Gujarat High Court
Patel Divyeshbhai Pankajbhai vs State Of Gujarat on 3 August, 2018
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/4219/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4219 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order
made thereunder ?
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PATEL DIVYESHBHAI PANKAJBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN N MEHTA(2010) for the PETITIONER(s) No. 1
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA
rd
3 August 2018
CAV JUDGMENT
By means of filing this writ application under Article 226 of the Constitution of India, the petitioner - one of the candidates, who succeeded in securing 62.31% marks in the Page 1 of 17 C/SCA/4219/2010 CAV JUDGMENT merit of Vidya Sahayaks, had moved this Court inter alia praying for the following reliefs :
[A] Your Lordship be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, to quash and set aside the merit list of six open merit seats of the current recruitment year (Annexure-1) prepared and published by the District Primary Education Officer, Porbandar, the respondent No. 3 herein.
[B] Your Lordship be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, to quash and set-aside the merit list of 18 backlog vacancies (Annexure- I) prepared and published by the District Primary Education Officer, Porbandar.
[C] Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the Direct Primary Education Officer, Porbandar, respondent No. 3 herein to prepare afresh merit list of 18 backlog vacancies first by strictly following the written instructions dated 9.12.2009;
[D] Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to prepare merit list of six Page 2 of 17 C/SCA/4219/2010 CAV JUDGMENT open merit seats of the current recruitment year only after preparing an publishing merit list of the 18 backlog vacancies as explained in para 10 herein above.
[E] Your Lordship be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents herein to include the name of the petitioner as the sixth candidate in the merit list of six open seats of the current recruitment year.
[F] Pending admission and final hearing of the present petition, Your Lordship be pleased to stay the operation and implementation of the merit list of the six open seats of the current recruitment year and the merit list of the 18 backlog vacancies both prepared and published by the District Primary Education Officer, Porbandar - respondent no. 3 herein; [G] Pending admission and final hearing of the present petition, Your Lordship be pleased to stay the recruitment of Vidya Sahayak in the category of PTC [Science Stream] in pursuance to the public advertisement dated 21st December 2009 issued by the District Primary Education Officer, Porbandar - respondent no. 3 herein.
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[H] Pending admission and final hearing of the present petition, Your Lordship may be pleased to direct the District Primary Education Officer, Porbandar - respondent no. 3 here in to prepare afresh the merit list of 18 backlog vacancies first and thereafter, prepare a fresh merit list of six open merit seats of the current recruitment year and to include the name of the petitioner as the sixth candidate in the latter merit list; and [I] Your Lordship be pleased to pass any other appropriate order; as deemed fit in the interest of justice.
Brief facts giving rise to the present writ application, read thus -
The petitioner is a candidate, who applied for the post of Vidya Sahayak, pursuant to a public advertisement dated 21st December 2009 inviting applications to fill up such posts in Porbandar District. The said advertisement speaks of new vacancies [or vacancies of the current recruitment year] as well as backlog/deficit vacancies. The total number of new vacancies notified in the category of PTC [Science Stream] were 12 and whereas, the backlog/deficit vacancies notified in the Page 4 of 17 C/SCA/4219/2010 CAV JUDGMENT category of PTC [Science Stream] were 18 in number. The petitioner applied on one of the six open merit seats of PTC [Science Stream].
As a part of the recruitment process, the respondent no. 3 herein published merit/select list of PTC [Science Stream] on 26th March 2010 comprising six vacancies in the category of open merit; 18 backlog vacancies and a wait list in the category of open merit.
This act of simultaneous publication of the merit list/ select list of new vacancies and backlog vacancies being violative of Clause 14 of the written instructions contained in the communication dated 9th December 2009 issued by the Director of Primary Education, Gujarat State, the petitioner who had secured 62.31% marks in the merit list, has opposed by preferring the present writ petition, inter alia, praying for the afore stated reliefs.
Heard learned advocates appearing for the respective sides; including learned AGP for the respondent-State.
