Gujarat High Court
Narendrakumar Gaurishnkar Shilu vs State Of Gujarat & 4 on 5 February, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/LPA/2403/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 2403 of 2010
In
SPECIAL CIVIL APPLICATION NO. 10064 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
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NARENDRAKUMAR GAURISHNKAR SHILU....Appellant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Appellant(s) No. 1
MR JAIMIN GANDHI, ASST.GOVERNMENT PLEADER for the Respondent(s) No.
1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 2 - 3 , 5
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is directed against the judgment of the learned Single Judge dated 26.4.2010 passed in Page 1 of 18 C/LPA/2403/2010 JUDGMENT Special Civil Application No.10064 of 2000. The appellant was the original petitioner. He had filed the said petition in following factual background:-
1.1 The petitioner holds a degree in Engineering.
Being qualified for Gujarat Engineering Services Class-I and II posts advertised by the Gujarat Public Service Commission ("GPSC" for short) in the year 1991, he applied for such posts. On 24.3.1997, GPSC declared the results. The petitioner was declared successful for being appointed to Class-II post. He was awarded 442 marks and was placed at Sr.No.9 in the merit list.
1.2 The petitioner was not satisfied with the marks allotted. He, therefore, applied to GPSC for rechecking as per the rules. This was done almost immediately after the results were declared. On 16.6.1997, GPSC informed the petitioner that he had secured 443 marks. His merit position was changed from Sr.No.9 to 7A in the merit list. He was also informed that as per such revised merit position, he was recommended to the post of Deputy Executive Engineer in Narmada Water Resources and Water Supply Department. Pursuant to the recommendations by GPSC, Page 2 of 18 C/LPA/2403/2010 JUDGMENT the State Government appointed the petitioner on 29.10.1997 to the post of Deputy Executive Engineer (Civil) in the Narmada Water Resources and Water Supply Department in the pay-scale of Rs.2200-4000. On 2.4.1998, the petitioner submitted a representation to GPSC to reconsider the merit position allotted to him in the select list in terms of rule 16 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980. The contention of the petitioner was that the candidates placed on Sr.Nos.5,6 and 7 were also alloted identical marks i.e. 443. However, the petitioner was elder to such candidates and, therefore, should have been placed ahead of them in the select list. On 14.4.1998 in response to the representation made by the petitioner, GPSC passed an order dated 14.5.1998 correcting his position in the merit list at Sr.No.7 instead of 7A previously alloted and simultaneously recommending him for the post of Deputy Executive Engineer (Class-II) in the Roads and Buildings Department ("R & B Department" for short). On 25.5.1998 the petitioner addressed a letter to the Secretary, R & B Department, Government of Gujarat and requested that in view of his revised position in the select list and the recommendation by GPSC, he be Page 3 of 18 C/LPA/2403/2010 JUDGMENT absorbed in R & B Department. The petitioner followed up the said representation by a reminder dated 11.6.1998. Since the petitioner did not receive any reply from the Government, he also made a representation to GPSC on 3.8.1998. In response to such representation GPSC conveyed to the petitioner under communication dated 9.9.1998 that his representation is forwarded to R & B Department. The petitioner made further representations to the Government till finally on 31.8.1999 the Government conveyed its decision to the petitioner that the Government has not accepted the recommendations of GPSC. After one more attempt to persuade the Government to absorb him in R & B Department, the petitioner filed the said petition and prayed that the communication of the Government dated 31.8.1999 be quashed and that the Government be directed to appoint the petitioner to the post of Deputy Executive Engineer in R & B Department as recommended by GPSC.
2. In response to the notice issued by the High Court, the Government filed its reply and in essence presented the following reasons for not accepting the recommendations of GPSC:-
Page 4 of 18
C/LPA/2403/2010 JUDGMENT "4. I further say that in the meanwhile, three candidates out of ten candidates recommended by the GPSC did not accept the offer of appointment and orders in this regard were cancelled. In view of this position, the Government had only three options, namely, (i) to accept the advice of the GPSC to appoint Shri Bhalodia in Narmada and Water Resources Department and Shri N.G.Shilu in the R & B Department, (ii) to accept the advice of the GPSC partly and to appoint Shri Shilu in R & B Department and to continue Shri Bhalodia also in the R & B Department, and (iii) not to accept the advice of the GPSC and not to make any change in both the appointments. I further say that all the three options were considered alongwith the rules and regulations in this regard. I say that generally, it is convention to honour the advice of the GPSC. But, in these circumstances, about an year had passed, so the Government did not think it fit to change the appointment of both the candidates. I also say that Shri Bhalodia could not continue against the cancelled seat of the Deputy Executive Engineer in R & B Department as the candidates were left out in the waiting list for whom some seats were required to be kept vacant."
