Gujarat High Court
Patel Arjunbhai Songhabhai-St vs State Of Gujarat on 10 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5202 of 2007
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of
2023
In R/SPECIAL CIVIL APPLICATION NO. 5202 of 2007
With
R/SPECIAL CIVIL APPLICATION NO. 5526 of 2007
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of
2023
In R/SPECIAL CIVIL APPLICATION NO. 5526 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy 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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PATEL ARJUNBHAI SONGHABHAI-ST
Versus
Page 1 of 27
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NEUTRAL CITATION
C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024
undefined
STATE OF GUJARAT & ORS.
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MS. NIDHI VYAS, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 10/07/2024
ORAL JUDGMENT
1. Heard Mr. K.B. Pujara, learned advocate appearing for the petitioners and Mr. H.S. Munshaw, learned advocate appearing for the respondent no.3 and Ms. Nidhi Vyas, learned Assistant Government Pleader appearing for the respondent No. 1- State.
2. As the grievance raised by the petitioners in both the petitions are selfsame, the petitions are heard analogously and common order is passed in both the petitions, with the consent of the learned advocates appearing for the respective parties.
3. The facts as stated in the Petition being Special Civil Application No. 5526 of 2007 is taken as a lead matter Page 2 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined and the facts stated in the said Petition, briefly reads thus:
3.1. The petitioners belong to reserved categories of Scheduled Tribes (ST) and are qualified to be appointed as Vidya Sahayaks / Primary Teachers. The recruitment process is based on 100% objective criteria, viz. marks obtained at the qualifying examinations. The respondent no.2 - Director of Primary Education granted approval for filling 1525 vacancies of Vidhya Sahayaks in Vadodara District, by order dated 25.06.2004, on the basis of the vacancies of Primary Teachers in Vadodara as on 01.06.2003. Pursuant thereto, the respondent no.3 issued an advertisement dated 17.07.2004 inviting applications for 1320 vacancies of Vidhya Sahayaks and out of the said vacancies, 1208 vacancies were earmarked for PTC/ trained graduate candidates and 66 vacancies were earmarked for C.P.Ed. Candidates and 46 vacancies were earmarked for ATD candidates. The advertisement specifically stated that reserved categories candidates shall be recruited as per the reservations provided for SC / ST/ SEBC and physically handicapped candidates in Page 3 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined every district and for Vadodara District, the reservations were provided, i.e. for SC-6%, ST-25%, SEBC-27% and Physically Handicapped - 4%. Pursuant to the said advertisement, the petitioners herein applied as PTC/ Trained Graduates. 3.2. The respondent no.3 arranged interviews from 21.11.2004 to 25.11.2004. Though, there were hundreds of backlog vacancies of ST / SEBC / Physically Handicapped categories, which were carried forward since last 3 years, due to non-availability of sufficient number of candidates of reserved categories, the respondent no.3 disregarded the same and decided not to fill up such backlog vacancies and though having applied, pursuant to the advertisement dated 17.07.2004, no interview call letters were issued. That several candidates belonging to the reserved categories and one Bariya Sanatkumar Jayantibhai preferred a petition being Special Civil Application No. 14991 of 2004 and prayed that the respondents be directed to fill-up the backlog vacancies of reserved categories first and to issue interview call letters to the candidates of reserved categories, before filling up the Page 4 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined other vacancies.
3.3. Upon issuance of the notice in the said petition, the respondents appeared and admitted that the applications received from the candidates of the respective categories were far, more than the said backlog vacancies available under the respondents. The respondent no.2 - Director admitted that as per the catena of decision of this Court as well as the Hon'ble Apex Court, while making recruitment on any posts, backlog vacancies are required to be filled in first, before making any appointments. The Director also submitted and undertook to adjust the backlog vacancies from the selected list and waiting list prepared pursuant to the advertisement dated 17.07.2004, so as to give the benefit of backlog vacancies to the candidates of ST / SEBC / Physically Handicapped categories. The said petition came to be disposed of by order dated 23.12.2004 (Annexure-F), whereby, the respondents were directed to abide by their statements made in the affidavits in reply and to fill up the backlog vacancies of the aforesaid categories and they were Page 5 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined directed to make further recruitment as per the advertisement only after completing the recruitment of backlog of the aforesaid categories.
