Gujarat High Court
Muzaffarhussain Ismail Patel vs Oil And Natural Gas Corporation Ltd. on 29 January, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/4624/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4624 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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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MUZAFFARHUSSAIN ISMAIL PATEL
Versus
OIL AND NATURAL GAS CORPORATION LTD.
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Appearance:
MR NK MAJMUDAR(430) for the PETITIONER(s) No. 1
MR AJAY R MEHTA(453) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 29/01/2019
ORAL JUDGMENT
1. The present petition under Article 226 of the Constitution of India is filed for seeking the following reliefs : "11(A) admit this petition;
Page 1 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020C/SCA/4624/2016 JUDGMENT (B) Issue appropriate writ, order or direction and be pleased to quash and set aside the illegal, illogical, arbitrary, discriminatory action of the respondent authorities of not issuing appointment order to the petitioner though the petitioner has been declared as empanelled for the post of Junior Assistant (Account)/ Junior Assistant (P & A) and further be pleased to issue appropriate writ, order or direction upon the respondent authorities to issue appointment order to the petitioner for the post of Junior Assistant (Account)/ Junior Assistant (P & A) as the petitioner is already declared as empanelled for the said posts.
(C ) Issue appropriate writ, order or direction and be pleased to direct the respondent authorities to give details about cutoff marks/minimum marks for Written Test as well as Typing Test, qualification and for interview fixed by the concerned authorities for undertaking selection procedure for the post of Junior Assistant (Account) / Junior Assistant (P & A) and be pleased to further direct the respondent authorities to give/furnish further details of marks secured by the other candidates in the Written Test, Typing Test, qualification and in the interview as well as the appointment orders, if at all same has been issued.
(D) Grant interim relief and by way of interim order be pleased to direct the respondent authorities to keep one post of Junior Assistant (Account)/Junior Assistant (P & A) vacant, pending admission and final disposal of this petition;
(E) pass such orders as thought fit in the interest of justice."
2. The case of the petitioner is that an advertisement came to be published bearing advertisement No. 3/14 (R&P) for fillingup various posts including the posts of Junior Assistant (Accounts) and Junior Assistant (P&A). In response to the same, the petitioner applied on line application as per the requirement for participating in the process of recruitment for the aforesaid two posts. The petitioner later on found to be eligible and an admit card was given to the petitioner to enable him to appear in the written test. As common test was held for both the posts, subsequently, upon completion of the written test, the petitioner was informed to remain present in the typing test which was also found by the authority that the petitioner had met with the Page 2 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT requirement as prescribed by the authority. Resultantly, was called upon for interview, by sending common interview call letter. It is further the case of the petitioner that subsequently the respondent authority has declared the result of roll numbers of successful candidates who have been declared as selected. The seat number and the roll number of the petitioner was not included. As a result of this, the petitioner made a request to the authority to give details about the minimum cutoff marks fixed by the authority and also requested to supply marks secured by the other candidates as well who were declared as selected candidates. Apropos to the application, the petitioner received a communication on 06.10.2015 indicating that the petitioner has obtained 38 out of 6 marks in the written test and has secured 9 marks out of 15 in the interview. It has also been stated that the petitioner had been empanelled for the post of Junior Assistant (Account) but it was further stated that he did not come in the "release zone". The petitioner has then requested for similar details to the post of Junior Assistant (Personnel & Administration), but the authority has chosen not to furnish the details. As a result of this, the petitioner preferred First Appeal/reminder under the provisions of the Right to Information Act and even further reminder was sent on 08.12.2015. Again on 11.02.2016 one more application was sent by the petitioner requesting the authority to furnish the details, but the same were never supplied and, therefore, Second Appeal was filed on 05.02.2015 before the Central Information Commission. By that time, the other candidates who were selected were, to the reasonable knowledge of the petitioner, sent with appointment orders, but the details whereof is not given to the petitioner. This necessitated the petitioner to submit one more application requesting to furnish the details on 18.02.2016. It is the case of the petitioner that to the surprise, neither the details have been furnished nor the appointment order has been released and to Page 3 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT the reasonable knowledge of the petitioner as on date, from both the aforesaid posts i.e. the Post of Junior Assistant (Account) and post of Junior Assistant (P & A), one posts each has remained vacant, still the authority has chosen not to issue appointment to the petitioner. As a result of this, the petitioner is left with no other alternative, but to approach this Court by way of the present petition.