3. Learned Single Judge dismissed the petition citing following reasons:-
"8. The decision passed by this court relied upon by learned advocate for the petitioner is not disputed. In the present case also, the petitioner was placed at Sl. No. 7 instead of 7A considering the marks and age of the petitioner and the other candidate Shri Bhalodia. Thus the action of the GPSC is in sync with the directions given by this court in the aforesaid decision and therefore no infirmity can be said to have been committed.
9. Considering the overall facts and circumstances of the case coupled with the decisions cited by both the sides, this court Page 5 of 18 C/LPA/2403/2010 JUDGMENT is of the opinion that no interference is called for in the present matter. The petitioner was though recommended to be posted to the Roads & Buildings department, due to certain decisions taken by the State Government, he was continued in the Narmada and Water Resources Department pursuant to the initial recommendation made by the GPSC. Since no material loss has been caused to the petitioner, this court is not inclined to change the decision of the State Government. This petition is devoid of any merits and deserves to be dismissed."
4. Learned counsel Mr.Vaibhav Vyas for the appellant petitioner contended that the petitioner had all along shown preference for R & B Department. As per his merit position in the select list, he ought to have been absorbed in the said Department. Merely because there was some delay in correcting his merit position would not be a ground for declining such a request. He pointed out that even GPSC had recommended that petitioner be absorbed in R & B Department. The reasons cited by the Government for not accepting such recommendations have no basis. Counsel relied on the decision of the Division Bench of this Court in the case of D.G. Dalal vs. State of Gujarat reported in 2002(2)GLR 1011, in which large number of candidates selected by GPSC for Government posts had raised disputes about their absorptions in the departments Page 6 of 18 C/LPA/2403/2010 JUDGMENT other than that of their preferences.
5. On the other hand, learned Assistant Government Pleader Mr. Gandhi opposed the appeal contending that recommendations of GPSC were not binding to the Government for valid reasons. It was not found feasible to absorb the petitioner in R & B Department. He had no vested right to be absorbed in one department or the other.
6. Having heard learned counsel for the parties and having perused the document on record few undisputed facts emerge.
A) The petitioner applied for Class-I and Class-II posts advertised by GPSC and was selected for Class-II post.
B) Initially, he was awarded 442 aggregate marks and accordingly was placed at Sr.No.9 in the select list. At his request his papers were rechecked and marks were corrected to 443 marks and was placed at Sr.No.7A in the merit list.
C) Even this placement of the petitioner in the merit list was erroneous. He and other candidates at Page 7 of 18 C/LPA/2403/2010 JUDGMENT Sr.Nos.5 to 7, had identical merit marks of 443. As per Government rules inter se position of such candidates had to be on the basis of their date and year of birth. The petitioner, therefore, represented and once again his rank was corrected from 7A to 7 in the select list by GPSC. Under the same communication GPSC also recommended the petitioner for being appointed to Class-II post in R & B Department. The Government did not accept the recommendation of GPSC and instead continued the petitioner in the Irrigation Department, where he was already posted by now. D) The petitioner made several representations without response from the Government till finally on 31.8.1999 the Government conveyed to the petitioner that the recommendations of GPSC were not accepted.
7. From the above sequence of events, it can be seen that as per his merit position in the select list and his preference indicated at the time of filing up of the form for the selection, the petitioner was required to be absorbed in Class-II post in R & B Department. In fact GPSC because of this reason made such a recommendation to the Government. Unfortunately by that time on the basis of his original position in Page 8 of 18 C/LPA/2403/2010 JUDGMENT the select list, he was already appointed in the Irrigation Department. However, that by itself would not mean that the Government could ignore the recommendation of GPSC without valid reasons. Rule 9 of the Government Civil Services Recruitment (Examination) Rules, 1980 pertains to the preferences to be shown by the candidates and the manner in which such preferences would be considered by the Government while offering appointment. Rule 9 reads as under:-
"(9) A candidate who desires to compete for any or all the categories of posts shall be required to tick the box in the application form against the posts for which he wishes to be considered and inside the box state the order of preference for that post by figures viz. 1,2,3 and so on. If he does not desire to be considered for any of the categories of posts be shall be required to write "X" in box against the name of that post, but no box shall be left blank. He will not be considered for th post if the box against such post is left blank. No addition or change in the order of preference shall be allowed by the Commission, at any time, once application is submitted.
