Gujarat High Court
Shashiibhai Ghelabhai Patel & 3 vs State Of Gujrat & on 6 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/19249/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19249 of 2005
With
SPECIAL CIVIL APPLICATION NO. 19250 of 2005
TO
SPECIAL CIVIL APPLICATION NO. 19264 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== SHASHIIBHAI GHELABHAI PATEL & 30....Petitioner(s) Versus STATE OF GUJRAT & 1....Respondent(s) ========================================================== Appearance:
MR NIRAV R MISHRA, ADVOCATE for the Petitioner(s) No. 1 - 3 , 6 - 8 , 10 , 12 - 15 , 17 - 31 NOTICE SERVED for the Petitioner(s) No. 9 , 11 , 16 UNSERVED-EXPIRED (N) for the Petitioner(s) No. 4 - 5 MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/09/2016 ORAL COMMON JUDGMENT Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Civil Application No.19249 of 2005 is treated as the lead matter.
3 By this writ application under Article 226 of the Constitution of India, the writ applicants, members of the Scheduled Caste and Scheduled Tribes, desirous of seeking appointment on the posts of Clerk, ClerkcumTypist, Typist, Class III under the secretariat post, have prayed for the following reliefs:
"8(A) Your Lordship be pleased to admit the the special civil application (B) Your Lordship be pleased to issue appropriate writ order or direction which the Hon'ble Court may deem fit and be pleased to pass an order directing the respondents to consider the case of the petitioners and to give appointments to the petitioners forthwith and further declare the inaction on the part of the respondents as illegal, arbitrary and unconstitutional.
(C) Pending admission, hearing and final disposal of this petition, directing the respondent not to appoint any candidates in the advertise category and cadre and to declare the appointments made if any as illegal after publishing the result of the said advertisement and to produce list of those candidates who appointed amongst the selection list.
(E) Such other and further relief in the necessary and interest of justice be granted."
4 The facts of this case may be summarised as under:
4.1 An advertisement came to be published in the year 1996 for filling up 1050 posts of the reserved candidates in various categories. The advertisement was published on 1st May 2000. It appears that only 237 candidates were offered appointment out of select list of 1050 Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT candidates. It is the case of the writ applicants that at the last minute, the State Government altered its policy and decided to fill up only the backlog vacancies. Being dissatisfied, they have preferred the present writ applications.
5 I take notice of the fact that the identically situated writ applicants, who were there in the select list and not offered appointment, came before this Court by filing the Special Civil Application No.6976 of 2002 and allied matters. Those writ applications came to be disposed of by the judgment and order dated 15th March 2004, which reads as under:
"1. The petitioners are selectees of a select list prepared pursuant to an advertisement published in 1996 for filling up 1050 posts of reserved category candidates in various categories. The advertisement was published on 1.5.2000. Thereafter, out of that select list, 237 candidates have been given appointment. The petitioners are amongst the remaining selectees who are not offered any appointment. By this petition, the petitioners seek the following main reliefs : "..(b) Declaring the inaction and refusal on the part of the respondents to fill up backlog of reserved nonsecretarial 1050 posts of Clerk, ClerkcumTypist and Typist in Gujarati and in English by not fully operating, implementing and exhausting the selection list based on the advertisement issued by the respondent No.1 Board in the year 1996 annexed to this petition as AnnexureC (Colly) as discriminatory, arbitrary, irrational, perverse, mala fide, based on nonapplication of mind, in direct contravention of the reservation policy and, therefore, violative of Articles 14, 16 and 21 of the Constitution of India read with directive principles of state policy and, therefore, illegal and unconstitutional.
Directing the respondents to fully operate,implement and exhaust the selection list based on the advertisement issued by respondent No.1 Board in the year 1996 annexed to this petition at AnnexureC (Colly).