3. The present petition came to be admitted vide order dated 28.03.2016 and thereafter, has come up for consideration before this Court in which, learned advocate Mr. N.K. Majmudar appearing on behalf of the petitioner has submitted that the common examination was undertaken and the list of selected candidates was prepared by the authorities, five in numbers and unfortunately, first four candidates who have been selected along with the petitioner have resumed the duty pursuant to the appointment whereas, the present petitioner has not been given any appointment. Learned advocate Mr. Majmudar has further submitted that on one hand the authority is not disclosing the real material, depriving the petitioner the benefit of appointment and on the other hand has without furnishing the details though demanded, have allowed the candidates prior to the petitioner to resume the duty. The additional qualification which the petitioner is holding, no due weightage has been given, which has treated the petitioner not only with arbitrariness, but differently which has affected the right of the petitioner as violative of Article 14 of the Constitution of India. Learned advocate Mr. Majmudar has further contended that the authority has not even considered for alternative post and has just arbitrarily deprived the petitioner his right of seeking appointment. By relying upon some of the decisions delivered by the Apex Court, an attempt is made by the learned advocate for the petitioner to see that the relief prayed for be granted in the interest of justice. Learned advocate Mr. Majmudar has further submitted that Page 4 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT even on the basis of the material provided with respect to the first post, the petitioner is found to be successful and is fulfilling the eligibility criteria prescribed by the authority and therefore, denying the petitioner the right of appointment is nothing but a clear example of arbitrary exercise of powers which is thoroughly uncalled for in view of the settled position of law. Learned advocate Mr. Majmudar has requested that in view of this arbitrary powers which are exercised, judicial review be made to see the realm as to why the petitioner is not considered for the appointment and has requested the Court to grant the relief as prayed for in the petition. Learned advocate Mr. Majmudar has submitted that the ONGC is almost Article 12 authority and its every action must be on the touch stone of Article 14 of the Constitution of India and the principle of fair play in action. That being so, a case is made by the petitioner for grant of relief in the interest of justice. No other submissions have been made.
4. To controvert the stand taken by the learned advocate for the petitioner, Mr. Ajay R. Mehta, learned advocate appearing for the respondent organization has vehemently contended that mere selection would not confer any right of appointment in favour of the petitioner and therefore, unless and until there is a legal right infringed there is hardly any reason for the petitioner to invoke the extra ordinary jurisdiction to seek the writ of mandamus. It has been further submitted that to be on safer side the respondent has prepared a list of five candidates and four candidates have been considered as required by the organization and the petitioner was undisputedly at serial no. 5 and so keeping that caution that out of his previous four candidates, if anybody is not joining then, again that recruitment process may not be undertaken and for that very reason, the list of five selected candidates was prepared. It is the misfortune on the part of the petitioner that all the four candidates previous to Page 5 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT the petitioner have resumed their duty. Resultantly, the list has been exhausted and no relief can be granted at this stage of the proceedings. While substantiating his argument, learned advocate Mr. Mehta has drawn the attention to the relevant submissions which have been made in the affidavitinreply filed in detailed explaining the position and has specifically averred in para 6 that there is no further vacancy available which would permit the petitioner to claim as a matter of right. The details have been provided and explained as to why the case is not possible to be considered. Hence has stoutly objected to grant any relief to the petitioner. Ultimately, it has been submitted that the selection authority has merely recommended, but on the basis of the need of the organization since all four candidates have resumed their duty, the petitioner unfortunately could not found place in the employment for which no attribution of any nature be made against the respondent. Learned advocate Mr. Mehta after referring to the stand taken by the authority, has requested that no case is made out by the petitioner and in absence of any substantive right to seek post as a matter of right, no relief can be granted for issuance of writ of mandamus and after submitting the same, a request is made to dismiss the petition as no merit.
