Gujarat High Court
Yuvrajsinh Pravinsinh Jadeja & 5 vs State Of Gujarat & on 22 June, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15682/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15682 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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YUVRAJSINH PRAVINSINH JADEJA & 5....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
TANNA ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 - 6
GOVERNMENT PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/06/2015
CAV JUDGMENT
1. Heard the learned counsel appearing for the parties on Page 1 of 23 C/SCA/15682/2014 CAV JUDGMENT the point of interim relief.
2. The petitioners are all wait listed candidates waiting anxiously for being appointed to the post of PSI (Unarmed). The petitioners had applied for the post of PSI (Unarmed) pursuant to an advertisement issued by the State Government. The petitioners successfully cleared all the tests including the oral interview and were placed in the waiting list. The life of the waiting list is of two years and the same would come to an end on 24th June, 2015. It appears that they are all on top of the waiting list.
3. The following candidates who found place in the final select list and were actually given appointment, for some reason or the other, resigned and one of those died.
S. SEAT NO. NAME Resigned Seat
No. Covere
d
614 11000614 RAJEEPSINH MANUBHA GOHIL Resigned General
881 11000881 MANISHKUMAR AMRUTBHAI Resigned General
DESAI
222 11000222 BIPINBHAI DHIRUBHAI RAJPUT Resigned General
377 11000377 GAURANG MOHANBHAI Resigned General
SOLANKI
804 11000804 LAKHDHIRSINH AGARSINH Death General
DODIYA
582 11000582 TULSHIDAS PARSHOTAMBHAI Resigned General
MARAKANA
1333 11001333 SATISHGAR BHIKHAGAR Resigned SEBC
GAUSWAMI
586 11000586 VIRSANGBHAI RAMJIBHAI Resigned SEBC
CHAUDHARI
388 11000388 GEETABEN GANESHBHAI Resigned General
CHAUDHARI
Page 2 of 23
C/SCA/15682/2014 CAV JUDGMENT
1473 11001473 VEDANGNABA MANGALSINH Resigned General
ZALA
4. It is the case of the petitioners that they all were otherwise found to be meritorious but unfortunately could not be included in the select list and have been placed in the waiting list. Since almost 10 selected candidates resigned after being appointed, those vacancies should be filled up by operating the waiting list. It is the case of the petitioners that this is going to be their last chance because once the life of the waiting list comes to an end, thereafter, they will have no opportunity even if a fresh advertisement is issued in the future, because they would be age barred.
5. On 9th March, 2015, the following order was passed by a learned Single Judge:
"1. Heard Mr. Tanna, learned senior counsel for the petitioners and Mr. Pandya, learned AGP.
2. Today, after hearing learned counsel for the contesting parties, below quoted order was passed:
"1. So as to explain the stand of the concerned respondents, learned AGP has tendered a brief note prepared by the Department.
2. However, the details mentioned in the note, fall short of explaining the respondents' stand in face of the Government Resolution dated 24.12.2008 and it prima facie appears that the respondents are making some contradictory submissions.
3. When the Learned AGP is asked to explain the details mentioned therein with sufficient clarity, learned AGP instead of clarifying the submission with regard to the Page 3 of 23 C/SCA/15682/2014 CAV JUDGMENT Government Resolution dated 24.12.2008 and three different lists of names in the office note tendered today, submitted that appropriate order in the matter may be passed.
4. In this view of the matter, the Court considered it appropriate that before any order/direction is passed, details sought to be urged must be clarified by the concerned respondents. So that correct and complete facts can be mentioned in the order.
5. Learned AGP was asked to inform the officer, who has prepared the note to remain present in the Court and personally explain the details mentioned in the note.
6. According to Mr.Pandya, learned AGP, note is prepared by Administrative Officer from the Office of Director General of Police.
7. In this view of the matter, learned AGP is requested to inform the concerned representative, who is present in the Court to call the Administrative Officer, who has prepared the note so that details mentioned therein can be clarified by him."
3. By the said order, learned AGP was requested to call the officer who prepared internal/departmental note giving details about persons appointed after selection list was operated.