Having regard to this rank in the order of merit and the number of vacancies available, consideration may be given as far as feasible to his (preference) when making appointment by Government. The appointment to various posts shall also be governed by the recruitment rules in force as applicable to the respective posts at the time of appointment. If a candidate refuses to join the appointment in the post offered to him, his name shall be deleted from the list of qualified candidates. Similarly, no request for change in the allotment of post shall be considered by Government of nay time order the allotment."
Page 9 of 18
C/LPA/2403/2010 JUDGMENT
8. It is, of course, true that in terms of the said rule, the Government retains the discretionary power to accommodate a candidate according to his merit, performance and preference. Preference shown by a candidate gives no indefeasible right and if it is not found feasible to act on such preference, the Government may deviate from it. However, this cannot obviously be done at the sweet will of the Government. In other words, there had to be valid reason for not acting on the preference of a candidate keeping in mind his merit. We would certainly have given our own interpretation to the said rule 9 but for the fact that the Division Bench of this Court in the case of D.G. Dalal vs. State of Gujarat (supra) has bestowed its detailed consideration and expressed opinion which as a Bench of coordinate strength would be binding on us. The Division Bench relied on the decision of the Supreme Court in the case of The State of Mysore vs. S.R.Jayaram, reported in AIR 1968 SC 346, where similar rule of the Mysore Recruitment of Gazetted Probationers' Rules (1959) came up for consideration. Page 10 of 18
C/LPA/2403/2010 JUDGMENT
9. With this background, we may examine whether the Government had given valid reasons for not acting on the recommendations of GPSC. To the petitioner all that the Government conveyed under its communication dated 31.8.1999 was that the recommendation of GPSC was not accepted by the Government. No reasons were given. We may, therefore, fall back on the Government's affidavit filed in Special Civil Application in which the stand of the Government was clarified. It was stated that about an year had passed (by the time the revised recommendation of GPSC were made) so the Government did not think it fit to change the appointment of candidates. It was stated that Shri Bhalodia, (the candidate, who was appointed in R & B Department instead of the petitioner) could not be continued in the seat of the Deputy Executive Engineer, R & B Department as the candidates were left out in waiting list for whom some seats were required to be kept vacant. In our opinion both the grounds lack validity. Firstly, merely because one year had passed would not be by itself a ground for the Government not to accept the recommendation of GPSC, particularly in fact situation of this case. We have noticed that the petitioner had all along been Page 11 of 18 C/LPA/2403/2010 JUDGMENT pursuing his cause and from time to time making timely applications and representations for correcting his merit position and for being absorbed in the department of his preference. Initially, his aggregate marks were increased from 442 to 443, due to which he jumped from Sr.No.9 to 7A in the select list. Even being placed at Sr.No.7A was not quite according to the rules, he once again, therefore, had to represent and got his rank in the select list rectified to Sr.No.7 at which time GPSC recommended that he now be accommodated in R & B Department. If some time had passed in the interregnum, surely, the petitioner was not to be blamed for it and could not have been penalized. Second reason cited by the Government is rather curious. We are not clear of what precisely was meant to be conveyed. If we understand correctly as we have attempted, the stand of the Government appear to be that by the time the revised recommendation of GPSC was made, Shri Bhalodia, who was now lower in the rank in the select list than the petitioner, was already appointed in R & B Department. If the petitioner was also to be accommodated in the said department, the question of adjustment of Shri Bhalodia would arise. Though there were vacancies in R & B Department, such Page 12 of 18 C/LPA/2403/2010 JUDGMENT vacancies had to be reserved for wait listed candidates. This is rather curious logic. The wait listed candidate has no indefeasible right for being appointed to a post and certainly not in preference of a person, who is placed in the select list and is, therefore, much higher in the rank than the wait listed candidates. Both Shri Bhalodia and the petitioner were placed in the select list and, therefore, obviously had more merit marks than the wait listed candidates. None of the wait listed candidates could have raised legal grievance of not being appointed in R & B Department if the petitioner, in addition to Shri Bhalodia, who was already appointed by then, was also appointed. In any case, the claim of the wait listed candidate would shift to another department where a resultant vacancy would arise upon the petitioner being accommodated in R & B Department.
10. It is true that by the time this legal battle has been going on several years have passed. The valid question, therefore, would arise whether at this point of time, the petitioner, be absorbed in another department having worked for years together in the Irrigation Department. What would be his position in a Page 13 of 18 C/LPA/2403/2010 JUDGMENT new department, if he is absorbed since resultant effect would be his consideration for further promotion alongside other candidates in the department, who might already have been promoted by now.
