Gujarat High Court
Chirag Kishorbhai Joshi vs State Of Gujarat on 23 December, 2020
Author: A. C. Rao
Bench: A.C. Rao
C/SCA/10549/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10549 of 2020
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chirag kishorbhai joshi
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1
MS ASMITA PATEL, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date : 23/12/2020
ORAL ORDER
1. Present petition is a classic example of the mindset of the Governmental agencies, to engage in vexatious and impracticable litigation demonstrates the gross indifference of the administration towards litigative diligence and this kind of examples are contributing to judicial system getting overburdened.
2. Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs: "(a) to admit this petition and to allow the same by Page 1 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER issuing Notice for Final Disposal on returnable date;
(b) to direct the respondents to forthwith give appointment to the petitioner as Joint Charity Commissioner, ClassI pursuant to GPSC's Advertisement No.49/201718, on the vacancy which has arisen due to resignation of one candidate Shri Dharmendrasinh Gemalsinh Rana within one year of his joining duty, as the petitioner is at Sr.No.1 in the waitinglist;
(c) to direct the respondents to give appointment to the petitioner with all the consequential benefits as if he was given appointment immediately after the vacancy occurred on 372019;
(d) to direct the GPSC to forthwith recommend and send the petitioner's name to the Legal Department for his appointment as Joint Charity Commissioner, ClassI by operating the waitinglist;
(e) pending the hearing and final disposal of this petition, be pleased to direct the GPSC to forthwith recommend and send the petitioner's name to the Legal Department for his appointment as Joint Charity Commissioner, ClassI by operating the waitinglist,
(f) pending the hearing and final disposal of this petition, be pleased to direct the respondent no.1 to forthwith give appointment to the petitioner as Joint Charity Commissioner, ClassI pursuant to GPSC's Advertisement No.49/201718, subject to further orders of the Hon'ble Court;
(g) to allow this petition with a cost of atleast Rs.1,75,000/ to the petitioner;
(h) ............."
3. The case of the petitioner is that the petitioner was born on 2.1.1990 and belongs to Scheduled Tribe community. The petitioner also passed BVSC & AH (Bachelor of Veterinary Science and Animal Husbandry) and was duly registered under the Gujarat Veterinary Council vide GVC Registration No.3891. Page 2 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER 3.1. The case of the petitioner further is that the respondent - Gujarat Public Service Commission ('GPSC' for short) issued an advertisement No.34/201617 on 1.8.2016 for about 120 posts of Veterinary Officer in Gujarat Animal Husbandry Service ClassII under Agricultural and Cooperation Department and out of 120 notified vacancies, 18 vacancies are earmarked for Scheduled Tribe candidates and last date of submission was 16.8.2016. 3.2. The petitioner, being qualified and eligible for the said post, submitted online application on 7.8.2016 and the petitioner passed through the written test as well as the oral interview and finally result declared by GPSC on 20.7.2018, in which, the petitioner, being successful candidate, was placed at serial No.1 in the wait list of the Scheduled Tribe category. One selected candidate belonging to Scheduled Tribe category, according to the petitioner, who was at serial No.109 in the select list, named as Dr. Niravkumar Gamanlal Patel, who was given appointment order on 18.9.2017 in this Page 3 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER particular selection, initially for a period of two years on probation, the said candidate joined the duty on 27.9.2018 but, within a period of one year from his joining of duty and during the probation period, the said candidate submitted a letter of his resignation on 27.8.2019 and the said proposal was forwarded by the District Panchayat, Tapi to the State Government on 30.8.2019 and vide order dated 19.9.2019, the State Government sanctioned the resignation with effect from 18.9.2019 after office hours.
