Gujarat High Court
Hetal Chirag Patel vs State Of Gujarat Thro Secretary on 28 December, 2018
Author: Harsha Devani
Bench: Harsha Devani, A. P. Thaker
C/LPA/814/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 814 of 2018
In SPECIAL CIVIL APPLICATION NO. 11163 of 2012
With
CIVIL APPLICATION NO. 1 of 2018
With
R/CROSS OBJECTION NO. 82 of 2018
In
LETTERS PATENT APPEAL NO. 814 of 2018
With
R/LETTERS PATENT APPEAL NO. 815 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6057 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 816 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6965 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 817 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6966 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 818 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6967 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 819 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6968 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 820 of 2018
Page 1 of 102
C/LPA/814/2018 JUDGMENT
In
SPECIAL CIVIL APPLICATION NO. 6969 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 821 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6970 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 826 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7246 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 827 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6110 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 828 of 2018
In
SPECIAL CIVIL APPLICATION NO. 5961 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 829 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6108 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 830 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6106 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 831 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7584 of 2011
With
Page 2 of 102
C/LPA/814/2018 JUDGMENT
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 832 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6107 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 833 of 2018
In
SPECIAL CIVIL APPLICATION NO. 5758 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 834 of 2018
In
SPECIAL CIVIL APPLICATION NO. 8252 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 835 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6453 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 836 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6486 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
Page 3 of 102
C/LPA/814/2018 JUDGMENT
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
HETAL CHIRAG PATEL
Versus
STATE OF GUJARAT THRO SECRETARY
==========================================================
Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE with MS MEGHA JANI(1028) for
the APPELLANT(s) No. 1,2,3,4,5
MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
RESPONDENT No.1, 2
MR DG SHUKLA(1998) for the RESPONDENT(s) No. 3
MR KB PUJARA(680) for the RESPONDENT(s) No. 4
MR SN SHELAT, SENIOR ADVOCATE with MR MOHSIN KOREJA for the
RESPONDENT No.5
MR GM JOSHI with VYOM H SHAH(9387) for the RESPONDENT(s) No.
28,6,7
MR MANISH S SHAH(5859) for the RESPONDENT(s) No. 33,34
MR NACHIKET D MEHTA(6529) for the RESPONDENT(s) No.
15,16,17,18,19,20,21,22
MR. NISARG D SHAH(7299) for the RESPONDENT(s) No. 23,24,25,26,27
MR.HEMANG H PARIKH(2628) for the RESPONDENT(s) No. 11,12,13,14
MR.SANAT B PANDYA(6976) for the RESPONDENT(s) No. 29,30,31,32
MR SHALIN MEHTA, SENIOR ADVOCATE with MS VIDHI J BHATT(6155) for
the RESPONDENT(s) No. 9
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,4,8
NOTICE SERVED(4) for the RESPONDENT(s) No. 10
MR DHAVAL DAVE, SENIOR ADVOCATE with MR NIRAL MEHTA for
RESPONDENT No.31 in LPA No.815/2018
MR ANSHIN DESAI, SENIOR ADVOCATE with MR CHETAN PANDYA and
MR PANKAJ CHAUDHARI for RESPONDENT No.6 in LPA No.833/2018
MR ADITYA D BHATT for RESPONDENT No.31 in LPA No.828/2018
MR MOHSIN KOREJA for RESPONDENT No.16 to 19 in LPA 815/2018
==========================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER
Page 4 of 102
C/LPA/814/2018 JUDGMENT
Date : 28/12/2018
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. This batch of letters patent appeals is directed against the common judgment and order dated 21.4.2017 passed by the learned Single Judge in the captioned writ petitions whereby the learned Single Judge has inter alia issued directions to fill in the forty one vacancies which were left unfilled on account of non-joining of candidates by applying the principles laid down by this court in the case of D.G. Dalal v. State of Gujarat, (2002) 2 GLR 1011. It appears that initially there was no challenge to the impugned judgment. The State Government and the Gujarat Public Service Commission decided to accept the judgment and started implementing the same and towards that end passed an order dated 12.12.2017 appointing five candidates who had earlier been appointed to posts of their lower preference, to the post of Deputy Superintendent of Police wherein it was indicated that those five candidates would be placed at merit No.49, 54, 57, 58 and 130, respectively. Since these candidates were to be placed above the appellants and their appointments were likely to have an impact on the seniority of the appellants, the appellants preferred these letters patent appeals together with applications for leave to appeal as they were not parties to the main petitions. By an order dated 24.1.2018, leave to appeal came to be granted keeping all issues open. Since there was a delay of 233 days in preferring the appeals, applications for condonation of delay also came to be filed. By an order dated 29.6.2018, the applications for condonation of delay came to be rejected by this court. Being aggrieved, the appellants Page 5 of 102 C/LPA/814/2018 JUDGMENT approached the Supreme Court, which by an order dated 11.7.2018, condoned the delay and observed that the appeals be heard finally in accordance with law.
2. In Special Civil Applications No.6057, 6966, 6967 to 6973, 5923, 7246, 6110, 6108, 6106, 7581, 6107, 5758, 8252 and 6786 of 2011, the select list dated 26.4.2011 was subject matter of challenge. Some of the petitions were based on the allegation that the revised select list had been prepared on the wrong application of the decision of the Supreme Court in the case of Public Service Commission, Uttaranchal v. Mamta Bisht and others (2010) 12 SCC 204; whereas others were based on the allegation that the revised list was prepared on the wrong application of the decision of the Supreme Court in the case of Union of India v. Ramesh Ram and others (2010) 7 SCC 234.
3. The petitioner in Special Civil Application No.6543 of 2001 challenged his exclusion from the category of meritorious reserved category (MRC) candidates because he had availed age relaxation of SC category and prayed that the select list be struck down to that extent.
4. In Special Civil Application No.11163 of 2012, the petitioner sought a direction to the respondents to give appointment to the petitioner as Deputy Superintendent of Police, Class-I as SEBC male candidate on the vacancy arising due to non-joining of one SEBC male candidate Mr. Vadhvana Rohitkumar Rameshkumar and to direct the respondents to give all consequential benefits of seniority and monetary benefits as if the petitioner was offered the appointment as Page 6 of 102 C/LPA/814/2018 JUDGMENT Deputy Superintendent of Police Class-I immediately after the vacancy arose due to non-joining of Mr. Vadhvana Rohitkumar Rameshkumar.
5. Thus, by and large the petitions were directed against the revised select list dated 26.4.2011, whereas two petitions were on a slightly different footing where reliefs as referred to hereinabove were claimed. Apart from the captioned petitions, another petition being Special Civil Application No. 8203 of 2012 came to be heard along with this group of petitions and was decided by the impugned common judgment and order. In the said petition there were allegations of favouritism and manipulation of record to appoint one Reema Munshi the respondent No.4 therein on the post of Deputy Superintendent of Police, who according to the petitioner therein was ineligible to hold that post. The petitioner therein had prayed for a writ of quo warranto against the said respondent No.4. The said petition came to be allowed by holding that Reema Munshi was ineligible to hold the post of Deputy Superintendent of Police and consequently, she was directed to forthwith vacate the post. The said Reema Munshi challenged the impugned judgment and order to the extent it was passed in Special Civil Application No. 8203 of 2012 by way of a letters patent appeal being Letters Patent Appeal No. 727 of 2017, which came to be decided by a judgment and order dated 20/21.12.2017 whereby the letters patent appeal came to be allowed and the direction passed by the learned Single Judge to the respondent No.4 to vacate the post of Deputy Superintendent of Police came to be set aside. Since the fact that this petition was clubbed with the captioned petitions and all the petitions were Page 7 of 102 C/LPA/814/2018 JUDGMENT heard and decided together has some bearing on the outcome of the captioned petitions, it is necessary to place these facts on record.
6. Since in majority of the petitions, the validity of the revised select list dated 26.4.2011 has been challenged, the main controversy in these appeals revolves around the same.
7. For the sake of convenience, reference is made to the averments as appearing in Special Civil Applications No.6057 of 2011.
8. Special Civil Application No.6057 of 2011 has been filed by, in all, ten petitioners. The petitioners No.1 to 5 are women belonging to the General Category and the petitioners No.6 to 9 are men belonging to the SEBC category whereas the petitioner No.10 is a woman belonging to the SEBC category.
9. The facts, as averred in the petition, are that the Gujarat Public Service Commission (hereinafter referred to as the "Commission") published an advertisement dated 26.6.2006 being Advertisement No.87/06/07 for the posts of Gujarat Civil Services (Class-I & II). Being eligible and qualified, the petitioners applied for the same and successfully passed the preliminary examination as well as the main examination and they were placed in the final select list published by the Commission vide notification dated 13.5.2010. The petitioners were issued individual intimation letters dated 3.8.2010 to the effect that they were declared successful and the result declared by the Commission on 13.5.2010 had been made final. Thereafter, the petitioners awaited the appointment Page 8 of 102 C/LPA/814/2018 JUDGMENT orders; however, the Commission published notice/advertisement dated 26.4.2011 whereby it had cancelled the aforesaid final selection list dated 13.5.2010 and published a revised selection list wherein the petitioners were not included. Being aggrieved, the petitioners approached this court by way of the above referred writ petitions.
10. At this juncture it may also be germane to briefly refer to the contentions raised in the petition, to understand the scope of such petitions.
11. The contentions raised in the petitions are that once the final selection list was published, the preparation of the second list without notice to the successful candidates was in breach of the principles of natural justice. It was contended that in the Examination Rules there is no power of review either with the State Government or the Commission, giving them the power to review the final selection list. It was also contended that the respondents have ignored the binding precedent namely, the judgment of this court in Dr. Komal Manubhai Katara v. GPSC rendered in Letters Patent Appeal No.1412 of 2009 on 10.9.2009. It was contended that the decision of the Supreme Court in Union of India v. Ramesh Ram, (2010) 7 SCC 234 is not applicable to the facts of the present case, wherein rule 16(2) of the Civil Services Examination Rules, 2005 came up for interpretation whereas there is no equivalent of rule 16(2) in the Gujarat Civil Services (Class I and Class II) Competitive Examination Rules, 2000 (hereinafter referred to as "the Gujarat Rules") which govern the present recruitment.
12. It was also contended that the authorities have Page 9 of 102 C/LPA/814/2018 JUDGMENT committed an illegality in not preparing the waiting list in the light of the amendment dated 17.1.2009/19.1.2009 namely, the Gujarat Civil Services (Class I and Class II) Competitive Examination Rules, 2009 whereby the existing rule 17 has been substituted by a new rule 17. It was contended that such amendment which came into force in the year 2009 cannot be made applicable to the present recruitment which was initiated by the advertisement dated 26.6.2006. It was submitted that since all the 317 vacancies would not be likely to be filled up from the select list, a waiting list/extended merit list was required to be prepared so as to fill up the existing notified vacancies so as to do justice to the petitioners and other similarly situated candidates who would be getting appointments if all the 317 notified vacancies are completely filled up.
13. By the impugned judgment and order, the learned Single Judge has disposed of the petitions with the following directions:-
"41. So far other petitions are concerned, the following directions are issued.
41.1 Though the impugned merit list dated 26.04.2011 prepared and published by the Gujarat Public Service Commission is unsustainable on facts and in law, instead of setting aside the said merit list, (for the reasons noted in the body of the judgment, more particularly in para :
35.1 and 35.3), and consequently setting aside all the appointments of about three hundred candidates and their further promotions in the respective hierarchy, it is Page 10 of 102 C/LPA/814/2018 JUDGMENT directed that, the posts, which have remained unfilled because of non-joining of the candidates appointed by the Government vide appointment orders, claimed to have been issued on 06.05.2011, based on the impugned select list dated 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question (Advertisement No.87/2006-07). It is further directed that, while giving such appointments, the ceiling of the notified vacancies (total 317 vacancies) shall also be kept in view by the Authorities.
41.2 While giving such appointments, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Supreme Court of India shall also be kept in view.
41.3 The appointments of these candidates shall be treated to be notional from 06.05.2011 and they shall be entitled to all consequential benefits, except arrears of pay. (vide the decision of the Supreme Court of India in the case of State of Jammu and Kashmir Vs. Sat Pal reported in (2013) 11 SCC 737). For this purpose, the State Authorities may even take guidance from the procedure which it had undertaken while giving effect to the directions of this Court, in the case of D.G.Dalal (supra), which culminated into office orders passed by the General Administration Department of the Government of Gujarat on 04.08.2008 and consequential orders, the copies of which are made available to this Court by the State.
41.4 The above exercise shall be completed within a period of three months from the date of receipt of this Page 11 of 102 C/LPA/814/2018 JUDGMENT order.
14. Mr. Mihir Thakore, Senior Advocate, learned counsel with Ms. Megha Jani, learned advocate for the appellants in each of the appeals, invited the attention of the court to the decision of the Supreme Court in the case of Union of India v. Ramesh Ram (supra), to submit that the said decision was delivered on the basis of the rules framed by the Central Government. It was submitted that rule 16 of the Civil Services Examination Rules (hereinafter referred to as the "CSE Rules") relating to the civil services examination held by the Union Public Service Commission came up for interpretation in that decision. The attention of the court was invited to sub-rule (4) of the CSE Rules which provides for reduction of the total number of recommended candidates by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes who acquire the merit at or above the fixed general qualifying standard without availing themselves of any concession or relaxation in the eligibility criteria. Such rule also provides that the Commission shall prepare a list of recommended candidates and shall also declare a consolidated reserve list of candidates which will include candidates from the general and reserved categories ranking in order of merit below the last recommended candidate under each category. Reference was made to sub-rule (5) of rule 16 of the CSE Rules which provides for allocation of candidates recommended in terms of sub-rule (4) by the Government to the services and forwarding of requisition by the Government to the Commission for names of candidates from the reserve list for filling up the vacancies which remain unfilled in each Page 12 of 102 C/LPA/814/2018 JUDGMENT category. It was pointed out that rule 19 of the CSE Rules provides that due consideration will be given at the time of making allocation on the results of the examination to the preferences expressed by a candidate for various services at the time of his application. The appointment to various services will also be governed by the Rules/Regulations in force as applicable to the services at the time of appointment. It was submitted that the ratio of the decision in Ramesh Ram (supra) is whether a person who gets a general seat is entitled to claim a reserved seat to get a better preference. That ratio is not regarding at what stage such selection is to be made.
14.1 Reference was made to the Gujarat Rules as are applicable to the recruitment in question and more particularly, rule 9 thereof, to submit that in terms of the said rule, once a candidate gives a post as his first preference, he cannot change it. It was submitted that the learned Single Judge has held that the choice of preference should be exercised at the time of appointment and not by the Commission at the time of forwarding the list. It was submitted that the Commission does not give appointment and that the list is prepared by the Commission as per the order of merit after the examination and interview and considering the preferences given by the concerned candidates. The attention of the court was invited to the advertisement dated 26.6.2006, to point out that the Commission has to prepare the list as per the vacancies advertised. Reference was made to rules 9 and 22 of the Gujarat Rules, to submit that rule 22 contemplates forwarding of the results to the Government and the Commission has to forward the list as contemplated under rule 22 read with rule 9 of the rules. It was submitted that the rules Page 13 of 102 C/LPA/814/2018 JUDGMENT contemplate preparation of a select list containing the names recommended by the Commission to the extent of vacancies notified and that all candidates other than those whose names are found in this list are unsuccessful candidates whose names would be reflected in the list of unsuccessful candidates and there is no other wait list or reserved list. It was submitted that the Commission was required to give the order of preference as given by the candidates under rule 9 of the Gujarat Rules which was not to be revised under any circumstances. As per rule 17 of the Gujarat Rules, the Commission was required to recommend candidates for each post and class. While the appointments were to be given by the Government, the list was to be prepared by the Commission and that the Commission has not committed any error in making the list. According to the learned counsel, it would make no difference whether the list was made by the Government at the stage of appointment or by the Commission at the stage of recommendation, inasmuch as in view of the proviso to sub- rule (1) of rule 9 of the Gujarat Rules, the preference given by each candidate at the time of the interview test is final. It was submitted that the Commission or the Government will have to offer the higher post to the successful candidate as per his preference and that there is nothing improper or contrary to the decision of the Supreme Court in the case of Ramesh Ram (supra) insofar as the preparation of the list is concerned.