4. In response to the said order, Mr.Jayeshbhai Vinubhai Shah, Deputy Administrative Officer, Office of the Director General of Police, Ganadhinagar is present in the Court. He has offered certain clarification and explanation with regard to the note on which learned AGP relied.
5. The said officer also made reference of the Government Resolution dated 24.12.2008 (which learned senior counsel for the petitioners relied). According to the claim by the petitioners, the respondents can appoint the petitioners in light of the said Government Resolution dated 24.12.2008 until regularly selected persons (in pursuance of the selection process which is in progress) are selected and appointed. On the other hand, the Page 4 of 23 C/SCA/15682/2014 CAV JUDGMENT respondents claim that in view of the said Government Resolution dated 24.12.2008 the waiting list cannot be operated.
6. To support the request that until the appointment on completion of the ongoing selection process is made, the respondents, instead of keeping the posts vacant, may appoint the petitioners (whose names are in waiting list), learned senior counsel for the petitioners relied on the order dated 27.12.2011 in SCA No.3238/2011 and the order dated 10.5.2012 in SCA No.821/2012. Learned senior counsel for the petitioners submitted that the said order dated 10.5.2012 was carried in appeal and the same is confirmed by order dated 27.8.2012 in CA No.8752/2012 in LPA No.74/2012. In this view of the matter, it becomes necessary to ascertain as to whether in the said petition being SCA No.821/2012 whether waiting list was already operated once and vacancies were filled up or it was for the first time that persons were appointed by operating waiting list, after Court's order.
7. Learned senior counsel appearing for the petitioners submitted that in the said case also the position was similar. So as to substantiate the said submission, learned senior counsel for the petitioners sought to rely on the reply affidavit filed by the respondents in the said affidavit.
8. In this view of the matter, following order is passed.
9. RULE.
10. For the purpose of passing appropriate interim order, Registry is directed to list this petition tomorrow, i.e. on 10.3.2015. Papers of SCA No.821/2012 to be placed along with this petition."
6. The grant of interim relief to the effect that the petitioners be appointed to the post of PSI (Unarmed) by operating the waiting list has been vehemently opposed by Ms. Manisha Luvkumar, the learned Government Pleader appearing for the State. Ms. Shah submitted that the grant of interim Page 5 of 23 C/SCA/15682/2014 CAV JUDGMENT relief will be as good as granting the final relief which is otherwise not permissible. Ms. Shah pointed out that there is a policy of the State Government pursuant to a Government Resolution dated 24th December, 2008 issued by the General Administration Department, Annexure-H to this petition that if any candidate after being appointed, resigns or fails to report after being appointed, then the vacancy which would fall, could be filled up by operating the waiting list. However, according to Ms. Shah, the policy of the State Government is restricted only to the recruitments in the medical and education department. Ms. Shah submitted that even otherwise also no candidate has an indefeasible right of being appointed even if he finds place in the select list. According to her, the petitioners herein are in the waiting list and they have no indefeasible right of being appointed only because some vacancies has occurred on account of resignation etc. of the candidates appointed.
7. Ms. Shah, in support of her submissions, has relied on few decisions of the Supreme Court. (I) State of Punjab vs. Raghbir Chand Sharma & Anr. (2002) 1 SCC 113 (II) State of Orissa & Anr. vs. Rajkishore Nanda & Ors., 2010 (6) SCC 777 . Ms. Shah has also placed reliance on few decisions of this Court (I) in the case of Harji P. Kataria vs. Commissioner of Police, 2004 (3) GLH (UJ) 8, (II) Chudasma Dilubhai Dipsinh & ors. vs. Addl. General Manager, Paschim Gujarat Vij. Co. Ltd., Rajkot & Ors., 2012 (1) GLR 257 and (iii) Rathodbhai J. Dungarbhai vs. State of Gujarat & ors., 1995 (1) GLH 180.
8. In the rejoinder to the submissions of the learned Government Pleader, Mr. Tanna, the learned senior advocate Page 6 of 23 C/SCA/15682/2014 CAV JUDGMENT appearing for the petitioners submitted that in almost an identical situation, a learned Single Judge of this Court granted interim relief prima facie holding that the policy of the State Government was irrational and arbitrary. In that case, the learned Single Judge while granting interim relief observed that it was without any rational or logic that why a candidate to be appointed on the post of Account Officer, Class-II in the department of finance or any such department was being deprived of the benefit of the appointment from the waiting list by assigning priority.
