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Judgment
This appeal is filed under Clause 15 of the Letters Patent by the original respondent no.3 being aggrieved by the judgment dated 3.3.2017 passed in Special Civil Application No.5090 of 2008 with Civil Application No.13842 of 2008.
The brief facts leading to filing of the present appeal are as under:
2.1 The respondent no.3 has issued an advertisement dated 26.1.2007 for filling up 499 posts of Vidhya Sahayaks who possess PTC qualification. Out of the aforesaid posts, 321 posts are earmarked for unreserved category. The petitioner was qualified to apply and therefore submitted an application in pursuance to the said advertisement. The merit list was prepared by the respondent-authorities but the petitioner did not find her place in the said merit list. However,
the petitioner was shown at serial no.18 in the wait list of unreserved category.
2.2 It is the case of the petitioner that the waiting list is required to be operated for filling up the vacancies caused or vacancies remaining unfilled due to non-joining of some candidates who are issued appointment orders or due to cancellation of appointments or resignations or death of any candidate after joining. It is stated that the candidates at sr.no.1 to 12 shown in the waiting list were given appointments as the vacancies remained unfilled or vacancies were caused by any reason.
2.3 It is further stated that appointment of 5 Vidhya Sahayaks have been cancelled on different dates as per the details given in paragraph 5 of the petition and therefore the respondents are required to further operate the waiting list by giving appointment to 5 candidates from the waiting list. It is further stated by the petitioner that the candidates at sr.no.11 and 12 in the waiting list have not accepted the appointment and therefore the respondents-authorities ought to have given the appointment to the petitioner.
2.4 The petitioner, therefore, filed the
captioned petition and prayed for the following reliefs:
"11.(A) to direct the respondents and particularly the respondent no.3 to forthwith give appointment to the petitioner as vidya- sahayak by operating the waiting-list in which the petitioner is admittedly at Sr.No.18, so as to fill up all the vacancies of vidya-sahayaks caused by or remaining unfilled due to non-joining of any candidates or cancellation of appointments or resignations or deaths or for any other reasons, after preparation of the selection- list pursuant to the interviews held on 7-3- 2007 as per ANNEXURE-D in connection with the Advertisement dtd.26-1-2007 as per ANNEXURE- B;
(b) to direct the respondents to give all consequential benefits to the petitioner as if she was appointed on the very next day on which the vacancy on which she is given appointment had arisen;
(c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents and particularly the respondent no.3 to forthwith give appointment to the petitioner as vidya-sahayak by operating the waiting-list in which the petitioner is admittedly at Sr.No.18, so as to fill up all the vacancies of vidya-sahayaks caused by or remaining unfilled due to non-joining of any candidates or cancellation of appointments or resignations or deaths or for any other reasons, after preparation of the selection- list pursuant to the interviews held on 7-3- 2007 as per ANNEXURE-D in connection with the Advertisement dtd.26-1-2007 as per ANNEXURE- B;
(d) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to place on record the complete waiting-list of Unreserved Category as also the exact particulars of the vacancies caused or remaining unfilled due to non-joining of selected candidates or cancellation of appointments or resignations or death of any candidates or for any other reason, and the exact particulars of the appointments made from the waiting-list until this date, for effective and complete adjudication of the present matter in the interest of justice;
(e) xxxxx"
2.5 Learned single Judge, by the impugned order, allowed the petition and thereby held that the petitioner is to be treated in service from the date the vacancy has fallen vacant and she will be treated in service from the said date and the period between the date of creation of vacancy and actual date of joining, will be treated only for the purpose of seniority. It is further held that the petitioner will not be entitled for salary for this interregnum period and direction is also given to the respondents to issue necessary appointment orders to the petitioner within the stipulated time limit. The original respondent no.3-appellant has therefore filed the present appeal.
Heard learned advocate Mr.Munshaw or the appellant-original respondent no.3, learned advocate Mr.Pujara for the opponent no.1-original
petitioner and learned AGP Mr.Devnani for respondent-State.
3.1 Learned advocate Mr.Munshaw has assailed the order passed by the learned Single Judge mainly on the ground that the original petitioner found her place in the waiting list which was operative for a period of one year only i.e. from 9.3.2007 to 9.3.2008. The petitioner is shown at serial no.18 in the waiting list who has filed the petition on 10.3.2008 i.e. after the date of expiry of the waiting list and therefore, learned Single Judge ought not to have granted any relief in favour of the original petitioner.
3.2 Learned advocate Mr.Munshaw thereafter, would contend that there were other candidates between serial no.13 to serial no.17 above the petitioner and therefore even assuming that one post has remained vacant as the concerned wait listed candidate has not joined the duty, the waiting list is required to be operated from serial no.14 onwards and therefore the petitioner who found her place at serial no.18 in the waiting list is not entitled to claim the appointment. He, therefore, requested that the impugned order passed by the learned Single Judge be set aside.