3.4. It is the case of the petitioners that, despite of the passing of the aforesaid directions in the order dated 23.12.2004 in Special Civil Application No. 14991 of 2004, that there were 683 backlog vacancies of the reserved category, the petitioners have learn from the office of the respondent no.3 that the State Government granted permission to fill up only 580 backlog vacancies and the respondent no.3 in fact filled up only 546 backlog vacancies, thereby leaving 137 vacancies unfilled, the same being violative of the order dated 23.12.2004. The said vacancies were unfilled, at the time of filing of the present Petition. 3.5. It is further the case of the petitioners that, the backlog vacancies are over and above the backlog vacancies of 1046 vacancies (ST category- 500 + SEBC category - 478 + SC category - 68 = Total 1046), which were carried forward since many years, because of non-availability of the Page 6 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined candidates of the reserved categories. The respondents therefore are immediately required and are directed to fill up 137 backlog vacancies, which have not been filled up, despite the Court's order dated 23.12.2004.
3.6. It is the case of the petitioners that, admittedly the respondent no.3 has received 823 applications from SC candidates, 2034 applications from ST candidates and 1493 applications from SEBC candidates. Therefore, all the unfilled backlog vacancies can be immediately filled up, by giving appointments to the said candidates.
3.7. It is also the case of the petitioners that, as against the strength of 9773 Primary Teachers / Vidyasahayaks as on 31.08.2006, actual number of Primary Teachers / Vidyasahayaks serving were 9336 only, and therefore, 437 clear vacancies were also available to be filled-up.
3.8. It is further the case of the petitioners that, after the issuance of the advertisement dated 17.07.2004 and after the order dated 23.12.2004 passed in Special Civil Application Page 7 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined No. 14991 of 2004, the respondent no.3 has issued appointment orders to 1180 candidates, as against, 1208 vacancies of general category, and therefore, 28 categories of general category also remained unfilled. For filling up such vacancies, the Court passed orders on 28.11.2005, 28.12.2005, 21.01.2006 and 31.01.2006, whereby, the State Government took a policy decision dated 07.07.2006 to implement the said orders by filling up the said vacancies from the waiting list prepared in the year 2004. In all other districts, except Vadodara District, such vacancies arising due to the selected candidates not joining duties or due to their resignations have already been filled up on or about 11.08.2006. Admittedly the vacancies were available in the cadre of Vidyasahayaks / Primary Teachers in Vadodara District, either due to backlog vacancies of scheduled tribes or due to other reasons, however, the respondents were not filling up the said vacancies.
3.9. In light of the aforesaid, petitioners herein have constrained to approach this Court and have prayed for the Page 8 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined following reliefs:
"(a) To forthwith direct the respondents, and particularly the respondent no.3 to fill up all the backlog vacancies of scheduled tribes in the cadre of primary teachers/ vidyasahayaks in Vadodara District Education Committee by giving appointment to the petitioners and others who have applied in response to the advertisement dated 17-7-2004 as per Annexure-B;
(b) To direct the respondents, particularly the respondent no.3 to fill up the 48 vacancies of vidyasahayaks remaining unfilled in Vadodara District Education Committee due to resignations of the candidates who were appointed pursuant to the advertisement dated 17-7-2004 as per Annexure-B by giving appointment to the petitioners and other candidates of scheduled tribes, who had applied in response to the said advertisement;
(c) To direct the respondents, and particularly the respondent no.3 to fill up 134 backlog vacancies of unreserved category remaining unfilled even after the order dated 23-12-2004 passed by the Hon'ble High Court in SCA No. 14991/2004 as per Annexure-F;
(d) To quash and set aside the new advertisement dated 24-
1-1007 issued by the respondent no.3 as per Annexure- N and to direct the respondent no.3 to issue new advertisement only after all the backlog vacancies are firstly filled up from the candidates who have applied in response to the advertisement dated 17-7-2004 as per ANNEXURE-B;
(e) To direct the respondents, and particularly the respondent no.3 to forthwith fill up all the presently available 437 existing vacancies in the cadre of primary teachers/vidyasahayaks in Vadodara District Education Committee by giving appointment to the petitioners and other scheduled tribes candidates who have applied in response to advertisement dated 17-7-2004 as per Annexure- B;
(f) To quash and set aside the illegal action of the respondents and particularly the respondent no.3 in not implementing the Hon'ble High Court's order dated 8-12-2006 Page 9 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined in SCA No. 23747 / 2006 (Coram:H K Rathod J) by not giving appointment to the 117 scheduled tribe candidates on 117 backlog vacancies;
(g) To quash and set aside the illegal action of the respondents and particularly the respondent no.3 in issuing call letters to the general category candidates in contravention of the Hon'ble High Court's order dated 8-12- 2006 in SCA No.23747/2006 (Coram: H.K.Rathod J);
(h) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION,BE PLEASED to restrain the respondents and particularly the respondent no.3 from making any appointments of vidyasahayaks/ primary teachers unless and until all the backlog vacancies of the scheduled tribes are fully filled up by giving appointments to the petitioners and other candidates of scheduled tribes who had applied in response to the advertisement dated 17-7-2004 as per Annexure-B;
(i) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION,BE PLEASED to direct the respondent no.3 to remain personally present before the Hon'ble Court and to place on record the exact position of the backlog vacancies existing at the time of advertisement dated 17-7-2004 and appointments given to the candidates on various categories thereafter until this date and the present position of the exact number of scheduled tribe vacancies available under the respondent no.3;
(j) To grant any other appropriate and just relief/s;"