14.2 It was further submitted that by the Gujarat Civil Services (Class I and Class II) Competitive Examination (Amendment) Rules, 2009, which were notified vide notification dated 17.1.2009, rule 17 of the Gujarat Rules of 2000 came to be substituted and it was provided that there Page 14 of 102 C/LPA/814/2018 JUDGMENT shall be no waiting list and that the residual vacancies of posts, if any, due to non-joining of candidates (who have been allotted the post of Gujarat Civil Services Class I or Class II) for any reasons, shall be carried forward to the next occasion of recruitment. It was submitted that the amendment is only clarificatory and does not modify the rule at all because even as per the existing rule, there was no scope of wait list. The Gujarat Rules of 2000 also did not contemplate a wait list, but contemplated a list of unsuccessful candidates. It was submitted that the first list was issued on 13.5.2010 and the revised list was issued on 26.4.2011. While making the first list, they were bound to follow the rules as prevailing then. It was submitted that the existing rules were of 2009 and the vacancies could not have been filled since the list of recommended candidates was to the extent of vacant posts to be filled up.
14.3 It was submitted that five candidates did not join service on the post of Deputy Superintendent of Police and the Government considering the Gujarat Rules of 2000, did not appoint any one to those posts and proceeded to fill seats in seriatim. It was submitted that no duty was cast upon the Government to extend the list in the manner suggested. Reference was made to the notification dated 6.5.2011 (Annexure-G to the petition), to point out that out of 68 vacancies for the post of Deputy Superintendent of Police, 68 appointments came to be made by the Government. However, the candidates at Serial No.19, 29, 31 and 34 from the general category candidates and No.42 from the Socially and Educationally Backward Classes (SEBC) did not join. Therefore, there were five vacant posts of Deputy Superintendent of Page 15 of 102 C/LPA/814/2018 JUDGMENT Police, including one post in the SEBC category, which were never filled up and were carried forward in the next recruitment and were filled up.
14.4 Insofar as the applicability of the decision of the Supreme Court in the case of Ramesh Ram (supra) is concerned, it was contended that the view taken by the learned Single Judge is not correct. It was submitted that Ramesh Ram (supra) does not lay down any ratio as regards the stage at which to apply the preference. It was submitted that under rule 9(1) of the Gujarat Rules, once preference is given, it is final and the list was prepared accordingly which is not contrary to the decision of the Supreme Court in Ramesh Ram.
14.5 It was submitted that insofar as the applicability of the decision of the Supreme Court in the case of Mamta Bisht (supra) is concerned, the only ground for holding that the list is not in accordance therewith is that in other cases it has not been applied. Reference was made to paragraph 35.1 of the impugned judgment, to submit that the question of exploring other options would arise only when the list is illegal whereas in the facts of the present case there being nothing illegal in the revised list forwarded by the Commission, the question of exploring other options would not arise. It was submitted that on application of the decisions of the Supreme Court in Ramesh Ram and Mamta Bisht (supra), forty candidates were taken out of the first list of candidates recommended by the Commission which has no relevance to the non-joining of other candidates.
Page 16 of 102C/LPA/814/2018 JUDGMENT 14.6 Next, it was submitted that in case the successful
candidates do not join, if there is a wait list, it has to be operated or forty one posts in the list will remain vacant. However, the Gujarat Rules do not provide for any wait list and there are only two lists; (i) a list of recommended candidates to the extent of vacancies notified, and (ii) a list of unsuccessful candidates. Accordingly, the candidates who were taken out of the first list at the time of preparation of the revised list are also amongst the unsuccessful candidates. It was submitted that in the absence of a wait list, for the purpose of giving effect to the orders passed by the learned Single Judge, the vacant posts would be required to be filled from the list of unsuccessful candidates.
14.7 Reference was made to the findings recorded by the learned Single Judge in paragraph 35.3 of the impugned judgment, wherein the learned Judge has observed that the figures of the persons affected by the impugned action of the respondent authorities and the number of vacancies remaining unfilled from that very advertisement (notified vacancies) are almost the same; thus, relief can be granted to the affected candidates against the unfilled notified vacancies. It was submitted that either one of the lists, namely, the old list or the revised list that can be operated. However, it cannot be said that the decisions of the Supreme Court in the case of Ramesh Ram and Mamta Bisht (supra) should also be applied and at the same time, the old list should also be operated. Referring to paragraph 39 of the impugned judgment wherein the learned Single Judge has held that the notified vacancies which have remained unfilled because of non-joining of candidates, need to be filled up by the State by Page 17 of 102 C/LPA/814/2018 JUDGMENT offering the same to the next meritorious candidates whose details are already annexed with the merit list dated 26.4.2011, it was submitted that there is no merit list and that there is a list of successful candidates and a list of unsuccessful candidates and that the directions issued by the learned Single Judge would result in giving effect to the list of unsuccessful candidates.
14.8 It was pointed out that the candidate at Serial No.221 was one Reema Munshi whose appointment had been challenged by filing a writ of quo warranto and further that the learned Single Judge has also made certain observations with regard to one Manek Hira, the candidate at Serial no.222. It was submitted that if in the case of the said candidate, the Government had wrongly appointed her, it would make the appointment bad but it would not vitiate the list.
14.9 Referring to the directions issued by the learned Single Judge in paragraph 41.3 of the impugned order, it was submitted that if the appointments are to be notional with entitlement of consequential benefits, it directly affects the appellant as the appellants will be pushed down from the present position.
14.10 Reference was made to the decision of the Supreme Court in the case of Rajeshkumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785, to point out that in the facts of the said case the court has granted relief only to the candidates who had come before it and had thought it fit, just and proper to accommodate those three candidates without disturbing the selections and appointments Page 18 of 102 C/LPA/814/2018 JUDGMENT already made.
14.11 It was submitted that that view adopted by the learned Single Judge that the decision of the Supreme Court in the case of Ramesh Ram (supra) has not been properly applied and that the decision of the Supreme court in the case of Mamta Bisht (supra) has been applied selectively, is not in consonance with the said decisions. It was submitted that, therefore, there being no infirmity in the revised list, the question of issuing such directions as have been issued by the learned Single Judge would not arise and the impugned judgment and order passed by the learned Single Judge deserves to be quashed and set aside.
14.12 Insofar as the maintainability of the cross objections filed by the petitioner of Special Civil Application No.11163 of 2012 is concerned, the learned counsel placed reliance upon the decision of a Full Bench of the Madhya Pradesh High Court in the case of Jabalpur Development Authority v. Y.S. Sachan, 2004 (2) M.P.L.J. 178, wherein the court has held that there can be no doubt that a respondent can defend the judgment pasted in a letters patent appeal where the order of the Single Judge is under assail. The question that arises for consideration is whether in such an appeal a cross-objection can be filed. The court held that a party who is aggrieved by an order of the learned Single Judge can prefer an independent appeal. The cross objection has a different connotation. A cross objection or a cross appeal is filed after receipt of the notice within the time provided under Order XLI, rule 22 of the Code of Civil Procedure. But there is no concept of filing of cross objection in a letters patent appeal. The court held that in a Page 19 of 102 C/LPA/814/2018 JUDGMENT letters patent appeal that arises from an appeal disposed of under section 96 of the Code of Civil Procedure or in other appeal to which the Civil Procedure Code applies the matter would be totally different and a cross objection would be maintainable but in a matter relating to a writ appeal, no cross objection can be filed. It was submitted that the present letters patent appeals having been filed against a judgment rendered in writ petitions, the cross objection is not maintainable.
15. Mr. D. G. Shukla, learned advocate appearing on behalf of the Gujarat Public Service Commission, submitted that for the reason that by virtue of the directions issued by the learned Single Judge, the list prepared by the Commission was not disturbed, the Commission did not deem it fit to challenge the impugned judgment and order, despite certain strictures and observations having been made therein. The attention of the court was invited to the affidavit-in-reply filed on behalf of the Commission, to submit that the respondents have complied with the directions contained in the impugned judgment. It was submitted that the list was revised consciously to apply the principles laid down by the Supreme Court in Ramesh Ram and Mamta Bisht (supra) and was forwarded to the State Government whereafter the appointments were made. It was urged that the allegations recorded in the impugned judgment and order are not true and the same have not been brought to the notice of the Commission or the State during the course of submissions and have come on record only during the course of dictation of judgment. It was submitted that after the decision of the Supreme Court in the case of Rajesh Daria (supra) there was a decision of this court in the case of Komal Katara (supra) which was contrary to the decision of Rajesh Page 20 of 102 C/LPA/814/2018 JUDGMENT Daria, but being a subsequent decision of this High Court, the respondents were required to follow the same. It was urged that since the decision of the Supreme Court in the case of Mamta Bisht (supra) reiterated what was stated in Rajesh Daria (supra) and was rendered subsequent to the decision of this court in the case of Komal Katara (supra), the result was revised by applying both the decisions viz. in the case of Ramesh Ram as well as Mamta Bisht (supra). It was further pointed out that the learned Single Judge has held that the decisions of the Supreme Court in the case of Ramesh Ram and Mamta Bisht (supra) are required to be applied to the recruitment in question; and that there being no infirmity in the application thereof, the select list may not be interfered with. It was reiterated that it is only because the list was maintained that the judgment and order passed by the learned Single Judge was not challenged by the Commission.
15.1 Mr. Shukla further drew the attention of the court to paragraph 32.7 of the impugned judgment and order, to submit that the learned Single Judge has recorded that the Commission and the State have not followed the decision in the case of Mamta Bisht (supra) even in the recruitment on the post of Assistant Conservator of Forest and Range Forest Officers in the year 2014 which was subject matter in Special Civil Application No.13857 of 2014 and Letters Patent Appeal No.1103 of 2015. It was pointed out that insofar as the Letters Patent Appeal No.1103 of 2015 is concerned, the controversy involved therein was on a totally different footing viz., in that case a reserved category candidate, who had availed of relaxation, had claimed a general category post.
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16. Mr. Utkarsh Sharma, learned Assistant Government Pleader, drew the attention of the court to rule 9 of the Gujarat Rules, to submit that having regard to the said rule which lays down as to how preference has to be exercised, if a meritorious reserved category candidate is not in a position to get the post of his higher preference as a general category candidate, his migration to a reserved post would be automatic inasmuch as the candidate is bound by the order of preference indicated at the time of the interview test and is not permitted to change his order of preference even at the time of granting appointment. Therefore, what was done by the Commission was in consonance with rule 9 of the Gujarat Rules.
16.1 The learned Assistant Government Pleader further invited the attention of the court to rule 18(1) of the Gujarat Civil Services Recruitment Examination Rules, 1980, to point out that the said rules specifically provided for preparation of a waiting list which would remain in force till the result of the next examination is declared by the Commission. Drawing a distinction between the said rules and the Gujarat Rules of 2000, it was pointed out that in the 2000 rules, this requirement of preparing a wait list has been done away with, which clearly shows that no wait list was contemplated therein.
17. Mr. S. N. Shelat, Senior Advocate, learned counsel with Mr. Pathik Patel, learned advocate for the respondents No.5 and 72, submitted that the respondents No.5, 6, 7 and 8 who are to be appointed against the vacant post of Deputy Superintendent of Police in compliance with the impugned judgment and order are all above serial No.77 in the merit list. It was pointed out that those respondents are not the original Page 22 of 102 C/LPA/814/2018 JUDGMENT petitioners, but are beneficiaries of the impugned judgment and order passed by the learned Single Judge, all of whom had given their first preference for the post of Deputy Superintendent of Police and are placed higher than the appellants in order of merit.
17.1 The attention of the court was invited to paragraph 3 of the impugned judgment and order, wherein the learned Single Judge has referred to the earlier order dated 12.5.2018 passed in Special Civil Application No.6057 of 2011 at the time of issuance of notice wherein it has been clarified that any action taken by the respondents shall be subject to the final decision of the petition. It was submitted that, therefore, in the appointment orders of the appellants itself, it was provided that the same were subject to the final decision of the petition, despite which, they did not seek to be joined as parties in the petition and even after the impugned judgment and order came to be passed, they did not immediately approach this court challenging the same; therefore, the appellants from their very conduct are barred from challenging the impugned order inasmuch as such challenge is bad on the ground of delay and laches as well as acquiescence. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347, wherein the court has held that those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
Page 23 of 102C/LPA/814/2018 JUDGMENT 17.2 It was submitted that the learned Single Judge has exercised discretion to the effect that the meritorious
candidates be considered while filling in the vacancies and that the contention that those who have not come to the court should not be granted relief cannot be countenanced. It was submitted that the appellants and all others were put to notice that their appointments are subject to the result of the petition and, therefore, if the court were to accept the ratio as laid down by the learned Single Judge, they cannot claim any equity. It was submitted that the learned Single Judge has ultimately permitted to operate the merit list and that as on today, the appellants are not affected prejudicially, inasmuch as, the seniority list has not been prepared and, therefore, the question may be premature at this stage.
17.3 Reference was made to the decision of the Supreme Court in the case of State of J &K v. Sat Pal, (2013) 11 SCC 737, on which the learned Single Judge has placed reliance, wherein one vacancy which was offered to one Trilok Nath only came to be filled up. The court held that in such a situation, respondent Sat Pal whose name figured in the merit/select list ought to have been offered appointment against the said post. The claim of respondent Sat Pal could not have been repudiated, specially on account of his assertion, that his name in the merit/select list amongst Scheduled Castes candidates immediately below the name of Trilok Nath was not even disputed in the pleadings before the court. It was submitted that in the facts of that case there is no decision of the State Government not to fill the notified vacancies. Reference was made to the findings recorded by the learned Single Judge in paragraph 38 of the impugned judgment wherein it has been Page 24 of 102 C/LPA/814/2018 JUDGMENT recorded that there is no decision of the State not to fill up the vacancies, to submit that, therefore, in the absence of any such decision having been taken by the respondents, the vacancies to the extent the same were advertised were required to be filled up.
17.4 It was further submitted that the amended rule 17 of the Gujarat Rules which says that there shall be no waiting list and that the residual vacancies of posts if any due to non- joining of candidates shall be carried forward to the next occasion of recruitment, is not clarificatory or explanatory as contended on behalf of the appellants and cannot be made applicable to the recruitment in question. Reliance was placed upon the decision of the Supreme Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284, for the proposition that vacancies in the promotional post occurring prior to the amendment have to be filled up in accordance with the unamended rules. In the facts of the said case, the court set aside the panel prepared for filling vacancies under the amended rule and directed a fresh panel to be prepared under the old rules. Reference was made to the decision of the Supreme Court in the case of B.L. Gupta v. M.C.D., (1998) 9 SCC 223, wherein the court held that the vacancies that had arisen prior to the amendment of the rules in 1995 can only be filled in accordance with the 1978 rules and that any vacancy which arises after 1995 will have to be filled as per the amended rules.
17.5 Reliance was placed upon the decision of the Supreme Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157, wherein the Page 25 of 102 C/LPA/814/2018 JUDGMENT court held that generally a candidate has a right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however, he has no absolute right in the matter. If the recruitment rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended rules. Whether the rules have retrospective effect or not, primarily depends upon the language of the rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. A candidate cannot be deprived of the right to be considered for selection in accordance with the rules as they existed on the date of advertisement on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. Mr. Shelat submitted that when no decision is taken not to fill the vacancies, the meritorious candidates who are waiting should be given an opportunity and that such candidates should not be ignored if merit is the consideration. Therefore, the learned Single Judge was wholly justified in directing that the vacancies on account of non-joining of candidates should be filled up in order of merit.
17.6 It was further submitted that the application of principles laid down in the decision of the Supreme Court in the case of Ramesh Ram (supra) has to be undertaken when an individual is to be offered appointment. Reference was made Page 26 of 102 C/LPA/814/2018 JUDGMENT to the decision of the Supreme Court in the case of Tripurari Sharan v. Ranjit Kumar Yadav, (2018) 2 SCC 656, wherein the court held that Ramesh Ram (supra) pertained to selection to posts in services through the UPSC examination.