9. The learned Single Judge, while granting the relief, relied on the decision of the Supreme Court in the case of Gujarat State Deputy Executive Engineers Association vs. State of Gujarat, reported in 1994 Supp. (2) SCC 591.
10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioners have made out any case for grant of interim relief. The law of writs revised by Justice C.K. Thakkar, 6th Edition, explains the meaning of interim as under:
"Meaning According to Dictionary meaning, 'interim' means 'an intervening time', 'meantime', 'in the interim', 'temporary or provisional arrangement', 'belonging to or connected with an intervening period of time; temporary; an interim order', 'in the meantime',.
"In my view", said Humphey, J. in Algar v. Middlesex Country Council, the word 'interim' means nothing more than 'for the time being', in the meanwhile', The word "interim" when used as a noun means Page 7 of 23 C/SCA/15682/2014 CAV JUDGMENT "intervening" and when used as adjective, it means "temporary" or "provisional". Interim reliefs are granted to serve the temporary purpose of protecting the plaintiff's interest so that the suit is not frustrated. By their very nature, interim reliefs last as long as the suit lasts. They are "interim" because they operate during the interval between the institution of the suit and its disposal. The words "interim relies" mean reliefs granted to last during such intermediate time, interval, interlude or meantime, as exist during the pendency of the suit. Such reliefs whether granted ex parte or upon hearing the defendant have a common character, which is marked by their temporary, provisional, intermediate nature."
11. Explaining the Doctrine, the learned Author has stated as under:
"It is well settled principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore, where the Supreme Court under Article 32 or Article 36 or a High Court under Article 226 or Article 227 of the Constitution entertains an application, they undoubtedly possess the power to grant interim relief which the facts and circumstances of the case require. It is well recognized principle that if jurisdiction is conferred by a statute upon a court, the conferment of jurisdiction implies the conferment of the power of doing all such acts, or employing all means, as are essentially necessary for its execution."
12. The law governing the grant of final relief at the interim stage has been well explained in catena of decisions noted herein below:
12.1 In Union of India v. Era Educational Trust, AIR 2000 SC 1573, the Hon'ble Supreme Court after considering its large number of judgments held that while passing interim order in exercise of writ jurisdiction under Article 226 of the Page 8 of 23 C/SCA/15682/2014 CAV JUDGMENT Constitution, principles laid down for granting interim relief under Order XXXIX of CPC should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief.
12.2 In Morgan Stanley Mulual Fund v. Kartik Das, (1994) 4 SCC 225 : (1994 AIR SCW 2801), the Hon'ble Apex Court held that ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh for grant of injunction are - (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve; (c) even if ex parte injunction should be granted, it should only be for limited period of time; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.
12.3 In Burn Standard Co. Ltd. v. Dinabandhu Majumdar, AIR 1995 SC 1499, the Hon'ble Supreme Court deprecated the practice of grant of interim relief which amounts to final relief, observing that High Court should exercise its discretion, while granting interim relief, reasonably and judiciously and, if loss can be repairable or the loss can be satisfied by giving back wages etc. in the end if petition ultimately succeeds, it is not desirable that the relief should be granted by interim order.
Hon'ble Apex Court further observed as under :-
"It should be granted only in exceptional circumstances where the damage cannot be repaired, for the reason that if no relief for continuance in service is granted and ultimately his claim...... is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received had he Page 9 of 23 C/SCA/15682/2014 CAV JUDGMENT continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief."
12.4. In exceptional circumstances, where for one reason or the other Court feels compulsion to grant an interim relief which amounts to final relief, the Court must record reasons for passing such interim relief. In Mohd. Yaqoob Khan, (1992 (4) SCC 167) (supra), the Hon'ble Supreme Court observed as under :
"Therefore, an order in the nature of mandatory direction could not have been justified, unless the Court was in a position to consider the objections andrecord a finding, prima faciein a nature, in favour of the writ petitioner".