Learned advocate Shri K.B Pujara appearing for the petitioner vehemently contended that in the advertisement inviting applications for the post of Vidya Sahayaks, published Page 5 of 17 C/SCA/4219/2010 CAV JUDGMENT in the local dailies, the total number of new vacancies notified in the category of PTC [Science Stream] is twelve and whereas, the total number of backlog/deficit vacancies notified in the said category are eighteen in number. Counsel for the petitioner further contended that considering the petitioner's merit at 62.31%, he would be sixth candidate in row in the select list of the open merit category, however, he has been excluded, since the merit list prepared by the respondent no.3 herein being violative of clause 14 of the written instructions dated 9th December 2009, issued by the Director of Primary Education, Gujarat State.
Counsel for the petitioner added that even the said merit list is violative of the High Court's Order dated 19th February 2010, passed in Special Civil Application No. 1115 of 2010, and even violates the State Government's Reservation Policy which mandates that, reservation to any cadre cannot exceed 50%.
Counsel for the petitioner drew attention of this Court to the fact that, by virtue of preparing the merit list of the backlog vacancies and the vacancies advertised for the current recruitment year has resulted into 100% reservation in favour Page 6 of 17 C/SCA/4219/2010 CAV JUDGMENT of reserved groups and reverse discrimination is sought to be created against the open merit candidates.
Counsel for the petitioner fairly submitted that due to publication of the merit list, not a single open merit candidate is getting selected on the six open merit seats of the current recruitment year which is violative of the fundamental rights of the petitioner herein.
Lastly, learned counsel for the petitioner vehemently urged this Court to quash and set aside the merit list of six open merit seats of the current year; merit list of 18 backlog vacancies; and thereby command the respondent no.3 herein to prepare afresh merit list of 18 backlog vacancies first, by strictly following the written instructions contend in communication dated 9th December 2009 issued by the Director of Primary Education, Gujarat State, to include the name of the petitioner as the 6th candidate in the merit list of 6 open seats of the current year.
Per contra, learned advocate Shri HS Munshaw appearing for the respondent no.3-District Primary Education Officer defending the arguments advanced on behalf of the petitioner contended that the advertisement was meant for Page 7 of 17 C/SCA/4219/2010 CAV JUDGMENT fresh recruitment of Vidya Sahayak as well as for filling up of the posts in deficit however, through in advertence, it is printed as backlog/deficit. Counsel submitted that as such the recruitment of Vidya Sahayaks (PTC); Vidya Sahayaks(C.P.Ed); and Vidya Sahayaks (ATD) were to be made after considering the existing vacancies, roster points as well as the posts which could be filled up during the last round of recruitment due to non availability of the candidates, or for such other reasons. Counsel submitted that the decision to fill up the vacancies is taken at the highest administrative levels and for the administrative convenience, the posts which could not be filled up during the earlier rounds of recruitment are separately notified so that no reserved post remain vacant. Counsel for the respondent no.3 informed this Court that so far 9 rounds of recruitment to the cadre of Vidya Sahayaks are over between December 1999 and March 2009 to contend that in not a single recruitment process, there was any backlog and continuous efforts have been made to see that the vacant reserved posts get filled up immediately in the next round itself. Counsel submitted that it had been the en devour of the respondent no.3 even during the current round of recruitment Page 8 of 17 C/SCA/4219/2010 CAV JUDGMENT to advertise the existing vacancies as well as the vacant posts of reserved categories.
Counsel for the respondent no.3 lastly contended that the petitioner is not caused any injustice or hardship and therefore, this Court may pass appropriate order. He assured the Court that the respondent no.3 would comply with the orders and directions that may be issued in the present proceedings.
Learned AGP Shri Dhawan Jaswal appearing for the respondent-State adapted the submissions made by learned advocate Shri HS Munshaw appearing for the respondent no.3 and requested this Court to pass appropriate orders.
Having considered the facts of the case, submissions made by learned advocates appearing on behalf of the respective parties, it appears that, an advertisement was issued for filling up various posts of Vidya Sahayak in Porbandar District by the respondent no.2 herein in local daily on 21st December 2009 as per the advertisement, out of 29 posts of Vidya Sahayak pertaining to Science Stream; 6 posts were meant for open category candidates; 18 posts were backlog vacancies reserved for socially and educationally backward Page 9 of 17 C/SCA/4219/2010 CAV JUDGMENT class candidates plus 3 posts of the same category for the current recruitment year and two posts were reserved for Scheduled Caste candidates.
