Gadhvi Bhikhabhai Bharamalbhai vs State Of Gujarat & on 7 January, 2013

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Gujarat High Court

Gadhvi Bhikhabhai Bharamalbhai vs State Of Gujarat & on 7 January, 2013

1. The present Special Civil Application under Article 226 of the Constitution of India has been preferred by the petitioner herein for appropriate writ, direction or order quashing and setting aside the order dated 13.04.2012 being CJM/102010/2788/D, Sachivalaya, Gandhinagar passed by the respondent No.1 herein-State of Gujarat cancelling the appointment of the petitioner as Civil Judge and subsequently to direct the respondents to restore the order dated 12.01.2012 being CJM/102010/2788/D issuing appointment to the petitioner to the post of the Civil Judge.

2. Facts leading to the present Special Civil Application are as under:-

2.1.

That the respondent No.2 herein High Court of Gujarat invited online applications from the eligible candidates, by way of competitive examination, for filling up approximately 121 vacancies (existing and future) in the cadre of Civil Judge (Junior Division) and JMFC being No.RC/0719/2009 on 16.09.2009. That pursuant to the said advertisement, petitioner herein also submitted the application and he also appeared in the competitive examination. That after completing the regular recruitment process, the High Court prepared a select list of 121 candidates (post/vacancies which were advertised) and also prepared the waiting list of six candidates. That the name of the petitioner was in the waiting list. That the said select list and the waiting list was prepared on 19.07.2010. It appears that while preparing the final select list the result of three candidates were kept pending and the High Court by letter dated 22.07.2010 recommended to the State Government to issue orders of appointment to 121 candidates (excluding the candidates whose results were kept pending). It appears that pursuant to the said recommendation, the State Government by order dated 16.11.2010 issued the appointment order initially to 116 candidates as Ad-hoc Civil Judge (Junior Division) and JMFC, Class-II. It appears that subsequently by order dated 06.12.2010 the State Government issued appointment orders to remaining five candidates as Ad-hoc / as temporary Civil Judge (Junior Division) and JMFC, Class-II for a period of two years. Thus, by order dated 06.12.2010 the State Government on the basis of the recommendations of the High Court appointed in all 121 candidates (the posts which were advertised). Thus, the select list for which the posts were advertised, came to be exhausted. It appears that thereafter and in the meantime by Notification dated 17.05.2010, the State Government created 375 vacancies of Civil Judge for a period of one year i.e. upto 28.02.2011 and thereafter the said vacancies came to be further extended upto 29.02.2012 by Notification dated 30.03.2011.

2.2.

It appears that despite the fact that a fresh selection process for recruitment of Civil Judge to fill up vacancies which had subsequently fallen vacant and even which were created subsequently on ad-hoc for one/two years, were initiated by giving the fresh Advertisement dated 04.07.2011 and though the petitioner was in the waiting list, which was prepared pursuant to the earlier advertisement dated 16.01.2009, he along with other two candidates who were also in the waiting list submitted the applications/representations to consider their cases for appointment on the posts which were created subsequently, by submitting that there are vacant posts available now. Therefore, the High Court sent the recommendations to the State Government to issue appointment orders to the petitioner and other two candidates who were in the waiting list which was prepared pursuant to the advertisement dated 16.09.2009 and thereafter, by order dated 12.01.2012 the State Government on the recommendation made by the High Court issued appointment orders to the petitioner and other two candidates who were in the waiting list as adhoc for a period of one year and on the posts which were created on temporary / adhoc, by the Legal Department of the State Government vide Resolutions dated 17.05.2010 and 30.03.2011. However, it appears that before any actual posting orders are issued by the High Court and as in the meantime two fresh selection / recruitment process had already started and begun, the High Court took the decision not to appoint the petitioner and other two persons as adhoc for one year who were in the waiting list and recommended the State Government to cancel their appointment orders and consequently by impugned communication dated 13.04.2012 the State Government has cancelled the appointment of the petitioner as adhoc Civil Judge. It is to be noted that in the meantime and even before the High Court earlier recommended to appoint the petitioner (who was in the waiting list). Applications were invited on 04.07.2011 for 137 regular vacancies and 369 adhoc vacancies and the High Court prepared the select list of 137 regular and 133 adhoc candidates. It also appears that by Government Notification dated 31.07.2012, the State Government issued the appointment orders to 137 regular candidates. It also appears that thereafter even one another advertisement is given to fill up the post of 33 regular vacancies and 287 adhoc vacancies and another recruitment process has begun by giving advertisement inviting the application on 27.04.2012.

