Gujarat High Court
Bhatt vs State on 24 February, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/5287/2009 3/ 59 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5287 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
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, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge?
NO
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BHATT
SNEHABEN MAHESHKUMAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
KB PUJARA for
Petitioner(s) : 1,
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH
MS.SANGETA VISHEN, ASST. GOVERNMENT PLEADER for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 4.
MR MANISH J
PATEL for Respondent(s) : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
:24/02/2010
CAV
JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, direction and/or order to quash and set aside impugned order of termination dated 22.05.2009 (Annexure -O); to quash and set aside condition no.3 and 4 of appointment order dated 22.11.2008 (Annexure I) and consequently it is prayed to direct reinstatement of the petitioner in service with continuity and all other consequential benefits. By way of amendment the petitioner has also prayed for appropriate Writ, direction and /or order quashing and setting aside State Government, Education Department's order dated 13.12.2001 and Government Resolution dated 16.03.1996 (Annexure S & T) in so far as to the extent to which they are contrary to the mandate of Hon'ble Supreme Court in the case of K.N.Shreenivasan v/s. Officer Commanding in Chief reported in 1996 (7) SCC 73 and to hold and declare that in the matter of recruitment of Vidya Sahayak / Primary teachers if no candidate from reserved category is available then procedure to be followed is to convert post into non-reserved post and offer the same to the candidate from non-reserved category and carry forward the post for the reserved category for which it was meant if carry forward rule exists and so permits.
2. Facts leading to the present Special Civil Application in nutshell are as under :-
2.1. Applications were invited by respondent no.3 herein District Education Officer, Sabarkantha at Himatnagar on 25.01.2007 for 15 vacancies of C.P.Ed candidates for the post of primary teacher / Vidya Sahayak.
Out of 15 vacancies 1 was reserved for Scheduled Caste candidate, 2 for Scheduled Tribe candidates, 8 for SEBC candidates and 4 were earmarked for open category candidates (open category). Petitioner applied for same in response to the advertisement on 02.02.2007 in the open category. By communication dated 26.02.2007 petitioner was issued interview call letter directing the petitioner to remain present for interview on 07.03.2007. The petitioner was placed at Sr.No.5 in the merit list prepared by respondent no.3 in the open category and as only 4 vacancies were notified in the open category, petitioner was placed at Sr.No.1 in the waiting list of open category. It is the case on behalf of the petitioner that 2 vacancies of Scheduled Tribe, 2 vacancies of SEBC remained unfilled due to non-availability of candidates of the said reserved category. Therefore, petitioner preferred Special Civil Application No.4033 of 2008 before this Court as according to the petitioner respondents were required to dereserve aforesaid vacancies which remained unfilled due to non-availability of candidates of reserved category and same was required to be filled up by candidate of open category. Petitioner relied upon order of Division Bench on 20.06.2006 passed in Letters Patent Appeal No.721 of 2006. That thereafter, petitioner was issued appointment order dated 22.11.2008 on specific conditions more particularly condition no.3 and 4 to the effect that as appointment of the petitioner is on the post reserved for reserved category candidates and in the public interest, appointment of the petitioner shall be ad-hoc and as and when in future, reserved category candidate is available, services of the petitioner shall be put to end automatically and petitioner is to be relieved. That in view of appointment order dated 22.11.2008 aforesaid Special Civil Application came to be disposed of on 02.12.2008 with liberty to apply in case of difficulty. Petitioner accepted aforesaid order of appointment dated 22.11.2008 and joined services on 02.12.2008 at Vinchi Primary School, Taluka - Khedbrahma, District Sabarkantha. After a period of three months, petitioner received notice dated 05.03.2009 proposing to terminate the services of the petitioner. Petitioner replied to the same by reply dated 20.03.2009. Petitioner preferred Special Civil Application No.2729 of 2009 challenging aforesaid notice dated 05.03.2009. Same came to be disposed of by this Court vide order dated 25.03.2009 in Special Civil Application No.2723 of 2009 as said Special Civil Application was against show cause notice only and authority was directed to pass final order on the said show cause notice within four weeks in accordance with law and on merits and considering reply submitted by the petitioner to the show cause notice. That thereafter petitioner submitted detailed reply on 27.03.2009 / 30.03.2009. That thereafter respondent no.3 District Education Officer has passed impugned order of termination dated 22.05.2009 which is impugned in the present petition. Being aggrieved and dissatisfied with the impugned order of termination dated 22.05.2009 passed by respondent no.3 DEO, Sabarkantha, petitioner has preferred Special Civil Application for aforesaid relief. As stated above, petitioner has not only challenged impugned order of termination but has now challenged condition no.3 and 4 of appointment order dated 22.11.2008 as well as State Government, Education Department's order dated 13.12.2001 and Government Resolution dated 16.03.1996 which have been relied upon by respondent no.3 while passing impugned order. It is to be noted that order dated 13.12.2001 of State Government and Government Resolution dated 16.03.1996 are policy decisions of the State Government on reservation and how to fill up post which are reserved for candidates belonging to reserved candidates i.e. SC, ST and SEBC etc.