17.7 It was submitted that even if the two decisions of the Supreme Court have to be applied to the facts of the present case, the learned Single Judge was wholly justified in throwing the seats open to the meritorious candidates. It was submitted that the question of preparing a waiting list does not arise as there is only a merit list which has to be applied till the vacancies are available. It was submitted that the State Government has accepted the judgment and is inclined to comply with it but for the present appeal.
17.8 Insofar as the applicability of the decision of this court in the case of D.G. Dalal (supra) is concerned, reference was made to paragraph 12 of that decision wherein the court has observed that the Government of its own is under an obligation to utilise the vacancies keeping in view the merit list and that in any case merit should not be made a casualty. It was submitted that, therefore, the Government of its own is under an obligation to utilise these vacancies keeping in view the merit list. It was urged that when the Government has accepted the ratio of the decision of the learned Single Judge and offered appointments to the respondents, this court may not deny them the benefit. It was urged that no question of interpretation arises and that it is the obligation of the Government to operate the merit list and fill up the vacancies and that this court may not upset the benefit given to the respondents.
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18. Mr. Shalin Mehta, Senior Advocate, learned counsel appearing for the newly added respondent No.9 in Letters Patent Appeal No.814 of 2018 viz. Ruturaj Sankabhai Desai, who is also a beneficiary of the impugned judgment, made reference to rule 17 of the Gujarat Rules as it stood prior to the amendment in 2009, to point out that the same requires the Commission to recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in. It was submitted that there is nothing on record to show that vacancies are carried forward or that a decision has been taken not to fill up the vacancies; therefore, the merit list is required to be operated till the number of vacancies advertised are filled in. It was submitted that the amended rule 17 is a clear amendment and substitutes the old rule. Reading both the rules conjointly it was pointed out that there are three things in this rule which are not found in the old rule, namely,
(i) the amended rule provides that there shall be no waiting list; (ii) the residual vacancies of posts, if any, due to non- joining of candidate for any reason shall be carried forward; and (iii) that the Commission shall recommend the candidates qualified for appointment to the extent of the number of seats advertised for, and not to the extent of vacancies. It was submitted that, therefore, the amended rule 17 cannot be said to be clarificatory and is clearly an amendment of the old rule.
18.1 Reference was made to rule 9 of the Gujarat Rules, and more particularly, to sub-rule (2) thereof, which reads thus: "The order of preference for the post indicated by the candidate shall not confer any right for appointment to those posts. Having regard to the rank in the order of merit and the Page 28 of 102 C/LPA/814/2018 JUDGMENT number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment". It was submitted that, therefore, before a meritorious reserved category candidate is placed in a post of his higher preference in a reserved category, at the time of his appointment he is required to be asked whether he wants to migrate to the post of reserved category or not, whereas in the facts of the present case, when the Commission prepared the list, it chose for all the meritorious reserved category candidates and that the stage of the meritorious reserved category candidates exercising option has been given a go- bye. It was submitted that the Commission has only to indicate the order of preference of each candidate and it is the function of the Government at the time of allocation, whether to consider a particular candidate in the general or reserved category. Therefore, the Commission could not have applied the decision of the Supreme Court in the case of Ramesh Ram (supra) at the stage of preparing the list.
18.2 Referring to the decision of the Supreme Court in the case of Ramesh Ram (supra), it was pointed out that rule 16(2) of the CSE Rules provides that reserved category candidates recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government if by this process they get a service of higher choice in order of their preference. Therefore sub-rule (2) of rule 16 of the CSE Rules gives liberty to the meritorious reserved category candidates to choose between the general quota and the reserved category quota, whereas insofar as the Gujarat Rules are concerned, there is no rule similar to rule 16(2) of the CSE Rules. It was submitted that preference has to be considered Page 29 of 102 C/LPA/814/2018 JUDGMENT by the Government at the time of appointment and if the Government is to do this, it naturally follows that a meritorious reserved category candidate is required to be asked whether he wants to migrate. It was submitted that migration cannot be confused with preference. A meritorious reserved category candidate has a choice to stay in the open merit and that the Commission by applying the decision of the Supreme Court in Ramesh Ram (supra) at the stage of preparation of the list took away the choice of a candidate whether or not to migrate and, therefore, the entire revised list is bad. It was submitted that who is to apply and at which stage the decision of the Supreme Court in Ramesh Ram (supra) is required to be applied is also important.
18.3 As regards the applicability of the decision of the Supreme Court in the case of Mamta Bisht (supra), the learned counsel placed reliance upon the findings recorded by the learned Single Judge in paragraphs 31 to 33 of the impugned judgment, to submit that on the findings recorded by the learned Single Judge, he was wholly justified in holding that the State and the Commission have applied the same more for convenience and advantage and less for upholding the law.
18.4 The attention of the court was invited to the decision of a learned Single Judge of this court in the case of Pravinchandra Hemchandbhai Panchal v. Gujarat Public Service Commission rendered on 21.11.2005 in Special Civil Application No.7912 of 2005, wherein the learned Single Judge has held that until all the posts are filled up, the candidates who have participated in the regular selection process are Page 30 of 102 C/LPA/814/2018 JUDGMENT required to be considered for appointment as and when the State Government is to consider the matter of appointments unless there is a ban on recruitment by way of a policy decision of the State Government due to any valid reason. It was submitted that the decision of the learned Single Judge was carried in appeal by way of Letters Patent Appeal No.84 of 2006; however, the Division Bench had not disturbed the judgment. It was submitted that, therefore, it is now not open for the respondents to contend that as there is no provision for wait list in rule 17 of the Gujarat Rules, the vacancies cannot be filled up. It was submitted that thus rule 17 of the Gujarat Rules has been interpreted by this court to mean that even if no wait list is contemplated, all vacancies should be filled by the next meritorious candidates, and that in appeal also, the court can direct the Government to fill in all the posts as no decision has been taken not to fill the vacancies. It was submitted that furthermore in the light of the decision of the Supreme Court in the case of Jai Narain Ram v. State of U.P., (1996) 1 SCC 332, all the vacancies should be filled up.
18.5 Insofar as the contention that relief should be granted only to those who have come before the court, the learned counsel submitted that the Supreme Court has not laid down any absolute proposition of law in this regard. It was, accordingly, urged that the appeals be dismissed and the directions issued by the learned Single Judge be upheld.
19. Mr. Anshin Desai, Senior Advocate, learned counsel with Mr. Chetan Pandya and Mr. Pankaj Chaudhari for respondent No.6 in Letters Patent Appeal No. 833 of 2018 submitted that delay, laches and acquiescence is an issue of merit and that Page 31 of 102 C/LPA/814/2018 JUDGMENT the appellants herein are not entitled to the grant of any relief by this court as they were fence-sitters. It was submitted that the appellants herein had express or tacit knowledge that the petitions were pending, despite which, they did not deem it fit to be joined as parties nor did they seek to challenge the impugned judgment immediately after the same was delivered. It was contended that the appellants have no cause of action to file the present letters patent appeals and that the challenge to the impugned judgment is premature as no event can be said to have occurred which causes any prejudice to the appellants. It was submitted that the appellants have come on an apprehension and seek adjudication of an issue which has not happened, which, according to the appellants is likely to happen. It was submitted that the State Government as well as the Commission have accepted the impugned judgment and, therefore, the appellants have no legal or fundamental right to question the veracity of the impugned judgment.
19.1 It was contended that it is not permissible for this court to examine the merits of the impugned judgment and order, inasmuch as, locus of the petitioner is itself in question. It was submitted that the inquiry into the irregularities and illegalities on the part of the respondents during the course of recruitment process was not beyond the purview of the learned Single Judge and that the learned Single Judge was wholly justified in relying upon the record while recording conclusions with regard to the validity of the recruitment process in question.
19.2 Reference was made to the decision of the Supreme Court in the case of Bhakra Beas Management Board v.
Page 32 of 102C/LPA/814/2018 JUDGMENT Krishan Kumar Vij, (2010) 8 SCC 701, wherein the appellant therein had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the relief, which the High Court had simply brushed aside and had condoned such an inordinate, long and unexplained delay in a casual manner. The Supreme Court held that the approach of the High Court was neither proper nor legal.
19.3 Reliance was also placed upon the decision of the Supreme Court in the case of Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, wherein the court held that delay disentitles the party to the discretionary relief under article 226 or article 32 of the Constitution. It was, accordingly urged that the appellants have no locus to challenge the impugned decision and that the appeals being barred by delay, laches and acquiescence, the court may not enter into the merits of the impugned judgment and order and dismiss the appeals on this ground alone.
20. Mr. Dhaval Dave, Senior Advocate, learned counsel with Mr. Niral Mehta learned advocate for the respondent No.31 in Letters Patent Appeal No.814 of 2018, namely the petitioner in Special Civil Application No.6057 of 2018 viz. Ketki Trivedi as well as for a respondent in Letters Patent Appeal No.835 of 2018 viz. Vadvia Dhirendrakumar, petitioner in Special Civil Application No.6453 of 2011, submitted that the names of both the candidates found place in the first select list published on 13.5.2010. However, their names got excluded from the revised select list which gave rise to cause of action to them to file a petition on the ground that the revised list should not be permitted to operate as the respondents have no right to Page 33 of 102 C/LPA/814/2018 JUDGMENT revise the list. The learned Single Judge came to the conclusion that the revised list was bad and should be set aside and, therefore, the revised list was required to be set aside and the original list was required to be permitted to hold the field. However, the learned Single Judge found that instead of scrapping the revised list which has already been implemented, equity can be done if forty seats which remained vacant on account of non-joining of candidates are filled in by accommodating such candidates, which is just, legal and proper in the facts and circumstances of this case.
20.1 It was emphatically argued that the appellants have no locus to move these appeals. According to the learned counsel, an appeal can only be filed by a person who can be said to be aggrieved by the judgment sought to be assailed and that merely because leave to appeal has been granted by this court, such person does not become an aggrieved person, more so, because while granting leave, this issue has been left open. It was submitted that by the interim order issued at the time of issuing notice, it was clarified that the appointments are subject to the final outcome of the petitions and that by the impugned judgment; the appointments of the appellants have not been disturbed. It was pointed out that the appellants found place in both the lists and they are not affected in any manner inasmuch as they still remain at the same stage of seniority. It was submitted that on account of operation of the revised select list pursuant to the order of the learned Single Judge, no prejudice has been caused to any of the appellants and there is no infringement of any enforceable legal right of any of the appellants. It was contended that the appellants will have locus to challenge the legality and validity of the Page 34 of 102 C/LPA/814/2018 JUDGMENT impugned judgment provided there is some infringement of legal right, however, mere inconvenience or prejudice would not result into infringement of legal right. It was argued that if ranking was to be disturbed there would be an infringement, whereas the appellants are not able to show that a less meritorious candidate has been placed above them nor are they in a position to show that their seniority has been disturbed. Therefore, today they have no cause of action for preferring the appeals, inasmuch as, from any angle, they cannot be said to be aggrieved.
20.2 Next, it was contended that a candidate only has a right to promotion and there is no vested right. Moreover, no right of the appellants has been taken away. It was submitted that implementation of a judgment and directions to implement the principles of law laid down in a previous judgment cannot be said to infringe the legal right of the appellants. Reference was made to the decision of the Supreme Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671, wherein the court had held that where the appellant had not been denied or deprived of a legal right and had not sustained any injury to any legally protected interest, he has not been subjected to a legal wrong and has not suffered any legal grievance and, therefore, is not a "person aggrieved" and has no locus standi to challenge an order which does not deprive him of his legal right.
20.3 It was submitted that the learned Single Judge has applied the decision of this court in the case of D.G. Dalal (supra) while directing filling up of the vacancies left over on Page 35 of 102 C/LPA/814/2018 JUDGMENT account of candidates not joining. It was submitted that the learned Single Judge has placed reliance upon material on record and has found that various illegalities have been committed by the State and Commission. According to the learned counsel, it is immaterial as to how the material has come on record, once it has come on record, the learned Single Judge can rely upon it. It was submitted that the State and the Commission who are really affected parties, have not chosen to challenge the impugned judgment and hence, the appellants cannot be permitted to challenge the same and on this threshold point itself, the appeals should not be entertained.
21. Mr. K. B. Pujara, learned counsel for the petitioner in Special Civil Application No.11163 of 2012, who has also filed Cross Objection No.82 of 2018 submitted that the name of the petitioner was included in both the lists. In the first list, he was at Serial No.176 and in the second list at 207. He belongs to the SEBC category and had not opted for any Class-II post and that his first preference was for the post of Deputy Superintendent of Police. It was pointed out that in all sixty eight vacancies of Deputy Superintendent of Police had been notified, out of which, fourteen posts were reserved for SEBC candidates. Out of these fourteen posts, four were reserved for female. Out of sixty eight candidates, four unreserved category candidates did not join and one Rohit Wadhwana belonging to the SEBC category did not accept the post, therefore, at that stage, the petitioner approached the authorities to fill the vacant post by appointing him whereas none of the candidates who were higher in order on merit than him had approached this court. It was contended that the legal position demands Page 36 of 102 C/LPA/814/2018 JUDGMENT that notified vacancies be filled up and that if a reserved category candidate does not join, the next candidate has to be offered appointment. It was submitted that if some candidate does not join, another candidate who stakes a claim can be given the post.
21.1 Reference was made to the judgment and order dated 21.11.2005 passed by a learned Single Judge of this court in Special Civil Application No.7912 of 2005 wherein the petitioners sought preparation of list of unfilled posts which had remained vacant on account of non-joining of selected candidates or disqualified candidates or for any other valid reason. The learned Single Judge held that if the posts have remained vacant due to non-availability of candidates for any reason, the same are required to be filled up from amongst the next available meritorious candidates and the list so prepared deserves to be operated to that extent.
21.2 Reference was made to the decision of a Division Bench of this court in Letters Patent Appeal No.84 of 2006, wherein the above judgment and order passed by the learned Single Judge was subject matter of challenge, whereby the appeal was disposed of with liberty to the appellants to seek review of the judgment of the learned Single Judge. The attention of the court was invited to the judgment and order dated 31.7.2006 passed by the learned Single Judge on the review petition filed by the State of Gujarat wherein the learned Single Judge has held thus:
"3. Xxxxxx Even if the procedure for preparation of the waiting list is given a go by, as per Rule 17 of the Rules Page 37 of 102 C/LPA/814/2018 JUDGMENT of 2000, as sought to be canvassed on behalf of the State Government, then also, the language of rule 17 provides for recommendation "the Commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in. The number of vacancies to be filled in as referred to in the rule shall have reference to the number of vacancies so advertised and, therefore, if the direction is given for forwarding the name by the Commission to the Government to the extent of number of vacancies to be filled in as per the advertisement, such cannot be a valid ground for recalling and/or review of the order."
The learned Single Judge, accordingly, held that the directive is to consider a candidate for appointment on Class-I or Class-II category and such direction is to operate unless there is a ban on recruitment by way of policy decision of the State Government due to valid reason. It was submitted that the above decision of the learned Single Judge has attained finality and therefore, the State authorities are bound to follow the same.
21.3 Reference was made to the order dated 16.8.2010 passed in Miscellaneous Civil Application No.1768 of 2008 for contempt on account of non-compliance of the order passed by the learned Single Judge, wherein the Division Bench in the context of application of the decision of this court in D.G. Dalal (supra) observed thus:-
"In our view, the same may not be required and the reason being that the appointments were offered to the respective persons on the post of Class-I and II, as the case may be at the relevant point of time in the year 2004-2005 or during that period. It is only after the order passed by this Court and the litigation ended upto the review, the right could be said to have been crystallised for 27 posts from amongst the candidates who were in Page 38 of 102 C/LPA/814/2018 JUDGMENT waiting list. The same was contingent upon non-joining of the duty by the candidate who were offered appointment but did not opt for joining the duty. Therefore, the position of these 27 persons who are to be offered appointment or the position of 27 posts which are to be considered for the purpose of offering appointment pursuant to the order passed in the present case would stand on altogether different footing, more particularly because they were in the waiting list and it is on account of the order passed by this Court, their consideration has accrued. Therefore, the State Government will have to consider these 27 posts in one slot for the purpose of offering preferences in order of merit to the candidates concerned who are eligible to enter the zone of consideration against present 27 posts only. Therefore, such aspects should not operate as an obstacle in any manner to the State Government in compliance of the present order."
