Gujarat High CourtVijaykumar Parbatsinh Gadhavi vs State Of Gujarat on 14 July, 2022Author:Biren VaishnavBench:Biren VaishnavC/SCA/367/2019                               JUDGMENT DATED: 14/07/2022\n\n\n\n            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n              R/SPECIAL CIVIL APPLICATION NO. 367 of 2019\n                                  With\n            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019\n             In R/SPECIAL CIVIL APPLICATION NO. 367 of 2019\n\nFOR APPROVAL AND SIGNATURE:\n\n\nHONOURABLE MR. JUSTICE BIREN VAISHNAV\n\n==========================================================\n\n1    Whether Reporters of Local Papers may be allowed\n     to see the judgment ?\n\n2    To be referred to the Reporter or not ?\n\n3    Whether their Lordships wish to see the fair copy\n     of the judgment ?\n\n4    Whether this case involves a substantial question\n     of law as to the interpretation of the Constitution\n     of India or any order made thereunder ?\n\n==========================================================\n                       VIJAYKUMAR PARBATSINH GADHAVI\n                                    Versus\n                              STATE OF GUJARAT\n==========================================================\nAppearance:\nMR RR VAKIL(964) for the Petitioner(s) No. 1\nMR.SOAHAM JOSHI, AGP for the Respondent(s) No. 1\nMR.MAYUR DHOTRE, ADVOCATE for GUPTA LAW ASSOCIATES(9818) for\nthe Respondent(s) No. 2\n==========================================================\n    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV\n\n                              Date : 14/07/2022\n\n                              ORAL JUDGMENT1. RULE           returnable   forthwith.       Mr.Soaham                Joshi\n\n       learned AGP waives service of notice of Rule on\n\n       behalf of the respondent State and Mr.Mayur DhotrePage 1 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                                   JUDGMENT DATED: 14/07/2022\n\n\n\n   learned advocate for Gupta Law Associates waives\n\n   service of notice of Rule on behalf of the respondent\n\n   No.2.2. With the consent of learned advocates for the\n\n   respective parties, the petition is taken up for final\n\n   hearing.3. The prayer in the petition is that an appropriate writ,\n\n   order or direction be issued to the respondents to\n\n   appointethe            petitioner     by     operating        the       select\n\n   list/waiting list for appointment to the post of\n\n   Manager/Regional Manager (SEBC category). Facts\n\n   in brief would indicate that the Gujarat Industrial\n\n   Development               Corporation          had         issued             an\n\n   advertisement for filling up 11 posts in the cadre of\n\n   Manager/Regional Manager.                    Out of these 11 posts,\n\n   three          posts   were   reserved        for   SEBC          category.Petitioner applied for the post of Manager/Regional\n\n   Manager. Initially the name of the petitioner did not\n\n   figure in the first merit list. However, in the secondPage 2 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                           JUDGMENT DATED: 14/07/2022\n\n\n\n   merit list, the name of the petitioner appeared at Sr.\n\n   No. 13 by a communication dated 20.04.2014, the\n\n   candidates were called for document verification it\n\n   was subsequently postponed to 17.10.2017.                           The\n\n   petitioner received the communication on 10.10.2017\n\n   asking him to be present for verification of documents\n\n   and interview.    Three SEBC candidates were issued\n\n   appointment orders on 18.10.2017 in the SEBC\n\n   category.      They were Mr.Tanmay Ramjibhai Patel,\n\n   Shailesh       Chiman     Limbachiya       and          Dharmesh\n\n   Jadavjibhai Gohil. Of the three, the first two joined\n\n   their duties as Managers however, they left their job\n\n   immediately after joining. The 3 rd candidate though\n\n   was issued an appointment order did not join.                        His\n\n   case is a subject matter of challenge in Special Civil\n\n   Application No.3493 of 2018.4. Mr.R.R.Vakil learned counsel for the petitioner would\n\n   submit that it is undisputed that the first two SEBC\n\n   candidates viz. Mr.Tanmay Ramjibhai Patel and\n\n   Shailesh Chiman Limbachiya were selected andPage 3 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                                    JUDGMENT DATED: 14/07/2022\n\n\n\n   joined and then resigned immediately, is not in\n\n   dispute even by the respondent Corporation as is\n\n   evident from their affidavit in reply filed to this\n\n   petition.        