3. Mr.K.B.Pujara, learned Advocate for the petitioner has submitted that even no proper percentage of reservation was maintained while issuing advertisement dated 25.01.2007 for recruitment of 15 vacancies. It is submitted that respondent no.3 issued advertisement on 25.01.2007 for recruitment of 15 Vidya Sahayaks possessing C.P.Ed qualification and out of 15 vacancies 1 was reserved for SC, 2 for ST, 8 for SEBC and only 4 were earmarked for open category candidates like the petitioner. It is submitted that in doing so respondent no.3 provided more than 50% of vacancies for reserved category which was clearly unconstitutional and contrary to law laid down by the Hon'ble Supreme Court in the case of Indira Sawhney v/s. Union of India reported in AIR 1993 SC 477. It is submitted by Mr.Pujara, learned Advocate for the petitioner that petitioner was ranked at Sr.No.5 in open category but as only 4 vacancies were notified in open category, the petitioner was placed at Sr.No.1 in waiting list of open category. It is submitted that if respondent no.3 had duly and correctly implemented the reservation policy at the relevant time by providing not more than 50 % for reserved category, in that case, the petitioner would have found place in selection list and there would not have been any occasion for this litigation.
3.1. It is further submitted that apart from above, though sufficient number of reserved category candidates were not available and 4 vacancies of reserved category remained unfilled, respondent no.3 did not de-reserve said vacancies and did not give appointment to the petitioner and did not fill up the said vacancies from and amongst candidates belonging to general category. It is submitted that same is contrary to law laid down by the Hon'ble Supreme Court in the the case of K.N.Sreenivasan (supra) wherein it is clearly held that 'if no individual from the reserved category is available then the procedure to be followed is to convert post into non-reserved post and offer the same to the candidate from non-reserved category and carry forward the post for the reserved post for which it was meant if carry forward rules exists and so permits.' It is submitted that in view of above, when subsequently after petitioner preferred Special Civil Application No.4033 of 2008 relying upon said decision of Division Bench dated 20.06.2006 passed in LPA No.721 of 2006 with Civil Application No.5216 of 2006, when respondent no.3 issued appointment order, respondent no.3 ought not to have introduced / imposed condition nos.3 and 4 appointing petitioner on ad-hoc basis. It is submitted that respondent no.3 accordingly gave appointment to the petitioner on ad-hoc basis and wrongly introduced conditions no.3 and 4 that as and when reserved category candidate would be available the petitioner would be terminated. It is submitted that surprisingly within there months thereof respondent no.3 issued order of termination dated 05.03.2009 though during the said period of three months, no advertisement was issued and therefore, there was no question of reserved candidates being made available. Therefore, according to the petitioner notice was based on non existent facts.
3.2. It is submitted by Mr.Pujara, learned Advocate for the petitioner that even order of appointment dated 22.11.2008 was passed on the basis of order dated 20.06.2006 passed by the Division Bench in LPA No.721 of 2006 and said order of Division Bench and said order of Division Bench has attained finality as respondent no.3 has not challenged the said order before higher forum and he has implemented the said order. It is submitted by Mr.Pujara, learned Advocate for the petitioner that said order of Division Bench was based on the State Government's order dated 13.12.2001 wherein G.R. dated 16.03.1996 was also referred to. It is submitted that now it is not open for respondent no.3 to raise any contention or controversy on the basis of G.R. dated 16.03.1996 or Government order dated 13.12.2001 on the basis of which Division Bench passed the order. Therefore, according to the petitioner aforesaid Government Resolution and Government order are in violation of principles of natural justice, acquiescence, waiver, estoppel and res-judicata. It is submitted that moreover appointment dated 22.11.2008 issued to the petitioner is also passed on the basis of order dated 13.10.2008 passed by the Division Bench in Special Civil Application no.9943 of 2008. It is submitted that said petition before the Division Bench arose out of similar situation in another District Education Committee, where respondent authorities were not dereserving the vacancies remaining unfilled due to non availability of reserved category candidates. It is submitted that Division Bench therefore, passed interim order dated 17.09.2008 pursuant to which the State Government passed order dated 06.10.2008 for de-reserving the vacancies and for offering vacancies to the candidates of open category on the basis of the State Government order dated 13.12.2001. In the said Writ Petition also G.R. dated 16.03.1996 for giving appointment on ad-hoc basis was not implemented by the respondents and Division Bench disposed of on 13.10.2008 as is evident from the fact that after division Bench disposed of the petition by order dated 13.10.2008, respondent authority issued interview call letter dated 18.10.2008 stating therein that appointment order was to be given on ad-hoc basis, petitioner of Special Civil Application preferred M.C.A. No.2736 of 2008 in Special Civil Application No.9943 of 2008 for clarification and respondent authorities withdrew interview call dated 18.10.2008 and issued fresh interview call without incorporating the conditions of ad-hoc appointment and thereby said M.C.A. came to be disposed of by Division Bench. Therefore, according to the petitioner respondent authorities have again accepted that candidates of open category who are given appointments on vacancies remaining unfilled due to non availability of reserved category candidates are to be given appointments on regular permanent basis and not ad-hoc basis. Therefore, respondent authorities cannot be allowed to adopt different standard for different persons in exactly similar situation of facts, thereby resorting to policy of pick and choose, as the same is clearly discriminatory and violative of Articles 14 and 16 of the Constitution of India.
3.3. It is submitted by Mr.Pujara, learned Advocate for the petitioner that even legal position about course to be adopted when sufficient number of candidates are not available is already settled by the Hon'ble Supreme Court in the case of K.N.Sreenivasan (supra). It is submitted that in the said judgment it does not speak of ad-hoc appointment in such situation.
3.4. It is submitted by Mr.Pujara, learned Advocate for the petitioner that once post is de-reserved and the vacancy is carried forward to the next recruitment, said post is required to be filled up by candidate of open category on regular and permanent basis and it cannot be on ad-hoc basis, because carry forward rule operate in such manner and when the unfilled vacancies of reserved categories are carried forward to the next recruitment, the seats for reserved category in the next recruitment would be increased to that extent and the seats for open category would be reduced to that extent, and therefore, no disadvantage or injustice would be caused to either reserved categories or to the open category. It is submitted that the carry forward rule can be implemented only in this manner and in no other manner.