21.4 It was submitted that considering the lapse of time, the Division Bench did not think it fit to apply the decision in the case of DG Dalal (supra) as five years had passed. The State accepted and implemented the order and that having accepted the earlier orders, it would not be permissible for them to raise such contention in the petition.
21.5 The learned counsel further drew the attention of the court to a communication dated 10.7.2012 of one Jagdishbhai Baldevbhai Desai, to point out that the said candidate who was placed higher in order of merit than the petitioner had given up his right in favour of the petitioner. Reliance was placed upon the decision of the Supreme Court in Jai Narain Ram (supra), to submit that if a reserved category seat has to be filled up, the person who comes to the court gets the relief. It was pointed out that the Supreme Court did Page 39 of 102 C/LPA/814/2018 JUDGMENT not say that all the posts should be filled up but directed that only one post should be filled up.
21.6 Next, it was submitted that the advertisement in question was issued on 26.6.2006, whereas rule 17 of the Gujarat Rules came to be amended subsequently in 2009. It was contended that the selection process has to be completed on the basis of the rules as they stood when the process started, and that therefore, the amendment in rule 17 would operate prospectively after 2009 and cannot be applied to the recruitment in question. Reliance was placed upon the decision of the Supreme Court in the case of P. Mahendran v. State of Karnataka, AIR 1990 SC 405 <=> (1990) 1 SCC 411, for the proposition that it is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights, the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. Mr. Pujara submitted that since the amended rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date when they applied for the post.
21.7 It was emphatically argued that Desai Ruturaj Solanki who had accepted the post given to him at the relevant Page 40 of 102 C/LPA/814/2018 JUDGMENT time, is sought to be brought in out of the blue for giving appointment on the vacant post of SEBC male. It was submitted that the action of the State in offering the post of Deputy Superintendent of Police to Desai Ruturaj Sankabhai in the category of SEBC Male is bad in law as the said candidate had not approached this court at the relevant time seeking relief to the effect that the vacant post be filled up and was therefore, not entitled to the grant of any such benefit. It was submitted that the petitioner is, therefore, aggrieved by the directions issued by the learned Single Judge.
21.8 Reference was made to the sur-rejoinder filed on behalf of the State Government and more particularly to the table below paragraph 8 thereof, to submit that the name of Desai Ruturaj Sankabhai does not find place therein. Reference was made to the revised merit list, to point out that at item No.130 Desai Ruturaj Sankabhai is treated as SEBC GM 94. However, in the list shown in the sur-rejoinder the name of Desai Ruturaj Sankabhai does not appear, despite which, he has been offered appointment against the vacant SEBC post of Deputy Superintendent of Police. It was emphatically argued that none of the persons above the petitioner had come staking their claims at the relevant time and hence, they cannot be granted any relief.
21.9 Referring to the issues framed by the learned Single Judge, it was submitted that five issues have been framed but there is no issue qua the present petitioner and that except Issue No.5, the petitioner's case has not been considered. It was submitted that there is no adjudication of his petition and nothing has been dealt with and in fact his petition has not Page 41 of 102 C/LPA/814/2018 JUDGMENT been decided at all and none of the contentions raised by him have been dealt with.
21.10 It was argued that the decision of this court in the case of D.G.Dalal (supra) has no applicability to the facts of the present case, inasmuch as, D.G. Dalal was rendered in the context of the 1989 rules and as soon as the grievance arose they had come to the court, which had considered their grievance and granted relief to the petitioners and not to others. It was submitted that following the decision of this court in D.G. Dalal (supra) does not give any relief to the petitioner and on the contrary gives relief to others who had not approached this court raising any grievance. It was submitted that the petitioner has come before this court as an SEBC candidate and there is a clear vacancy of SEBC Male. None of the candidates having higher merit than him have come to the court for all these seven years. Thus, no one has come within reasonable time. The learned Single Judge has not considered the relief prayed for by the petitioner and on the contrary has said that the decision of this High Court in D.G. Dalal (supra) should be implemented which does not give relief to the petitioner but to strangers who were not before the court. Therefore, the natural consequences had to be to direct appointment of the petitioner as was done in Ashok v. State of Karnataka, AIR 1992 SC 80. In that case, the Supreme Court had recorded that the appointments under the impugned rules were made as back as in 1987 and only the appellants therein had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time. The court was thus inclined to grant relief only to the appellants before it who Page 42 of 102 C/LPA/814/2018 JUDGMENT were vigilant in making grievance and approaching the Tribunal in time. It was submitted that the petition ought to have been allowed by the learned Single Judge and that the judgment is required to be modified to that extent by granting relief to the petitioner.
21.11 Referring to paragraph 35.1 of the impugned judgment, it was pointed out that the whole idea was to give relief to the persons who were before the court and in that backdrop the ultimate decision has been rendered by the learned Single Judge namely to grant relief to the affected candidates against the unfilled vacancies. It was submitted that while it has been held that the list is bad and relief be granted to those who have come to the court, while issuing the ultimate directions, the learned Single Judge has erred in directing to make appointments in order of merit and by applying the decision of this court in D.G. Dalal (supra). .
21.12 It was urged that in the entire litigation, there is not one petitioner who has come with the grievance like him; none of the parties before the learned Single Judge had requested to apply the decision of this court in the case of D.G. Dalal (supra); there was no one who stated that they were the next meritorious candidates and requested to be appointed; and that the petitioner was the only person whose claim should have been considered independently. Thus, the petitioner has suffered injustice because of non-consideration of his petition and the nature of directions issued and the manner in which they are implemented. It was, accordingly, urged that the cross-objection deserves to be allowed by allowing the petition and granting the relief as prayed for vide paragraph 14(b) of Page 43 of 102 C/LPA/814/2018 JUDGMENT the petition.
21.13 Reference was made to the decision of the Supreme Court in the case of State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, for the proposition that relief not claimed cannot be granted. It was submitted that the beneficiaries of the impugned judgment and order who were not the petitioners before the learned Single Judge are defending the impugned judgment. It was submitted that the relief granted by the learned Single Judge is misdirected and merely because of wrong directions there are beneficiaries who are trying to defend such judgment.
21.14 Reference was made to the decision of the Supreme Court in the case of U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464, wherein the court was considering the question as to whether when a person who is not vigilant of his rights and acquiesces with the situation, his petition can be heard after a couple of years on the ground that same relief should be granted to him as was granted to a person similarly situated who was vigilant of his rights and challenged his retirement which was said to be made on attaining the age of 58 years. The court held that the respondents were guilty since they had acquiesced in accepting the retirement and had not challenged the same in time and that if they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants have lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration Page 44 of 102 C/LPA/814/2018 JUDGMENT that question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted.
21.15 It was submitted that the beneficiaries of the impugned judgment have not approached this court seeking a direction to fill up the vacancies which remained unfilled, therefore, no relief could have been granted to them. It was argued that the beneficiaries cannot be heard in support of the directions as they were not litigants before the learned Single Judge.
21.16 As regards the contention raised on behalf of the appellants and other respondents that the cross-objection is not maintainable, the learned counsel submitted that rule 84 of the Gujarat High Court Rules provides that the provisions of Order XLI of the Code of Civil Procedure and rules regarding appeals shall apply to letters patent appeals. It was submitted that the decision of the Full Bench of the Madhya Pradesh High Court would have no applicability to the facts of the present case as the same was rendered in the context of the rules as applicable to that High Court which are not akin to rule 84 of the Gujarat High Court Rules and hence, the contention that the cross objection is not maintainable deserves to be rejected.
22. Mr. G. M. Joshi, learned counsel with Mr. Asav Gadhvi, learned advocate for some of the parties, adopted the contentions advanced by Mr. S.N. Shelat. It was submitted that in Special Civil Application No.8203 of 2012, the petitioner sought for a writ of quo warranto, wherein, the whole file was voluntarily placed before the court by the Government. The Page 45 of 102 C/LPA/814/2018 JUDGMENT State was relying upon the official record for the whole recruitment process and hence, once the record is before it, the court would not be precluded from looking at the record as a whole when the challenge is composite and the court was offered the record for perusal.
22.1 It was submitted that incorrect application of the decisions of the Supreme Court in the case of Ramesh Ram and Mamta Bisht (supra) were not the only irregularities and that the present case is a glaring example of the Commission being dictated by the State Government in its General Administrative Department. It was submitted that there were glaring illegalities in the preparation of the second list and the whole exercise undertaken by the Commission is ultra vires and void. It was urged that the whole process could have been set aside by the court but the final list has not been set aside and with a view to salvage the situation, directions have been issued to fill up the vacant posts. It was contended that if at all, it is the State and the Commission which could have challenged the impugned judgment on the ground that there are glaring observations against them; however, the State and the Commission have accepted the judgment and started acting upon it. Therefore, the appellants of the present appeals would be neither justified nor competent to challenge the judgment and that the history shows that the appeal was not preferred in time and it was stated that when the judgment came the appellants did not think it proper to challenge it and it was only after the judgment was being implemented that they came to the court.
22.2 Referring to paragraph 7 of the memorandum of
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appeal wherein it has been averred that "Contrary to the expectations that the State and/or GPSC would challenge the judgment by filing an appropriate LPA, the appellants were shocked to learn in around third week of December 2017 that the Government had reallocated five candidates at Merit No.49, 54, 57, 58 and 130 who were earlier allotted to the post of Mamlatdar, Section Officer, Sachivalaya Mamlatdar, Mamlatdar and Taluka Development respectively as Dy. S.P.s with all ancillary benefits, like seniority, pay fixation, deemed date, etc." it was submitted that the conduct of the appellants is evident from the averments made in the memorandum of appeal. It was submitted that the position of the appellants does not change on account of the order giving appointments to the five candidates. Moreover, the five affected respondents are meritorious in their respective categories and are placed higher up in the select list and none of them have been taken out in the revised list. It was submitted that, therefore, the challenge made by the appellants who are lower in merit than the persons who are sought to be appointed upon implementation of the impugned judgment must necessarily fail.
22.3 Next, it was submitted that the amended rule 17 of the Gujarat Rules is a declaratory provision and has to be read prospectively. A person has a substantive right to be appointed and such right cannot be taken away. It was submitted that the right to be appointed if there are vacancies cannot be taken away by the amended rule and that subordinate legislation would only apply prospectively. It was submitted that the record shows that there are illegalities other than the application of the decisions of the Supreme Court in Ramesh Page 47 of 102 C/LPA/814/2018 JUDGMENT Ram and Mamta Bisht (supra), in support of which, the learned advocate placed reliance upon the observations made by the learned Single Judge in paragraph 43.1 onwards.
23. In rejoinder to the submissions made by Mr. Pujara for the petitioner in Special Civil Application No.11163 of 2012, Mr. Shalin Mehta submitted that the petition has been answered and that the learned Single Judge has turned down prayer by directing the post to be filled up by the next meritorious candidate. Therefore his petition is deemed to have been rejected and, therefore, the petitioner was required to file an appeal and the cross objection at his instance is not maintainable.
23.1 Referring to rule 22 of Order XLI of the Code of Civil Procedure, 1908, the learned counsel submitted that the explanation thereto provides that a respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under that rule, file cross objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of the respondent. It was submitted that it is only if the decree is in favour of the respondent that he can file cross objections against any finding against him, whereas in the facts of the present case, the petition of the petitioner is deemed to have been rejected, and hence, the cross objection is not maintainable at all.
23.2 Next, it was submitted that the vacant post can be
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filled by the candidates who are still in the list whereas the name of this petitioner has been deleted from the list as he had not joined the post which he had been offered. Therefore, the decision of the Supreme Court in the case of Jai Narain (supra) would not come to the aid of the petitioner. It was submitted that even otherwise even on merits, the petitioner is not entitled to be appointed against the post of Deputy Superintendent of Police SEBC Male, inasmuch as, candidates who are more meritorious than the petitioner are available.
23.3 Insofar as the contention that the respondents having not approached this court seeking any relief, no relief can be granted in their favour is concerned, the learned counsel placed reliance upon the decision of the Supreme court in the case of State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347, wherein the court has held that the person who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. It was submitted that however, the court has carved out an exception that this may not apply to those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. It was submitted that normal rule is that a party has to come to the court, but it cannot be said that there is no exception. In a case where the court gives the judgment in rem, all are entitled to relief. It was submitted that the directions to fill up Page 49 of 102 C/LPA/814/2018 JUDGMENT the vacancies in order of merit are valid and in consonance with the law laid down by the Supreme Court and that the directions are not perverse and are in conformity with law, and, therefore, the cross objections and the appeal both be turned down.
23.4 Reference was made to the decision of the Supreme Court in the case of Manoj Manu v. Union of India, (2013) 12 SCC 171, for the proposition that it is manifest that a person whose name is included in the select list does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once it is found that the decision of the Government is based on some valid reason, the court would not issue any mandamus to the Government to fill up the vacancies. It was submitted that in the facts of the present case, the Government has not taken any decision not to fill up the advertised vacancies, and hence, the learned Single Judge was wholly justified in directing that the vacancies be filled up in order of merit.
25. Mr. Hemang Parikh, learned advocate for the respondents No.11 to 14 in Letters Patent Appeal No.814 of 2018 reiterated the contentions raised by the learned counsel for the respondents. It was submitted that the learned Single Judge while issuing directions in paragraph 41.1 of the decision has also considered the larger interest and directed that the meritorious candidates should be given appointments. It was Page 50 of 102 C/LPA/814/2018 JUDGMENT submitted that such directions being just and proper, the vacant posts should be permitted to be filled up by meritorious candidates. It was submitted that considering the dispute between the two candidates, the learned Single Judge has rightly directed that the next meritorious candidates should be appointed.
26. Mr. Nachiket Mehta, learned advocate for respondents No.15 to 22 in Letters Patent Appeal No.814 of 2018 has adopted the submissions advanced by Mr. M. J. Thakore.
27. Mr. Nisarg Shah and Mr. Mohsin Koreja, learned advocates for respondents No.16 and 19 respectively in Letters Patent Appeal No.815 of 2018 have adopted the submissions advanced by Mr. G.M. Joshi.
28. Mr. A. D. Bhatt, learned advocate for respondent No.31 in Letters Patent Appeal No.828 of 2018 has adopted the submissions advanced by Mr. Shalin Mehta and Mr. G.M. Joshi.
29. Mr. Sanat Pandya, learned advocate has adopted the submissions made on behalf of the appellants.
30. In rejoinder, Mr. Mihir Thakore, learned counsel for the appellants submitted that insofar as the locus of the appellants to challenge the impugned judgment is concerned, by the order dated 18.12.2017 passed by the Government, five candidates have been placed at Merit No.38, 43, 53, 60 and
62. The resultant effect as per the directions issued by the learned Single Judge is to give each of them seniority, as a consequence whereof, these five candidates would be placed Page 51 of 102 C/LPA/814/2018 JUDGMENT higher above the appellants in the seniority list. It was submitted that the seniority list has been operated for the purpose of promotion to the post of Superintendent of Police up to Serial No.24 and by placing the five candidates above them, the chances of promotion of the appellants would be adversely affected. It was submitted that seniority is a material factor in granting promotion which cannot be ignored and, therefore, the appellants have locus to challenge the judgment. It was submitted that there is no delay on the part of the appellants as the moment the orders came to be made, they preferred appeals. It was submitted that in the original petition they did not seek to be impleaded as parties as the petitioners therein were below them in the merit list and the relief prayed for did not affect the appellants. It is the directions issued by the learned Single Judge which affect the appellants and with which they are aggrieved. It was submitted that the appeals are not premature as appointment orders placing five candidates above them have already been issued.
30.1 Next, it was submitted that at the time when the decision of this court in D.G. Dalal (supra) came to be rendered, the 1980 rules were in force. Rule 18 thereof contained a provision for wait list. Since implementation of the decision of this court in D.G. Dalal entailed a lot of reshuffling, the 2000 rules were brought in to prevent such reshuffling and the concept of wait list was done away with. It was submitted that rule 17 read with rule 19 of the 2000 rules does not contemplate a wait list or filling up vacancies arising out of non-joining of the candidates. Consequently, when forty one candidates have not joined and there is no wait list, by necessary implication, such posts have to be kept vacant.