Directing the respondents to disclose and give full information about existing number of backlog of reserved nonsecretarial posts of Clerk, ClerkcumTypist and Typist also in the backdrop of the advertisements issued by the respondent no.1 Board in the year 1991 and 1996. And Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT be further pleased to direct the respondents and respondent No.3 in particular to justify and account for its letter dated 04.03.2002 annexed to this petition as AnnexureD. Declaring the action of the respondent No.1 Board to take written and typing examination for 500 posts advertised in the year 1991 after a gap of more than 10 years and prepare selection list and initiate process to operate the same as arbitrary, grossly discriminatory, irrational, mala fide, suffers from nonapplication of mind and therefore violative of Articles 14 and 16 of the Constitution of India and therefore, illegal and unconstitutional. And be further pleased to declare invalid the selection list based on the advertisement of 1991 published by the respondent No.1 Board by issuing notification in the official gazette on 05.06.2002 annexed to this petition as AnnexureE (Colly.). And be further pleased to quash and set aside the same...."
2. Learned Senior Advocate, Mr. Girish Patel, appearing for the petitioners submitted, at the outset, that he does not dispute the settled legal proposition that a selectee, whose name is included in the select list, acquires no indefeasible or vested right to be appointed. He submitted that the petitioners are aggrieved and agitated by the stand taken by the respondent authorities indicating that the appointments beyond 237 candidates of the select list is not possible to be given because of various factors, as indicated in paragraph 3 of the affidavitinreply sworn by the Under Secretary, G.A.D., on 24 th November, 2003, produced on the record of this petition. Mr. Patel submitted that the affidavitinreply is conspicuously silent about the details as to when the policy of economy in Government expenditure by introducing 20% cut in the employees was introduced, when did posts on which compassionate appointments were given fall vacant and when did the posts on which surplus staff was redeployed fall vacant. He submitted that, if the affidavit is seen, it indicates that these developments are subsequent to 1996, whereas the petitioners are candidates who are selected for the vacancies which had already fallen vacant, for which there was already a backlog of 1050 vacancies and, therefore, these subsequent developments indicated in the affidavitinreply are not genuine and would call for a close judicial scrutiny.
2.1 Mr. Patel also submitted that, apart from the advertisement issued in the year 1996, there was an advertisement published in the year 1991, in respect of which written test was conducted on 19th August, 2001 and typing test was conducted in the early part of 2001 and select list was prepared on 5 th June, 2002. There were about 500 posts sought to be filled in, not indicated either as reserved category or as backlog. Mr. Patel submitted that this Page 4 of 10 HC-NIC Page 4 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT exercise would certainly reflect on the interests of the petitioners and, therefore, the petition may be entertained and the interim relief granted may be confirmed.
3. The petition is opposed to by the respondents, represented by learned Advocate General, Mr. Shelat. He submitted that the relevant time lag would be between 1.5.2000 and 4.3.2002. The period of time prior thereto would not be very important for the reason that except inviting applications, no exercise was undertaken. He submitted that the table in paragraph 3 of the affidavitinreply sworn by the Under Secretary, G.A.D., shows that the 20% cut in the posts was introduced in 1999. So far as the appointments given to the surplus staff and to the heirs of Government servants, who died in harness, given on compassionate grounds are all filled by respective reserved category candidates. No reserved post is permitted to be manned by any candidate from unreserved category. These details are collected from various offices all over the State of Gujarat by the General Administration Department and Social Justice and Empowerment Department, jointly. Learned Advocate General, therefore, submitted that it is a question of policy for the State Government to decide as to whether there should be any cut in the expenditure or not and how that cut should be introduced and that is how it was decided that, instead of 1050 posts advertised in the year 1996, only 247 posts are required to be filled in, after considering the cut, the postings given on compassionate grounds and the postings given to surplus staff. Merely because an advertisement was published for 1050 backlog vacancies, the selectees will not get any vested right. He submitted that, so far as the 1991 advertisement is concerned, the said advertisement is not for backlog or any reserved category candidates, but it is for general regular recruitment and interest of reserved category candidates would be taken into consideration as per the roster. He relied on a decision in the case of Govt. of Orissa v. Haraprasad Das & Ors, AIR 1998 SC 375. He submitted that pursuant to the advertisement in 1991, a select list of 397 candidates is prepared and out of them, 334 candidates have already been given appointments. He places on record a statement indicating the details. He submitted that, under the circumstances, no indulgence may be granted by entertaining this petition.