3.5. Mr.Pujara, learned Advocate for the petitioner has relied upon decision of Hon'ble Supreme Court in case of Ajit Singh v/s. State of Punjab & Haryana reported in 1999 (7) SCC 209 as well as in the case of S.B.I. SC / ST Employees Welfare Association v/s. State Bank of India reported in 1996 (4) SCC 119 by submitting that as held by Hon'ble Supreme Court in the aforesaid decision there is no fundamental right of reservation and there is no constitutional duty imposed on the Government to make reservation for SC & ST and Article 16(4) is only an enabling provision which confers a discretionary power on the State to make reservation.
3.6. Mr.Pujara, learned Advocate for the petitioner has also relied upon decision of Hon'ble Supreme Court in the case of Ashoka Kumar Thakur V/s. Union of India reported in 2008 (6) SCC 1 as well as in the case of P.V.Indiresan & Ors. V/s. Union of India reported in 2009 (7) SCC 300 and relying upon said decisions, it is submitted that in the aforesaid decision Hon'ble Supreme Court has clearly held that seats remaining vacant due to insufficient candidates of reserved category are required to be filled up by candidates of open category.
3.7. Mr.Pujara, learned Advocate for the petitioner has further submitted that Office Memorandum dated 06.11.2003 issued by the Government of India, Ministry of Personnel, P.G. & Pension Department of Personnel and Training which has been relied upon by the respondents is not at all applicable in the facts of the present case because it is in respect of non permissibility of exchange of reservation between SCs and STs. It is submitted that moreover in the said Office Memorandum also there is nothing to suggest that appointments of open category candidates that may be made on the vacancies remaining unfilled due to non availability of reserved category candidates would be on ad-hoc basis.
3.8. Mr.Pujara, learned Advocate for the petitioner has submitted that decision of the Hon'ble Supreme Court in the case of S.Rajendran v/s. Union of India reported in AIR 1998 SC 1713 as well as in the case of State of Punjab v/s. G.S.Gill reported in AIR 1997 SC 2324, relied upon by respondents are not applicable in the facts and circumstances of the case. It is submitted by Mr.Pujara, learned Advocate that in the case of S.Rajendran (supra) it was a case of single post / single vacancy and it was case of promotion and it was decided in the facts of that case. Even in the case of G.S.Gill (supra) question was with respect to single promotional post and the issue was whether it could be reserved and whether carry forward rule and roster could be applied to such post. That is not the issue in the present case.
3.9. It is submitted that even Hon'ble Supreme Court has clearly held in para 100 of M.Nagraj v/s. Union of India reported in 2006 (8) SCC 212 that appropriate Government will have to introduce time cap depending upon the fact situation.
3.10. It is submitted that in the case of A.S.Iyer v/s.
Balasubramaniam reported in 1980 (1) SCC 634 the Hon'ble Supreme Court has held that a reasonable period for carry forward scheme will be 3 years and not more.
4. By making above submissions and relying upon aforesaid decisions, it is requested to allow present Special Civil Application.
5. Petition is opposed by Mr.Kamal Trivedi, learned Advocate General with Ms.Sangeeta Vishan, learned AGP appearing for respondent State.
6. Mr.Kamal Trivedi, learned Advocate General appearing on behalf of the respondent State has submitted that as such petitioner has challenged condition Nos.3 and 4 in the order dated 22.11.2008 imposed while giving appointment. It is submitted that once the petitioner had accepted appointment letter with conditions and joined duty, thereafter, now the petitioner cannot make grievance about conditions imposed. It is submitted that as such the petitioner had joined duty as per the order dated 22.11.2008 on 02.12.2008 with open eyes and accepted the conditions imposed while giving the appointment and therefore, on the ground of acquiescence the petitioner cannot challenge the same having accepted the order and taken benefit of the same. It is submitted that appointment was given to the petitioner on the post which was reserved for reserved category candidate on purely ad-hoc basis as in that recruitment year, candidate belonging to reserved category candidate was not available and with specific condition that as soon as candidate from reserved category is available, services of the petitioner shall be automatically come to an end, which has been accepted by the petitioner without any grievance / objection at the relevant time.