12.5. Similarly, in U. P. Junior Doctors' Action Committee, (AIR 1992 SC 671) (supra), the Hon'ble Apex Court observed as under :
"Taking an overall picture of the matter, we are of the view that unless there is anyspecial reason to be indicated in clear termsin an interlocutory order as a rule no provisional admission should be granted and more so, into technical courses."
13 In view of the above, it is evident that the Court should not grant interim relief which amounts to final relief and in exceptional circumstances where the Court is satisfied that ultimately the petitioner is bound to succeed and fact-situation warrants granting such a relief, the Court may grant the relief but it must record reasons for passing such an order and make it clear as what are the special circumstances for which such a relief is being granted to a party.
14. The Government Resolution referred to above provides that once a candidate recommended by the Public Service Commission in a case of direct recruitment is appointed and, Page 10 of 23 C/SCA/15682/2014 CAV JUDGMENT thereafter, for any reason, relieved or joins any other cadre, vacancy due to such action is not to be offered to the candidate of the waiting list. However, in a case of direct recruitment so far as recruitment in the medical and education department is concerned, where the movement in the vacancy is quite frequent, then in such cases, where the candidate recommended by the Public Service Commission fails to resume duty, or even after resuming the duty during the period of probation, resigns or for any other reason, the candidate is relieved and vacancy occurs, the candidate in the waiting list can be requisitioned.
15. A learned Single Judge of this Court had an occasion to consider the resolution of the State Government laying down the aforesaid policy while considering the grant of interim relief in Special Civil Application No.4238 of 2011 decided on 27 th December, 2011. I may quote the order which reads as under:
1) Heard learned advocates for the parties.
2) With regard to the prayers made in para-16 of the petition, subsequent development which has taken place, as recorded in oral order dated 30.11.2011, would reveal that respondent no.3 was relieved from the post of Account Officer, Class-II, so as to join the new assignment as Section Officer, Class-II. The above fact is produced on record by the learned advocate for the petitioner and the communication dated 12.5.2011 reveals that respondent no.3 is relieved from the post of Account Officer, Class-II. Thus, a clear vacancy is available on the post of Account Officer, Class-II.
In view of direction contained in the oral order dated 30.11.2011, an affidavit dated 17.12.2011 is filed by the Under Secretary, Department of Finance, State of Gujarat, placing reliance on circular dated 24.12.2008 issued by the General Administrative Department about Page 11 of 23 C/SCA/15682/2014 CAV JUDGMENT procedure to be adopted for operating the waiting-list and it is submitted by the learned Assstant Government Pleader that once a candidate recommended by the Public Service Commission in a case of direct recruitment is appointed and, thereafter, for any reason, relieved or join other cadre, vacancy due to such action is not to be offered to the candidate of the waiting list. It is further submitted that in a case of direct recruitment so far as recruitment pertaining to Medical and Education branch is concerned, where the movement in the vacancy is so frequent and in such cases where the candidate recommended by the Public Service Commission fails to resume the duty, or even after resuming duty during the period of probation, such candidate resigns or for any other reason the candidate is relieved and vacancy occurs, the candidate in the waiting-list can be requisitioned. Such exigency is not available in the Department for the post of Account Officer, Class-II since it is not pertaining to Medical or Education Department.
3) In view of the above, it is submitted that the case of the petitioner cannot be considered at this stage.
4) As against this, Mr.Supehia, learned advocate for the petitioner has relied on the decision of the Hon'ble Apex Court in the case of Gujarat State Deputy Executive Engineers Association Vs. State of Gujarat reported in 1994 (0) GLHEL-SC 10019, where the Hon'ble Apex Court has observed that barring certain exceptions, waiting list cannot be operated and the case of the petitioner would fall in the exception so enumerated to the limited extent as indicated in para-8 of the said decision and, therefore, direction be given to the respondents to consider the case of the appointment of the petitioner on a vacant post available now.
However, learned Asst. Government Pleader has reservation to the above proposition to the extent that the petitioner is wait listed at serial no.2 and person at serial no.1 is entitled to claim for the post of Account Officer, Class-II.