4. Heard Mr. K.B. Pujara, learned advocate appearing for the petitioners.
4.1. Mr. Pujara, learned advocate submits that the petitioners herein are constrained to approach this court Page 10 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined mainly on the ground that the petitioners herein applied under reserved category, pursuant to the advertisement issued on 17.07.2004 for the appointment to the post of Vidyasahayaks / Primary Teachers in Vadodara District. 4.2. Mr. Pujara, learned advocate submits that in view of the fact that, there being number of vacancies, having not been filled-up, pursuant to the said advertisement and the procedure undertaken by the respondent no.3, the petitioners and similarly situated persons approached this Court by preferring Special Civil Application No. 14991 of 2004, wherein, upon issuance of the notice, the respondent appeared and made a statement that they undertook to adjust the backlog vacancies from the selected list and waiting list prepared, pursuant to the advertisement dated 17.07.2004, so as to give the benefit of backlog vacancies to the candidates of ST / SEBC / Physically Handicapped categories. 4.3. Mr. Pujara, learned advocate submits that, while passing the order dated 23.12.2004 in the said Special Civil Application No. 14991 of 2004, the Court also directed the Page 11 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined respondent to abide by their statement and fill up the backlog of the aforesaid categories and then make further recruitment, as per the advertisement only on completion of procedure to complete the recruitment of backlog of the aforesaid categories.
4.4. Mr. Pujara, learned advocate submits that, the aforesaid order is not followed by the respondent authorities. It is submitted that the backlog vacancies are not filled-up by the respondent no.3. It is submitted that, it was clearly directed by the Court while passing the order dated 23.12.2004 in Special Civil Application No. 14991 of 2004 that, there is a backlog of 407 posts of Scheduled Tribe, 353 posts of SEBC and 70 posts of Physically Handicapped candidates and that the said posts be filled-up before making any regular appointments, pursuant to the said advertisement. After completing the backlog of the aforesaid categories, further recruitment may also be made as per the advertisement as well as, as per the select list. 4.5. Mr. Pujara, learned advocate submits that the Page 12 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined aforesaid having not been followed, the petitioners herein seek a writ by directing the respondent authorities to comply with the order and grant appointments to the petitioners herein, who formed a part of the select list and those not called for the interview and are forming part in the backlog categories.
5. Heard Mr. H.S. Munshaw, learned advocate appearing for the respondent No.3.
5.1. Mr. H.S. Munshaw, learned advocate appearing for the respondent No.3 placed Affidavit in reply duly filed at page-151. Placing reliance on the same, Mr. Munshaw, learned advocate submits that the respondent no.2 had permitted the respondent no.3 through a letter dated 21.06.2004 to fill up in all 1525 posts of Vidya Sahayaks. That 20% of the posts (305 posts) were to be filled up through inter-district transfer, and therefore, 1220 posts were to be filled-up through direct recruitment of Vidya Sahayaks. AS 100 posts could not be filled-up through inter-district transfer, an advertisement was published on 17.07.2004 for Page 13 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined recruitment of in all 1320 posts of Vidya Sahayaks. So far as the respondent no.3 is concerned, 20.16% of the posts were to be filled-up through Scheduled Tribe categories as per the Roster. It was submitted by Mr. Munshaw, learned advocate that the petitioners are P.T.C. trained candidates and they were to be considered on that basis for appointment of Vidya Sahayaks.
5.2. It was further submitted that, out of 1320 posts advertised by the authority, 66 posts were to be filled-up through C.P.Ed. candidates and 46 posts through A.T.D. candidates. Accordingly, 244 posts were to be filled-up through Scheduled Tribe candidates. It was submitted that, in all 2034 applications were received from Scheduled Tribe candidates.