11. In the case of D.G. Dalal vs. State of Gujarat(supra), no such considerations prevented the High Court from granting suitable directions to large number of candidates, who had been, according to the interpretation of the High Court of the relevant rules, were absorbed in incorrect departments many years back. Such petitions pertained to appointments granted in the year 1989 and thereabouts. In the year 2002 many of these petitions were allowed. The Court interpreted rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980 in such a manner as to save it from the vice of unconstitutionality on the basis of arbitrariness. The Court gave following directions:-
"30. The upshot of the aforesaid discussion is that:-
(A) The respondents are directed to pass appropriate orders and allot appropriate preference against the subsequent vacancies which had become available on any post in Class-I or Class-II strictly according to Page 14 of 18 C/LPA/2403/2010 JUDGMENT merit and the petitioners having higher merit in comparison to the other candidates in the waiting list, have to be given priority for the respective post in each of the two classes according to higher merit from due date. Of course, it will not entail any financial burden on the State Government for the period in past and except the financial benefits the petitioners of these 14 Special Civil Applications shall be entitled to all consequential benefits as a result of the allotment of their due preference on the basis of their merit.
(B) If it is found in case of any petitioner that there is a change from class-II to class- I on the basis of his merit or for any post within the class and he has been subsequently promoted to Class-I post, the respondents shall revise it to relate back to the due date on which he would have got it on the basis of his merit at initial stage and in such cases the pay shall also be fixed notionally as if he had been appointed to Class-I from the very beginning and he shall also be entitled to the difference of arrears between the pay actually drawn by him on the higher post and the pay which he would have drawn on the basis of the pay notionally arrived at.
(C) Out of 16 Special Civil Applications 14 Special Civil Applications except Special Civil Application No.478 of 1990 filed by Mr D.G. Dalal and Special Civil Application No.614 fo 1990 filed by Mr Haresh Darji are allowed. Rule is made absolute in each of these 14 petitions. No order as to costs. (D) Since the matter has remained pending for number of years, it is expected that appropriate steps shall be taken as expeditiously as possible by the Government to carry out above directions at the earliest but in no case later than four months from the date the certified copy of this order is served on the concerned authorities through either of the parties or through the Court, Page 15 of 18 C/LPA/2403/2010 JUDGMENT whichever is earlier.
(E) Special Civil Application No.478 of 1990 filed by Mr D.G. Dalal and Special Civil Application No.614 fo 1990 filed by Mr Haresh Darji are hereby rejected as not pressed as stated in para 3 of this judgement itself. Rule in each of these two Special Civil Applications is hereby discharged. No order as to costs.
Still, while we have decided all these 14 Special Civil Applications on merits, after hearing both the sides at length including the hearing during the course of the dictation of order when the matter was deferred because of the case cited on behalf of the respondents, Ms Harsha Devani, learned Asstt.Govt. Pleader has requested that the operation of this judgement be stayed. We do not find any case for staying the order. The request is declined. Petitions allowed"
12. It was a case where candidates were absorbed in different departments as per their performances and preferences. Some of the candidates obviously could not be granted their first preferences in the departments of their first preferences. Vacancies arose because the candidates nominated to such departments did not join their duties. On such vacancies the Government appointed wait listed candidates ignoring the petitioners' request for being absorbed in the department of their choices. The Court found that the action of the Government was illegal. Page 16 of 18
C/LPA/2403/2010 JUDGMENT
13. In the present case, counsel for the petitioner, under the instructions of the petitioner, who is present before the Court stated that he would be due for promotion in the R &B Department if ordered to be absorbed with seniority on the basis of his actual services rendered so far in the Government and further stated that to the best of his information, vacancies in promotional posts are available even presently.
14. Under the circumstances, Letters Patent Appeal is disposed of with following directions:-
1) Impugned communication dated 31.8.1999 issued by the Government is quashed.
2) The Government shall pass appropriate order latest by 30.4.2014 absorbing the petitioner in R & B Department in Class-II post.
3) He shall be assigned seniority on the basis of his total length of service already put in by him in the Irrigation Department pursuant to the appointment order dated 29.10.1997.
4) If on the basis of such seniority, he is due for promotion to the higher post; the same shall be considered in the light of his service record and the Page 17 of 18 C/LPA/2403/2010 JUDGMENT statutory rules if vacancy is available; with effect from the date when his immediate junior was so promoted in the said department or the date of availability of such vacancy whichever is later without any monetary ramifications to the Government for the past period.
5) If no vacancy in the promotional post is available presently, he shall be considered for promotion as and when such vacancy arises.
15. With these directions, appeal is disposed of.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR Page 18 of 18