories, in accordance with the rules, and Page 3 of 14 C/SCA/12801/2014 JUDGMENT also to take steps to fill up ClassIII and ClassIV posts, at the earliest. The petitioner further relies upon an order dated 25.04.1995, passed by this Court (Coram: M.S. Parikh, J.) in Special Civil Application No.2666 of 1995, whereby the petition filed by the petitioner was permitted to be withdrawn upon the statement of the learned Assistant Government Pleader, that if appointment is to be made, the case of the petitioner will be considered, not only as a selected candidate, but also as a handicapped candidate. The grievance of the petitioner appears to be that the respondent authorities have not filled up the backlog pertaining to disabled persons and the OBC category. According to the petitioner, the respondents have violated the abovementioned orders of this Court and, as, according to him, his fundamental rights under Articles 14, 16 and 16(4) and 21 have been violated, he has approached this Court by way of the present petition.
4. Mr.U.S. Brahmbhatt, learned advocate for the petitioner, has submitted that there is a reservation of 27% for the OBC category as well as reservation of 3% for the disabled category, therefore, the backlog Page 4 of 14 C/SCA/12801/2014 JUDGMENT of vacancies ought to have been filled by the respondents and the petitioner ought to have been considered, being at Serial No.94 in the Select List dated 31.01.2000. It is further submitted that the directions of the Division Bench, issued in the order dated 07.07.1998, passed in Special Civil Application No.1647 of 1998, have not been followed and neither has the order dated 25.04.1995, passed in Special Civil Application No.2666 of 1995, been taken note of, by the respondents. The respondents have committed a breach of the above two orders of this Court by not filling up the backlog vacancies, therefore, the prayers made in the petition may be granted.
5. Mr.D.M. Devnani, learned Assistant Government Pleader, has appeared on supply of an advance copy of the petition. He has submitted that it is not clear from the order dated 07.07.1998, passed in Special Civil Application No.1647 of 1998 (PIL), what the prayers of the petitioners were. In any case, the present petitioner was not before the Court and the directions given by the Court were to take reasonable steps to fill up the backlog vacancies of the reserved category, in accordance with the rules. There is Page 5 of 14 C/SCA/12801/2014 JUDGMENT nothing on record to show that this direction of the Court has not been followed. The said order does not stipulate that the backlog is to be filled from any particular category of persons or any particular Select List.
5.1 It is next submitted that the petitioner appears to have filed a second Public Interest Litigation, being Special Civil Application No.9014 of 2007, which was disposed of by the order dated 14.11.2008, on the ground that the petitioner has claimed a general relief, which cannot be granted.
5.2 Learned Assistant Government Pleader further submits that the case of the petitioner is that he was selected pursuant to an advertisement dated 29/30.01.1996. There is no mention in the petition why the appointment was not granted to the petitioner. Only because his name was in the Select List, the petitioner cannot claim any right to appointment. 5.3 It is contended that insofar as the order dated 25.04.1995, passed in Special Civil Application No.2665 of 1995, is concerned, it appears from the same that the petitioner was selected under a Scheme, Page 6 of 14 C/SCA/12801/2014 JUDGMENT which was later discontinued. The respondent has stated before the Court that nobody was going to be appointed under the Scheme. However, it was also stated that if the appointment is made, the petitioner's case would be considered not only as a selected candidate, but as also as a handicapped candidate. In view of the above statement made on behalf of the petitioner, learned advocate for the petitioner withdrew the petition. There is no material on record to indicate that pursuant thereto, some appointments have been made and the name of the petitioner has not been considered.
5.4 Lastly, it is submitted by the learned Assistant Government Pleader that the select list in which the name of the petitioner figured is dated 31.01.2000. Fourteen years have now passed and the said Select List is no longer valid after such a long period of time.
5.5 In respect of this submission, reliance has been placed upon a judgment of the Supreme Court in the case of State of Rajasthan and others vs. Jagdish Chopra reported in (2007)8 SCC 161 wherein the Page 7 of 14 C/SCA/12801/2014 JUDGMENT Supreme Court has held that a merit list should be valid for one year if the rules are silent on this point.
5.6 Learned Assistant Government Pleader has further relied upon the judgment of the Supreme Court in the case of State of Bihar and others Vs. MD. Kalimuddin and others reported in (1996) 2 SCC 7, wherein the Supreme Court has held that under the statutory rules, as the period of the life of select list had already expired, the High Court's order to continue the select list was illegal.
5.7 It is further submitted that there is an inordinate delay on the part of the petitioner in approaching the Court. Had the petitioner been aggrieved by any action of the respondent, especially, pursuant to the orders of this Court relied upon by him, he ought to have approached the Court at the relevant time.
5.8 On the above grounds, it is prayed that the petition be rejected.
6. This Court has heard learned counsel for the respective parties and perused the averments made in Page 8 of 14 C/SCA/12801/2014 JUDGMENT the petition and other documents annexed thereto.