It is an undisputed fact that the petitioner has secured 62.31% marks, and whereas, the merit of the next most meritorious candidate belonging to OBC category was 62.13% marks [Chauhan Jitendrasinh Chhatrasinh].
The respondent no. 3 had, in violation of Clause 14 of the written instructions date 9th December 2009, published the merit/select list of PTC [Science Stream] on 26th March 2010 comprising six candidates in the category of Open merit; 18 backlog vacancies and a Wait list of Open merit category. In short the 18 backlog vacancies would be filled up in the following manner :
No. Name of Candidates Category Merit
1 Odedra Raji Bhikhabhai OBC 79.58
2 Barad Mukesh Govindbhai OBC 71.52
3 Godhania Manjuben Maldebhai OBC 70
4 Dahima Sanjaykumar Maldebhai OBC 69.89
5 Rana Falguni Pravinbhai OBC 69.27
6 Patel jigar Ramanbhai OBC 68.93
7 Parmar Gangev Kanabhai OBC 68.12
8 Gareja Hiraben Arjanbhai OBC 68.08
9 Kher Kripalsinh Laxmanbhai OBC 67.96
10 Rathod Chhatrasinh Pahadusinh OBC 67.78
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C/SCA/4219/2010 CAV JUDGMENT
11 Solanki Bharatbhai Malabhai OBC 67.67
12 Odedara Ramesh Malde OBC 67.54
13 Vala Rohit Merubhai OBC 66.65
14 Rana Yogesh Rameshbhai OBC 66.6
15 Divrania Jaysheribala Sarmanbhai OBC 65.94
16 Aniyaria Rasiklal Rupangbhai OBC 64.98
17 Gohil Vijaykumar Kesarbhai OBC 64.92
18 Nandania Lilavatiben Meramanbhai OBC 64.88
And whereas, six open merit seats would have to be filled up first from amongst the most meritorious candidates; irrespective of the category they belong to; with an exception that if there is an OBC candidate, who is suffering from Physical disability, he/she would have to be given appointment against the seat reserved for Physically Handicapped & Disabled person. Thus, the first five vacancies in the open merit category would be filled up by the following candidates :
No. Name Category Merit
1 Bharda Kishorbhai Hirabhai OBC 64.32
2 Nandania Hardas Hajabhai OBC 64.1
3 Kadchha Bharti Arsibhai OBC 63.24
4 Parekh Jaydipkumar Manojkumar OBC 62.28
5 Purohit Kinjal Janakray (Wait listed earlier) General 65.62
Thus, the petitioner would be sixth candidate on the Select List in the open merit category, since he had secured merit at 62.32%.
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Now, in so far as Physically Handicapped candidate [ie., Parmar Ajitkumar Babubhai], he would get appointment against the sole vacancy reserved for Physically Handicapped & Disabled candidates advertised in the vacancies of the current recruitment year. Thus, the merit list/select list dated 26th March 2010 prepared by the respondent no. 3 clearly violates the written instructions contained in Clause 14 of the communication dated 9th December 2009 issued by the Director of Primary Education, Gujarat State.
Though, this Court had issued directions in an order rendered in Special Civil Application No. 1115 of 2010, the name of the petitioner has wrongly been excluded by the respondent no. 3 from the merit list/select list of six vacancies in the open category. Therefore, the authority is hereby once again directed to strictly comply with the written instructions dated 09.12.2009 and follow the instructions to fill up the posts of backlog in the first instance as directed in Clause 14 of the instructions dated 09.12.2009.