3.3 Learned advocate Mr.Munshaw has referred the further affidavit dated 14.9.2017 filed by the District Primary Education Officer, Patan from which it is pointed out that the averments made by the petitioner that Ms.Nirali Jayantibhai Patel and Ms.Kajal Natwarlal Patel are on the waiting list and are placed at serial no.11 and 12 and have not joined the services though appointment orders were issued in their favour are not correct in toto. It is submitted that by way of operating the waiting list, Ms.Nirali Patel who is at serial no.11 on the waiting list was issued appointment order on 18.2.2008. However, as per the record and noting she did not join at the place of posting due to her ill health and asked for time for joining the duty. Similarly, Ms.Kajal Patel who was on waiting list at serial no.12 was also issued appointment order on 18.2.2008 but she did not join the service and as per the record, the post of Ms.Nirali Patel was kept vacant as per her request. As Ms.Kajal Patel failed to report for duty, the waiting list was further operated and one Nainaben I Dave was issued appointment order on 7.3.2008. Said Nainaben Dave was at serial no.13 in the waiting list. It is, therefore, submitted by learned advocate Mr.Munshaw that as the post allotted to Ms.Nirali Patel through appointment order dated 18.2.2008 was kept vacant pursuant to her request
as per the entry in the register and within 20 days, the time limit of the select list/wait list has expired, the candidates from serial no.14 onwards cannot have any claim for appointment. It is, therefore, submitted that merely because the petitioner has approached this Court, the relief cannot be granted in favour of the petitioner who is at serial no.18. It is, therefore, urged that the impugned order passed by the learned Single Judge be set aside.
3.4 In support of his submissions, learned advocate Mr.Munshaw has placed reliance upon the decision rendered by the Hon''ble Supreme Court in the case of State of Orissa and Another V/s Rajkishore Nanda and Others, reported in (2010)6 SCC 777.
On the other hand, learned advocate Mr.Pujara appearing for the present opponent no.1-original petitioner has supported the reasoning recorded by the learned Single Judge. He submits that the waiting list has been operated till serial no.13. However, 5 candidates selected from said waiting list were removed because of disciplinary proceedings and because of such removal, 5 vacancies arose during the period from 9.3.2007 to 8.3.2008. It is further submitted that even assuming that five posts have not fallen vacant due to three grounds mentioned in G.R.dated 18.9.2007, the other two posts remained vacant because the two candidates from waiting list i.e. Ms.Nirali Patel and Ms.Kajal Patel who were placed at serial no.11 and 12 of the waiting list have not accepted their appointment. Thus, two vacancies are required to be filled in by operating the waiting list. At this stage, it is further submitted that even as per the further affidavit filed by the original respondent-authority, when Ms.Nirali Patel has not joined the duty, Ms.Nainaben Dave who was at serial no.13 in the waiting list was appointed, even then, it is an admitted fact that Ms.Kajal Patel has failed to report for duty and therefore the case of the petitioner is rightly considered by the learned Single Judge. At this stage, learned advocate Mr.Pujara has submitted that the petitioner has immediately on 10.3.2008 filed the petition before this Court as the petitioner was not offered appointment and therefore it is not proper on the part of the original respondent no.3 to contend that the petition is filed after expiry of the waiting list and therefore the petitioner is not entitled for appointment on the post in question.
4.1 Learned advocate Mr.Pujara has placed reliance on the decisions rendered by the Hon''ble
Supreme Court in the cases of (1) Gujarat State Dy.Executive Engineers'' Association V/s State of Gujarat and Others, reported in 1994 Supp(2) SCC 591 and (2) Sri Ashok alias Somanna Gowds and another V/s State of Karnataka and others, reported in AIR 1992 SC 80.
Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it emerges that the original respondent no.3-present appellant authority issued an advertisement dated 26.1.2017 for filling up 499 posts of Vidhya Sahayaks out of which 321 posts were earmarked for unreserved category. The petitioner applied in person to the said advertisement and her name was shown in the waiting list at serial no.18. The respondent- authority operated the waiting list upto serial no.13 as some of the candidates have not joined for the duty. It is required to be noted that as per G.R. dated 18.9.2007 issued by the Education Department, Government of Gujarat, the waiting list can be operated under three circumstances - (1) a candidate of select list fails to report for duty after issuance of appointment order (2) a candidate of the select list appointed by the authority is found to be unfit due to medical ground, age etc. and (3) a candidate of select list reported for duty after appointment, tenders
resignation. It is the specific case of the respondent authority that 13 candidates of waiting list are appointed by the respondent authority before the expiry of the waiting list. The waiting list remained in force during the period between 9.3.2007 to 9.3.2008.