5. Having heard the learned advocates for the respective parties and having gone through the material on record, the Court is conscious about some of the circumstances which are reflecting from the record which cannot be given go by while taking an ultimate decision in the present proceedings.
6. First of all what has been prayed in the petition is ultimately to seek appointment order since at the relevant point of time the petitioner was empanelled. However, considering the fact that mere selection would not confer a substantive right in a candidate. The Page 6 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT facts in the present case is to be considered in light of the stand which has been taken by the authority. It has been submitted by the authority that the advertisement was published for filling up various posts and there were four vacant posts for the post of Junior Assistant (Account) in the general category. However, with a view to see that the selection may not be put to jeopardy on account of non joining of the selected candidate to the posts or on account of some contingencies, if anybody from the selected candidates may not resume, then in that case, the stand of the authority that it has prepared a panel of five candidates as against the requirement of four, but to the misfortune of the petitioner, all the four candidates before the present petitioner have joined the services. Resultantly, no vacant post left for the petitioner, but for that purpose, the explanation which has been given by the authority would revealed that the same is not to be held responsible. The affidavit which has been filed by the authority has in no uncertain terms has explained the position with regard to the filling up the posts and the relevant para contained in the said affidavit, precisely para 6 and 7 deserve to be considered as are line in favour of the authority. Hence, reproduced hereinafter : "6. The petitioners name was reflected in the list which is called empanelment list at serial no. 5. The petitioner could be eligible and entitled for appointment only in case if, any of four candidates who are ranked higher than the petitioner does not accept appointment. Here, in the present case since all four candidates accepted appointment there was no further vacancy, the petitioner cannot claim any appointment as exist and has outlived its utility when four candidates accepted appointment order for which advertisement was issued. At any rate, no one else in the panel can legitimately contend that he should have been offered appointment. The respondent relies on the decision of the Hon'ble Supreme Court rendered in case of State of Punjab v. Raghbir Chand Sharma, reported in 2002 (1) SCC 113, relevant paragraph of the judgment are reproduced as under : Page 7 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT " Para 4: We have carefully considered the submissions of the learned counsel on either side, in our view, the judgment rendered by the learned single Judge as well as the Division Bench of the Punjab and Haryana High Court cannot be sustained. As rightly contended for the appellantState, the Notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The Circular Orders dated 2231957 in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the Circular Orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before Courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies."
7. The answering respondent also relies on following decision of this Hon'ble Court, rendered in case of Minaxi N. Bhatt v. State of Gujarat & Ors., reported in 2003 (1) GLH 680. Relevant paragraphs whereof are reproduced hereunder for the sake of perusal of the Hon'ble Court.
Para 15 : The questions that arise in the present group of petitions are : (a) do the petitioners who were selected and placed on the wait list have a right to employment; (b) did the State Government invoke its power to operate the wait list in view of the extreme administrative exigency; and (c) does the Government Resolution dated 8th March, 1999 contemplate completion of the pending selection procedure in accordance with the revised roster.
Para 16 : In the present group of petitions, the Page 8 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT Commission had on 4th November, 1997 invited
applications for selection for appointment to 5 posts of Programme Officer [ICDS] in the Gujarat Public Health Services {ClassI}. Of the said 5 posts, one post was reserved for Scheduled Caste Candidate, one was reserved for Scheduled Tribe candidate. Thus, only three posts were available for appointment of candidates of unreserved category.