5) Having considered rival submissions and record of the case, it is not in dispute that a candidate respondent no.3 who was appointed on the post of Account Officer, Class- II, on her appointment as Section Officer, Class-II, is Page 12 of 23 C/SCA/15682/2014 CAV JUDGMENT already relieved as per order dated 12.5.2011 and in view of what is held by the Hon'ble Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) in para-8 that "a candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has not right to claim appointment to any future vacancy which may arise unless the selection was held for it". Thus, in the facts of the case, respondent no.3 who was on probation, having joined the duty on the post of Account Officer, Class-II, was relieved since she was already appointed on the post of Section Officer, Class-II and thus a clear vacancy had arisen on the post of Account Officer, Class-II and benefits carved out in a case of direct selection pertaining to medical and education, where the operation of waiting list is permitted in a case where even the candidate who resumed the duty and, thereafter, is relieved for any good reason, is not made applicable to the candidate appointed for the post of Account Officer, Class-II, prima facie, appears to be discriminatory and violative of Article 14 of the Constitution of India. It is without any rational or logic that why a candidate to be appointed on the post of Account Officer, Class-II in the department of Finance or any such department is to be deprived of the benefit of appointment from the waiting list by assigning priority. Thus, what is held by the Apex Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) and provision of circular dated 24.12.2008 since waiting list is operating, certain benefit to a candidate of direct recruitment for medical and education and depriving the candidate for the post of Account Officer, Class- II with regard to the operation of waiting list is irrational and, therefore, I direct respondents to consider case of the petitioner so as to appoint the petitioner on the post of Account Officer, Class-II on now vacant post. Subject to further order that may be passed by this Court, the matter is adjourned to 8th February 2012."
16. I may also quote the observations made by the Supreme Page 13 of 23 C/SCA/15682/2014 CAV JUDGMENT Court in the case of Gujarat State Deputy Executive Engineers Association (Supra) as to be found in paras-8 and 9.
"8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and Page 14 of 23 C/SCA/15682/2014 CAV JUDGMENT choosing for extraneous reasons.
9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."
17. In the course of some research on my own, I could lay my hands on a very recent pronouncement of the Supreme Court in the case of Manoj Manu v. Union of India, (2013) 12 SCC 171 explaining the principles as regards the operation of a waiting list/reserved list. The Supreme Court considered two situations like the one in hand. Situation A: where candidates who had initially joined, but subsequently resigned/quit or were promoted, thus resulting in creation of vacancies again and situation B: where out of the recommended candidates, some candidates do not join at all.
18. The Court took the view that it is only in situation "A"
Page 15 of 23 C/SCA/15682/2014 CAV JUDGMENTthat the recruiting authority may be justified in not forwarding the names from the reserved/supplementary list as there is culmination of the recruitment process with exhaustion of the notified vacancies and the vacancies arising thereafter have to be filled up by fresh examination. However, in situation "B", non- forwarding of the names from the reserve/waiting list may not be justified especially when there is a specific requisition by the Appointing Authority therefor, as it was found in that case. The Supreme Court made the following observations:
"9. It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted, etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoPT had approached UPSC "within a reasonable time" to send the names, we do not see any reason or justification on the part of UPSC not to send the names.
10. We are conscious of the legal position that merely because the name of a candidate finds place in the select list, it would not give him/her indefeasible right to get appointment as well. It is always open to the Government not to fill up all vacancies. However, there has to be a valid reason for adopting such a course of action. This legal position has been narrated by this Court in Neelima 3 Shangla v. State of Haryana . In that case:Page 16 of 23 C/SCA/15682/2014 CAV JUDGMENT
"The appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test. Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Government. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to the Government, a complete list of qualified candidates arranged in order of merit. How should the Government, act is stated by the Supreme Court in the 3 following words: (Neelima Shangla case , SCC pp. 271-72, para 2) '2. ... Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that, though 55% is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60% of the marks.'"
(emphasis supplied)
11. The Court after making reference to the decision of the Supreme Court in State of Haryana v. Subash Chander Marwaha further observed as under: (Neelima Shangla case SCC p. 272, para 2) "2. ... However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the Page 17 of 23 C/SCA/15682/2014 CAV JUDGMENT availability of qualified candidates. There must be a conscious application of the mind of the Government, and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless."