2.3.

Being aggrieved and dissatisfied with the impugned order dated 13.04.2012 issued by the State Government on the basis of the recommendation by the High Court canceling the appointment of the petitioner as adhoc Civil Judge, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India and consequently it is requested to pass an appropriate order to restore the earlier order dated 12.01.2012 issuing the appointment to the petitioner to the post of Civil Judge.

3. At the outset, it is required to be noted that identical question came to be considered by this Court in Special Civil Application No.11212 of 2012 wherein, similarly situated candidates, whose names also appeared in the very waiting list, in which the name of the petitioner figured challenging the very orders and this Court by C.A.V. judgment and order dated 03.12.2012, has dismissed the said Special Civil Application by observing and holding in paragraph Nos.5.0 to 5.8 as under:-

[5.0] Heard learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that admittedly the name of the petitioners were in the waiting list prepared pursuant to the advertisement dated 16.09.2009. It is required to be noted and it is an admitted position that the advertisement dated 16.09.2009 was issued inviting the applications for the post of Civil Judge to fill up approximately vacancies (existing and future). It is an admitted position that the High Court prepared the select list of 121 candidates and the result of three candidates were kept pending and the name of the petitioners were included in the waiting list of six candidates. It is to be noted that by Notification No.16.10.2010 the State Government appointed 116 candidates and thereafter vide Notification dated 06.12.2010 appointed further five candidates. Therefore, by Notification dated 06.12.2010, 121 candidates in all came to be appointed. Therefore, the select list of 121 candidates came to be exhausted by Notification dated 06.12.2010. Therefore, all the 121 posts which were advertised by advertisement dated 16.09.2009 came to be filled in. It appears that thereafter by Government Resolution dated 17.05.2010, the State Government created 375 temporary additional posts in the cadre of Civil Judge and JMFC for the period upto 28.02.2011 in the first instance from the date, they are actually filled in and thereafter by Resolution dated 30.03.2011 the aforesaid 375 posts are continued for a period upto 29.02.2012. It appears that after the aforesaid select list of 121 candidates came to be exhausted and all the 121 posts were filled in, there were further vacancies and in the meantime the aforesaid 375 temporary posts of Civil Judge and JMFC were created (by Resolutions dated 17.05.2010 and 30.03.2011) and therefore, a fresh recruitment process begun and an advertisement was issued by the High Court on 04.07.2011 inviting the applications for the post of Civil Judge to fill up 137 regular vacancies and 369 adhoc vacancies. It is to be noted that pursuant to the said advertisement, none of the petitioners participated and/or submitted any application. It appears that after 375 temporary posts of Civil Judge and JMFC were created by the State Government pursuant to the Notifications dated 17.05.2010 and 30.03.2011 and as there were vacant posts, the petitioners and other two candidates who were in the waiting list pursuant to the earlier recruitment process / advertisement dated 16.09.2009 to give their appointment orders and on the basis of the recommendations of the High Court, the State Government issued the appointment orders to the petitioners and other two candidates who were in the waiting list, by order dated 12.01.2012. However, before any posting orders are issued, it was found by the High Court in view of the subsequent recruitment process dated 04.07.2011 inviting the applications for 137 regular vacancies and 369 adhoc vacancies of the Civil Judge, the petitioners and other two candidates cannot be appointed on the posts of Civil Judge on the basis of their names being in the waiting list pursuant to the earlier recruitment process/advertisement dated 16.09.2009 and therefore, the High Court has taken the decision to cancel their appointments and consequently the State Government has accepted the same and has issued the impugned orders and the petitioners have, therefore, prayed to quash and set aside the impugned orders dated 12.01.2012 and have requested to restore the earlier order of appointment dated 12.01.2012 and to appoint them as Civil Judge.

Therefore, as such the prayer of the petitioners is to appoint them as Civil Judge.

[5.1] Therefore, the short question which is posed for consideration of this Court is whether the petitioners can claim any appointment on the post of Civil Judge on the basis of the their names being included in the waiting list which was prepared pursuant to the earlier advertisement dated 16.09.2009 / earlier recruitment process? It is an admitted position that the earlier recruitment process / advertisement dated 16.09.2009 was for approximately 121 vacancies (existing and future) and the High Court prepared the select list of 121 candidates and also prepared the waiting list of six candidates. It is an admitted position that the petitioners were in the waiting list. It is also an admitted position that thereafter all the 121 posts / vacancies which were advertised have been filled in from and amongst the candidates who were in the select list and therefore, the entire select list has been exhausted. Therefore, once the select list has been exhausted and all the posts which were advertised were filled in, thereafter the waiting list cannot be operated and/or is not required to be operated.