4. Learned Senior Advocate, Mr. Patel for the petitioners, submitted that the term "policy decision" has a very wide spectrum and giving appointments to limited candidates or giving postings to surplus employees or giving postings on Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT compassionate grounds to candidates cannot be considered as policy decision and, therefore, the petition may be entertained.
5. Having regard to the contentions raised before this Court, it may be noted, at the outset, that the petitioners are candidates who are included in the select list prepared pursuant to a 1996 advertisement given for filling up backlog 1050 reserved categories vacancies and they seek a declaration that the inaction on the part of the authorities in not appointing them is discriminatory, arbitrary, irrational, perverse, mala fide and based on non application of mind, in contravention of the reservation policy and violative of Articles 14 and 16 of the Constitution. They also seek a direction to the respondents to fully operate, implement and exhaust the select list prepared pursuant to the advertisement given in the year 1996. Differently put, they claim right to be appointed to the posts advertised in the year 1996.
6. As indicated in the decision relied upon by learned Advocate General, in the case Govt. of Orissa v. Haraprasad Das & Ors, AIR 1998 SC 375, it is settled proposition of law that mere inclusion of a candidate in the select list does not give him any indefeasible or vested right to be appointed. If the Government takes a decision not to fill up the posts, the Court cannot interfere and direct the Government to make appointments. Learned Senior Advocate, Mr Patel, also does not dispute this settled proposition of law, but he has pressed this petition on a slightly different ground. According to him, since the respondent authorities have come out with an affidavit explaining how the vacancies are reduced, they must explain and the Court must examine whether the stand taken by the respondents is genuine or not.
6.1 The Court has to adjudicate upon right of a litigant, if any. It is not supposed to be administrative supervisor over administrative authorities. It has to examine whether the petitioners are wronged and if yes, examine whether the reasons therefor indicated respondents are genuine or otherwise and then to adjudicate upon the matter. Where petitioners have no vested right, where no such right is violated, Court is not required to enter into such inquiries. It is, therefore, not possible to accept this contention of learned Senior Advocate Mr.Patel and act on it.
7. The details given by the respondent authorities in the affidavit inreply are clearly indicated to have been collected from the various offices of the State of Gujarat by the General Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT Administration Department and Social Justice and Empowerment Department. There is no reason to doubt the details, more so when they are not controverted. It is indicated that the Government has adopted a policy of 20% cut in the posts in the year 1999. There cannot be a better example of policy decision than this wherein a general cut of 20% is adopted. Obviously, when the select list is operated, if the policy is in force, it has to be implemented and it cannot be given a go by to implement something which existed earlier when such policy was not contemplated.
7.1 It is categorically stated that the appointments which are given on compassionate grounds are given to respective categories only and the same is the case so far as redeployment of surplus staff is concerned. Under the circumstances, it cannot be said that, by virtue of these postings, there is a violation of reservation policy. Even by giving a go by to the reservation policy, if the posts are filled in, the selectees cannot agitate and press for operation of a select list beyond available vacancies, particularly, when it is settled proposition of law that a selectee has no vested right to be appointed. Differently put, the selectees, who have no right to be appointed, cannot be permitted to question the postings or appointments which are given as per the Government policy, without violating the reservation policy, simply because they belong to a particular category and because certain posts were advertised in past as backlog posts. The Court, in exercise of powers under Article 226 of the Constitution, deems it unnecessary to indulge into the exercise of calculating the exact vacancies, exact posts, etc., when the exercise is now undertaken by the Social Justice and Empowerment Department, which more or less works as a watch dog to the cause for the protection of reservation policy. In the opinion of this Court, therefore, the reliefs which are sought, which in substance insist for appointments being given to the petitioners who are selectees, cannot be entertained. There appears no policy implementation which is violative of Articles 14 and 16 of the Constitution nor it is indicated to be such. The petitions, therefore, must fail and the same are dismissed. Notice issued in Special Civil Application 6976 of 2002 is discharged. Interim relief granted earlier would stand vacated. No order as to costs.
8. Learned Advocate, Mr. Yagnik, for the petitioners states that the stay granted by this Court earlier against the operation of select list prepared consequent to 1991 advertisement, which is vacated by this order, may be continued for a period of one week.