(emphasis supplied)
12. It is, thus, 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.
515. This Court in Sandeep Singh v. State of Haryana commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda v. State of Haryana 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates (sic vacancies arose) for reasons of the non-appointment of some of the candidates and they ought to have been appointed if they come within the range of selection.
19. The decision of the Supreme Court in the case of Manoj Manu (supra) to a certain extent, undoubtedly, fortifies the objection raised by Ms. Manisha Luvkumar, the learned Government Pleader so far as the grant of interim relief is concerned. However, the Supreme Court has also made it very clear that there should be a valid reason for adopting a course of action which the Government in the present case wants to Page 18 of 23 C/SCA/15682/2014 CAV JUDGMENT adopt. The Government says that although there are vacancies and the petitioners are on top of the waiting list, yet they would not operate the waiting list and appoint them because they are not being appointed in any medical or education department. This distinction or classification of the State Government prima facie has not appealed to me and the validity or rather the correctness of the policy deserves to be considered at the time of the final hearing of the matter. I am conscious of the fact that ordinarily the Court under Article 226 of the Constitution, should not look into the wisdom or the correctness of the policy, but there is always an exception to this rule and i.e., the State himself act validly for discernible reason, not whimsically for any ulterior purpose. I may quote with profit the observations made by a Division Bench of this Court in para-44 in the case of Yatharth Naishadh Desai S/o Naishadh Desai vs. State of Gujarat rendered in Special Civil Application No.9942 of 2014 decided on 14th August, 2014.
44. In Kumari Shrilekha Vidhyarthi and Others v. State of U.P. and Others reported in (1991) 1 SCC 212, the Supreme Court made the following observations in paragraphs 36 and 37.
"36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is Page 19 of 23 C/SCA/15682/2014 CAV JUDGMENT arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always.
37. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principle or without any rule it is where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey, Law of Constitution, 10th edn. Introduction, cx). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich, 'when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it is classic terms in the case of John Wilkes, 'means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful'."" (Emphasis supplied)."
20. At the same time, I also take notice of the fact that in the recent pronouncement of the Supreme Court in the case of Manoj Manu (supra), there is no reference of the earlier decision of the Supreme Court in the case of the Gujarat State Executive Enginners Association (supra). Thus, there are two decisions of the Supreme Court which will have to be considered by the Court while deciding the matter finally.
Page 20 of 23 C/SCA/15682/2014 CAV JUDGMENT21. All the decisions which have been relied upon by the learned Government Pleader to oppose the grant of interim relief lay down very well settled principles of law. There need not be any debate but those shall be considered at the time of final hearing, as for the present I am only concerned with the grant of interim relief.
22. In so far as the argument of the learned Government Pleader that final relief should not be granted at the interim stage, I may only say that the circumstances are such that if I do not grant the relief at this stage, then practically the main writ application will become infructuous. In this regard, I may quote with profit a decision of the Supreme Court in the case of Deoraj v. State of Maharashtra & Ors, AIR 2004 SC 1975 wherein in para-12, the court observed as under:
"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would Page 21 of 23 C/SCA/15682/2014 CAV JUDGMENT not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent."
23. I am leaning in favour of the grant of interim relief mainly for the following reasons:
(I) Indisputably, there are vacancies and the petitioners are on top of the waiting list and they can be given appointment subject to the outcome of this petition.
(II) The life of the waiting list will expire on 24th June, 2015 and thereafter the petition will practically become infructuous. (III) The petitioners are otherwise found to be meritorious but could find place only in the waiting list.
(IV) The policy of the State Government needs to be looked into closely.
24. For the foregoing reasons, I direct the respondents to consider the case of the petitioners for being appointed to the post of PSI (Unarmed) by operating the waiting list in accordance with law and merit at the earliest. While issuing the appointment letters, it should be made clear to them in the appointment letters itself that the appointment shall be subject to the final outcome of the main petition.
(J.B.PARDIWALA, J.) Page 22 of 23 C/SCA/15682/2014 CAV JUDGMENT After the order is pronounced, Mr. Gautam, the learned AGP, made a request to stay the operation of this order. In view of what has been observed in the order, the request is declined.
The Registry shall forward the writ of the operative part of the order today itself.
Let the main matter be notified for final hearing on 31st July, 2015.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 23 of 23