6.1. It is submitted that even on merits also condition nos.3 and 4 imposed in the order dated 22.11.2008 to the effect that appointment of the petitioner shall be ad-hoc and as soon as candidate from reserve category is available services of the petitioner will automatically come to an end is in consonance with the policy of the State Government with respect to reservation more particularly Government Resolution dated 16.03.1996 which was issued after considering GR dated 28.12.1992, 22.03.1993 and 02.09.1994. It is further submitted that policy of the State Government is reflected in the G.R. dated 16.03.1996. Relying upon additional affidavit-in-reply filed on behalf of respondent no.1, it is submitted that vide G.R. Dated 22.04.1993 it was provided that the posts which are earmarked for reserved category candidate shall not be filled in by the candidates belonging to non reserved category. It is further submitted that in furtherance thereof it is resolved in para 5.7 that the posts which are earmarked for Scheduled Caste, Scheduled Tribe and Educationally and Socially Backward Class shall be carried forward for three recruitments, if no candidate of respective reserve category is available. It is submitted that thereafter vide G.R. dated 05.07.1989 it came to be resolved that if the candidates belonging to reserved category are not available and on account of the said eventualities if posts are not filled in, the same shall not be filled in through the candidates belonging to the non reserved category. It is submitted that in other words a complete ban came to be imposed in respect of dereservation of posts which was earmarked for the candidates belonging to the reserved category. It is submitted that under Para 3.3 of the said G.R., it is further came to be resolved that in all cases of recruitment to fill up vacancies in posts / services in class -I/II/III / IV if sufficient number of suitable Scheduled Castes / Scheduled Tribe candidates are not available to fill up vacancies reserved for them in the first attempt of recruitment, then a second attempt shall be made for recruiting suitable candidates belonging to the concerned category in the same recruitment year or as early as possible before the next recruitment to fill up these vacancies. If the required number of Scheduled Castes and Scheduled Tribe candidates are not even then available, the vacancies which could not be filled up shall remain unfilled until the next recruitment year and said vacancies will be treated as 'Backlog' vacancies. It is submitted that thereafter vide G.R. Dated 16.03.1996 it came to be resolved that if a post which is earmarked for reserved category candidate remains unfilled, and if the public interest so demands, the same shall be filled in by making ad-hoc appointment on the said post. It is submitted that departure to earlier G.R.s was made only with a view to see that till candidate from reserve category is available, Government work should not suffer and therefore, provision was made to appoint employee on ad-hoc basis so that there is no injustice to the reserve category candidate. It is submitted that it was only by way of stop cap arrangement on non availability of candidates belonging to reserve category, it has been decided to fill up the said post on ad-hoc basis from and amongst general category candidate. It is submitted that as such the petitioner and/or general category candidate cannot as a matter of right pray for dereservation of posts on non availability of reserve category candidate. It is submitted that said policy is purely within domain of the State Government and therefore, petitioner cannot make grievance about it. Therefore, it is submitted that aforesaid condition nos.3 and 4 in the order dated 22.11.2008 appointing the petitioner as ad-hoc is absolutely in consonance with the policy of the State Government on reservation. Therefore, it is requested to dismiss present Special Civil Application on merits also.
6.2. Now so far as reliance placed upon in the case of K.N.Sreenivasan (supra) relied upon by the petitioner, it is submitted by Mr.Trivedi, learned Advocate General that in view of clear policy of the State Government reflected in G.R. Dated 16.03.1996 said decision would not be applicable in the facts of the present case. It is further submitted that even otherwise said decision does not lay down absolute proposition of law that the State Government cannot carry forward post of reserved category if candidate is not available. It is submitted that even in the said decision Hon'ble Supreme Court has observed and held that post is to be offered to non reserved candidate and post carry forward if rule exists. It is further submitted that even in the said decision there was no controversy whether on non availability of candidate belonging to reserve candidate in particular recruitment year, whether said post which is meant for reserve category shall be dereserved permanently and that post is to be offered to non reserve candidates or said post which is dereserved shall be filled in by the non reserved category candidate on ad-hoc basis. It is submitted that there was no such controversy before the Hon'ble Supreme Court in the aforesaid case. It is submitted that even in the said decision there was no policy of the State Government pointed out and so far as State of Gujarat is concerned, there is specific policy which is reflected in G.R. dated 16.03.1996.
6.3. It is submitted that in case the rule exist then all the rules and conditions underlying the policy would have to be given effect to including the policy and rules of getting the post vacated from the unreserved candidate. It is submitted that judgment of the Hon'ble Supreme Court in the case of K.N.Sreenivas (supra) was given in the context of an organisation where no rule regarding 'Carry forward' of the post existed, therefore, the judgment pronounced therein cannot be made applicable to the State Government where a well laid down transparent policy and rule exist in this regard.
6.4. Mr.Trivedi, learned Advocate General appearing for the respondent State has submitted that even decision of the Hon'ble Supreme Court in the case of Ashoka Kumar Thakur V/s. Union of India reported in 2008 (6) SCC 1 as well as in the case of P.V.Indiresan & Ors. V/s. Union of India reported in 2009 (7) SCC 300 shall not be applicable to the present case as decision of the Hon'ble Supreme Court are with respect to education jurisprudence.
6.5. Now so far as reliance placed upon decision of the Hon'ble Supreme Court in the case of M.Nagaraj (surpa), by the learned Advocate for the petitioner, Mr.Trivedi, learned Advocate General has submitted that observation of the Hon'ble Supreme Court that Article 16(4)(a), 16(4)(b) and 4 are enabling in nature and State is not bound to make reservation for SC and ST, it is submitted that same is with respect to matter of promotion and not with respect to initial appointment. It is further submitted that even in para 100 of the said decision Hon'ble Supreme Court has made observation with respect to carry forward vacancies / 'backlog vacancies' and Hon'ble Supreme Court has observed that if time cap is not kept then the post will remain continued to be vacant which would be detrimental to the administration and to that Hon'ble Supreme Court has observed that therefore, in each case, Government will have to introduce time cap depending upon fact situation . It is submitted that Hon'ble Supreme Court has also taken note of service rules in some of the States where carry forward rule does not exist beyond three years. Therefore, it is submitted that aforesaid decision in the case of M.Nagraj (supra) would not be of any assistance to the petitioner.
6.6. Now so far as reliance placed upon decision of the Division Bench rendered in Letters Patent Appeal No.721 of 2006 by the learned Advocate for the petitioner, it is submitted that in the said decision Division Bench had no occasion to consider policy of the State Government reflected in G.R. Dated 16.03.1996 and what was considered by the Division Bench was Circular dated 13.12.2001. It is submitted that Circular dated 13.12.2001 is not the policy of the State Government but it is communication from one Department to another Department. It is submitted that as such policy of the State Government on reservation is reflected in G.R. dated 16.03.1996.