Para 17 : Pursuant to the interview held, 5 unreserved category candidates were selected by the Commission. Three candidates were placed on the select list and were recommended by the Commission for appointment against the 3 vacancies advertised for unreserved category candidates and the said 3 persons have been appointed. All the said 3 persons have accepted the appointment and have joined the service. The remaining 2 selected candidates, the petitioners herein, were placed on the wait list. Since no suitable candidate from the reserved categories was available, no candidate in the reserved categories was selected. The select list was prepared on 6th October, 1999. The wait list was operative for a period of two years i.e., till 5th October, 2001. During the pendency of the selection procedure the Government under Government Resolution dated 8th March, 1999, revised the roster for appointment by direct selection. Under the revised roster amongst the first 5 posts by direct selection one post is reserved for Socially & Educationally Backward Class candidate while 4 posts are available for appointment of candidates of unreserved category. The petitioners, under their representations made on 8th June, 2000, claimed that in view of the revised roster neither of the first 5 posts was reserved either for Scheduled Caste candidate or for Scheduled Tribe candidate. The petitioners being one of the first 5 selected candidates, they be appointed as Programme Officer [ClassI]. The State Government in Health & Family Welfare Department, under its communication dated 29th November, 2000 requisitioned two more persons - one of unreserved category and one of other Backward Class for appointment as Programme Officer [ICDS] ClassI. The said requisition has been followed by the communications dated 19th March, 2001 and 19th May, 2001 of the State Government in its General Administration Department. The tenor of the said communication appears to be that in view of the revised roster, the two posts advertised as reserved for Page 9 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT Reserved category candidates can be filled in by unreserved category candidates and that there were 16 vacant posts of Programme Officers [ClassI] which were required to be filled in in the interest of I.C.D.S Projects.
The law relating to preparation of the select list and the wait list, the operation thereof and the right of the person selected to appointment is well traversed and does not require a great deal of deliberation. Suffice it to say that it is the consistent view of the Hon'ble Supreme Court and the High Courts that a person selected for appointment has no indefeasible right to appointment. The State is under no legal duty to fill up all or any of the vacancies. However, the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. If the vacancies are filled in, the State is bound to respect the comparative merit of the candidates. As to the candidates included in the wait list, it is also well settled that such candidates have no right to appointment. A wait list may be operated only in case the selected candidate does not accept the appointment or in case of extreme exigency. Further, it is also well settled that all vacancies in public service are required to be advertised and only such posts can be filled in which are advertised. A change in the recruitment rules or for that matter roster during the selection procedure,shall not affect the selection procedure already commenced. The selection procedure once commenced shall be completed, as indicated in the advertisement, unless a contrary intention is spelt out.
Para 18 : Paragraph 8 of the Government Resolution dated 8th March, 1999 provides for the procedure where the selection procedure had already commenced prior to 8th March, 1999 but was not yet completed on the said date. The said paragraph 8 provides that the said Resolution shall come into operation on the date of its publication. However, in cases where the final selection is made, no change shall be effected. The roster shall be adjusted in future. In other cases, the selection should be kept in abeyance and the selection shall be made in accordance with the revised roster. The said Resolution is also accompanied by a schedule setting out the procedure for implementing the revised roster. However, it does not deal with a situation like the present one. Even the State Government in its communication dated 19th May, 2001 has admitted that the Government has not framed any Page 10 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT policy for dealing with the situation like the present one. In absence of any specific policy decision by the State Government, it is but natural that the selection should be made in accordance with the advertisement. If a suitable candidate in a particular category is not available, unless the contrary intention is indicated in the advertisement, such post cannot be made available for other categories of candidates. In the present case, the advertisement published by the Commission did not mention that the posts reserved for Scheduled Caste and Scheduled Tribe candidates; if remain unfilled, would be filled in by general category candidates. In absence of such express provision made in the advertisement, ordinarily, the said reserved posts cannot be filled in by general category candidates. Even the Government Resolution dated 8th March, 1999 does not disclose the Government intention of automatic adjustment of the posts already advertised, according to the revised roster. The intention is, save where the selection procedure has already commenced and the select list is finalized, all existing vacancies shall be filledin in accordance with the revised roster by fresh selection. It is not the submission of either of the learned advocates that even as a general policy of the Government, in cases where reserved posts are not filled in for want of availability of suitable candidates, such posts can be filled in by appointment of candidates of unreserved category placed on the wait list. Hence, in my view, where the selection procedure had commenced prior to 8th March, 1999, any unfilled vacancy at such selection shall be filled in in order of revised roster. For filling up such vacancy in order of revised roster, a fresh selection should be made. The candidate selected and placed on the wait list, therefore, cannot claim appointment in order of revised roster. The present petitioners, therefore, had no right to appointment on the posts which were advertised as reserved posts on account of non availability of reserved category candidates or of revision in roster."
