Gujarat High Court
Arti Shankerlal Raval vs Dinesh Dasa, Chairman on 26 March, 2018
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/MCA/2904/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 2904 of 2017
In SPECIAL CIVIL APPLICATION NO. 5758 of 2011
==========================================================
ARTI SHANKERLAL RAVAL
Versus
DINESH DASA, CHAIRMAN
==========================================================
Appearance:
MR SI NANAVATI, SENIOR ADVOCATE WITH MR SAURABH MEHTA,
ADVOCATE WITH MR PANKAJ S CHAUDHARY(3269) for the
PETITIONER(s) No. 1
MR KM ANTANI, AGP(1) for the RESPONDENT(s) No. 2
MR GM JOSHI, ADVOCATE WITH MR VYOM H. SHAH, ADVOCATE for
the RESPONDENT(s) No.3
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 26/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This application is filed under the provisions of the Contempt of Courts Act, 1971, alleging that the respondents have intentionally and willfully disobeyed the judgment and order dated 21.04.2017 passed by this Court in Special Civil Application No.5758 of 2011 and allied matters and therefore proceedings be initiated against the respondents under the provisions of the Contempt of Courts Act.
Page 1 of 17 C/MCA/2904/2017 ORDER2. Heard learned Senior Counsel Mr. S.I.Nanavati assisted by learned advocate Mr. Saurabh Mehta for the applicant, learned Assistant Government Pleader Mr. K. M. Antani for the respondent No.2 and learned advocate Mr. Gautam Joshi with learned advocate Mr.Vyom H. Shah for the respondent No.3.
3. Learned Senior Counsel Mr. Nanavati submitted that the Gujarat Public Service Commission (hereinafter referred to as 'the GPSC') issued an advertisement No.87/2006-07 on 26.06.2006 and thereby invited applications for recruitment on different posts in Gujarat Civil Service Class-I and Class-II. The said advertisement was for recruitment of total 283 posts. Thereafter, it was amended vide public notice dated 10.11.2006 to increase total number of posts to be filled in, from 283 to 317. Pursuant to the said advertisement, combined competitive examination was conducted by the GPSC and finally the merit list was published on 13.05.2010. The names of 316 candidates were recommended by the GPSC to the Government for appointment on the posts advertised for which each candidate was informed about the same individually by the GPSC vide its letters dated 03.08.2010. Such candidates were waiting for medical examination call / appointment orders. However, the same was not done by the State for more than nine months.
Page 2 of 17 C/MCA/2904/2017 ORDERSuddenly, on 26.04.2011, the GPSC cancelled the earlier merit list published on 13.05.2010 and thereafter published a fresh merit list. The names of number of candidates who were earlier included in the merit list published on 13.05.2010, were excluded from the merit list dated 26.04.2011. Therefore, number of petitions were filed by different candidates before this Court challenging the action of the State Government of revising the merit list and giving appointment on the basis of the same along with other grievances.
4. Learned Senior Counsel Mr. Nanavati thereafter submitted that this Court, by an order dated 21.04.2017, disposed of the said petitions. Learned Senior Counsel Mr. Nanavati referred the relevant paragraphs of the order dated 21.04.2017 passed by this Court in Special Civil Application No.8203 of 2012 and allied matters and after referring the same, it is contended that this Court in para 39 of the said order answered issue No.5 by holding that the notified vacancies in the advertisement in question, which have remained unfilled because of non-joining of the candidates appointed, need to be filled up by the State, by offering the same to the next meritorious candidates whose details are already annexed with the merit list dated 26.04.2011 itself by the GPSC and which is already on record Page 3 of 17 C/MCA/2904/2017 ORDER of those petitions. The respondent State and GPSC both were directed to do needful in that regard.