3.3. The petitioner has come out with a case that for that vacancy which arose in ST category on 18.9.2019 by virtue of the policy of the Government, the petitioner became eligible to be appointed by operation of the wait list, in which, the petitioner was already stood at serial No.1 in the Scheduled Tribe category and the seat which fell vacant within a period of one year is also belonging to that very category and as such, the petitioner made representations on 23.9.2019, 3.3.2020 and 30.5.2020 Page 4 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER but, the respondent authority has not responded to. As a result of this, the petitioner was constrained to approach this Court by way of filing Special Civil Application No.7361 of 2020. The said petition came up for consideration before the Coordinate Bench of this Court, who by order dated 15.6.23020, was pleased to direct the respondent authority to comply with the statement made by learned Assistant Government Pleader that pending representations of the petitioner would be considered within a period of six weeks and if found eligible, the petitioner will be offered appointment and while disposing of the said petition, liberty was given to move the Court in case of difficulty. 3.4. It is the case of the petitioner that pursuant to the said order passed by the High Court, the State Government requested the GPSC to send the names from the waiting list, vide specific letter dated 20.6.2020 but, the respondent GPSC declined to recommend the name from the wait list, vide communication dated 6.7.2020, which was conveyed Page 5 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER letter on to the petitioner vide letter dated 10.7.2020, which came to be received by the petitioner on 14.7.2020.
3.5. Since the respondent GPSC did not adhere to the request of the State Government and in turn, deprived the petitioner from being appointed to the post in question, left with no alternate, the petitioner is constrained to approach this Court by way of the present petition with the aforesaid reliefs. 3.6. This petition was originally entertained by the issuing notice on 23.7.2020 and later on, after completion of the pleadings, the petition came up for consideration before this Court on 27.8.2020, on which date, learned advocates appearing for both the sides were heard at length and the order is reserved.
With this background, the present petition is being dealt with by this Court.
4. Learned advocate Mr. K.B. Pujara appearing on Page 6 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER behalf of the petitioner has vehemently contended that it is the consistent policy and practice of the respondent authority that whenever any eventuality is taking place like this, in which appointed candidate has vacated the post by tendering resignation and the same having been accepted, next move would be to offer appointment to the person from wait list of a particular category, for which the post fell vacant and this eventuality has to be within a period of one year and this exactly in the present case has occurred, as a result of which, the petitioner legitimately became entitled to be considered for appointment to the post in question, as undisputedly, the post which fell vacant is of Scheduled Tribe category, to which the petitioner belongs to and he is at serial No.1 in the existing wait list. 4.1. Learned advocate Mr. Pujara has further submitted that the wait list in which the petitioner is finding place at serial No.1 is operative for a period of two years and as such, there is no escape route for the respondent authority to deprive the Page 7 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER petitioner from being appointed to the post in question. According to Mr. Pujara, this is absolutely an arbitrary and whimsical act on the part of the respondent authority, who conveniently misinterpreted the relevant policy and thereby deprived a successful and legitimate candidate from securing appointment. To substantiate this contention, Mr. Pujara has drawn the attention of this Court to the fact that undisputedly, the petitioner is belonging to Scheduled Tribe category, for which the competent authority has issued a certificate in his favour which is reflecting on page 13, which is having a registration in Gujarat Veterinary Council, which registration certificate is also placed on page 14 of the petition compilation and has also drawn the attention to various other material attached to the petition. Precisely, Mr. Pujara has drawn the attention of the Court to the fact that the petitioner is placed in the wait list for Scheduled Tribe category candidates, in which he is figuring at serial No.1 and the said placement in the wait list is reflecting on page 26 of the petition compilation. Page 8 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER Mr. Pujara has further drawn the attention of the Court to the fact that the State Government has accepted the resignation of Dr. Niravkumar Gamanlal Patel with effect from 18.9.2019 and as such, undoubtedly, this eventuality has taken place within a period of one year.
4.2. How the wait list is to be operated is postulated in the Government Resolution dated 27.7.2018, which is placed on record at page 58, and how the wait list is to be utilized is also pointed out by referring to page 60 of the petition compilation, precisely clause (1) and (2). By referring to Clause (6) of the said resolution, from page 61, Mr. Pujara has submitted that whenever such kind of post is falling vacant within a period of one year on account of the eventualities which are mentioned, the post is to be filled in from that particular category of which it has fallen vacant and this resolution is having full effect in case of the petitioner.