From the further affidavit-in-reply filed by the respondent authority, it is revealed that the candidates at serial nos.11 and 12 in the waiting list were offered appointment, however, candidate who is at serial no.12 i.e. Ms.Kajal Patel failed to report for duty whereas Ms.Nirali Patel who is at serial no.11 asked for time for joining the service on account of her ill health. The appointment order was issued to her on 18.2.2008 and she was asked to join for duty within a period of one week. At this stage, it is required to be noted, as admitted by learned advocate Mr.Munshaw during the course of arguments, that the request letter given by Ms.Nirali Patel is not available on record of the respondent authority. It is only mentioned in the register that she asked for time for joining the duty. Thus, in the aforesaid facts and circumstances, the respondent authority had given the appointment to one Ms.Nainaben Dave and she was issued appointment order on 7.3.2008. Nainaben was at serial no.13 in the waiting list.
She joined the duty within the stipulated time. Thus, from the aforesaid facts and circumstances of the present case, it is not in dispute that the candidate who is at serial no.11 namely Ms.Nirali Patel had failed to report for duty and for a period of approximately 20 days, she had not joined for duty before the date of expiry of the waiting list. Thus, admittedly, even as per the case of the respondent authority, one post remained vacant and therefore the respondent authority ought to have operated the waiting list further.
In the case of Gujarat State Dy.Executive Engineers'' Association, the Hon''ble Supreme Court has discussed in paragraph 8 about the right of waiting list candidate. It is held by the Hon''ble Supreme Court 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 other selected candidates do not join. The Hon''ble Supreme Court observed and held in paragraph 8 as under:
"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 the 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 choosing for extraneous reasons."
In the case of Sri Ashok @ Somanna Gowda and another (supra), the Hon''ble Supreme Court has observed in paragraph 3 as under:
"3. We, therefore, allow the appeal and direct the respondents to give appointment to the appellant Ashok alias Somanna Gowda on the post of Asstt.Engineer (Civil) and appellant Rajendra on the post of Asstt.Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules. Learned counsel appearing on behalf of the State of Karnataka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection. In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they ever approached for redress within reasonable time. We are thus inclined to grant relief only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time. Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selections were made as they are no longer in existence. No order as to costs."
Keeping in view the aforesaid decisions
rendered by the Hon''ble Supreme Court, if the facts of the present case are examined, it is revealed that the wait list candidate has a right to claim that he may be appointed if one or the other selected candidate does not join. Thus, in the present case, when the candidate at serial no.11 in the waiting list has not joined the duty, the respondent-authority was required to operate the waiting list from serial no.14 onwards. The contention of the learned advocate Mr.Munshaw appearing for the respondent-authority is that even if the waiting list is to be operated from serial no.14, the petitioner is not eligible for appointment as she is at serial no.18 in the waiting list. However, in the aforesaid decision rendered by the Hon''ble Supreme Court, it has been observed that the Court is inclined to grant relief only to the concerned appellants who were vigilant in making the grievances and approached the Tribunal in time. Here also, the candidates from serial no.14 to 17 have never approached before this Court agitating their grievances or claiming their right to be appointed on the vacant post and therefore when the petitioner has approached before this Court in time, immediately on the next date of the expiry of the waiting list, we are of the view that the learned Single Judge has not committed any error while considering the
case of the petitioner and while granting relief in her favour.
In the case of Rajkishore Nanda and others (supra) decided by the Hon''ble Supreme Court upon which reliance is placed by the learned advocate Mr.Munshaw would not be applicable to the facts of the present case. In the said case, the Hon''ble Supreme Court held that select list cannot be treated as a (perpetual) reservoir for purpose of appointment if selection process is over whereby select list has expired and appointments have been made, no relief can be granted by the Court subsequently on the basis of the expired select list. However, as discussed hereinabove, when the candidate at serial no.11 Ms.Nirali Patel has not joined duty within stipulated time limit, it was incumbent upon the respondent authority to operate the waiting list further during its validity period. However, the respondent authority has failed to operate the waiting list. The petitioner was waiting for the appointment order as she was at serial no.18 in the waiting list. When the respondent authority has not offered appointment upto 9.3.2008, immediately on the next date i.e. 10.3.2008, the captioned petition was filed by the petitioner.
Thus, we are of the view that the aforesaid decision is not applicable to the facts
of the present case.
Learned Single Judge has held that the petitioner is to be treated in service from the date the vacancy has fallen vacant. However, in the facts and circumstances of the present case, the said direction is required to be set aside as the respondent authority, under the impression that the candidate at serial no.11, will join the duty as per her request had not given appointment to the next candidate of the wait list. The direction issued by the learned Single Judge to treat the period between the date of creation of vacancy and actual date of joining for the purpose of seniority is also hereby set aside.
In view of the aforesaid discussion, the direction issued by the learned Single Judge to the appellant-original respondent to issue necessary appointment order to the petitioner within the stipulated period is confirmed. The remaining directions issued by the learned Single Judge to treat the period between the date of creation of vacancy and actual date of joining for the purpose of seniority is hereby set aside. The present appellant-respondent is hereby directed to issue necessary appointment order to the original petitioner within a period of four weeks from the date of receipt of the copy of this order. The appeal is partly allowed to the aforesaid extent. Civil application stands disposed off.