6.7. Now so far as reliance placed upon decision of Division Bench rendered in Special Civil Application No.9943 of 2008 appointing candidates belonging to general category on the post which was meant for reserved category, which was dereserved on non availability of reserved category, Mr.Trivedi, learned Advocate General has submitted that merely because some authorities granted benefit wrongly, petitioner cannot claim parity and pray to give same benefit which is contrary to the policy of the State Government. It is submitted that Government cannot be directed to act contrary to its own policy of reservation.
6.8. Mr.Trivedi, learned Advocate General has relied upon decision of the Hon'ble Supreme Court in the case of S.Rajendran v/s. Union of India reported in AIR 1998 SC 1713 as well as in the case of State of Punjab v/s. G.S.Gill reported in AIR 1997 SC 2324.
6.9. Now meeting with submission of Mr.Pujara, learned Advocate for the petitioner that if on non availability of candidate belonging to reserved category in particular recruitment year, if that post is not dereserved permanently and appointment on the said post is not made on permanent basis there shall be injustice to the general category candidate, Mr.Trivedi, learned Advocate has submitted that same as no substance. As such so far as general category candidates are concerned post which are meant for general category candidates are already filled in by the candidates belonging to general category and appointments are made on ad-hoc basis on the post reserved for reserved category candidates and the petitioner as a matter of right cannot claim that on non availability of candidates belonging to reserved category candidates, post shall be dereserved permanently more particularly when there already exists policy of the State Government on reservation reflected in G.R. dated 16.03.1996.
It is submitted that not a single post meant for general category candidates is taken away. Therefore, it is submitted that there shall be no injustice caused to the general category candidates if appointments on the post meant for reserved category candidates are made on ad-hoc basis on non availability of candidates belonging to reserved category candidates and post are carried forward.
7. By making above submissions and relying upon aforesaid decisions, it is requested to dismiss present Special Civil Application.
8. Heard learned Advocates appearing on behalf of the respective parties at length.
9. At the outset it is required to be noted that admittedly the post on which petitioner came to be appointed on ad-hoc is meant for reserved category candidate and due to non-availability of reserved category candidate in particular recruitment year, the petitioner was offerred said post on ad-hoc and on condition that as and when reserved category candidate is available the petitioner will have to go and on that post reserved category candidate is required to be appointed. Accordingly petitioner came to be appointed with aforesaid conditions more particularly condition no.3 and 4 and petitioner accepted the same without any protest and/or objection. That thereafter, after accepting said appointment on ad-hoc, petitioner has challenged condition no.3 and 4 of the appointment order which provided that appointment of the petitioner shall be ad-hoc and as and when reserved category candidate is available services of the petitioner shall be put to an end and on that post candidate belonging to reserved category is required to be appointed. It is also required to be noted that as such petitioner came to be appointed along with aforesaid condition no.3 and 4 vide order dated 22.11.2008 and the petitioner has challenged the said conditions only in the month of June, 2009 and that too after petitioner is served with the order of termination dated 22.05.2009 informing the petitioner that as candidate belonging to reserved category is available services of the petitioner is put to an end. Till then petitioner has never challenged condition no.3 and 4 of the appointment order dated 22.11.2008. Having accepted appointment with condition no.3 and 4 and other conditions without any protest and/or objection subsequently it is not open for the petitioner to challenge the same on the ground of acquiescence. One can still understand if the petitioner would have challenged the said conditions even prior to order of termination. However, in the present case as stated above, till termination of the petitioner, the petitioner has never challenged condition no.3 and 4 of the appointment order. Therefore, learned Counsel for the respondent is justified in submitting that now it is not open to the petitioner to challenge condition no.3 and 4 of the appointment order dated 22.11.2008 on the ground of acquiescence.
10. It is an admitted position that so far as quota / seats reserved for general category candidates in particular recruitment year had already been exhausted meaning thereby all the seats available for general category candidates are filled in. Thereafter, only the post which was meant for reserved category candidate was required to be filled in as same came to be remained unfilled due to non-availability of candidate belonging to reserved category in particular year. Therefore, as such candidates belonging to general category and/or other category have no right in their favour to claim appointment on the post / seat reserved for reserved category candidates (even as ad-hoc). The petitioner as general category candidate cannot as a matter of right claim that on the post reserved for reserved category candidate and on non-availability of candidates belonging to reserved category candidate automatically same is required to be dereserved and/or candidate belonging to general category is required to be appointed. Therefore, as such it cannot be said there is any injustice caused to the petitioner being general category candidate. It is admitted position that so far as petitioner is concerned he was in waiting list of general category candidate and as stated above, all the posts meant for general category candidates have been filled in and therefore, as such petitioner has / had no right to claim appointment on any post being in the waiting list of general category candidate.