[5.2] It is the case on behalf of the petitioners that the advertisement dated 16.09.2009 was given inviting the applications to fill up approximately 121 posts (existing and future) and therefore, for the post which had fallen vacant subsequently and for the post which were created subsequently on that the waiting list can be operated and the petitioners can be appointed and therefore, the petitioners were rightly appointed by the orders dated 12.01.2012, cannot be accepted. The word approximately 121 vacancies (existing and future) is to be considered for the posts which are already in existence and are vacant or likely to fall vacant and the same cannot be applicable with respect to the posts which are not in existence and which are yet to be created. Under the circumstances, as such the petitioners cannot claim any appointment on the post of Civil Judge on the basis of their names being included in the waiting list pursuant to the advertisement dated 16.09.2009 above 121 posts and on the posts which were not in existence at the time of advertisement and are created subsequently. Meaning thereby the petitioners cannot claim any appointment on the basis of their names being included in the waiting list pursuant to the earlier recruitment process / advertisement dated 16.09.2009 on the posts which are created subsequently by Notifications dated 17.05.2010 and 30.03.2011 by which 375 temporary adhoc posts were created in the cadre of Civil Judge and JMFC for the period upto 28.02.2011 in the first instance from the date, they are actually filled in and thereafter by Resolution dated 30.03.2011 the aforesaid 375 posts are continued for a period upto 29.02.2012.

[5.3] At this stage it is also required to be noted that as per the relevant recruitment rules, even the select list shall cease to be operative on the expiry of one year from the date of its publication. As stated herein above, the select list which was prepared pursuant to the earlier selection process/recruitment process pursuant to the advertisement dated 16.09.2009 was published on 19.07.2010 and therefore, on and after 19.07.2011 even the select list has lapsed. Therefore, even the candidates who were in the select list could not claim the appointment pursuant to the said select list after 19.07.2011. So far as the petitioners are concerned, as stated herein above, admittedly they were in the waiting list and therefore, if the candidates in the select list cannot/could not claim the appointment after 19.07.2011 certainly the petitioners being in the waiting list cannot claim appointment after 19.07.2011 and that too on the posts which were created subsequently.

[5.4] As stated herein above, after the entire select list of 121 candidates which was prepared pursuant to the earlier selection process / recruitment process pursuant to the advertisement dated 16.09.2009 was exhausted and all the 121 posts were filled in, even the fresh selection process / recruitment process had begun by giving the advertisement inviting the applications for 137 regular vacancies and 369 adhoc vacancies and even thereafter also, a further recruitment / selection process has begun by giving advertisement on 27.04.2012 inviting the applications for 33 regular vacancies and 287 adhoc vacancies. It is also reported that so far as petitioner No.2 is concerned, he had applied afresh pursuant to the advertisement dated 04.07.2011 and has failed. In view of the aforesaid facts and circumstances and when in view of the fresh recruitment process had begun after the earlier recruitment process/selection process pursuant to the advertisement dated 16.09.2009 and in view of the said changed circumstances, the petitioners could not have been appointed as Civil Judge on the posts which are created subsequently, created pursuant to the Notifications dated 17.05.2010 and 30.03.2011 and that too solely on their names being included in the waiting list prepared pursuant to the earlier selection / recruitment process / advertisement dated 16.09.2009 and therefore, when a decision has been taken to cancel their appointments / appointment orders dated 12.01.2012, which otherwise the petitioners were not entitled to, no illegality has been committed either by the High Court or by the State Government in canceling their appointments, which otherwise the petitioners were not entitled to and therefore, no relief can be granted to the petitioners to appoint the petitioners pursuant to the earlier order of appointment dated 12.01.2012 and/or to restore the earlier order dated 12.01.2012 and to appoint them as Civil Judges as the petitioners cannot claim the appointment on the posts of Civil Judge on the basis of their names being included in the waiting list prepared pursuant to the earlier advertisement dated 16.09.2009 that too on the posts which are created subsequently and the posts which were not in existence at all at the time when the advertisement was given and when the petitioners applied. To grant the ultimate relief which is prayed by the petitioners i.e. to appoint them as Civil Judge pursuant to the earlier order dated 12.01.2012 by which the petitioners were ordered to be appointed as Adhoc Civil Judge for a period of one year on the posts which were created pursuant to the notification / resolutions dated 17.05.2010 and 30.03.2011 would tantamount to granting the appointment to the petitioners which otherwise they are / were not entitled to on the basis of their names being included in the waiting list prepared pursuant to the earlier recruitment / selection process / advertisement dated 16.09.2009.