Page 52 of 102C/LPA/814/2018 JUDGMENT 30.2 Dealing with the contention of the respondents that
the amended rule 17 cannot be applied to the recruitment in question, it was submitted that the rule is clarificatory in nature and does not change the rules of the game. Insofar as the decision of the Supreme Court in B.L. Gupta and another v. M.C.D., (1998) 9 SCC 223, as well as N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157, on which reliance was placed by the learned counsel for the respondents, it was submitted that in the facts of the said cases, the source from which the appointment was to be made was itself changing and if the source of promotion undergoes a change, the principle will have applicability.
30.3 It was submitted that the alleged amendment does not deprive any candidate of any vested right. The amendment only provides that if there is a vacancy on account of no one taking a post, there shall be vacant post and that post would lapse and would be considered in the next recruitment. It was submitted that the provision does not modify the rules, inasmuch as the earlier rules also did not contemplate a wait list. It was submitted that the amending rule, therefore, will have to be read retrospectively with effect from the year 2000. It was submitted that there is no challenge to the rules and that those who have come to this court are those candidates who were thrown out of the first list on application of the decisions of the Supreme Court in the case of Ramesh Ram and Mamta Bisht (supra).
30.4 Reference was made to the decision of the Supreme court in Bihar State Electricity Board v. Suresh Prasad Page 53 of 102 C/LPA/814/2018 JUDGMENT and others, (2004) 2 SCC 681, wherein the question before the Supreme Court was whether the High Court was justified in law in giving direction to the appellant to fill up the vacancies which remained unfilled due to candidates not turning up to join the post? The Supreme Court observed that the appellant therein had taken steps for filling 25 vacancies in the post of Operators pursuant to Advertisement No.3/86 and remaining 25 vacancies from Advertisement No.6/92. The results were notified on the notice-board. The Board recommended names of successful candidates under both the advertisements. Out of 22 candidates selected by the Board for appointment under Advertisement No.3/86, 18 candidates did not turn up. The court noted that the respondents No.1 to 7 therein had applied for appointment under Advertisement No.3/86 dated 15.12.1986 and that they had qualified but were placed at Serial No.23 onwards in the descending order. The court observed that a panel of 22 candidates was prepared for appointment under Advertisement No.3/86 and the respondents No.1 to 7 fell beyond the cut off number. It was observed that no statutory recruitment rules were shown which required the appellant Board to prepare a waiting list in addition to the panel. On behalf of the respondents No.1 to 7, it was contended that when 18 candidates failed to turn up, the appellant was bound to offer posts to candidates in the waiting list. The court held that no such rule has been shown in this regard and, accordingly, held that its decision in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47, squarely applies to the facts of that case. The court further referred to its decision in the case of Jai Narain Ram v. State of U.P., (1996) 1 SCC 332, and drew a distinction that in the facts of the said case the matter was concerning filling of a reserved Page 54 of 102 C/LPA/814/2018 JUDGMENT post. Further, a concession was made in the counter-affidavit filed on behalf of the respondent State that since the post was a reserved post; they can only be filled up by the candidates of reserved categories. It was submitted that in the light of the above decision, when the rules do not provide for preparing a waiting list in addition to the list of recommended candidates, if the selected candidates fail to turn up, the State Government is not bound to offer those posts to other candidates.
30.5 Insofar as the decision of the learned Single Judge in Special Civil Application No.7912 of 2005 is concerned, it was submitted that such decision was based on a concession made by the Assistant Government Pleader and that it is in view of this judgment of the learned Single Judge that the Government thought it fit to clarify rule 17 of the Gujarat Rules of 2000, and it is in that light that the rule 17 as amended by the 2009 rules has to be seen.
30.6 The learned counsel further placed reliance upon the decision of the Supreme Court in CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1, for the proposition that legislations which modify accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect, unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. It was submitted that in this case the list has been prepared in 2011 while the amended rule 17 which came into force in 2009 has not affected anyone who appeared in the exam and explains the earlier rule. Referring to the decisions relied upon on Page 55 of 102 C/LPA/814/2018 JUDGMENT behalf of the respondents on the question of retrospective operation of a statute, it was submitted that all these judgments relate to pre-requisite qualifications wherein the amended provision had the effect of disqualifying candidates, who under the unamended provision were qualified, thereby taking away their substantive right to participate in the recruitment, whereas in the facts of the present case, the amended rule 17 of the Gujarat Rules, does not disturb the eligibility criteria of the candidates, and therefore, those decisions would not be applicable to the facts of the present case. It was submitted that the Supreme Court in N.T. Devin Katti v. Karnataka Public Service Commission (supra), has held that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of the rules during the pendency of selection unless the amended rules are retrospective in nature. It was submitted that thus that decision was rendered in the context of facts where subsequently the source was changed by making the applicants ineligible, whereas the amended rule 17 does not change the source and therefore, has to be applied while making the select list in 2011. It was also contended that there is no difference between the expressions "seats advertised"
and "vacancies advertised". It was submitted that there was no wait list even as per the earlier rules. Since there was no wait list, the question of filling up the vacancies on account of Page 56 of 102 C/LPA/814/2018 JUDGMENT non-joining of meritorious candidates does not arise as the list has already been exhausted.
30.7 It was further submitted that insofar as the petitioner in Special Civil Application No.11163 of 2012 is concerned, he did not accept the post that was offered to him and consequently, in view of sub-rule (4) of rule 9 of the Gujarat Rules, his name stood deleted from the list of candidates recommended by the Commission for appointment and, therefore, the question of offering him any post does not arise.
30.8 Insofar as the application of the decision of the Supreme Court in the case of Ramesh Ram (supra) is concerned, it was submitted that it will make no difference whether the list is finalised by the Commission or the State Government by applying Ramesh Ram, because there is no concept of migration under the rules. Even if the Commission makes the list it will have to shift a meritorious reserved category candidate from the general category to the reserved category if he cannot get a seat of his higher preference in the general category. Reference was made to paragraph 32 of the reported decision in Ramesh Ram (supra), to point out that the Supreme Court has held that to prevent an anomaly whereby a reserved category candidate who has qualified as a part of the general list should not be disadvantaged by being assigned to a lower service against the vacancies in the general category especially because if he availed the benefit of his reserved category status, he would have got a service of a higher preference. With the obvious intention of preventing such an anomaly, rule 16(2) provides that an MRC candidate is Page 57 of 102 C/LPA/814/2018 JUDGMENT at liberty to choose between the general quota or the respective reserved category quota. It was submitted that insofar as the Gujarat Rules are concerned, no one is at a disadvantage as all the candidates are allocated posts in terms of the order of preference given by them, and an MRC candidate is automatically shifted to the reserved category if he is not able to get the post of his higher preference in the general category. It was submitted that in the facts of the case of Ramesh Ram there is no wait list, but only a reserve list. Moreover, the ratio of Ramesh Ram is that there cannot be reservation of more than 50%. It was submitted that the said decision does not lay down any principle of migration. It was contended that there is no scope of migration available under the Gujarat Rules and that the revised list has therefore, been correctly prepared.
30.9 Lastly, it was submitted that if the two judgments in the case of Ramesh Ram and Mamta Bisht (supra) are properly applied, there is no challenge to the preparation of the merit list on the basis of the Gujarat Rules of 2000, and, therefore, if the court finds that the above decisions have been properly applied while preparing the revised list, all the petitions would fail as no other relief has been claimed.
30.10 Insofar as the maintainability of the cross objection filed by the petitioner of Special Civil Application No.11163 of 2012 is concerned, it was submitted that the same would not fall under Order XLI rule 22 of the Code of Civil Procedure inasmuch as on a reading of sub-rule (1) of rule 22 together with the Explanation thereto it is clear that the same contemplates filing of cross objection against a finding Page 58 of 102 C/LPA/814/2018 JUDGMENT recorded in a judgment wherein the decision is wholly or partly in favour of such person; whereas in the present case the learned Single Judge has not granted any relief in favour of the petitioner and hence, in the absence of any decision in favour of the petitioner, the cross objection is not maintainable.
31. In the light of the rival contentions advanced by the learned counsel for the respective parties, the first question that arises for consideration is whether the appellants have the locus to prefer the present appeals?
31.1 For this purpose, it would be necessary to examine as to whether the appellants can be said to be aggrieved by the impugned judgment and order. While the impugned judgment does not set aside the revised merit list which was subject matter of challenge in the writ petitions, the learned Single Judge has directed that the vacancies that remained unfilled on account of non-joining of candidates be filled up and has further directed that the decision of this court in D.G. Dalal (supra) be followed. To comply with the said directions, the respondents have resorted to reshuffling of posts by pushing up candidates who initially were appointed on posts of their lower preference in order of merit, to posts of their higher preference. Accordingly, five posts of Deputy Superintendent of Police which remained vacant as the candidates who were appointed against such posts did not join are now sought to be filled up. The persons who are now sought to be appointed to these posts rank higher than the appellants in the merit list and are, therefore, sought to be placed above the appellants and consequently, the seniority and chances of promotion of Page 59 of 102 C/LPA/814/2018 JUDGMENT the appellants is likely to be adversely affected. Significantly, none of these persons who are sought to be placed above the appellants had approached this court seeking any relief for filling up the vacant posts. These five persons are merely beneficiaries of the directions issued by the learned Single Judge to apply the decision of this court in D.G. Dalal (supra) while filling up the vacancies, which has resulted in reshuffling of seats to ensure that less meritorious candidates are not placed above more meritorious candidates. It may also be pertinent to note that these appeals are mainly defended by the beneficiaries of the impugned judgment and order who had neither challenged the revised merit list nor the action of the State Government of not filling up the vacancies.
31.2 It is true that despite the fact that in their appointment orders, it was specifically mentioned that the same were subject to the final outcome of the petitions; the appellants did not seek to be joined as parties therein. It, however, appears that the appellants did not join in those proceedings presumably because their names found place in both the merit lists and those who had come to the court were less meritorious candidates who were not likely to adversely affect them in any manner. It is in the light of the wide directions issued by the learned Single Judge to fill up all the vacancies by offering them to the next meritorious candidates and further to keep in view the ratio laid down by this court in the case of D.G. Dalal (supra) while giving such appointments as a consequence whereof the candidates who were not before the court are sought to be placed above the appellants, that the seniority and chances of promotion of the appellants are adversely affected. The appellants are, therefore, directly Page 60 of 102 C/LPA/814/2018 JUDGMENT affected by the implementation of the impugned judgment. A person is said to be aggrieved by an order if that order directly affects or prejudices his interest. Since the appellants are directly affected and prejudiced by the impugned judgment, consequently they are aggrieved parties and hence, it is open for them to challenge the impugned judgment and order. The contention that the appellants have no locus to challenge the impugned judgment, therefore, does not merit acceptance.
31.3 Insofar as the decision of the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar (supra) on which reliance has been placed on behalf of the respondents is concerned, the same was rendered in the facts of a case where a rival cinema house was being set up which would adversely affect the monopolistic commercial interest of the appellant therein, causing pecuniary harm and loss of business from competition. The court held that such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest. The above decision would have no applicability to the facts of the present case, inasmuch as in service jurisprudence, anything that adversely affects or prejudices a person's seniority or prospects of promotion results in such person suffering from a legal grievance.
31.4 As regards the decision of the Supreme Court in Shiba Shankar Mohapatra v. State of Orissa (supra) wherein it has been held that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion; the said decision would also not have any applicability to the facts of the present case inasmuch as the Page 61 of 102 C/LPA/814/2018 JUDGMENT petitioners in the writ petitions stood lower in merit than the appellants and the reliefs prayed for did not affect the appellants. It is on account of the directions issued by the learned Single Judge, which are beyond the scope of the reliefs prayed for in the petitions that the appellants have been affected and are, therefore, aggrieved. Besides in the above decision the court has held that the court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum; whereas in the facts of the present case third party rights are being created on account of implementation of the directions issued by the learned Single Judge in the impugned judgment. The court has further held that the settled legal proposition that emerges is that once the seniority has been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In the present case, the seniority of the appellants has been fixed and has remained in existence for a reasonable period, and it is on account of the directions issued in the impugned judgment that their seniority is sought to be disturbed,
32. This court during the course of arguments had also considered as to whether the impugned judgment could be sustained without adversely affecting the appellants; however, it is found that so long as the directions remain the same would have a direct impact on the seniority and chances of promotion of the appellants and hence, it is necessary to examine the impugned order on merits. The contention that the appellants do not have the locus standi to challenge the impugned judgment is, therefore, rejected.
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33. Before adverting to the merits of the appeals, certain facts are required to be noted. In paragraph 16 of the impugned judgment and order, the learned Single Judge has framed the following five issues:
"(1) Whether the decisions of the Supreme Court of India in the case of Ramesh Ram and Mamta Bisht will have any application in the recruitment in question?
(2) While following the above principles of law in the recruitment in question, whether the actions of the State and the GPSC are otherwise erroneous and / or mischievous, as alleged by the petitioners?
(3) Whether any illegality is committed by the State while giving appointments to the candidates from the impugned revised merit list dated 26.04.2011, prepared and published by the GPSC?
(4) Whether any ineligible person is appointed from the impugned list and if yes, whether he / she is illegally continued by the State in service, and for that purpose, whether any manipulation / tampering is made with the record by any officer, as alleged by the petitioners?
(5) After giving such appointments from the impugned merit list dated 26.04.2011, at least 41 candidates have not joined the service, which the State is refusing to make available to the candidates who are next in merit, on the basis of the very same examination, though the claim of those next meritorious candidates is within the notified and vacant posts. Whether this action of the State is sustainable and / or whether the claim of the petitioners should be accepted to the extent of notified vacant Page 63 of 102 C/LPA/814/2018 JUDGMENT posts?"
34. It may be noted insofar as Issues No.3 and 4 are concerned, the same arise out of Special Civil Application No.8203 of 2012 and hence, are not the subject matter of these appeals.
35. In these appeals, the court is primarily concerned with Issues No.1, 2 and 5.
36. In this backdrop, the next question that arises for consideration is, whether the learned Single Judge was right in holding that the decisions in Ramesh Ram (supra) and Rajesh Daria as followed in Mamta Bisht (supra) were not properly applied during the course of the recruitment process?
37. At this juncture, reference may be made to the impugned judgment and order to see how the learned Single Judge has dealt with this issue. The findings on the first issue are noted under two heads. The first is qua the application of the decision of the Supreme Court in Ramesh Ram (supra) and the second is qua the application of the decision of the Supreme Court in Mamta Bisht (supra).
37.1 Insofar as the first part as regards the applicability of the decision of the Supreme Court in Ramesh Ram (supra) is concerned, the learned Single Judge found that the decision of the Constitution Bench of the Supreme Court of India is the declaration of law, which needs to be applied with full force and in totality even in the recruitment in question, though Page 64 of 102 C/LPA/814/2018 JUDGMENT there may not be any rule like that in the State of Gujarat.
37.2 Insofar as the applicability of the decision of the Supreme Court in Mamta Bisht (supra) is concerned, the learned Single Judge first examined as to whether there was any declaration of law in that decision and came to the conclusion that there is no declaration of law in that decision, but that the declaration of law can be traced in the decision of the Supreme Court of India in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785. The learned Single Judge further held that the decision of the Supreme Court in the case of Rajesh Daria is the law and the same would apply to the recruitment in question as well. The learned Single Judge further held that the decision of this court in Komal Katara (supra) would not have any applicability to the recruitment in question.
37.3 In paragraph 19.6 of the impugned judgment, the learned Single Judge held thus:-
"19.6 Considering the totality, it is held that the decisions of the Supreme Court of India in the case of Ramesh Ram and Rajesh Daria are the declarations of law, which are applicable to all the recruitments and the recruitment in question is no exception. The first issue is thus answered in favour of the respondent Authorities."