5. It is thereafter contended by the learned Senior Counsel Mr. Nanavati that in para 41.1 of the said order, it is directed that the posts, which have remained unfilled because of non- joining of the candidates appointed by the Government vide appointment orders claimed to have been issued on 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question. It is further directed that while giving such appointments, the ceiling of notified vacancies (total 317 vacancies) shall also be kept in view by the authorities. Thereafter, the observations made in para 41.4 of the said order were referred, wherein this Court has observed that the aforesaid exercise shall be completed within a period of three months from the date of receipt of the order.
6. Learned Senior Counsel Mr. Nanavati has made a grievance that the applicant wrote a letter dated 10.07.2017 to the opponents to implement the order passed by this Court and to give her appointment in view of the directions issued by this Court in the aforesaid petitions. Learned counsel further submitted that the applicant filed Misc. Civil Application No.2567 of 2017 for clarification before the learned Single Judge. At Page 4 of 17 C/MCA/2904/2017 ORDER that time, the learned Single Judge asked the concerned Assistant Government Pleader to the effect that whether there is any ambiguity/confusion in the mind of the State authorities with regard to the directions issued by this Court and after taking appropriate instructions, it was stated before the Court that there is no ambiguity/confusion in the mind of the State authorities with regard to the directions of the Court.
7. At this stage, learned Senior Counsel Mr. Nanavati submitted that as per the information available to the applicant, the respondent State has offered the post of Deputy Superintendent of Police (Dy.SP) to one Shri Ruturaj Desai who was not found eligible for the said post at the relevant point of time and when the post of Taluka Development Officer was offered to him, he has refused to accept the said post. However, after the order is passed by the learned Single Judge, the respondent No.2 is now going to offer the vacant post to Shri Ruturaj Desai by applying the judgment in the case of D.G.Dalal Vs. State of Gujarat, reported in 2002 (2) G.L.R. 1011. It is contended that if unfilled 41 seats will be offered to such a candidate, 41 seats will be reduced and therefore such exercise would be in violation of the directions issued by this Court in the aforesaid order. It is, thus, contended Page 5 of 17 C/MCA/2904/2017 ORDER that once it is declared by the learned Single Judge that the petition is allowed by quashing and setting aside the action of the respondent in preparation of the impugned merit list, the benefit made available to the applicant and similarly situated other candidates cannot be taken away in any manner. Further, when the learned Single Judge suggested the mode of exercise to balance the equity amongst the selected candidates, it is not open for the State authorities to exercise the discretion in such a way which amounts to willful disobedience of the direction issued in the aforesaid order passed by the learned Single Judge. It is, therefore, urged that this application be allowed and appropriate directions be issued to the opponents for strict implementation of the order dated 21.04.2017 passed by this Court in Special Civil Application No.8203 of 2012 and allied matters.
8. On the other hand, learned Assistant Government Pleader Mr. Antani appearing for the respondent No.2 referred to the affidavit and additional affidavit filed on behalf of the respondent No.2 and submitted that in compliance of the direction issued by this Court in the order dated 21.04.2017, General Administration Department had issued a letter dated 07.10.2017 to GPSC to recommend the next meritorious candidates for 41 vacant posts. However, the GPSC Page 6 of 17 C/MCA/2904/2017 ORDER replied vide letter dated 07.11.2017 that the letter written by GAD does not contain any details as to number of candidates to be recommended in each of the categories, it is not clear how many candidates are to be recommended in these categories and therefore it is not possible to send recommendation as suggested. It is stated that while considering the direction issued by this Court, the decision rendered by this Court in the case of D.G.Dalal (supra) is also required to be followed and therefore delay has occurred in implementing the directions issued by this Court.