Page 9 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER 4.3. Learned advocate Mr. Pujara has further contended that the stand which has been tried to be taken by the respondent GPSC to discriminate the petitioner and by deviating from applicable policy, this very stand was examined on number of occasions by this Court and the said stand is negatived by the Court and the petitions came to be allowed. To contend and substantiate the same, an attention is drawn to the decision dated 27.12.2011 passed in Special Civil Application No.4238 of 2011 and has submitted that a direction was given by the Coordinate Bench of this Court in almost similar issue to consider the case for appointment. Another decision which has been pointed out is the decision dated 27.11.2018 passed in Special Civil Application No.15284 of 2018 wherein exactly similar situation arose and the Court has considered. Mr.Pujara has further pointed out that this order passed by learned Single Judge is confirmed by the Division Bench of this Court in its decision dated 18.3.2019 passed in Letters Patent Appeal No.1556 of 2018 and by referring to yet another decision taken in December Page 10 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER 2018 in Special Civil Application No.14454 of 2018, Mr. Pujara has submitted that this issue is exactly similar which arose in the present proceedings and as such, the reliefs prayed for deserve to be granted. 4.4. Learned advocate Mr. Pujara has submitted that this issue of operating a wait list has been churned time and again by this Court, still however, the respondent GPSC is reiterating the very same stand which is not only contemptuous but highly unfair and against the principle of legitimate expectation of a candidate and as such the reliefs prayed for deserve to be granted, more particularly heavy cost to be imposed upon the respondent GPSC which is taking this kind of stand. As a result of this, the exemplary cost is requested to be imposed upon the respondent GPSC.
5. As against the aforesaid submissions, learned Assistant Government Pleader Mr. Bhargav Pandya appearing on behalf of the respondent State has submitted that on the contrary, the State Government Page 11 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER has after visualizing the position has requested the GPSC to send proposal for recommendation so as to see that the petitioner can be given appointment. Mr. Pandya has fairly pointed out to this Court that even at the stage of representation, when the petitioner approached this Court, after taking telephonic instruction from the Deputy Director and instruction was recorded in the said order that appointment will be offered to the petitioner if found eligible on all counts and as such, the Court directed the respondent State to comply with the above statement which is reflecting in the order dated 15.6.2020. Mr. Pandya has further submitted that immediately after the said order dated 15.6.2020, the State Government has already requested the GPSC but then on 6.7.2000, the GPSC did not recommend the petitioner's case. Hence, the said communication of the GPSC was in turn informed to the petitioner, which has given rise to the present petition. According to Mr. Pandya, since the main concern is that of recommendation of the GPSC, the State has nothing much to offer except to rely upon the recommendation and the decision of the Page 12 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER GPSC. However, Mr. Pandya has candidly submitted that there are few decisions relevant to the issue which are attached to the petition and as such, has left the matter to the discretion of the Court.
6. Learned advocate Mr. Shivang J. Shukla appearing on behalf of the respondent No.4, the most appropriate authority for the present controversy, has submitted that after disposal of the petition and the directions granted by the High Court on 15.6.2020, the GPSC examined the request of the petitioner and could not find him eligible in view of the circular dated 24.12.2008 and as such, since the said candidate who resigned, had tendered resignation after resumption of duty, so it was not possible for GPSC to recommend to the appointment of the present petitioner and as such, a specific decision is taken on 6.7.2020, which is communicated to the petitioner through the State authority. Mr. Shukla after submitting this has not been able to confront with the situation that the Coordinate Benches have clearly negatived the stand of the GPSC but then, as Page 13 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER a representative of the respondent No.4, has submitted that the decision which has been taken by the respondent No.4, reflecting on page 50, is just and proper and thereby has requested the Court to dismiss the petition. No other submissions have been made.