11. In view of above, as such State Government was not required / obliged to appoint petitioner and/or candidate belonging to general category candidate even on ad-hoc on the post meant for reserved category candidate which remained unfilled due non availability of reserved category candidate in particular recruitment year. Everything depends upon the policy of the State Government on reservation. So far as State of Gujarat is concerned, as per Government Resolution dated 22.04.1993 it was policy decision of the State Government that the posts which are earmarked for reserved category candidate shall not be filled in by the candidates belonging to non reserved category and it was further resolved that the posts which are earmarked for Scheduled Caste, Scheduled Tribe and Educationally and Socially Backward Class shall be carried forward for three recruitment occasions, if no candidate of respective category is available. It appears that thereafter vide G.R. Dated 05.07.1989 it came to be resolved that if the candidates belonging to reserved category is not available and on account of the said eventualities if posts are not filled in, the same shall not be filled in through the candidates belonging to the non reserved category. In other words a complete ban came to be imposed in respect of dereservation of posts which was earmarked for the candidates belonging to the reserved category. However, it was further resolved vide subsequent G.R. dated 16.03.1996 that if a post which is earmarked for reserved category candidate remains unfilled, and if the public interest so demands, the same shall be filled in by making ad-hoc appointment to the said post. Therefore, to that extent there was modification of policy to the aforesaid extent. Therefore, in the State of Gujarat as such it is the policy decision of the State Government not to dereserve post meant for reserved category candidate which remained unfilled due to non availability of reserved category candidates. However, in appropriate case being made out in public interest, same shall be filled in by making ad-hoc appointment to the said post and not only that but post which has remained unfilled due to non availability reserved category candidate, is required to be carried forward and shall be treated as back log vacancies and same is required to be considered in future recruitment. Thus appointment of the petitioner on ad-hoc vide order dated 22.11.2008 is absolutely in consonance with the policy of the State Government and Government Resolution. As stated above, as such so far as petitioner being in waiting list of general category candidate has no right to claim appointment. It is only due to non availability of reserved category candidate in particular recruitment year and said post remained unfilled and to see that administration and education of the students may not suffer petitioner was offered appointment on ad-hoc and accordingly petitioner came to be appointed as ad-hoc with condition no.3 and 4 and as and when reserved category candidate is available petitioner is to be terminated. Contention on behalf of the petitioner that on non availability of reserved category candidate in particular recruitment year and if post remains unfilled, such post is to be dereserved permanently and general category candidate is required to be appointed on permanent basis, cannot be accepted. Aforesaid would be not only against the policy of the State Government on reservation but it would taking away right of the reserved category candidates as said post is meant for reserved category candidates.
12. Mr.Pujara, learned Advocate for the petitioner has heavily relied upon decision of the Hon'ble Supreme Court in the case of K.N.Sreenivasan (supra) in support of his submission that as held by the Hon'ble Supreme Court once reserved category candidate is not available and post remains unfilled, appropriate course in such case is to covert the post into non reserved one. However, considering aforesaid decision of the Hon'ble Supreme Court, as such no absolute proposition of law has been laid down by the Hon'ble Supreme Court in the said decision that on non availability of reserved category candidate and post remains unfilled due to same, automatically said post is to be dereserved and offered to non reserved category candidates permanently. In the case before the Hon'ble Supreme Court as such there was no rule or policy of the State Government in existence and/or pointed out before the Hon'ble Supreme Court. Even in the said decision Hon'ble Supreme Court has observed that if no individual from the reserved category is available then the procedure to be followed is to convert post into non-reserved post and offer the same to the candidate from non-reserved category and carry forward the post for the reserved post for which it was meant if carry forward rules exists and so permits. Even in the case before the Hon'ble Supreme Court it was second time when the reserved post was carried forward for the Scheduled Castes. As stated above, there is no absolute proposition of law laid down by the Hon'ble Supreme Court as sought to be canvassed by the learned Advocate for the petitioner. In the present case appointment of petitioner is on ad-hoc on the post meant for reserved category candidate which is as per Government Resolution and policy of the State Government, therefore, aforesaid decision would not be of any assistance to the petitioner.
13. Now reliance placed by Mr.Pujara, learned Advocate appearing on behalf of the petitioner upon decision of the Hon'ble Supreme Court in the case of Ajit Singh v/s. State of Punjab & Haryana reported in 1999 (7) SCC 209 as well as in the case of S.B.I. SC / ST Employees Welfare Association v/s. State Bank of India reported in 1996 (4) SCC 119 in support of his submission that there is no fundamental right of reservation and there is no constitutional duty imposed on the Government to make reservation for SC & ST and Article 16(4) is only an enabling provision which confers a discretionary power on the State is concerned, it is to be noted that said decision would not be applicable to the present case as in the present case so far as the State of Gujarat is concerned, there is already policy with respect to reservation reflected in the Government Resolutions referred to herein above.
14. Now so far as reliance placed by Mr.Pujara, learned Advocate appearing on behalf of the petitioner upon decisions of the Hon'ble Supreme Court in the case of Ashoka Kumar Thakur V/s.
Union of India reported in 2008 (6) SCC 1 as well as in the case of P.V.Indiresan & Ors. V/s. Union of India reported in 2009 (7) SCC 300 is concerned, it is to be noted that it was a case with respect to admission in education institution and therefore, said decisions with respect to admission in the education institutions shall not be ipso facto applicable to the case with respect to appointment in educational institutions in particular recruitment year. If candidate belonging to reserved candidate is not available and same is not dereserved, in such as situation, Hon'ble Supreme Court has observed that on non availability of candidate belonging to non creamy layer seat is to go to general category candidates. Otherwise by not filling up of the post by any candidates, nobody would be benefited. Therefore, law laid down by the Hon'ble Supreme Court with respect to reservation in case of admission in educational institutions may not be applicable to the case with respect to appointments i.e. service jurisprudence. In case with respect to appointment, general category candidate is not available and the post remains unfilled, in that case, as rightly provided by the policy of the State Government said post can be filled in for time being by the candidates belonging to general category on ad-hoc and said post is to be carried forward and as and when reserved category candidate is available he is required to appointed and general category candidate has to go. Such a policy of the State Government is to strike balance in public interest and in consonance with the reservation policy so provided in the Constitution of India and there shall be no injustice caused to the reserved category candidates as post meant for reserved category candidates is not taken away. It is the contention on behalf of the petitioner that if seat remained unfilled due to non availability of reserved category candidates and is not dereserved in particular recruitment year and is not offered to general category candidates permanently and same is required to be carried forward by treating as back log and same is to be considered in the subsequent recruitment year, in that case, it will be taking away right of general category candidate in the next recruitment year and number of seats belonging to general category candidates will reduced has no substance and cannot be accepted.