5.3. It was submitted that, before issuance of appointment orders, Special Civil Application No. 14991 of 2004 came to be filed before this Court and upon considering the merits/ issue involved, the said Petition was disposed of with the directions to the respondent no.3 vide order dated Page 14 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined 23.12.2004.
5.4. It was submitted that the respondent no.3 operated the select list / waiting list to fill up the backlog in the category of Scheduled Tribe and in all 517 posts were filled- up between 08.05.2005 and 13.05.2005. It was submitted that, 244 posts were to be filled-up subsequent to the advertisement dated 25.06.2004 through Scheduled Tribe candidates and 294 posts were to be filled-up as per separate permission granted by the Director of Primary Education on 22.02.2005, subsequent to the orders passed by this Court. 5.5. It was submitted that, in all 538 posts were to be filled-up, but 517 posts were filled-up due to administrative reasons. It was further submitted that, due to resignation of in all 9 candidates, subsequent to their appointment, the respondent no.3 authority was required to fill-up in all 30 vacant posts, and therefore, the waiting list was further operated and 26 candidates were given appointments. It was submitted that, while filling of 26 posts, the respondent no.3 had corrected certain administrative errors, at the time of Page 15 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined operating the waiting list. It was submitted that, not a single candidate, having less merit than the petitioner nos. 1 to 5 is appointed and the merits of the present petitioners were relied upon, which is duly produced at Page-155. 5.6. It was submitted that, subsequent to the advertisement issued on 17.07.2004 inviting applications from the eligible candidates, the respondent no.3 had prepared the merit-list and thereafter, issued another advertisement in the month of October, 2004 instructing the candidates to verify their respective merits determined and published by the respondent no.3 authority, within a period of 10 days, by way of visiting the office of the respondent no.3. It was further submitted that, all those candidates, who visited the office, were heard and needful was done in accordance with the rules and regulations. The respondent no.3 issued call letters on the basis of the merits list to the candidates and so far as the Schedule Tribe candidates are concerned, the last candidate, who was issued call letter was having 64.27 marks and the said details were also published in the newspaper, so Page 16 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined that the candidates having any complaint or representation can approach the respondent no.3 on 23.03.2005 and 24.03.2005.
5.7. It was submitted that out of 30 posts, 26 posts were to be filled-up and in all 4 candidates approached this Court by filing Special Civil Application No. 9162 of 2007 to 9165 of 2007 claiming that they were wrongfully denied the appointment. It was submitted that, this court passed an order dated 05.04.2007 for considering the case of the petitioners as well as others and it was stated that while filling up the said 4 posts, the merits of all the candidates be examined afresh, to see that no candidate is caused injustice. 5.8. It was submitted that the respondent no.3 herein is permitted to fill up in all 199 posts of Vidya Sahayaks through P.T.C. trained candidates and out of the same, 92 posts are to be filled-up through Schedule Tribe candidates. Subsequent to the said instructions, a fresh advertisement was published in the newspaper on 24.01.2007 and 92 advertised Schedule Tribe posts were filled up on 17.03.2007. It was Page 17 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined submitted that for various different backlog categories as on 01.04.2007, viz. Schedule Tribe 338 seats, Schedule Caste 86 seats and S.C.B.C. 467 seats. It was submitted that, the backlog had increased due to retirement, resignation, voluntary retirement, death, inter-district transfer, etc., the posts are to be created or filled-up on the basis of strength of the teachers is determined on that basis. 5.9. In view of above, it was submitted that, the respondent no.3 had acted as per the instructions of the higher authorities as well as, as per the order passed by this Court in various proceedings.
5.10. Mr. Munshaw, learned advocate has placed reliance on the affidavit dated 30.10.2007, wherein, the schedule and detailed of the backlog is duly produced at Annexure-A. During the course of hearing, the reliance is placed on the chart, which is duly produced at Pg. 187. Placing reliance on the said schedule, it is submitted that, all 199 posts were filled-up and thereafter the backlog qua Schedule Tribe is 338 posts. The backlog vacancies are Page 18 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined required to be determined as on 31 st August of each of the year and in the present case, at the relevant point of time, the said exercise is incomplete and in view thereof, the respondent no.3 was not in a position to provide the exact figure.