7. The prayers made by the petitioner have already been reproduced hereinabove. A perusal thereof would go to show that the petitioner has not made any specific or effective prayer. The first prayer at paragraph7(A), states that the petition be allowed by conducting a hearing on a daytoday basis, in order to protect the fundamental rights of the petitioner. The second prayer is to call for the entire records, including the unfilled backlog vacancies from Class I to IV forthwith, including that of the petitioner. It is not specified which backlog from which department and pertaining to which year. The third prayer is a formal prayer. The petitioner has not prayed that his name be considered for any particular post under any specific recruitment process. In the view of this Court, therefore, the petition lacks a specific cause of action.
8. If the averments made in the petition are perused, it is apparent that the petitioner applied for the post of Clerk, pursuant to an advertisement Page 9 of 14 C/SCA/12801/2014 JUDGMENT dated 29/30.01.1996. He appears to have been selected and placed at Serial No.94, vide Notification dated 31.01.2000. What happened thereafter, and why the petitioner did not get appointment, remains a mystery, as nothing has been placed on the record of the petition and no clarification is made by the learned advocate for the petitioner before this Court. It is also not clear from the petition, why the petitioner chose to wait for fourteen years before filing the present petition.
9. It is a settled position of law, reiterated by the Supreme Court and this Court in a catena of judgments, that merely because the name of a particular candidate appears on a select list, he does not get any right to appointment. In the present case, the name of the petitioner was placed in the select list dated 31.01.2000. Apart from the fact that the select list cannot have unlimited validity, as has been held by the Supreme Court in State of Rajasthan and others vs. Jagdish Chopra (supra) and State of Bihar and others Vs. MD. Kalimuddin and others(supra), relied upon by the learned Assistant Page 10 of 14 C/SCA/12801/2014 JUDGMENT Government Pleader, it is obvious that in the intervening period of fourteen years, several vacancies of the backlog, or otherwise, may have been filled. There is no material on record to indicate under which department and pursuant to which vacancy, the petitioner is staking his claim. Only vague and general averments are made in the petition and, unfortunately, the prayers are such that no specific relief has been sought. Therefore, none can be granted. Even otherwise, had the petitioner specifically claimed to be appointed pursuant to the Select List dated 31.01.2000, it would not have been legally possible for this Court to entertain such a prayer, in view of the fact that the Select List does not remain valid after one year, unless there is a specific rule to the contrary. No such rule has been referred to in the petition. Fourteen years is too long a period of time, and the candidates, including the petitioner, whose names were on the list may have become overage by now.
10. It may be true that the petitioner belongs to the OBC category and is stated to be suffering from a hearing and speech disability. However, without any Page 11 of 14 C/SCA/12801/2014 JUDGMENT material on record as to whether the petitioner has applied under any subsequent recruitment, or is even eligible for the same, this Court cannot direct the respondents to consider the name of the petitioner pursuant to a select list dated 31.01.2000, on the basis of unfilled backlog in support of which there is absolutely no material on record.
11. The reliance placed by the learned advocate for the petitioner upon the order of the Division Bench dated 07.07.1998, passed in Special Civil Application No.1647 of 1998, which was a Public Interest Litigation filed by the learned advocate for the petitioner, himself, and upon the order of this Court (Coram: M.S. Parikh, J.) dated 25.04.1995, passed in Special Civil Application No.2666 of 1995, is thoroughly misconceived, for the reason that the order of the Division Bench is made in a PIL and addresses the general grievance that may have been made in the petition. The respondents were directed to take all reasonable steps to fill up the backlog vacancies of the reserved category, in accordance with the rules. There is nothing specific in the order that pertains Page 12 of 14 C/SCA/12801/2014 JUDGMENT to the petitioner. In any case, the said order was not passed with the petitioner in mind, as can be seen from the date on which it was passed. The name of the petitioner was placed in the select list on 31.01.2000, whereas the order of the Division bench was made prior thereto, on 07.07.1998. The same is the case with the order dated 25.04.1995, passed in Special Civil Application No.2666 of 1995, which was passed before the date when the name of the petitioner was placed in the Select List. A perusal of the said order makes it clear that the petitioner was appointed under a Scheme, which later on came to be discontinued. A statement was made by the learned Government Solicitor, that the Scheme has been discontinued and nobody was going to be appointed under that Scheme. It was further stated that in case any appointment is made, the case of the petitioner would be considered not only as a selected candidate, but also as a handicapped candidate. The petitioner then withdrew the said petition. It is evident from the said order that the petitioner was engaged pursuant to a Scheme and his services were coterminus with the Scheme. There was no regular appointment. Page 13 of 14
C/SCA/12801/2014 JUDGMENT Both the above orders of the Court would not come to the aid of the petitioner, insofar as the present petition is concerned.
12. For the abovestated reasons, this Court is of the view that the petition not only lacks a specific cause of action but it also lacks merit. It, therefore, deserves to be rejected.
13. Accordingly, the petition is rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) piyush Page 14 of 14