8. Further the authority has also clarified the position with respect to the two posts and the relevant details have been enlisted in para 10 which also deserve to be considered. As a result of this, reproduced hereinafter: "10. With regard to contents of paragraph no. 2, it is submitted Page 11 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT that the petitioner is not entitled to file present petition under Article 226 of the Constitution of India as none of the right much less any fundamental right of the petitioner is violated by the respondent ONGC. It is matter of fact that the petitioner had applied for the post of Jr. Asst. (Accounts) and Jr. Asst. (P & A) in General category and passed the written test. The details of post advertised are as under : Post SC ST OBC GEN Total Jr. Asst. (Accounts) 01 02 03 04 10 Jr. Asst. (P&A) 01 01 03 06 11 It is submitted that the petitioner came to be selected and empanelled in the list of Jr. Asst. (Accounts) at serial no. 5. List of empaneled candidates with the marks secured are as under : Sr. Post Date of Int. Roll No. Name Total No. Marks
1. Jr. Asst. 02.04.2015 1122700562/19 Girishkumar R. 72.50 (Accounts) Yadav
2. Jr. Asst. 02.04.2015 1122700348/10 Deepakkumar C. 71.00 (Accounts) Patel
3. Jr. Asst. 01.04.2015 1122700410/2 Dignesh C. 70.50 (Accounts) Parikh
4. Jr. Asst. 02.04.2015 1122700445/7 Priyanka R. 68.50 (Accounts) Nachare
5. Jr. Asst. 02.04.2015 3072700134/22 Muzaffarhussain 67.00 (Accounts) I. Patel It is submitted that the candidates at serial no. 1 to 4 have accepted the appointment order and therefore, there is no further vacancy where the petitioner could be appointed and hence the petitioner is not entitled to any relief as alleged at all."
9. From the overall consideration of the explanation, it appears that there is no mala fide on the part of the respondent authority nor any ill intent of the authority to indicate that there is any bias against the petitioner. It was simplicitor the selection process resulting into filling up the post and to the misfortune of the petitioner previous four Page 12 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020 C/SCA/4624/2016 JUDGMENT candidates have resumed the duty leaving behind any room for the petitioner. As a result of this, no right to claim post is generated on account of the aforesaid situation in favour of the petitioner. It deserves to be reiterated that simply because the candidate is selected, the same would not give absolute right in his favour to be employed. The detailed discussion in the form of affidavitinreply which has been taken on record, clearly indicates that it is exclusive domain of the authority to recruit a person in its organization. Hence, in absence of any irregularity material in nature, or in absence of any element of bias, this Court would not like to exercise extra ordinary jurisdiction in favour of the petitioner. The other issues which are tried to be generated are of no avail to the petitioner, particularly, when the affidavitinreply has succinctly explained the circumstances. Resultantly, challenge to the action fails. The petition found to be meritless does not deserve to be entertained. Accordingly, the petition is dismissed herewith. Rule is discharged with no order as to costs.
(A.J. SHASTRI, J) /phalguni/ Page 13 of 13 Downloaded on : Sun Jun 14 08:57:44 IST 2020