9. So far as the case of Shri Ruturaj Sankabhai Desai is concerned, learned Assistant Government Pleader explained that at the relevant point of time in the year 2011, the post of Dy.S.P. for General Category was offered up to the candidate in the merit-list at serial No.48. Thus, the candidate at serial No.48 was last candidate to be offered the post of Dy.S.P. in General Category. Therefore, for the four vacant posts of Dy.S.P. in General Category, respondent No.2 started considering the candidates from serial No.49. So far as the post of Dy.S.P. for SEBC category is concerned, the same was offered to the candidate at serial No.126 in the merit-list. Thus, the candidate placed at serial No.126 was last candidate to be offered the post of Dy.S.P. Page 7 of 17 C/MCA/2904/2017 ORDER in SEBC category. The respondent No.2, therefore, started considering the candidates placed at serial No.127 in the merit list for the vacant unfilled post. It is clarified that at the relevant point of time, Shri Ruturaj Sankabhai Desai who was at serial no.130, has opted for only three posts i.e. (1) Dy.S.P., (2) District Registrar and (3) Superintendent, Prohibition and Excise. However, none of the aforesaid three posts were available to him and therefore at that time, post of Taluka Development Officer was offered to him. As Shri Ruturaj Desai never opted for the post of TDO, he had not accepted the said post. In fact, at the relevant time he was already working as TDO pursuant to his appointment with regard to the earlier recruitment process. Thus, it is contended that when Shri Ruturaj Desai is next meritorious candidate, the post of Dy.S.P. is to be offered to him. Thus, the respondent authority has not intentionally and willfully disobeyed any direction issued by this Court in the order dated 21.04.2017 and the present application is misconceived. Hence, the same be dismissed.
10. Learned advocate Mr. Gautam Joshi appearing for the respondent No.3 also supported the submissions canvassed by learned Assistant Government Pleader Mr. K.M. Antani.
Page 8 of 17 C/MCA/2904/2017 ORDER11. We have considered the submissions canvassed by the learned advocates appearing for the parties and we have also gone through the material produced on record. It is revealed from the record that this Court by an order dated 21.04.2017 disposed of a batch of petitions including Special Civil Application No.5758 of 2011 with certain directions. The applicant has placed reliance upon the observations and findings recorded by this Court in para 35.1, 35.3, 39 and 41.1 of the said order, which read as under:
"35.1 Having held as above qua issues No.1 to 4 and having found that number of illegalities are committed by both the respondent Authorities at all stages, including from the stage of preparation of the impugned merit list dated 26.04.2011, it needs to be decided, what consequential order should be passed by this Court. Since the illegality has started from the preparation of the impugned merit list dated 26.04.2011, the correction should also start from that stage itself. The prayers in these petitions are also to that effect. These petitions therefore need to be allowed by setting aside the impugned select list dated 26.04.2011 prepared and published by the GPSC, claimed to have been recasted on the advice of the respondent State, which is found to be without any authorisation by the competent Authority of the Government (as noted in the later part of this judgment). There is hardly any other option available with the Court. The consequences of doing so would also be very far reaching and it may affect number Page 9 of 17 C/MCA/2904/2017 ORDER of candidates who are already appointed and some of whom might have been even further promoted in the respective hierarchy, e.g. Mamlatdar from the recruitment in question would have been promoted as Deputy Collector, Section Officer would have been promoted as Under Secretary, etc. The order of this Court dated 06.05.2011 and the subsequent orders have specifically provided that, all these appointments shall be subject to further orders that may be passed in this group of petitions. Therefore, there should not be any grievance in that regard by anyone. Inspite of this, this Court has tried to explore other options, where the effect of illegalities committed by the respondent Authorities, in consultation / connivance with each other, can be removed or at least reduced to the possible extent and at the same time, it may create minimum difficulties for the administration and the candidates / appointees. Keeping this in view, one way can be thought of, which can salvage the situation to substantial extent. The total number of affected persons by the impugned action of the respondent Authorities, are about 40. It has come on record that atleast 41 candidates have not joined. The details with regard to:- (I) the original advertisement, (ii) addendum thereto,
(iii) the consolidation of (i) and (ii) -
advertisement, (iv) candidates who did not join, and (v) the posts which have remained vacant, are noted herebelow. It is noted that the details qua (i), (ii) &
(iii) are based on the advertisement No.87/2006-2007, details qua (iv) and (v) are provided by the State. Those details are as under.