38. As noticed earlier, the challenge to the revised list was on two counts. Firstly, on the ground that the rules did not contemplate revision of a list which was already published; and Page 65 of 102 C/LPA/814/2018 JUDGMENT secondly, on the ground that the decision of the Supreme Court in Ramesh Ram (supra) would not be applicable to the recruitment in question and that in the light of the decision of this court in Dr. Komal Manubhai Katara (supra) the decision of the Supreme Court in Mamta Bisht would also not be applicable. Insofar as the first ground is concerned, a bare perusal of the impugned judgment reveals that such ground has not been dealt with, despite which, the original petitioners have not raised any grievance about the same. Insofar as the second ground is concerned, the learned Single Judge has held against the petitioners, but the petitioners have accepted the said findings recorded by the learned Single Judge and have not challenged the same.
39. The learned Single Judge then decided issues No.3 and 4 which relate to the process of appointment by the State Government after the merit list was forwarded by the Commission, wherein the learned Single Judge has found several irregularities and illegalities. The learned Single Judge in paragraph 27.1 of the impugned judgment has held that issues No.3 and 4 need to be answered by holding that number of illegalities in procedure and in substance - both, are committed by the State while giving appointments to the candidates from the revised merit list dated 26.4.2011 and further that ineligible person(s) is appointed and for that purpose, even manipulation and tampering is also made with the record, which could be by some officer(s), which the State needs to find out and deal with. Thus, it is evident that issues No.3 and 4 relate to a stage after the forwarding of the revised merit list by the Commission to the State Government and, therefore, have no connection with the issue involved in the Page 66 of 102 C/LPA/814/2018 JUDGMENT petitions which give rise to these letters patent appeals wherein the validity of the merit list was subject matter of challenge.
40. Insofar as the findings on the first part of issue No.1 are concerned, the learned Single Judge held that the application of the decision of the Supreme Court in Ramesh Ram (supra) could be by the State at the stage of allocation of the service and not by the Commission while preparing the merit list.
41. At this juncture, reference may be made to the findings recorded by the learned Single Judge in this regard, which are extracted herein below for ready reference:
"29.5 Though there cannot be any dispute that Ramesh Ram is the law of the land and recruitment in question is no exception to it, the application thereof could be by the State at the stage of allocation of the service, and not by the GPSC while preparing the merit list. In the present case, it is done by the GPSC and not by the State. This is not merely an error, it has resulted into serious consequences, without any cure thereof. Thus, it has resulted in illegality - in procedure and in substance, both. Breach in procedure is to the extent that it was to be applied by the State after the recommendations are received from GPSC, however it is applied by the GPSC before recommendations are made to the Government. Breach in substance is to the extent that there is exclusion of number of candidates from the select list on the ill-perceived application of Ramesh Ram, though in some cases the concerned MRC had not only not asked for it, he had specifically refused to do so. These two aspects are interwoven and can be explained from the following examples which are not hypothetical but based on the impugned merits list dated 26.04.2011.
29.6 There are number of candidates, belonging to reserved category, who got the place in the select list on their own merits, without availing any concession and Page 67 of 102 C/LPA/814/2018 JUDGMENT were thus Meritorious Reserved Category Candidate (MRC), however they were treated to be Reserved Category Candidate (RC) by GPSC itself by applying Ramesh Ram, on assumption that thereby they might get the posts of their higher preference. However, when the recommendations were made to the Government of those candidates, and when the appointments were given to them by the State, ultimately those candidates did not join the service at all. Ramesh Ram would not come in play qua those candidates at all. This has resulted into exclusion of few reserved category candidates from the select list. This is the damage which the GPSC and the State both have done to the reserved category candidates. To elaborate this point further, it is noted that, one candidate viz., Rohitkumar Rameshchandra Wadhwana, Merit Rank No.76, total Marks obtained - 638, had not availed any concession as SEBC candidate and therefore his name was included as general category candidate in the merit list of 2010 at Serial No.76.(This aspect is noted in the footnote of the 2010 list.) In the impugned list dated 26.04.2011 he is shown as SEBC candidate I.e. though he was an MRC, he is now treated to be a reserved category candidate. This is done by the GPSC on assumption that if he continues to be an unreserved category candidate I.e. MRC, he may not get Deputy Superintendent of Police, which is the post of his first preference. Therefore he is treated as SEBC candidate. His name therefore is included in Annexure- III-B with the impugned list dated 26.04.2011.
The effect thereof is that resultantly, one SEBC candidate is pushed out of the list. It is noted that the said candidate ultimately did not join the service at all. Thus the ratio of Ramesh Ram which was to apply at the stage of allocation of service, that too at the option of the concerned MRC, is forcefully applied by the GPSC though that candidate was not to join the service at all, even if he was to get the post of his first choice. The damage of applying Ramesh Ram wrongly is already done and still the cure thereof is denied by the GPSC and the State, both. It is this situation which needs to be taken care of by this Court. It is also noted that this example is only illustrative and not exhaustive.
29.7 The illegality does not end there. There were many reserved category candidates, who got the place in the select list on their own merits without availing any Page 68 of 102 C/LPA/814/2018 JUDGMENT concession and were thus Meritorious Reserved Category Candidates (MRCs), however they were treated to be Reserved Category Candidate (RC) by GPSC by applying Ramesh Ram, on assumption that thereby they might get the posts of their higher preference. However, when the recommendations were made to the Government of those candidates, and when in turn the appointments were given to them by the State, actual benefit is not passed to the deserving candidates but is siphoned away by other candidates. For this purpose, one example is noted in the later part of this judgment (para : 43.7).
30. From the above, the conclusion is that, though the decision of the Supreme Court of India in the case of Ramesh Ram will have application in the recruitment in question also, it is unauthorisedly applied by the GPSC at a premature stage, since it was to be applied by the State, at the stage of allocation of service to the MRCs. The further conclusion is also that it is applied to even those candidates, where it was not required. The consequence of this illegality is that it has resulted in exclusion of many reserved category candidates from the revised merit list dated 26.04.2011 (the impugned one), who were already there in the first select list of the year 2010 which was qua this very recruitment."
42. It may be noted insofar the findings recorded in paragraph 29.7 of the impugned judgment are concerned, there is no factual basis for such findings. There is no material whatsoever to show that any reserved category seats have been siphoned away by any other candidate. The record of the case shows that out of the meritorious reserved category candidates, only one candidate did not join. Those meritorious reserved category candidates who are allocated seats of their higher preference in the reserved category have not raised any grievance that they would have preferred a seat of their lower preference in the general category; and in any case, in view of the proviso to sub-rule (1) of rule 9 of the Gujarat Rules, since it is not permissible to change the order of preference, a Page 69 of 102 C/LPA/814/2018 JUDGMENT meritorious reserved category candidate who gets a seat of his higher preference in the reserved category cannot refuse a post of his higher preference and seek a post of his lower preference in the general category.
43. As regards the second part of Issue No.1, namely the application of the decision of the Supreme Court in Mamta Bisht (supra) is concerned, the learned Single Judge held that though the decision of the Supreme Court in the case of Rajesh Daria (supra) as followed in the case of Mamta Bisht will have application in the recruitment in question also, the action of the respondent authorities, on facts, is found less to uphold the law, more to take advantage of it. The learned Single Judge, accordingly, has held thus:
"33. For the above reasons, it is held that, though the decisions of the Supreme Court of India in the case of Ramesh Ram and Rajesh Daria (as followed in Mamta Bisht) will have application in the recruitment in question, as answered vide issue No.1, while following the said principles of law, the actions of the State and the GPSC are not only erroneous but have been mischievous. The stand of the State and the GPSC that the impugned action was taken by them to uphold the law, is rejected and it is declared that it was more for their convenience and advantage, less for upholding the law."
Thus, while holding that the decisions of the Supreme Court in Ramesh Ram and Rajesh Daria (as followed in Mamta Bisht) would be applicable to the recruitment in question, the learned Single Judge has held that while following the said principles of law, the actions of the State Government and the Commission are erroneous and mischievous.
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44. In paragraph 35.1, the learned Single Judge has inter alia held that since the illegality has started from the preparation of the impugned merit list dated 26.4.2011, the correction should also start from that stage itself. The petitions therefore, need to be allowed by setting aside the impugned select list dated 26.4.2011 prepared and published by the Commission. The learned Single Judge was however of the view that the consequences of doing so would be very far reaching and therefore, tried to explore other options. The learned Single Judge thought that one way which can salvage the situation to a substantial extent is that the total number of affected persons by the impugned action of the respondents is forty. It has come on record that at least forty one candidates have not joined. After referring to the details of the vacancies, the learned Single Judge observed that relief can be granted to the affected candidates against the unfilled notified vacancies and that instead of setting aside all subsequent actions of the State, direction needs to be given to the State and the Commission to offer appointments to the next meritorious candidates on the notified unfilled vacancies from the advertisement in question. The learned Single Judge further observed that while undertaking this exercise, the decision of this court in the case of D.G. Dalal (supra) shall also be kept in view.
45. Thus, insofar as the application of the decision of the Supreme Court in Ramesh Ram (supra) is concerned, the learned Single Judge has held that though that decision would be applicable to the recruitment in question, the same has to be applied at the stage of allocation of posts by the Government and not at the time of preparation of the list by Page 71 of 102 C/LPA/814/2018 JUDGMENT the Commission recommending names of candidates to the extent of the advertised vacancies. The correctness of such view has to be examined in the context of the rules applicable to the recruitment in question, namely the Gujarat Civil Services (Class I and Class II) Competitive Examination Rules, 2000. For this purpose, reference may be made to relevant rules:-
46. Rule 9 of the Gujarat Rules provides for Order of Preference and says that:
"(1) A candidates at the time of interview test shall indicate in his own hand writing, the order of preferences for the posts to which he desires to be considered for appointment in such manner as may be prescribed by the Commission:
Provided that the preference once given by the candidate shall be treated as final and no request for revision, addition, alteration or change in the preference shall be entertained by the Commission or by the Government.
(2)(a) The order of preference for the posts indicated by the candidate shall not confer any right for appointment to those posts. Having regard to the rank in the order of merit and the number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment.
(b) Where a candidate has not given preference for any post, or the candidate has given preference only for a few posts, and the number of posts for which he has given preference are not available to accommodate the candidate as per his preference, such candidate shall be considered for appointment to any of the remaining posts after the process of appointment of the other candidates, who have given preference for all the scheduled posts, is completed.
(3) The appointment of a candidate to a particular
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post shall be subject to the provision of recruitment rules in force relating to that post.
(4) Where a candidate fails to join the post offered to him, his name shall be deleted from the list of candidates recommended by the Commission for appointment.
(5) Where the candidate has been appointed to a particular post, no request shall be entertained by the Government for change of appointment to another post."
47. Thus, in terms of the sub-rule (1) of rule 9 of the Gujarat Rules read with the proviso thereto, the candidate has to give his order of preference at the time of interview and is not permitted to change the same thereafter. Evidently, therefore, allocation of seats would be in the order of preference given by the candidate subject to availability of posts.
48. Rule 17 bears the heading "List of order of merit" and reads thus:
"17. The names of the candidates shall be arranged by the Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the Main Examination (written) and interview test and in that order, the Commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in:
Provided further that where the vacancies reserved for candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Class, (including Nomadic Tribes and Denotified Tribes) cannot be filled up on the basis of the qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up the deficiency in the reserved posts."
49. Thus, to the extent the above rule is relevant for the Page 73 of 102 C/LPA/814/2018 JUDGMENT present purpose, it provides that the Commission shall prepare a list in order of merit and recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in. Accordingly, in the present case, the Commission was required to recommend names of 317 candidates in the order of merit.
50. While recommending the names of 317 candidates, it is not as if the Commission had to just recommend candidates in terms of the marks obtained. While doing so, the Commission was required to keep in view the reservation of seats for the various categories like Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward Class, etc. as well as reservation for women. For this purpose, the Commission was required to ascertain as to how many reserved category candidates would qualify for general category seats so that the number of candidates who should be recommended in the reserved category can be worked out. Similarly, while computing the horizontal reservation in case of women, such exercise was also needed to be carried out.
51. Rule 19 of the Gujarat Rules provides for "Result of examination" and reads thus:
"(1) The Commission shall publish, in the Official Gazette, the result of the examination in a single list of Class-I and Class-II posts.
(2)(a) The result of the candidates, whose names are to be recommended to the Government for the appointment to the posts of Class-I and Class-II, shall be arranged according to the order of merits of candidates along with the seat number and the total marks obtained by each of the candidates.Page 74 of 102
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(b) The Commission shall also display on its notice board the result of unsuccessful candidates containing the names, seat number and total marks obtained by each of the candidates.
(3) The Commission shall send a copy of the result so published in the Official Gazette to the Government."
52. On a plain reading of the above rule, it is evident that it contemplates publication of the result in a single list in the order of merits of candidates. Clause (b) of sub-rule (2) of rule 19 of the Gujarat Rules requires the Commission to display the result of unsuccessful candidates. The rule does not contemplate preparation of any wait list.
53. Rule 22 provides for forwarding the result to the Government and reads thus:
"22. The Commission, on declaration of the result shall forward to the Government the list of candidates who are recommended for appointment along with necessary particulars such as whether candidate belongs to Scheduled Castes, Scheduled Tribes or Socially and Educationally Backward Classes including Nomadic Tribes and Denotified Tribes" and his date of birth, qualifications, order of preference for post and such other particulars as the State Government may direct."
54. On a conjoint reading of rules 17, 19(2)(a) and 22 of the Gujarat Rules, it emerges that names of candidates to the extent of notified vacancies are required to be recommended and the result of the candidates whose names are to be recommended for appointment is required to be arranged in the order of merit. The list so prepared shall contain necessary particulars as to whether the candidate belongs to any Page 75 of 102 C/LPA/814/2018 JUDGMENT reserved category, his date of birth, qualifications and order of preference for post. Thus, the order of preference for post is required to be indicated in the list itself.
55. It may be noted that the Gujarat Rules do not have any rule akin to rule 16 of the Civil Services Examination Rules which came up for interpretation in the case of Ramesh Ram (supra); however, it is an admitted position that the decision of Ramesh Ram has to be applied even to this recruitment inasmuch as the learned Single Judge has held Issue No.1 in favour of the Government and the petitioners in the writ petitions have not challenged such finding. The question that then arises for consideration is the manner and the stage at which the decision is to be applied and whether the course of action adopted by the respondents would render the revised list invalid.
56. A perusal of the decision of the Supreme Court in Ramesh Ram (supra) shows that it was the constitutional validity of sub-rules (2) and (5) of rule 16 of the Civil Services Examination Rules that was subject matter of challenge therein. The court was, therefore, concerned with the validity of those rules. Reference may be made to the relevant extracts of the said decision which read as under:-
"19. The case of the contesting respondents is that the newly introduced system which is different from the single list system followed earlier (prior to amendment of the CSE Rules) will undermine the rights of the reserved category candidates to get assigned to services of higher preference (e.g. IAS, IPS or IRS). They also urged that this system will reduce the aggregate number of reserved candidates who will be selected while simultaneously Page 76 of 102 C/LPA/814/2018 JUDGMENT increasing the number of general candidates. It also puts candidates who come through the second list at a disadvantage in terms of seniority and promotions for rest of their career in their respective services. By the impugned order, the High Court had vindicated these grievances, particularly those raised by OBC candidates.
20. In the light of the submissions made by the learned counsel appearing for different appellants, the following questions arise for consideration:
I. Whether the reserved category candidates who were selected on merit (i.e. MRCs) and placed in the list of general category candidates could be considered as reserved category candidates at the time of "service allocation"?
II. Whether Rules 16(2), (3), (4) and (5) of the CSE Rules are inconsistent with Rule 16(1) and violative of Articles 14, 16(4) and 335 of the Constitution of India? III. Whether the order of the Central Administrative Tribunal was valid to the extent that it relied on Anurag Patel v. U.P. Public Service Commission, (2005) 9 SCC 742 (which in turn had referred to the judgment in Ritesh R. Sah v. Dr. Y.L. Yamul, (1996) 3 SCC 253, which dealt with reservations for the purpose of admission to postgraduate medical courses); and whether the principles followed for reservations in admissions to educational institutions can be applied to examine the constitutionality of a policy that deals with reservation in civil services."
