Patel Kaminiben Kanaiyalal vs State of Gujarat

Mr. Mohinder Pal, J. (Oral)—This petition under Articles 14,16,19, 21 and 226 of the Constitution of India, seeking directions to the respondents to appoint the petitioner as Vidya Sahayak by operating waiting list.

There is no dispute on the point that the posts of Vidya Sahayak were advertised and a waiting list of 20% of such posts was prepared, the life of which was for a period of one year from 9.3.2007. It is the grievance of the petitioner that after filling up the posts, waiting list was operated and five posts have fallen vacant because of some disciplinary proceedings against these candidates, and accordingly, those five vacancies should have been offered to the next candidates including the petitioner as he was at sr. no. 18 in the waiting list.

Learned counsel Mr. Pujara for the petitioner has submitted that the petitioner was at sr. no. 18 in the waiting list. The waiting list has been operated till Sr. No. 13, however, five candidates selected from such waiting list were removed because of disciplinary proceeding and their removal has resulted into vacation of five more vacancies during the period from 9.3.2007 to 8.3.2008 and the petitioner being at Sr. No. 18, should have been offered the post of Vidya Sahayak. It has been argued that apart from the aforementioned five vacancies, two candidates from the original list also could not join, and as a result thereof, there were seven vacancies with the respondents and action of respondents in not offering appointment to the petitioner was against the law and Circular issued by the State Government.

On the other hand, Mr. Munshaw learned counsel for the respondents has submitted that the posts fallen vacant after disciplinary proceedings against five candidates could not be offered to the petitioner as these posts were consumed, and these will be treated as filled once a candidate has joined on these posts. According to him, even if, later on, because of disciplinary proceedings, the posts have fallen vacant, these will be treated as vacant post for the next year and could not be treated as vacancy for the current year which could be offered to the person available in the waiting list. In support of his submissions, he has relied upon a decision of the Apex Court in the case of State of Orissa and another v. Rajkishore Nanda and Others, reported in (2010)6 SCC 777.

This court has considered the submissions of both the sides. The main reasoning given by the respondents for denying the post to the petitioner is centered around the point that said post has fallen vacant after having been filled in by the candidates from the waiting list. Once a candidate from waiting list has joined on the post, the post is consumed and vacancy accruing after his termination will be counted for the subsequent appointment and cannot be offered to the other candidates available in the waiting list.

The arguments raised by learned counsel for the respondents does not seems convincing. It will be relevant to note that the State Government has issued a circular dated 18.9.2007, and as per this circular, if a candidate is appointed from the selection list and has resigned after joining, the vacancy so created will go to the next candidate in the waiting list provided such waiting list is still alive. It could be seen that the aforementioned five vacancies have arisen between 9.3.2007 to 8.3.2008 i.e. during the period when the waiting list was alive. The proposition of law contained in the decision of the Apex Court in the case of State of Orissa and another v. Rajkishore Nanda and Others (supra), relied upon by the learned counsel for the respondents, cannot be disputed, however, the same may not be applicable to the present case in view of the specific G.R. issued by the State Government, which is available on file to guide further in this matter.

Similar matter came up before the Hon''ble Apex Court in the case of Gujarat State Dy. Executive Engineers'' Association v. State of Gujarat and Others, reported in 1994 Supp (2) SCC 591. While dealing with the point regarding implementation of waiting list, it has been held 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 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."

So, from this judgment, it is clear that the vacancy arisen due to resignation or for any other reason within the period, the waiting list is in operation, can be offered to the candidate in the said waiting list.

Learned counsel for the petitioner has also pointed out regarding non-joining of two candidates despite having been selected against the posts. The main arguments of the learned counsel for the respondents in denying such post to the petitioner is that he was at Sr. No. 18 and some of the candidates were above him in the said waiting list and at the most these posts could have been offered to those candidates and not to the petitioner. Once this Court is not in agreement with the reasonings given by the respondents, no relief can be granted to the persons who did not come forward and approach the Court for grant of relief. Since those candidates have chosen not to challenge the action of the respondents, the posts which has fallen vacant due to non-joining of two of the candidates will have to be given to the petitioner who has approached this Court.

In view of the foregoing discussion, this petition is allowed. The petitioner is ordered 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. The petitioner will not be entitled for salary for this interregnum period. The respondents are directed to issue necessary appointment order to the petitioner within a period of one month from the date of receipt of copy of this order. Rule is made absolute.

As the main petition is allowed, Civil Application No. 13842/2008 stands disposed of accordingly.