Xxx xxx xxx Page 10 of 17 C/MCA/2904/2017 ORDER 35.3 Thus, the figures of the persons affected by the impugned actions of the respondent Authorities and the number of vacancies remaining unfilled from that very advertisement (notified vacancies) are almost the same. At this stage, how many would join is also an issue. Thus relief can be granted to the affected candidates against the unfilled notified vacancies. Though this would approve the illegal action of the respondent Authorities to some extent, the equities between the two groups of the citizen need to be balanced by this Court. The stand of the State, even in this fact situation, is that, either it is my way or no way. This needs to be rejected, however while doing so, it should not result into injustice and / or avoidable hardship to other citizen. Keeping this balance in view, this Court finds that, instead of setting aside the impugned merit list dated 26.04.2011 and thereby, consequently setting aside all subsequent actions of the State, direction needs to be given to the GPSC and the State both, to offer appointments to the next meritorious candidates on the notified unfilled vacancies from the advertisement in question. This would meet with the ends of justice. At this stage, it also needs to be noted that, in the event of the impugned list dated 26.04.2011 being set aside and the respondent authorities being directed to undertake the exercise of preparing and operating the select list afresh, ultimately it would reach almost at that stage, which is indicated by this Court hereabove. The difference would be very minimal and for this reason, this course is being adopted by this Court.
xxx xxx xxx Page 11 of 17 C/MCA/2904/2017 ORDER
39. For the above reasons, issue No.5 is answered by holding that the notified vacancies in the Advertisement in question, which have remained unfilled because of non-joining of the candidates appointed, need to be filled up by the State, by offering the same to the next meritorious candidates whose details are already annexed with the merit list dated 26.04.2011 itself by the GPSC and which is already on record of these petitions. The respondent State and the GPSC both need to be directed to do needful in that regard.
xxx xxx xxx 41.1 Though the impugned merit list dated 26.04.2011 prepared and published by the Gujarat Public Service Commission is unsustainable on facts and in law, instead of setting aside the said merit list, (for the reasons noted in the body of the judgment, more particularly in para : 35.1 and 35.3), and consequently setting aside all the appointments of about three hundred candidates and their further promotions in the respective hierarchy, it is directed that, the posts, which have remained unfilled because of non-joining of the candidates appointed by the Government vide appointment orders, claimed to have been issued on 06.05.2011, based on the impugned select list dated 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question (Advertisement No.87/2006-07). It is further directed that, while giving such appointments, the ceiling of the notified vacancies (total 317 vacancies) shall also be kept in view by the Authorities."
Page 12 of 17 C/MCA/2904/2017 ORDER12. On the basis of the said directions issued by this Court, it is contended by the learned Senior Counsel appearing for the applicant that learned Single Judge answered the issue No.5 by holding that the notified vacancies in the advertisement in question, which have remained unfilled because of non-joining of the candidates appointed, need to be filled up by the State, by offering the same to the next meritorious candidates whose details are already annexed with the merit list dated 26.04.2011 itself by the GPSC and which is already on record of the petitions. It is further directed that while giving such appointments, the ceiling of notified vacancies i.e. total 317 vacancies shall also be kept in view by the authorities. The applicant is meritorious candidate in the list annexed with the petitions. It is one of the contentions of the applicant that one Shri Ruturaj Desai who was offered the post of Taluka Development Officer has not accepted the said post in the present recruitment process and he was in fact working as Taluka Development Officer as he was selected in the earlier recruitment process. Therefore post of Dy.S.P. cannot be offered to him.
13. It is required to be noted that this Court has specifically observed in para 35.4 and 41.2 as under:
"35.4 At this stage, it also needs to be noted that, while offering appointments to Page 13 of 17 C/MCA/2904/2017 ORDER the next meritorious candidates on the post remaining vacant, it should not happen that more meritorious candidate continues with his third or fourth preference and the post of his first choice at this stage, is offered to the candidate below in merit. Therefore, while undertaking this exercise, the decision of this Court in the case of D.G.Dalal (supra), as confirmed by the Supreme Court of India, shall also be kept in view. It is noted that the copy of this judgment is already placed on record by the State itself, along with its affidavit in Special Civil Application No.11163 of 2012.
xxx xxx xxx 41.2 While giving such appointments, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Supreme Court of India shall also be kept in view."