"35. The learned counsel for the respondent questioned the rationale of declaring CSE results in two phases in order to support the proposition that even if MRC candidates are given a service of a higher preference, they should not oust lower-ranked reserved category candidates. However, Rule 16(2) should not be interpreted in an isolated manner since it was designed to protect the interests of MRC candidates. MRC candidates having indicated their status as SC/ST/OBC at the time of application, begin their participation in the examination process as reserved candidates. Having qualified as per the general qualifying standard, they have the additional option of opting out of the reserved category and occupying a general post. Where, however, they are able to secure a better post in the reserved list Page 77 of 102 C/LPA/814/2018 JUDGMENT their placement in the general list should not deprive them of the same. In that respect, the adjustment referred to in Rule 16(2) does not, in fact, denote any change in the status of MRC from general to reserved. To the contrary, it is an affirmation of the reserved status of MRC candidate. Rule 16(2) exists to protect this reserved status of the MRC candidates.
36. We must also take note of the fact that when MRC candidates get adjusted against the reserved category, the same creates corresponding vacancies in the general merit list (since MRC candidates are on both lists). These vacancies are of course filled up by general candidates. Likewise, when MRC candidates are subsequently adjusted against the general category [i.e. without availing the benefit of Rule 16(2)], the same will result in vacancies in the reserved category which must in turn be filled up by wait-listed reserved candidates. Moreover, the operation of Rule 16 does not result in the ouster of any of the candidates recommended in the first list. Many of the wait-listed candidates are accommodated in the second stage, and the relatively lower ranked wait-listed candidates are excluded. It is pertinent to note that these excluded candidates never had any absolute right to recruitment or even any expectation that they would be recruited. Their chances depend on how MRC candidates are adjusted."
"42. Therefore, we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will therefore be offered to general category candidates. This is the only viable solution since allotting these general category seats (vacated by MRC candidates) to relatively lower-ranked reserved category candidates would result in aggregate reservations exceeding 50% of the total number of available seats. Hence, we see no hurdle to the migration of MRC candidates to the reserved category."
"59. On behalf of the respondents in the appeals, it was submitted that Rules 16(2), (3), (4) & (5) infringes Article Page 78 of 102 C/LPA/814/2018 JUDGMENT 16(4). We do not accept this proposition since Rule 16(2) and the subsequent sub-rules merely recognise and advance inter se merit among the reserved category candidates in the manner that has been demonstrated before us by the learned Solicitor General. Therefore, Rule 16 protects the interests of a reserved category candidate selected in the general (unreserved) category by giving him the option either to retain his position in the open merit category or to be considered for a vacancy in the reserved category, if it is more advantageous to him/her.
60. The need for incorporating such a provision is to arrest arbitrariness and to protect the interests of the meritorious reserved category candidates. If such rule is declared redundant and unconstitutional vis-à-vis Articles 14, 16 and 335 then the whole object of equality clause in the Constitution would be frustrated and MRC candidates selected as per the general qualifying standard would be disadvantaged since the candidate of his/her category who is below him/her in the merit list, may by availing the benefits of reservation attain a better service when allocation of services is made. Rule 16 in essence and spirit protects the pledge outlined in the Preamble of the Constitution which conceives of equality of status and opportunity."
57. At this juncture, reference may be made to the averments made in the affidavit-in-reply of the Commission wherein the manner in which the second list has been prepared has been set out. It has been averred therein that the first list was prepared by applying the decision of this court in Komal Katara (supra) that is, on a misunderstanding that the female candidates making it to the merit list on their own merit without availing any benefit of female reservation were not to be counted towards female reservation and that only those female candidates who were included in the merit list by relaxing the general merit standard were to be counted towards female reservation. Out of the 317 vacancies, 101 Page 79 of 102 C/LPA/814/2018 JUDGMENT were earmarked for female candidates in addition to the female candidates who were otherwise finding place in the merit list generally in the respective category. Accordingly, 28 female candidates who had found place in the list on their own merit were not taken into account and were excluded from the female reservation quota and thereafter 28 female candidates were pushed up from the different categories by relaxing the minimum merit standard for each such category of female candidates and placed in the merit list. This resulted in 128 female candidates getting into the merit list against a total 101 vacancies for female reservation.
57.1 It is further averred that while implementing the decision of the Supreme Court in Rajesh Daria (supra), 28 female candidates who found place in the list on their own merit were also counted towards the women's reservation quota of 101 and consequently, 28 female candidates were pushed out in the second list. It is further averred that as many as 17 MRC candidates have been offered more preferred posts in conformity with the decision of the Supreme Court in Ramesh Ram.
58. In the aforesaid backdrop, having regard to the Gujarat Rules of 2000 which govern the recruitment in question, what is required to be examined is as to how the principles laid down in Ramesh Ram and Rajesh Daria (supra) can be applied to the recruitment in question.
59. At this juncture, reference may be made the procedure provided under rule 16 of the Civil Services Examination Rules as referred to in the decision of the Supreme Court in Ramesh Page 80 of 102 C/LPA/814/2018 JUDGMENT Ram (supra). The court observed thus:
"Proviso to sub-rule (1) lays down that a candidate who belongs to the SC, ST and OBC categories and who has qualified on his own in the merit list shall not be recommended against the vacancies reserved for such classes if such candidate has not availed of any of the concessions or relaxations in the eligibility or the selection criteria. The other sub-rules provide as to how meritorious reserved category candidates are to be adjusted and once they get services of their preference after availing the benefit of their reserved status (as SC, ST, OBC or any other applicable category), the candidates whose names are in the consolidated reserve lists are to be subsequently adjusted. The consolidated wait list includes the candidates from general category and reserved category. If an MRC candidate who belongs to OBC category has availed the benefit of his status for better service allocation then the seat vacated by him will go to a general category candidate. If he chooses not to avail the benefits of special status then he would be counted in general category and the seat vacated by him in the reserved category will automatically go to a candidate who belongs to the same reserved category.
As already explained, the current process entails that a reserved candidate, although having done well enough in the examination to have qualified in the open category, does not automatically rescind his/her right to a post in the reserved category."
60. A perusal of the above decision reveals that rule 16 of the CSE Rules provided for two lists; one general category list which includes the meritorious reserved category candidates and the other a reserved category list with equal number of names of general category and reserved category candidates to the extent of the number of meritorious reserved category candidates included in the general category list are included. If a meritorious reserved category candidate who belongs to the OBC category has availed the benefit of his status for better Page 81 of 102 C/LPA/814/2018 JUDGMENT service allocation, then the seat vacated by him will go to a general category candidate. If he chooses not to avail the benefits of special status then he would be counted in general category and the seat vacated by him in the reserved category will automatically go to a candidate who belongs to the same reserved category.
61. Thus, while the Civil Services Examination Rules specifically makes provision for a reserved list so as to meet with the situation of migration of meritorious reserved category candidates to the reserved category, in the Gujarat Rules there is no similar provision. In the absence of such a provision, what could be the mode of application of the ratio of the decision of the Supreme Court in Ramesh Ram (supra) is the question. However, one thing is clear, namely that, the decision does not lay down any ratio to the effect that preference has to be considered at the stage of allotment of post by the Government.
62. In this backdrop, it may be noted that in view of the provisions of rule 9 of the Gujarat Rules, the order of preference has to be given by a candidate at the time of interview test which shall be treated as final and no request for revision, addition, alteration or change therein shall be entertained by the Commission or the State Government. Therefore, once a candidate gives his order of preference, he is bound by it and cannot change it even at the stage of allocation of posts. Therefore, in case of a meritorious reserved category candidate, if he is in a position to get a general category post of his higher choice, he is required to be considered against such post. In case he is in a position to get Page 82 of 102 C/LPA/814/2018 JUDGMENT a post of his higher preference in the reserved category, he has to be considered against such post in which case, his status would be that of a reserved category candidate. Therefore, to that extent one seat in the reserved category gets reduced and one seat in the general category gets increased. Now if this exercise is carried out at the stage of allocation, if a meritorious reserved category candidate has to be allotted a reserved category seat, then one general category seat would remain vacant and one reserved category candidate from the list of names recommended by the Commission would be required to be pushed out creating an incongruous situation in the absence of any reserved list of candidates. Therefore, considering the scheme of the Gujarat Rules, which do not provide for exercise of any option at the stage of allotment of posts and which do not permit change of order of preference, the course of action adopted by the respondents whereby the Commission has prepared the list by considering the preferences given by the meritorious reserved category candidates appears to be the most appropriate manner of implementing the decision of the Supreme Court in Ramesh Ram (supra).
63. A perusal of the select list shows that it has been prepared by the Commission on an application of the decisions of the Supreme Court in Ramesh Ram and Mamta Bisht (supra). For the purpose of applying Ramesh Ram, the Commission has taken into consideration the order of preference given by the candidates and where a meritorious reserved category candidate is not in a position to get the post of his first preference in the general category, he has been considered against the reserved post of his higher preference.
Page 83 of 102C/LPA/814/2018 JUDGMENT Significantly, none of the meritorious reserved category candidates have challenged the course of action adopted by the respondents nor has any such candidate raised a grievance that he was forced to migrate to a reserved seat on a post of his higher preference though he would have preferred to have retained a post of lower preference in the general category. Except for the fact that some reserved category candidates have not joined service at all, which would have been possible even if preferences were considered at the stage of allocation of posts by the Government, no prejudice can be said to have caused to anyone on account of the decision of Ramesh Ram being implemented at the stage of preparation of list by the Commission. Besides, as noted hereinabove, as the rules do not provide for a wait list, preparing the list of recommended candidates by applying Ramesh Ram at the stage of preparation of list, results in less posts remaining vacant, inasmuch as it is only in such cases where the candidates do not join that the posts would remain vacant, whereas if Ramesh Ram were to be considered at the stage of allocation of posts by the Government, the list of recommended candidates would have to be prepared by considering all meritorious reserved category candidates in the general category and when any such candidate opts for a post of his higher preference in the reserved category, a reserved category candidate would have to be taken out of the list as such post would be then required to be filled in by a general category candidate, but the number of general category candidates in the list of recommended candidates would not be sufficient to fill up such general category posts, which would result in such posts remaining vacant and additionally posts would also remain vacant on account of non-joining of Page 84 of 102 C/LPA/814/2018 JUDGMENT candidates. For example if there are a 100 general category posts and in the list of 100 recommended candidates, there are 80 general category candidates and 20 meritorious reserved category candidates. Out of the 20 meritorious reserved candidates, 12 opt for reserved category posts of their higher preference, as a result of which 12 general category posts would be required to be filled up by general category candidates. Therefore, in all, the number of posts that are required to be filled up by general category candidates would go up to that extent, viz. 80 + 12 general category posts, but the list contains only 80 general category candidates, as a result of which the 12 posts would remain vacant as there is no provision for a wait list or reserved list. Furthermore, the last 12 reserved category candidates from the list of recommended candidates would have to be pushed out of the list as no reserved category posts would be available for allocation. Apart from this there might be candidates, who, after allocation of posts may not join service, which would result in such posts also remaining vacant. Therefore, applying Ramesh Ram at the stage of allocation of posts would result in more posts remaining unfilled than by applying the decision at the stage of preparation of the list of recommended candidates. In the aforesaid premise, having regard to the existing rules, no infirmity can be found in the course of action adopted by the State Government and the Commission in applying Ramesh Ram (supra) at the stage of preparation of the list of recommended candidates.
64. In this case, the rules do not provide for preparation of a wait list and hence, once the entire list of the names recommended by the Commission to the extent of vacancies Page 85 of 102 C/LPA/814/2018 JUDGMENT notified is operated, there is no other list from which further appointments can be made, inasmuch as the rules contemplate a list of candidates recommended for the posts to the extent of vacancies and a list of unsuccessful candidates. Accordingly, the posts that remained vacant on account of non-joining of candidates could not be filled in as the list had been exhausted. It is for this reason that about 41 seats remained vacant.
65. Insofar as the application of the decision of the Supreme Court in the case of Mamta Bisht is concerned, which basically follows the decision of the Supreme Court in Rajesh Daria (supra), no infirmity has been pointed out by any of the learned counsel for the respondents regarding the application thereof. It is nobody's case that the decision of the Supreme Court in the case of Mamta Bisht is required to be applied at the stage of allocation of posts. In Rajesh Daria (supra), the Supreme Court has held that social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc. under Articles 16(1) and 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for the respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs stood filled. The entire Page 86 of 102 C/LPA/814/2018 JUDGMENT reservation quota will be intact and available in addition to those selected under open competition category. But the said principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for SCs, the proper procedure is first to fill up the quota for SCs in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical quota will be counted against the horizontal reservation for women.
66. In the facts of the present case, while preparing the first list the Commission had applied the decision of this court in Komal Katara (supra), which is contrary to the decision of the Supreme Court in Rajesh Daria (supra) and while preparing the revised list they have followed the decision of the Supreme Court in Rajesh Daria, as a result of which, 28 female candidates at the bottom of the first list whose names found place therein on account of application of the decision of this court in Komal Katara (supra) were pushed out of the revised list. It is not the case of any of the respondents that the decision of the Supreme Court in Mamta Bisht (supra) cannot Page 87 of 102 C/LPA/814/2018 JUDGMENT be applied at the stage of preparation of the list of recommended candidates. Strong reliance has been placed upon the findings of illegalities and irregularities in the recruitment process as recorded by the learned Single Judge in the impugned judgment; however, no infirmity has been pointed out as regards the application of the decision of the Supreme Court in the case of Mamta Bisht while preparing the list of recommended candidates.
67. The learned Single Judge, in the impugned judgment, has referred to various instances wherein the decision of the Supreme Court in the case of Rajesh Daria (supra) as followed in the case of Mamta Bisht has not been followed by the Commission imputing mala fides in applying the decision in the present case. It is also observed that Mamta Bisht is sought to be relied upon mala fide only because it was rendered in 2010 after the merit list was prepared though the decision of the Supreme Court in Rajesh Daria was already holding the field and was not followed while preparing the first merit list. The learned Single Judge while holding that the decision of Supreme Court in Mamta Bisht (supra) would be applicable to the recruitment in question, has alleged selective implementation of the law by the Commission; however no specific findings as regards the correctness or otherwise of the application of the said decision have been recorded. This issue has been lost sight in the spate of allegations and imputations of mala fides. Thus, the learned Single Judge has recorded a finding that the decision of the Supreme Court in Rajesh Daria as followed in Mamta Bisht would be applicable to the recruitment in question, which finding has not been called in question by the respondents. Nothing has been pointed out Page 88 of 102 C/LPA/814/2018 JUDGMENT before this court to show that such decision has been wrongly applied by the Commission at the time of preparation of the list of recommended candidates. Under the circumstances, in the absence of any infirmity in the application of the decision of the Supreme Court in Mamta Bisht (supra) at the time of preparation of the list of recommended candidates, those candidates who have been pushed out on account of application of the said decision while preparing the revised list are not entitled to the grant of any relief. Therefore, those original petitioners who had approached this court challenging the revised list on the ground of application of the decision of the Supreme Court in Mamta Bisht (supra) not being entitled to the grant of any relief, the question of issuing directions to fill up vacant seats to that extent did not arise.
68. A perusal of the impugned judgment and order reveals that the learned Single Judge has not examined as to what is the prejudice caused to the petitioners on account of applying the decisions of Ramesh Ram and Rajesh Daria (supra) at the stage of preparation of the list of recommended candidates by the Commission and as to which of the petitioners were affected by such action. It may be noted that it is the petitioners in the captioned petitions who had approached this court contending that their names were illegally removed from the revised list on a wrong application of the decisions of the Supreme Court in Ramesh Ram and Mamta Bisht. Therefore, what was required to be examined was whether the decisions were properly applied and if not which of the petitioners were affected by such improper application, and it is these petitioners alone, who could have been granted relief by the learned Single Judge.