Likewise, in Special Civil Application No. 4638 of 2010, this Court in para-6 of its decision has observed and held as under :-
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"However, when such issue is very well decided in as many as in three cases by this High Court, I do not see any reason to reproduce all such details again and again except to record that though issue has been specifically dealt with and determined as back as in the year 2008, in judgment dated 29.04.2008 in Special Civil Application No.24535 of 2007 making it clear that the directions, instructions or advice pursuant to letter dated 15.06.1998 are illegal, the respondent has erred to deny the selection of particular candidate on same basis upon same letter again and again and they have dragged the matter to this Court for no valid reason. For taking action against such erring officers in my view, we have to join them as such by their name and we have to offer an opportunity to explain their stand but so as to avoid delay in deciding such matter, though we are not entering into such exercise when such matters are pending for final determination for couple of years, practically it is high time for Government to look into such matters where the officers are not following judgments of the High Court and of the Hon"ble Supreme Court and issuing some guidelines in the form of letters or circulars which cannot take place of Government Resolution. It cannot be ignored that we are having huge pendency in the Courts throughout the nation and if data is properly scrutinized, it would be found that most of the litigations are either of Government or its offices and that too for similar such instances where practically they are ignoring the previous judgments of the Courts and taking decisions Page 13 of 17 C/SCA/4219/2010 CAV JUDGMENT on there own as if they are above the Courts. For this purpose, respondent No.1 shall do the needful to see that in all such cases where there are previous judgments of the High Court or the Hon'ble Supreme Court and when those judgments are confirmed by passage of time in particular litigation, they should come forward even with a request that matter may be disposed of without recording their consent to dispose of such matters at the earliest to reduce the pendency and thereby honour legitimate rights of the concerned petitioners in time."
In a decision rendered by the Supreme Court in the case of State of Jammu & Kashmir & Ors. Vs. Sat Pal, reported in [2013] 11 SCC 737, the Court in para 11 of the decision, held and observed as under :
"In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate after the vacancies for which the recruitment process has been conducted have been filled up. In the Page 14 of 17 C/SCA/4219/2010 CAV JUDGMENT instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Civil engineer (Civil), Grade II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process or selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil), Grade II on 22-4-2008. The aforesaid offer was made consequent upon his selection in the said process of recruitment. The validity of waiting list, in the facts of this case, has to be determined with reference to 22-4-2008, because the vacancy was offered to Trilok Nath on 22-4-
2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23-8-2011 (extracted above), that the waiting list was valid till May 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be unquestionable legal position, insofar as the present controversy is concerned." In the case of K.N Shreenivasan v. Flag Officer Commanding-in-Chief, Head Quarter, Kochi & Ors., Page 15 of 17 C/SCA/4219/2010 CAV JUDGMENT reported in [1996] 7 SCC 73, the Apex Court in para 2 of its decision has observed thus -
"2. ... At this stage according to the roster, it was the turn of the Schedule Caste candidate to fill in the post of promotion. However, no schedule caste candidate was available. There is nothing on record to show that if a Scheduled Caste candidate is not available, the rule requires that the post should be offered to either a Scheduled Tribe or an OBC candidate. Nor is there any material to show that even if such a rule existed, the candidates from the said two categories were available to be appointed. ......If no individual from the reserved category available, then the procedure to be followed is to convert the pot into a non-reserved post and offer the same of the candidate from the non- reserved category and carry forward the post for the reserved category for which it was meant if the carry forward rule exists and so permits."
In view of the factual and legal position discussed herein above, this Court is of the view that in the facts and circumstances of the case, it would be just and appropriate to direct the respondents to include the name of the petitioner as the sixth candidate in the merit list of six open seats of the current recruitment year, and accordingly, make the said merit list operational by confirming the stay granted earlier by this Court.
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Accordingly, this writ petition is allowed in part. The respondent no. 3 is directed to include the name of the petitioner as the sixth candidate in the merit list of six open seats of the current recruitment year [2009-2010] and prepare a fresh merit list of 18 backlog vacancies first and thereafter, appoint the petitioner as Vidya Shayak with all service benefits; except back wages. The respondent no. 3 shall ensure that the petitioner is given seniority as if he was appointed in the year 2009-2010 along with the candidates of the same recruitment drive, but his serial number should be as per his merit, and thereby he cannot be placed above the candidate who had secured more percentage than the present petitioner. This exercise shall be completed the concerned respondents within a period of eight weeks of this order; without fail.
Rule nisi made absolute to the afore stated extent with no order as to costs.
[B.N Karia, J.] Prakash Page 17 of 17