14. Thus, from the aforesaid directions given by this Court, it is clear that while offering appointments to the next meritorious candidates on the post remaining vacant, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Hon'ble Supreme Court shall also be kept in view. From the affidavit in reply and additional affidavit filed on behalf of respondent No.2 it is revealed that respondent No.3 - Ruturaj Desai opted for three posts i.e. (1) Dy.S.P., (2) District Registrar and (3) Superintendent, Prohibition and Excise. The respondent No.2 belongs to SEBC category.
Page 14 of 17 C/MCA/2904/2017 ORDERHowever, at the relevant point of time, none of the aforesaid three posts was vacant and therefore respondent no.3 was not offered the said posts. He was offered the post of Taluka Development Officer. However, he had never opted for the post of Taluka Development Officer because he was already selected as TDO in earlier recruitment process and he was working in the said post and thereafter he was promoted as Deputy Collector. Thus, while applying the ratio laid down by this Court in the case of D.G.Dalal (supra), if the post of Dy.S.P. for SEBC category is offered to the respondent No.3 who is next meritorious candidate for the vacant post of Dy.S.P. SEBC category, it cannot be said that respondent No.2 has intentionally and willfully violated the directions issued by this Court in the order dated 21.04.2017 passed in the captioned petitions. We are not examining the correctness or otherwise of the procedure adopted by the respondent authorities in the present application as the same is filed under the provisions of the Contempt of Courts Act. In any case the question is with regard to the interpretation of the decision of this Court rendered in the case of D.G.Dalal (supra). Hence, in this application, we have to examine whether the respondent No.2 has intentionally and willfully violated the direction given by this Court or not.
Page 15 of 17 C/MCA/2904/2017 ORDER15. At this stage, it is also required to be noted that in the affidavit-in-rejoinder filed by the applicant, the applicant has made an averment in para 5(1) that ".......As per the information available to the Applicant, the first intentional or unintentional mischief or mistake, likely to be acted upon by the State Authority is that 41 selected candidates who have for the reasons best known to them not accepted the selection and posts remained vacant are reoffered and by that process, naturally the vacant unfilled 41 seats will be reduced. The Applicant has given one of the examples of such candidates for whom the Applicant with some reliable sources subject to verifying by the State Authorities being already reoffered which is totally wrong application of the ratio of the judgment in completing the exercise of unfilled 41 posts are concerned.
16. Para 6 of the affidavit-in-rejoinder reads as under:
"6. It is further respectfully submitted that in Paras 5 and 6 of the Affidavit in Reply dated 13.11.2017, the Respondent No.2 - the State - has intentionally or otherwise either wrongly understood or got misguided with the procedure which is required to be adopted in giving the effect of the direction given in the Judgment dated 21.04.2017in its true spirit, which is as under......"
17. Thus, from the aforesaid averments, it is clear that even the applicant has stated that Page 16 of 17 C/MCA/2904/2017 ORDER State has intentionally or otherwise either wrongly understood or got misguided with the procedure which is required to be adopted in giving the effect of the direction given in the judgment dated 21.04.2017. Thus, it cannot be said that respondent No.2 has intentionally violated the directions issued by this Court.
18. Thus, in view of the aforesaid discussion, we are of the view that the respondent authorities have not intentionally and willfully violated any of the directions issued by this Court in the judgment and order dated 21.04.2017 passed in Special Civil Application No.8203 of 2012 and allied matters. Thus, this is not a fit case to proceed further under the provisions of the Contempt of Courts Act. The application is devoid of merits and accordingly it is dismissed. Notice discharged.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) Jani Page 17 of 17