15. Hon'ble Supreme Court in the case of Post Graduate Institute of Medical Education & Research, Chandigarh and Ors. v/s. K.L.Narasimhan and Anr.
reported in (1997) 6 SCC 283 has held and observed in para 20 as under :
20.
It is then contended that in view of the decision of this Court in Indira Sawhney v. Union of India, (1992) Supp SCC 217 : (1992 AIR SCW 3682), the recruitment to 12 posts reserved for Dalits and Tribes, is in violation of the carry forward principle adumbrated therein. He placed strong reliance on paragraphs 817-18 at pages 739-40. The carried-forward posts cannot be filled up or reservation cannot exceed 50% of the 12 posts, proposed to be filled. It is contended that recruitment to the balance, i.e. 6 posts, whenever made or in whatever manner it is sought to be worked out, should be thrown open for general candidates. We find no force in the contention. The case therein did not relate to carried-forward posts. Firstly, he admits that Indira Sawhney's case is not a ratio decidendi on carried forward rule since the facts therein do not relate to carried forward posts and, therefore, though it does not operate as a binding precedent, yet, he says, the ratio is obiter and would bind the smaller Benches; and, therefore, this Bench is bound by the said ratio. In view of the fair stand taken by Shri Rao that it does not operate as a ratio decidendi, the question arises whether it binds smaller Benches as obiter dicta. On the facts in this case, it is not necessary to go into that aspect of that matter. Suffice to state that the case can be decided on another point without touching upon that issue and leaving it open. It is seen that this notification is only for a special recruitment exclusively for the Dalits and Tribes. In the light of Sharma's ratio, it is always open to the Government to carry out special recruitment to fill up the backlog vacancies reserved for SC/ST. It is not the case that backlog vacancies should be thrown open to the general candidates unless they are de-reserved and notified for recruitment by general candidates and equal number of posts are carried forward. There is no compulsion on the Government to fill up the vacancies stage by stage. For instance, all the 12 vacancies are meant exclusively for Dalits and Tribes. The recruitment is by a special drive. Until the posts are thrown open affter de-reservation in accordance with the principle referred to hereinbefore, the posts would not be available to the general candidates. The obiter dicta in Indira Sawhney case, (1992 AIR SCW 3682) on carry forward rule, even if applied, does not violate 50% reservation principle for the reason that if 12 posts are advertised for recruitment, appointment to 6 posts could be made and the balance 6 posts again would be re-advertised; 3 posts again would be filled up and; when 3 posts would be advertised; two could be filled up and one could be carried forward and the remaining one could be filled up in the last recruitment. There is no prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated as routine recruitment in any year. The bar of 50% would apply only when general recruitment is made on both to the general as well as the reserved candidates in respect of the current vacancies.
But when special recruitment is made for selection and appointment of the Dalits and Tribes, to the reserved backlog vacancies, the normal run for recruitment is inapplicable. Accordingly instead of conducting the exams for different categories in the manner indicated above, there is no constitutional prohibition on filling up of the backlog vacancies by a special recruitment in a single go. Thus we hold that the special recruitment is not violative of the principle of carry forward within one year' equally, reservation within 50% quota is not violative. In this behalf, this Court in G. S. Gill's case had held as under :
"Thus it could be seen that the carry-forward rule is constitutionally permissible. It is an extension of the principle of providing facility and opportunity to secure adequacy of the representation to Dalits and Tribes mandated by Article 335. It should be carried for three years. Even in the post when the vacancy as per roster was available, but candidates were not available, same could be carried forward for three years. However, in each recruitment year, the carry-forward rule cannot exceed 50% of the vacancies. That question does not arise in a situation where there is single post/cadre. In S. S. Sharma v. Union of India, AIR 1981 SC 588 in paragraph 8 at page 592, this Court had held that the limited Departmental competitive examination for recruitment of the members of the Scheduled Castes and Scheduled Tribes for determination of eligibility for promotion is not invalid nor the Central Government be directed to dereserve the vacancies meant for such members when it was found that suitable Scheduled Caste and Scheduled Tribe candidates were not available for inclusion within the field of selection. Whether or not reserved vacancies should be de-reserved is a matter falling primarily within the administrative discretion of the Government. There is no right in general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on de-reservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. In other words, carried forward (unfilled) vacancies reserved for Dalits and Tribes should be filled up only by the reserved candidates and general candidates have no right to seek direction for dereservation thereof for filling up of the same by general candidates. It would thus be clear that carry-forward rule is a permissible constitutional rule. Carry forward would be done for three years.
16. Considering aforesaid decision of the Hon'ble Supreme Court, carrying forward unfilled post meant for reserved category candidate in the next recruitment year, shall not cause any injustice to the general category candidates.
17. Now so far as reliance placed on decision of the Division Bench in Letters Patent Appeal No.721 of 2006, it is to be noted that as such in the said decision there was no controversy raised with respect to whether while filling up the post meant for reserved category candidate by general category candidate on non availability of reserved category candidate, same is to be dereserved permanently and/or such appointment of general category candidate is required to be made permanently and/or on ad-hoc. As such in the said decision, Division Bench had occasion to consider Circular of 2001, however, Circular of 2001 relied upon by Division Bench is not the policy of the State Government but it is internal communication between two departments. As stated above, policy of the State Government is reflected in the Government Resolution of 1989 and thereafter in 1996 which was not brought to the notice of Division Bench. Under the circumstances, on the aforesaid case and decision of the Division Bench, petitioner cannot be permitted to say that Division Bench had directed to appoint petitioner on permanent basis de-hors policy of State Government.