He would therefore submit that being the\n\n   first     candidate      on     the      wait   list,     his      right        to\n\n   appointment accrued                immediately on these two\n\n   candidates resigning from their employment.5. Mr.Mayur Dhotre learned counsel appearing for the\n\n   Corporation would invite the Court's attention to the\n\n   reply filed by it and submit that though it is true that\n\n   of the three SEBC candidates, two did not joined,\n\n   however, the Corporation follows certain circulars\n\n   issued by the Government of Gujarat.                           Reliance is\n\n   placed on the circular dated 24.12.2018 issued by the\n\n   Government of Gujarat pertaining to the operation of\n\n   the waiting list, wherein, certain methods in that\n\n   regard were prescribed.                  Mr.Dhotre would further\n\n   submit that subsequently a circular dated 10.08.2016\n\n   was issued by the Government, which vide Clause\n\n   No.4           amended    the         aforesaid       circular           datedPage 4 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                            JUDGMENT DATED: 14/07/2022\n\n\n\n   24.12.2012 and it came to be specifically stated\n\n   therein that the names of the candidates from waiting\n\n   list would be considered for filling vacancies for\n\n   reasons in cases of situations with regard to Class-III\n\n   employees. Since the petitioner was contending for\n\n   the post which falls under Class-I, his case cannot be\n\n   so considered. He would submit that the recruitment\n\n   process was initiated before 27.07.2018. It would be\n\n   governed by these circulars.             Resolution of the\n\n   Government dated06.12.2018 was relied upon to\n\n   submit that no question of appointing the petitioner\n\n   on the post would arise as there are no vacant posts\n\n   as the remaining vacant posts were abolished.6. What needs to be considered by this Court is that it is\n\n   undisputed that the petitioner's name figured in the\n\n   wait list at Sr. No.1. One Mr.Tanmay Ramjibhai Patel\n\n   and Shailesh Chiman Limbachiya, the two SEBC\n\n   candidates so appointed, joined and immediately\n\n   resigned.      The   third   SEBC      candidate         Dharmesh\n\n   Jadavjibhai Gohil did not join at all. The right of thePage 5 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                                  JUDGMENT DATED: 14/07/2022\n\n\n\n  petitioner       being    the    first     wait   listed        candidate\n\n  therefore immediately accrued for him to appointed\n\n  to the post in question.7. By a common CAV judgment dated 21.10.2016\n\n  rendered in a group of petitions being Special Civil\n\n  Application No.15682 of 2014 and others, the Court\n\n  considered the circular of 24.12.2008 with regard to\n\n  the concept of wait listed candidates and their right\n\n  to be appointed.In the aforesaid decision, the Court\n\n  after rendering the judgment of the Supreme Court in\n\n  the       case    ofGujarat          State    Dy.        Executive\n\n  Engineer's Association v. State of Gujarat and\n\n  othersreported in 1994 Supp. (2) SCC 591. After\n\n  reproducing para 9 of the decision in para 16 which\n\n  as under:"16. Taking firstly the law on the subject, in the\n          case    ofGujarat     State    Dy.Executive\n          Engineers' Association v. State of Gujarat\n          and others, reported in 1994 Supp (2) SCC\n          591, the question was of appointment from the\n          waiting list and the power of the High Court to\n          direct the appointment of candidates, including\n          from the waiting list. It is held by the Apex\n          Court that unless the Government had acted\n          arbitrarily, the High Court cannot direct the\n          Government to appoint the candidates from thePage 6 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                             JUDGMENT DATED: 14/07/2022\n\n\n\n          waiting list of the relevant year or to the future\n          vacancies. The Apex Court has directed as to\n          how the waiting list should be operated. It is\n          held that a waiting list prepared in an\n          examination conducted by the Commission does\n          not furnish a source of recruitment. It is\n          operative only for the contingency that if any of\n          the selected candidates does not join, then, the\n          person from the waiting list may be pushed up\n          and be appointed in the vacancy so caused or if\n          there is some extreme exigency the Government\n          may as a matter of policy decision pick up\n          persons in order of merit from the waiting list. It\n          also held that once the selected candidates join\n          and thereafter, no vacancy arises due to\n          resignation, etc.or for any other reason within\n          the period the list is to operate under the rules\n          or within reasonable period