5.11. Mr. Munshaw, learned advocate relied on the Further Affidavit in reply which is dated 02.04.2008, wherein, the data with regard to certain backlog vacancies of Schedule Tribe candidates were pointed out. Placing relying on the same, it was submitted that one Mr. Satishbhai Rathwa preferred Special Civil Application No. 14991 of 2004 before this Court praying that the backlog vacancies be filled- up first, wherein, on 13.12.2004, the Court passed the order that the aforesaid should be undertaken. The respondent no.3 examined the entire record afresh and prepared the same and forwarded to the same to the Department of State Government, i.e. Social Justice and Social Welfare department and it verified and confirmed the same on 09.12.2005. It was submitted that, there were backlog of 580 posts of different Page 19 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined categories for a period from 1999 to 2022. On 31.03.2005, a letter was addressed to the Director of Primary Education requesting to permit the respondent no.3 to fill-up 1208 posts of P.T.C. trained teachers as per the advertisement as well as 580 posts of backlog, aggregating 1900 posts were required to be filled-up. It was submitted that, the Director of Primary Education, immediately replied on 22.02.2005, permitting for recruitment of 1208 advertised posts as well as 580 posts of backlog through P.T.C. trained teachers. The said letter is duly produced at Annexure-A (Pg.194). Thereafter, the respondent authority addressed a communication dated 09.03.2005 to the respondent no.3, instructing the method of operating the merit list.
5.12. It was submitted that the application received by the respondent no.3 in response to the advertisement dated 17.07.2004 were considered for filling up of 1208 advertised posts through P.T.C. trained teachers as well as 580 posts of backlog and the select list as well as waiting list prepared by the respondent no.3 authority were operated accordingly. It Page 20 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined was submitted that, the last candidate belonging to the Schedule Tribe category appointed by the respondent no.3 had secured 63.91 marks.
5.13. It was submitted that, the petitioners herein except Mr. Paramsingh G. Rathwa have secured lesser marks than the last candidate and their cases for appointment could not be considered. Reliance was placed on the marks of the each of the five petitioners, stated at page-191 in Para-2, which shows that the other petitioners having secured lesser marks, could not be considered.
5.14. Placing reliance on the aforesaid submissions, it was submitted that all the advertised posts as well as 580 posts of backlog were filled up, subsequent to the instructions of the order dated 13.12.2004 passed by the Court in Special Civil Application no. 14991 of 2004, and therefore, the grievance of the petitioners would not survive. 5.15. It was submitted that subsequent to the advertisement dated 17.07.2004 and filling up of all the advertised posts as well as backlog of 580 posts by way of Page 21 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined operating the select list and waiting list of the candidates who had applied, in response to the advertisement, the respondent no.3 herein had initiated the next round of recruitment by way of issuing an advertisement dated 24.01.2007, after the approval being approved by the Director of Primary Education. In view thereof, the said exercise was to fill up backlog of 199 posts including backlog of 92 Schedule Tribe candidates. The respondent no.3 had prepared select list and waiting list, out of the applications received in response to the said advertisement and also advertised posts were filled-up, pursuant to the advertisement dated 17.03.2007. The backlog of 199 posts is subsequent one and therefore, the petitioners would not have any grievance with respect to the subsequent recruitment process undertaken by the respondent no.3.
6.1. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioners herein are constrained to approach this Court seeking implementation of the order dated 23.12.2004 passed in Page 22 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined Special Civil Application No. 14991 of 2004. The grievance of the petitioners is that, the petitioners herein are included in the list, pursuant to the advertisement dated 17.07.2004, but the respondents thought it fit not to fill-up all the posts and in view of the vacancies, it is the case of the petitioners that the said backlog vacancies be filled-up first, before undertaking any fresh recruitment process. 6.2. In light of the aforesaid, it is apposite to refer to the order dated 23.12.2004 passed in Special Civil Application No. 14991 of 2004, which reads thus:
"By filing this petition, the petitioners have prayed that at the time of recruitment to the post of Vidya Sahayak, the department has not considered the backlog vacancies of ST, SEBC and Physically Handicapped candidates. According to the petitioners, there is a backlog of 407 posts of Scheduled Tribe, 353 posts of SEBC and 70 posts of Physically Handicapped candidates.
In response to the notice of this Court, Mr.Sood, learned AGP has appeared on behalf of respondent Nos.1 and 2 and Mr.Munshaw, learned advocate has appeared on behalf of respondent No.3-District Primary Education Officer, Vadodara and affidavit-in- reply is also filed by the respondents. Mr.Sood, learned AGP as well as Mr.Munshaw have stated that at the time of filling up the vacancies of Vidya Sahayak, the backlog of the aforesaid categories is not taken into account.