[5.5] Even otherwise as stated herein above, pursuant to the earlier advertisement dated 16.09.2009, pursuant to which the petitioners applied, the applications were invited for 121 vacancies (existing and future) and consequently the High Court prepared the select list of 121 candidates and as stated herein above all the 121 vacancies were filled in and the entire select list came to be exhausted and even thereafter the fresh recruitment process to fill up the subsequent vacancies which had fallen vacant and to fill up the adhoc vacancies which were created subsequently (pursuant to the Notifications dated 17.04.2010 and 30.03.2011) had begun by giving advertisement on 04.07.2011 inviting the applications for 137 regular vacancies and 369 adhoc vacancies.

[5.6] At this stage the decisions of the Hon ble Supreme Court in the case of Malik Mazhar Sultan and Anr. Vs. U.P. Public Service Commission & Ors. reported in (2006)9 SCC 507 is required to be referred to. As observed by the Hon ble Supreme Court in the said decision, the select list prepared for all categories of officers shall be valid till the next select list is published. As stated herein above, even the Gujarat State Judicial Service Rules, 2005 also provides the same.

[5.7] So far as the submission on behalf of the petitioners to operate the waiting list prepared pursuant to the advertisement dated 16.09.2009 and to appoint them on the post which have been created subsequently, pursuant to the Notifications dated 17.05.2010 and 30.03.2011 is concerned, the decision of the Hon ble Supreme Court in the case of Madanlal Vs. Jammu & Kashmir reported in (1995)3 SCC 486 as well as in the case of Gujarat State Dy. Executive Engineers Association Vs. State of Gujarat and Others reported in 1994 Supp. (2) SCC 591 are required to be referred to. In the case of Madanlal (Supra), the Hon ble Supreme Court has observed and held as under:

...if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidates, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of 1 year from the date of publication of such list, all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. In either event, thereafter, if further vacancies are to be filled in or remaining vacancies are to be filled in after one year a fresh process of recruitment is to be initiated giving a fresh opportunity to all open market candidates to compete.

In the case of Gujarat State Dy. Executive Engineers Association (Supra), the Hon ble Supreme Court has observed and held as under:

....How a waiting list should be 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 waiting list then it is in respect of those 10 seats only for which selection or competition was held. Such lists are prepared at either under the rules or even otherwise mainly to ensure that the working in the office doesn t suffer if the selected candidates don t join for one or the other reason or the next selection or examination is not held soon. Therefore, once the selected candidates join and no vacancy arise 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.

A waiting list prepared in an examination conducted by the Commission doesn t furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates doesn t 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 liable to be appointed doesn t appear to be sound.

Considering the aforesaid decisions of the Hon ble Supreme Court and considering the facts of the case narrated herein above and at the cost of repetition, considering the fact that the earlier recruitment dated 16.09.2009 was for inviting the applications for approximately 121 vacancies (existing and future) and the High Court prepared the select list of 121 vacancies which were filled in by 06.12.2010 and the said select list has been exhausted and all the vacancies which were advertised were filled in and the names of the petitioners were in the waiting list prepared pursuant to the said advertisement of 2009, the petitioners cannot claim any appointment on their names being included in the waiting list either on the posts beyond 121 posts which were advertised and/or even the posts which are created subsequently. There is a distinction between the post vacant and post created subsequently. There can be future vacancies on the posts which are in existence and therefore, the word approximately 121 vacancies (existing and future) has been used in the advertisement dated 16.09.2009. Therefore, the vacancies which are likely to fall vacant in future would be the posts which are already in existence and the aforesaid advertisement / recruitment process of 2009 cannot be made applicable with respect to the posts which are created subsequently, created pursuant to the Notifications dated 17.05.2010 and 30.03.2011.

[5.8] Under the circumstances, no relief can be granted to the petitioners as prayed, more particularly, to restore the order dated 12.01.2012 and consequently to appoint the petitioners as Civil Judge pursuant to the earlier orders dated 12.01.2012.

4. Considering the above and for the reasons stated in paragraph Nos.5.0 to 5.8 in the C.A.V. judgment and order dated 03.12.2012 passed by this Court in Special Civil Application No.11212 of 2012, reproduced hereinabove, the present Special Civil Application also deserves to be dismissed and is accordingly dismissed.

(M.R.SHAH, J.) (S.H.VORA, J.) Hitesh Page 15 of 15

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