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69. In the light of the above discussion, this court finds that the learned Single Judge has answered Issue No.1 correctly. However, insofar as Issue No.2 is concerned, for the reasons recorded hereinabove, this court cannot bring itself to agree with the learned Single Judge that Ramesh Ram (supra) has to be applied at the stage of allocation of posts and that Mamta Bisht (supra) has been applied mala fide. In the light of the above discussion, the actions of the State and the Commission cannot be said to be erroneous. Insofar as the actions of the State and the Commission being mischievous are concerned, in the opinion of this court, when no such allegation was made in any of the petitions, the learned Single Judge was not justified in suo motu embarking upon an inquiry on the basis of the record produced before him in a petition which was heard along with the captioned petitions and wherein there were allegations of mala fide and tampering etc. in the process of allocation of posts. Moreover, the judgment of the learned Single Judge in Special Civil Application No. 8203 of 2017, wherein there were allegations of illegalities, irregularities and mala fide has already been set aside by a co- ordinate bench by a judgment and order dated 20/21.12.2017 passed in Letters Patent Appeal No.727 of 2017. Assuming for the sake of argument that the Government and the Commission have selectively applied the decision of the Supreme Court in Mamta Bisht (supra), even then, once a finding is recorded that the principles laid down therein would be applicable to the present recruitment, merely because in other cases such decision has not been applied would not vitiate the revised list.
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70. Next, it may be noted that the learned Single Judge has after finding that the impugned revised list is invalid, tried to simplify the matter by directing that as there are forty affected persons and forty-one vacancies, the same may be filled up by offering the same to the next meritorious candidates and further to apply the decision of this court in D.G. Dalal (supra) while doing so. It may be noted that in this case the appointments have been made in the year 2011 and six years have elapsed thereafter. While implementing the decision of this court in D.G. Dalal (supra) the respondents are required to carry out reshuffling for the purpose of ensuring that less meritorious candidates are not placed above the candidates who are higher in merit, on account of which, several complications have arisen. Moreover, instead of the original petitioners getting relief, candidates who at no point of time had raised any grievance are getting the benefit of the judgment.
71. The learned Single Judge has held that the notified vacancies in the advertisement in question which have remained unfilled because of non-joining of candidates need to be filled up by the State by offering them to the next meritorious candidates. On behalf of the respondents, viz., the original petitioners as well as the beneficiaries of the impugned judgment, it has been contended that in the absence of the State having taken a conscious decision not to fill up the vacancies, such vacancies are required to be filled up. In this regard, a perusal of the reliefs prayed for in the writ petition shows that the writ petitioners had challenged the select list dated 26.4.2011 and had sought a direction to the respondents to operate and implement the final select list dated 13.5.2010 Page 91 of 102 C/LPA/814/2018 JUDGMENT and to give the petitioners appointments accordingly. Except for the petitioner in Special Civil application No.11163 of 2012, none of the petitioners had come before this court seeking filling up of the vacancies arising out of non-joining of candidates. However, the learned Single Judge upon finding that the impugned revised list requires to be set aside, has instead of disturbing the appointments already made has maintained the list as it is, but has issued directions for filling up the posts that remained vacant on account of non-joining of candidates. Therefore, when in the light of what is discussed hereinabove, this court has upheld the validity of the impugned revised list, the question of filling up the vacancies as directed by the learned Single Judge would not arise. Moreover, as noticed earlier, the rules contemplate preparation of single list whereby names of the candidates are required to be recommended by the Commission to the extent of the vacancies advertised. The names of rest of the candidates would find place in the list of unsuccessful candidates. Therefore, if there are any vacancies on account of non-joining of candidates, there is no other list on which the respondents could fall back upon for the purpose of filling up of such vacancies.
72. in the opinion of this court, rule 17 as substituted by the Amending Rules of 2009 only makes explicit what was implicit in the existing rule 17, namely that there shall be no waiting list. Therefore, the question as to whether the amended rule 17 of the Gujarat Rules would operate prospectively or retrospectively does not require to be gone into. Besides, as rightly pointed out by the learned counsel for the appellants, the decisions relied upon by the learned counsel for the Page 92 of 102 C/LPA/814/2018 JUDGMENT respondents on the prospective operation of the rules have all been rendered in the context of facts where the rules changed the eligibility criteria for appointment to a post, which made the candidates ineligible for such post thereby affecting their substantive right to be considered for appointment, which is not so in the present case. However, it is not necessary to dwell any further on this issue.
73. Insofar as the other illegalities and irregularities referred to in the impugned judgment on the basis of the original Government record is concerned, the same relate to the stage of making appointment and have no relevance insofar as the preparation of revised merit list is concerned. Besides as noticed earlier, the record was produced by the Government as it sought to rely upon the same in the case of Reema Munshi, the petitioner in Special Civil Application No.8203 of 2012, whose appointment was under challenge and against whom a writ of quo warranto was sought from the court. All the observations in relation to Issues No.3 and 4 primarily relate to the said case. It may be recalled that the decision of the learned Single Judge to the extent of that writ petition was called in question by the said candidate by filing an appeal before this court and a Division Bench of this court by a judgment and order dated 20/21.12.2017 rendered in Letters Patent Appeal No.727 of 2017 allowed the letters patent appeal and set aside the directions of the learned Single Judge that the appellant original respondent No.4 shall vacate the post of Deputy Superintendent of Police. Therefore, the question of relying upon the same in the context of the other writ petitioners does not arise. In case if at the stage of allotment any illegality has been committed, it is for the Page 93 of 102 C/LPA/814/2018 JUDGMENT individual affected candidate to raise such grievance. In this case, the court is concerned with the validity of revised merit list and the observations of illegalities and irregularities in the manner of appointment which is subsequent to the preparation of the revised list have no relevance.
74. The contention that the appellants cannot be said to be aggrieved as no less meritorious candidate has been placed above the appellants on account of operation of the impugned judgment, loses sight of the fact that no more meritorious candidate had challenged the select list or come to the court seeking a relief that the vacancies be filled in. Therefore, for years together the appellants have been placed on the seniority list in a particular order which would be disturbed if anyone is placed above them, even if they be more meritorious candidates.
75. In all these petitions, the petitioners in their individual capacity have come before this court challenging the revised list whereby their names which found place in the first list stood excluded on account of application of the decisions of the Supreme Court in Ramesh Ram and Rajesh Daria (supra). The scope of the petitions, therefore, was restricted to the validity of the revised list and the grant of relief to the petitioners therein. Therefore, what was to be examined was whether the petitioners were entitled to any relief. If any of the petitioners was wrongly excluded from the list, he or she would have been entitled to the grant of relief. However, in the absence of any finding that any of the petitioners was wrongly excluded from the merit list, the course of action adopted by the learned Single Judge was not permissible. In any case, Page 94 of 102 C/LPA/814/2018 JUDGMENT relief could be granted to the petitioners who had come before the court, and no general directions could have been issued in the manner as has been done which results in mass reshuffling at this stage and filling up of seats by candidates who had not come before this court, the implementation whereof has given rise to umpteen number of petitions. The learned Single Judge, by issuing such general directions, and not restricting the reliefs to the petitioners alone, has literally opened a Pandora's Box. The impugned judgment and order passed by the learned Single Judge, therefore, cannot be sustained.
76. Insofar as the petitioner in Special Civil Application No.11163 of 2012 is concerned, at the outset, it may be noted that the learned Single Judge in paragraph 9 of the judgment has referred to the submission of the learned counsel for the petitioner. In paragraph 12.2, the response thereto by the learned Advocate General has been recorded thus:
"12.2 Replying to the case the petitioners of Special Civil Application No.11163 of 2012, learned advocate general has submitted that the said petitioner could not have been offered the post of Dy.S.P. since he was not within the zone of merit, at the time of allotment. It is submitted that if the candidate appointed does not join, the said post is not made available to any other candidate and the same is carried to the next advertisement. It is further submitted that the said post even otherwise, can not go to this petitioner, since there are many more persons above him in the merit list. It is submitted that this petition also be dismissed."
77. However, thereafter there is no discussion as regards the merits or otherwise of the case and no relief has been specifically granted to the petitioner and his petition appears to have been answered along with the remaining petitioners by Page 95 of 102 C/LPA/814/2018 JUDGMENT issuing directions to fill in the vacancies by offering the posts to the next meritorious candidates in the recruitment in question keeping in mind the ratio laid down by this court in the case of D.G. Dalal (supra). From the averments made in the affidavit-in-reply filed on behalf of the respondents, it emerges that the petitioner is not the next meritorious candidate insofar as the post of Deputy Superintendent of Police SEBC Male is concerned, and there are SEBC Male candidates who had given first preference for this post who are more meritorious than this petitioner. In the impugned judgment, the learned Single Judge has not considered the case of the petitioner separately, though the same stood on a different footing, inasmuch as the said petitioner had not challenged the revised merit list but had sought a direction to the respondents to forthwith appoint him to the post of Deputy Superintendent of Police Class I as SEBC Male candidate on the vacancy arising due to non-joining of one SEBC Male candidate Mr. Vadhvana Rohikumar Rameshchandra. However, all the petitions have been decided by giving common directions to the respondents to fill up the vacant posts by offering them to the next meritorious candidates in the recruitment in question keeping in mind the ratio laid down in D.G. Dalal. Therefore, strictly speaking, it cannot be said that the petition has been dismissed or that the relief prayed for has been turned down. If the petitioner was the next meritorious candidate insofar as the post of Deputy Superintendent of Police SEBC Male is concerned, in terms of the said directions, he would have been entitled to appointment to that post. Besides, it is the appellants who have filed this appeal challenging the order passed on this petition. If no relief had been granted to the petitioner, there was no question of the appellants herein Page 96 of 102 C/LPA/814/2018 JUDGMENT being aggrieved so as to prefer an appeal against the order passed in the said petition. Therefore, the contention that unless there is an order passed in favour of the petitioner, he cannot file cross-objection does not merit acceptance. In this factual background, it is not necessary to refer to the various decisions relied upon by the learned counsel for the respective parties on the maintainability of the cross objection.
78. Examining the case of this petitioner on merits, there are two impediments to the grant of relief prayed for by him:
firstly, that he is not the next meritorious candidate insofar as the post of Deputy Superintendent of Police SEBC Male is concerned; and secondly, sub-rule (4) of rule 9 of the Gujarat Rules, provides that where a candidate fails to join the post offered to him, his name shall stand deleted from the list of candidates recommended by the Commission for appointment.
79. Insofar as the first issue is concerned, it has been contended that the candidates who are placed above the petitioners on merit, have not approached this court and when it is the petitioner alone who has staked claim to such vacancy, it is he alone who should be considered; and in view of the clear vacancy, he should be given the appointment.
80. Insofar as the candidates placed higher in merit than the petitioner who have not approached this court seeking any relief are concerned, in the opinion of this court, the learned counsel for the petitioner is justified in contending that no relief can be granted to them. In Ashok v. State of Karnataka, (1992) 1 SCC 28, before the Supreme Court the K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 were Page 97 of 102 C/LPA/814/2018 JUDGMENT challenged on the ground that the percentage of marks for viva voce as 33.3% were excessive and in violation of the decisions of the Supreme Court. The court held that 50 marks for interview out of 150 are clearly in violation of the judgment of that court in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, and Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC 662. The court after examining the record of the Selection Committee, found that a large number of candidates had been selected though they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose. The court further found that it was an admitted position that if the marks for interview were kept even at 15 per cent of the total marks and merit list was prepared accordingly, then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, the court did not consider it just and proper to quash the selections on the above ground. The court held that however, the rules were clearly in violation of the dictum laid down by it in the above referred cases and in case the marks for viva voce would have been kept say at 15 per cent of the total marks, the appellants before it were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15 per cent of the total marks. Accordingly, the appeal came to be allowed with a direction to the respondents to give appointments to the two appellants in case they are found suitable in all other respects according to the rules. The learned counsel appearing on Page 98 of 102 C/LPA/814/2018 JUDGMENT behalf of the State of Karnataka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection. The Supreme Court observed that in view of the fact that appointments under the impugned rules were made as back as in 1987 and only the appellants therein had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time. The court was thus inclined to grant relief only to the appellants therein who were vigilant in making grievance and approaching the Tribunal in time.
81. Thus, in the above judgment, the Supreme Court found that admittedly if the marks secured by the appellants therein were calculated in consonance with the decisions referred to therein, both of them were bound to be selected. It is in this background that the relief came to be granted to those appellants. At the same time, the court confined the relief to the appellants therein, despite the fact that there were more meritorious candidates available on the ground that they had never approached for redress within reasonable time.
82. The above decision would be squarely applicable to the facts of the present case, and accordingly, those candidates who were more meritorious than the petitioner could not have been granted any relief as they had never approached for redress within reasonable time. At the same time, it may be noted that in that case, the court found that both the appellants were bound to be selected if the principles laid down in the earlier decisions had been followed, which is not so in the present case. The petitioner herein was not bound to Page 99 of 102 C/LPA/814/2018 JUDGMENT be selected inasmuch as, there was one vacant post of Deputy Superintendent of Police SEBC Male and there were several candidates who were ranked higher in merit than him.
83. Moreover, in this case, as averred in paragraph 3 of the memorandum of petition, the petitioner was offered appointment as DILR (District Inspector of Land Records) Class- II by the Revenue Department by a notification dated 6.5.2011. However, the petitioner did not want to accept the said Class-II post and, therefore, he did not join the service as DILR Class-II. The Revenue Department addressed a letter dated 19.5.2011 to the petitioner informing him that if he would not join duty as DILR Class II on or before 31.5.2011, his appointment as such would be cancelled. In response thereto, the petitioner addressed a letter dated 23.5.2011 stating that at the time of oral interview when the preference was asked for, he had given preference only for the Class-I posts of (1) Dy. S.P., (2) District Registrar and (3) Superintendent, Prohibition and Excise. The petitioner had not given preference for any post of Class-II. The petitioner had also requested that in the event of any vacancy in Class-I, the petitioner may be issued appointment order but he was not interested in appointment as DILR Class II.
84. Thus, though offered a post, the petitioner failed to join the same. Sub-rule (2)(b) of rule 9 of the Gujarat Rules provides that where a candidate has not given preference for any post, or the candidate has given preference only for a few posts, and the number of posts for which he has given preference are not available to accommodate the candidate as per his preference, such candidate shall be considered for Page 100 of 102 C/LPA/814/2018 JUDGMENT appointment to any of the remaining posts after the process of appointment of other candidates, who have given preference for all the scheduled posts, is completed. Thus, though the petitioner had given preference for only Class-I posts, as no post of his preference was available, he was offered the post of DILR Class-II.
85. Sub-rule (4) of rule 9 of the Gujarat Rules provides that where a candidate fails to join the post offered to him, his name shall be deleted from the list of candidates recommended by the Commission for appointment. Thus, by operation of sub-rule (4) of rule 9 of the Gujarat Rules, the petitioner, having failed to join the post offered to him, his name stood deleted from the list of candidates. Once his name stood deleted from the list of recommended candidates, even otherwise the question of offering him appointment against any subsequent vacancy would not arise. Therefore, on both counts, the cross objection must fail, namely, the petitioner not being the next meritorious candidate was not otherwise entitled to be appointed to the post; and apart from the fact that the rules do not contemplate filling up vacancies arising on account of non-joining of candidates, the name of the petitioner having been deleted from the list of recommended candidates, the question of considering him for appointment on any subsequent vacancy does not arise.
86. In the light of the above discussion, the appeals succeed and are, accordingly, allowed. The impugned judgment and order passed by the learned Single Judge in the captioned petitions, is hereby quashed and set aside. Cross-Objection No.82 of 2018 fails and is hereby dismissed.
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87. Before parting, it may be noted that admittedly the principles enunciated by the Supreme Court in Ramesh Ram and Rajesh Daria as followed in Mamta Bisht (supra) are required to be followed by the State Government for the purpose of recruitment. However, under the existing rules the implementation of such decisions gives rise to several difficulties as is apparent from the complications that have arisen in the present case, which also result in advertised posts being left vacant. Therefore, the State Government would be well advised to amend the rules so as to obviate such difficulties in future.
88. In the light of the order passed in the main appeals, the civil applications for stay do not survive and are, accordingly, disposed of.
(HARSHA DEVANI, J) (A. P. THAKER, J) Z.G. SHAIKH Page 102 of 102