18. Now so far as reliance placed upon decision of Division Bench dated 13.10.2008 in Special Civil Application No.9943 of 2008 and subsequently clarified in Misc.Civil Application No.2736 of 2008 and/or action of respondent authorities subsequently withdrawing call letters dated 18.10.2008 and issuing fresh call letters without incorporating the condition for ad-hoc appointment is concerned, there cannot be any negative discrimination. Merely because in a given case authorities granted benefit wrongly, petitioner cannot claim parity.
As observed and held by the Hon'ble Supreme Court in the recent case of Shanti Sports Club and Another v/s. Union of India and Ors. reported in (2009) 15 SCC 705, concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies / instrumentalities.
Similar view has been expressed by the Hon'ble Supreme Court in the case M/s.Vishal Properties Pvt. Ltd. v/s. State of U.P. and Ors. reported in AIR 2008 SC 183.
Merely because one officer might have misinterpreted the order and some call letters have been issued without incorporating conditions that does not mean that petitioner can claim that he shall be appointed permanently on the post meant for reserved category candidate. As stated above, action of the respondent in appointing petitioner on ad-hoc basis is absolutely in consonance with the policy of the State Government reflected in the Government Resolution dated 16.03.1996 which is neither arbitrary nor perverse and/or unconstitutional.
19. Now next question which is posed for consideration of this Court is that in particular recruitment year if the candidate belonging to reserved category candidate is not available and post has remained unfilled, in that case, said post / seat is required to be carried forward and treated as back log and said seat is required to be considered in next recruitment year and for the next recruitment year also candidate belonging to reserved category candidate is not available, same is required to be further carried forward and Government is required to make efforts to see that posts which are reserved for reserved category candidates are filled in by the reserved category candidates only. However, the question is upto what time said post which has remained unfilled due to non availability of reserved category candidates is required to be carried forward.
19.1. In the case of M.Nagraj v/s. Union of India reported in 2006 (8) SCC 212 the Hon'ble Supreme Court had occasion to deal with similar situation with respect to carry forward and back log and in para 100 of the said decision, it is observed as under :
Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling-limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry-over rule does not extend beyond three years.
19.2. In the case of S.Rajendran v/s. Union of India reported in AIR 1998 SC 1713 the Hon'ble Supreme Court has observed that normally unreserved post meant for reserved category candidates shall be carried forward for three subsequent years / recruitment and Hon'ble Supreme Court in para 6 of the said decision also considered definition of recruitment year etc. which reads as under :
6. In the case of Jogendra Sethi v. Rabindranath Behura, 1995 Supp (3) SCC 693, this Court considered the provisions with regard to reservation of posts for scheduled Castes and Scheduled Tribes in Orissa made in the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1971. It considered the provision for carry-forward of vacancy for three years of recruitment and held that the first recruitment year would be the year in which the vacancy arose and it was required to be carried forward for three subsequent calendar years looking to the definition of "recruitment year" in the said Act. Under the Brochure on "Reservation For Scheduled Castes and Scheduled Tribes in Services" also, in Chapter 11, paragraph 11.1 Note (1) defines 'recruitment year' to mean "a calendar year and for purposes of the three years' limit for carry-forward of reserved vacancies it shall mean the year in which recruitment is actually made." The vacancy, therefore, was required to be carried forward for three calendar years starting with 1991. (See also in this connection Malkhan Singh v. Union of India, 1997 (2) SCC 33 : (1997 AIR SCW 378).
20. In the present case so far as State of Gujarat is concerned as such there are no rules with respect to carry forward i.e. for how many years reserved posts are required to be carried forward and to treat the same as back log, therefore, to that extent there is lacuna. Therefore, State Government is required to introduce time cap with respect to carry forward of unfilled reserved posts and as observed by the Hon'ble Supreme Court referred to therein above, carry forward of vacancies for three years of recruitment would be just and reasonable and as observed by the Hon'ble Supreme Court in the case of S.Rajendra (supra) first recruitment year would be the year in which the vacancy arose and it was required to be carried forward for three subsequent calendar years.
21. Under the circumstances, State Government is to be directed to take steps to introduce rules and/or come out with specific policy with respect to carry forward of reserved post for three years of recruitment. Such exercise to be done at the earliest.
22. Now so far as the contention on behalf of the petitioner that at the initial stage 50% ratio with respect to reservation was not maintained is concerned, same cannot be considered now. Everything happened in 2007 and thereafter, in fact petitioner participated in the recruitment and was found in the waiting list and at that stage also petitioner did not make any grievance with respect to not maintaining ratio. Not only that but in the subsequent petition also the petitioner did not make any grievance with respect to not maintaining reservation ratio. Therefore, it is not open now for the petitioner now to raise grievance with respect to reservation ratio on the ground of delay, waiver and acquiescence.
23. In view of above and for the reasons stated above, there is no substance in the present petition with respect to challenge to the condition no.3 and 4 of appointment order dated 22.11.2008 and to appoint the petitioner on ad-hoc on the post meant for reserved category candidate due to non availability of candidate belonging to reserved category and accordingly present petition deserves to be dismissed and accordingly it is dismissed. However, as observed herein above, State Government to come out with specific policy by way of resolution and/or appropriate rule in the recruitment rules suitably providing time cap for carry forward of vacancies of three recruitment years only. With these, present Special Civil Application is dismissed. No costs.
[M.R.Shah,J.] satish Top