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8.1 It is not in dispute that none of the petitioners is in the select list of 1991. It is categorically observed by this Court earlier that there is no breach of reservation policy nor is the policy found to be violative of Articles 14 and 16 of the Constitution. Under the circumstances, no indulgence as prayed for is required to be granted. The petitioners have no locus to agitate operation or non operation of 1991 list.
9. No orders in the Civil Applications, in light of the dismissal of the main petition."
6 Being dissatisfied with the judgment and order passed by this Court referred to above, the Letters Patent Appeal No.2151 of 2007 was filed. The appeal was ordered to be dismissed vide order dated 18th February 2008, which reads as under:
"This Appeal, preferred under Clause 15 of the Letters Patent, arises from the common judgment and order dated 15th March, 2004 passed by the learned Single Judge in so far as the Special Civil Application No.6976 of 2002 is dismissed.
The appellants are some of the reserved category candidates selected for appointment to the posts of Clerk, ClerkcumTypist (English) and Clerk cumTypist (Gujarati) under the State Government, pursuant to the advertisement dated 20th June, 1996. It is the grievance of the appellants that against more than thousand posts advertised, a select list of only 897 candidates was prepared. Amongst the 897 candidates selected, some 237 were appointed till the year 2000. In other words, against 1050 posts for reserved category candidates advertised in the year 1996, till the date, only 237 candidates are appointed. In answer to the writ petition, the State Government came out with a specific case that against the said vacancies, some appointments were made on compassionate grounds and redeployment of surplus staff. In the meantime, in view of the judgment of the Hon'ble Supreme Court in respect of implementation of the reservation policy, the state Government has revised its existing reservation policy by its Circular dated 31st August, 1999. On computation of vacancies reserved for various categories afresh under the Circular of 1999, the backlog of the unfilled reserved posts has been considerably reduced.
The learned Single Judge has considered the rival contentions. The learned Single Judge was of the opinion that in view of the aforesaid changed circumstances and the fact that the appellants did not have indefeasible Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Sep 08 00:19:03 IST 2016 C/SCA/19249/2005 JUDGMENT right to appointment, no indulgence was called for. The petition has, accordingly, been rejected.
We are in agreement with the learned Single Judge. In addition to the subsequent development which has considerably reduced the number of vacancies available for appointment of reserved category candidates, we are of the opinion that the operation of the select list prepared pursuant to the advertisement published in the year 1996 after more than 10 years would in itself be unfair and injusticiable.
The Appeal is dismissed in limine. Civil Application stands disposed of."
7 It appears that being dissatisfied with the dismissal of the appeal, those writ applicants preferred the Special Leave to Appeal No.24023 of 2008 before the Supreme Court. On 7th December 2009, leave was granted and the hearing was ordered to be expedited.
8 Mr. Mishra, the learned counsel appearing for the writ applicants pointed out that the special leave to appeal before the Supreme Court is likely to come up for hearing in the near future. He submitted that it is now converted into the Civil Appeal No.8191 of 2009.
9 In view of the aforestated facts, I need not go into the merit of the present writ applications. The judgment that may be pronounced by the Supreme Court would govern the rights of the parties including the writ applicants herein. Mr. Swapneshwar Goutam, the learned Assistant Government Pleader appearing for the State Government submitted that the facts of each case may be probably differed, and therefore, it will be difficult to say that the writ applicants would be governed by the judgment that may be delivered by the Supreme Court. The judgment of the Supreme Court is still awaited. Since identically situated employees would ultimately be governed by the judgment of the Supreme Court, there should not be any difficulty in understanding the judgment, and thereafter applying the same so far as the present writ applicants are concerned.
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10 As a result of the aforesaid discussion, all the writ applications are
disposed of with a clarification that the rights of the writ applicants shall ultimately be governed by the decision that may be rendered by the Supreme Court in the Civil Appeal No.8191 of 2009. It is needless to clarify that it will be open for the State Government to look into the case of each of the writ applicants while taking decision as regards the applicability of the judgment that may be delivered by the Supreme Court. In case of any difficulty, it will be open for the writ applicants to once again come up before this Court. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Sep 08 00:19:03 IST 2016