7. In rejoinder to these submissions, learned advocate Mr. Pujara has drawn the attention of the Court to the averments made by the petitioner in the affidavitinrejoinder and by referring to few decisions, an attention is drawn that if a selected candidate joins and resigns within a period of currency of waiting list, a wait listed candidate would have a right to claim appointment and as such, in view of this proposition, the case of the petitioner is exactly falling within this. As a result of this, the petition deserves to be allowed with exemplary cost.
8. Having heard learned advocates appearing for the parties and having gone through the entire material Page 14 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER on record and the submissions made by learned counsel appearing for the respective sides, it appears that the issue arose is in a very narrow compass as to whether the stand of the GPSC, which is reflecting in the impugned communication on page 50, is just and proper and whether the case of the petitioner falls within the parameters of the policy of operating the wait list and for that purpose, following circumstances are not possible to be unnoticed by this Court while coming to a particular conclusion. (1) The respondent No.4 has essentially not recommended on the ground that the case of the petitioner does not fall within the parameters of the circular dated 24.12.2008 since the recommended candidate had resumed the duty on the post and then went away by giving resignation. According to the rules (without referring anything), has conveyed that not possible to recommend the name of the petitioner. (2) Now, this stand of GPSC, if to be closely examined from the resolution dated 24.12.2008, which Page 15 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER is attached to the petition compilation on page 53A, a separate subject is provided as to how the wait list is to be operated. Clause (1) of the resolution is suggesting clearly that whenever any candidate after resuming the post pursuant to the appointment, if during probation is resigning, said vacant post to be filled in from the waiting list and the person who is in the waiting list can claim the same. Now, this very resolution was the subject matter of controversy before this Court time and again, in which an attempt is made by GPSC that this resolution is essentially pertaining to Medical or Educational Department and therefore, cannot be utilized for other services. The Coordinate Bench while confronting with this situation has examined at length this very stand and has come to the conclusion that the said stand is without any logic and by negating the stand of GPSC, direction is given in the said case to operate the wait list and consider the case of relevant petitioner for the post of Account Officer ClassII. (3) Again this stand in another case has also cropped Page 16 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER up before the Court for examination, in which also, the aforesaid resolution is negatived by the Bench and the petition came to be allowed. While approving the said proposal has also clearly confirmed the order passed by learned Single Judge and the Letters Patent Appeal of the GPSC came to be dismissed. In para 5.3, it has been observed that if selected candidate joins and resigns within a period of currency of wait list, a wait listed candidate would have a right to claim appointment and applying the this settled principle, keeping in view the very same circular dated 24.12.2008, after affirming the order of learned Single Judge, the Division Bench dismissed the Letters Patent Appeal of GPSC, which is clearly reflecting from page 90 - 91 of the petition compilation.
(4) Again, the very same issue was cropped up in another case before learned Single Judge on account of unreasonable stand taken by the GPSC and again, learned Single Judge while reiterating the said proposition has allowed the petition and as such, Page 17 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER this consistent propositions which are coming out time and again, in which the respondent No.4 is very much a party to the proceedings, unfortunately, in the present case also, the very similar stand is tried to be taken, which, in the considered opinion of this Court, is very unfortunate for an agency which is dealing in public employment.
9. In view of the above, the Court is of the opinion that here is a case in which, Dr. Niravkumar Gamanlal Patel after resuming the duty has tendered resignation, whose resignation is accepted specifically with effect from 18.9.2019 and operation of the wait list period is two years, which fact is not in dispute. So, in no uncertain terms, this eventuality has occurred within a year in favour of the petitioner to make a request for appointment.