On behalf of the State Government as well as on behalf of the District Primary Education Officer, Vadodara, it is stated before the Court that before making any recruitment to the Page 23 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined aforesaid post of Vidya Sahayak, recruitment will be made from the backlog of Scheduled Caste, SEBC and Physically handicapped candidates.
In the affidavit-in-reply filed by Mr.Raval, Director of Primary Education, it is clearly stated in paragraph 7 that as per the judgement of the Supreme Court while making recruitment on any post the backlog vacancies, which are carried forward in the subsequent years are required to be filled in first before making any appointment. It is also stated in the said reply that the respondents are undertaking to adjust the backlog vacancies from the select list including the waiting list, which is already been prepared pursuant to the advertisement dated 17-7-2004 and the candidates who are in the categories of ST, SEBC and Physically Handicapped would be given the benefit of backlog vacancies by readjusting the select list and candidates belonging to the aforesaid categories would be adjusted on the basis of their merit.
In view of the aforesaid statement made in affidavit-in-reply as well as in view of the submission made by learned AGP as well as Mr.Munshaw, the District Primary Education Officer is directed to abide by the aforesaid statement and fill up the vacancies from the backlog of the aforesaid categories and for that purpose if any adjustment is required to be made in the select list, the same should be carried out. After completing the backlog of the aforesaid categories, further recruitments may also made as per the advertisement as well as as per the select list.
At this stage, Mr.Munshaw, submitted that number of vacancies as pointed out by the petitioner under reserved category is not a correct statistic. He submitted that at the time of making recruitment as aforesaid, appropriate care will be taken to calculate the exact backlog of aforesaid categories and on that basis appropriate orders will be given. In view of what is stated hereinabove, the grievance of the petitioner is satisfied and precisely the prayer made in this petition for filling up the backlog vacancies of ST, SEBC and Physically Handicapped candidates is accepted by the department. In view of this, Mr.Pujara, learned advocate for the petitioners is not pressing this petition. Accordingly, this petition is disposed of as not pressed. Notice is discharged. No costs.Page 24 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024
NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined The respondents are directed to act expeditiously, as per the direction given in this order.
Direct service is permitted."
6.3. Pursuant to the statement made by the learned advocate appearing for the respondent no.3 in Special Civil Application No. 14991 of 2004, it appears that the respondent no.3 filled-up the backlog vacancies and while filling up the backlog vacancies, the petitioners were also considered. This Court has perused the merit list (marks secured by the petitioners), which is on record, which reads thus:
Mr. Rathwa Vishnubhai 63.39 Mr. Rathwa Bagwanbhai 60.85 Mr. Rathwa Bhimsinh 60.85 Mr. Rathwa Bahadurbhai 62.89 Mr. Parmar Khumansinh 63.78 7. From the aforesaid facts and taking into
consideration the affidavit in reply and further affidavit filed by the respondent no.3, wherein, it is stated that the order dated 23.12.2004 passed in Special Civil Application No. 14991 of 2004 is duly complied with and the list of backlog Page 25 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined vacancies is operated in the spirit of the order and the statement made in the said petition. The last candidate that was granted / considered for appointment, i.e. Mr. Paramsing J. Rathava, who has secured merit list of 64.10 - petitioner no.6, who falls within the merit and in view thereof, he was granted appointment. The merit-list of the last candidate appointed was 64.10, however, the merit of the petitioner nos. 1 to 5 in SCA No. 5526 of 2007 admittedly is less, than the last candidate appointed in the said selection process.
8. In the course of hearing, it was also noticed that the other petitioners having included the merit were also granted the appointment. That four petitioners do not fall within the merit, and therefore, they are not granted appointment. For the candidates, who do not fall within the merit marks / merit list, this Court would not exercise extraordinary jurisdiction under Article - 226 of the Constitution of India.
9. The respondent no.3 having complied with the order dated 23.12.2004 passed in Special Civil Application Page 26 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024 NEUTRAL CITATION C/SCA/5202/2007 JUDGMENT DATED: 10/07/2024 undefined No. 14991 of 2004, in the opinion of this Court, the grievance of the petitioners as such stand redressed.
10. For the foregoing reasons, the present Petition stands disposed of, accordingly. Interim relief, if any, stands vacated. Rule discharged.
Since the main Petitions stand disposed of, pending Civil Application/s is/are also stand/s disposed of, accordingly.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 27 of 27 Downloaded on : Fri Aug 09 20:33:47 IST 2024