10. Additionally, the Court is also of the opinion that even as held by the Apex Court in the decision in the case of Gujarat State Deputy Executive Engineers Association Vs. State of Gujarat reported Page 18 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER in 1994 (Suppl) (2) SCC 591, in which also, it has been propounded that if a selected candidate joins and resigns within a period of currency of waiting list, a wait listed candidate would have a right to claim appointment and this very proposition also appears to have been considered by the Division Bench of this Court while dismissing the Letters Patent Appeal of GPSC, as stated earlier. The Division Bench of this Court in para 5.1 of the said decision has considered this principle and the decision is taken against the respondent No.4 and as such, it appears that there is no escape route for the respondent No.4 in any manner to deprive the petitioner from legitimately claiming appointment since he is undisputedly placed at serial No.1 in the wait list which is still operative and as such, the stand taken by the respondent No.4 is not only erroneous, arbitrary and whimsical but is also clearly in contrast to the proposition of law laid down by this Court, as stated earlier, in which the respondent No.4 was very much a party to the proceedings. Hence, a strong case is made out by the petitioner to seek Page 19 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER the reliefs in the aforesaid peculiar background of facts.
11. Additionally, on the basis of the overall circumstances, while examining the stand of GPSC, visavis the case of the petitioner, it is very surprising to this Court that to what extent, this Commission which is dealing in public employment is arbitrarily and with impunity taking the stand in contrast to the settled proposition of law laid down by the Court, in which it is very much a party. This outrageous and whimsical interpretation has dragged the petitioner again and again to this Court and has consumed a period of more than 10 to 11 months in seeking his legitimate claim of appointment. When the youth of this country is gripped in the specter of unemployment, to allow such kind of whimsical stand of the authority, if not dealt with, would be giving a license to act arbitrarily, unreasonably and rather allowing at the behest of such officers who are taking decision to play with the career of so many candidates and this is a classical example in which, Page 20 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER the authority though quite aware about the fact of its stand, deliberately appears to have misinterpreted the circular and has deprived the petitioner from his legitimate claim, which exercise of power deserves to be deprecated, so that in future, this very Commission may not mishandle the career of youth who are anxiously waiting for employment.
12. This very petitioner since finding himself eligible to claim appointment pursuant to the resignation within a stipulated period, has time and again made representations and ultimately, having not paid any attention to the same, he was compelled to file a petition before this Court initially and when the said petition came up for consideration, an assurance was given to consider pending representations within six weeks and decide the same in accordance with law and appointment will be offered to the petitioner, if found eligible on all counts. Now, this statement which was made on the basis of the instruction of the Deputy Director of Page 21 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER Animal Husbandry, it was assured that appointment will be offered to the petitioner if found eligible on all counts. Undisputedly, the petitioner is also at serial No.1 in the wait list and the petitioner was scanned through, selected and placed in the wait list and this wait list is in operation for a period of two years and as such, from all counts of eligibility and in view of the policy, coupled with the proposition which has been laid down by this Court, the petitioner can be said to be an eligible candidate and as such there was no alternate left for the respondent No.4 but to give appointment to the petitioner. Now, in this context, what has been decided by the GPSC is also quite shocking. The reason which has been given in the very first paragraph to deny recommendation is perse contrary to their own policy of the circular dated 24.12.2008, which is undisputedly applicable to the case of the petitioner as well and as such, this Court is of the opinion that the stand of the respondent No.4 is absolutely unreasonable, arbitrary, capricious and cannot be said to be in any form sustainable in the Page 22 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020 C/SCA/10549/2020 ORDER eye of law.
13. As said earlier, keeping in view the aforesaid peculiar background of facts and mindset of the Governmental agency in the form of respondent No.4, which is dealing with very significant function of public employment, is engaging itself in the litigation by raising repeated stands which are in past negatived. When youth of the country is gripped in the specter of unemployment, the arbitrary and whimsical stand of such kind of agency, like respondent No.4, has compelled the unemployed persons in litigation which is avoidable if proper application of mind is genuinely made to the controversy. Here is a case in which, as stated earlier,. The stand which has been adopted by the respondent No.4 has been time and again examined by several Benches, still upon whimsical interpretation of the own policies, which are undisputedly applicable, the persons are dragged in the Court of law. This action therefore, in the considered opinion of this Court, deserves deprecation.
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14. With these observations, the petition stands ALLOWED as indicated above.
(A. C. RAO, J) MAYA S. CHAUHAN//BEENA..DOLLY Page 24 of 24 Downloaded on : Fri Dec 25 03:12:27 IST 2020