where no specific\n          period is provided for the waiting list to be\n          operated, then candidate from the waiting list\n          has no right to claim appointment to any future\n          vacancy which may arise unless the selection\n          was held for it.Necessary it would be to reproduce the ratiolaid down bythe Apex Court in the case ofGujarat State Deputy Executive Engineers'\n          Association(supra), which reads as under :"9. A waiting list prepared in an\n                 examination conducted by the Commission\n                 does not furnish a source of recruitment. It\n                 is operative only for the contingency that if\n                 any of the selected candidates does not join\n                 then the person from the waiting list may\n                 be pushed up and be appointed in the\n                 vacancy so caused or if there is some\n                 extreme exigency the Government may as a\n                 matter of policy decision pick up persons in\n                 order of merit from the waiting list. But the\n                 view taken by the High Court that since the\n                 vacancies have not been worked outPage 7 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                             JUDGMENT DATED: 14/07/2022\n\n\n\n                 properly, therefore, the candidates from\n                 the waiting list were liable to be appointed\n                 does not appear to be sound. This practice,\n                 may result in depriving those candidates\n                 who become eligible for competing for the\n                 vacancies available in future. If the waiting\n                 list, in one examination was to operate as\n                 an infinite stock for appointments, there is\n                 a danger that the State Government may\n                 resort to the device of not holding an\n                 examination for years together and pick up\n                 candidates from the waiting list as and\n                 when       required.    The    constitutional\n                 discipline requires that this Court should\n                 not permit such improper exercise of power\n                 which may result in creating a vested\n                 interest and perpetrate waiting list for the\n                 candidates of one examination at the cost\n                 of entire set of fresh candidates either from\n                 the open or even from service.10. How a waiting list is to operate in the\n                 State is clear from a circular issued by the\n                 State Government on 27th December, 1983.\n                 The relevant portion of the Circular is\n                 extracted below :According to the instructions issued by the\n                 department often & often, waiting list\n                 prepared by the Gujarat Public Service\n                 Commission over and above the number of\n                 posts requisitioned shall remain in force\n                 upto 2 years or under circumstances upto\n                 the declaration of the result of next\n                 examination. The basic purpose of the\n                 preparation of waiting list is when sufficient\n                 candidates are not available from the merit\n                 list prepared for requisition of particular\n                 year, short fall can be met with from\n                 waiting list or for making recruitment\n                 Curing emergent condition, waiting list\n                 cannot be considered as merit list for thatPage 8 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                             JUDGMENT DATED: 14/07/2022\n\n\n\n                 year or of next year, similarly waiting list\n                 cannot be used as a substitute to the\n                 requisition of next year. Further as the\n                 requisition statement for the particular\n                 year is sent for the post allocable to direct\n                 recruitment for that year as per provision in\n                 relevant rules, naturally the requirement of\n                 subsequent year cannot be incorporated.\n                 Considering on the above facts it is not fair\n                 to   stop    the   regular      procedure   of\n                 recruitment     or    not     to   give   new\n                 advertisement for the reason that merit list\n                 or waiting list prepared as part of merit list\n                 of previous year is in force.Although the Circular was issued in 1983\n                 but it only attempted to clarify what was\n                 implied purpose of a waiting list. Even\n                 without it, the operation of a waiting list\n                 should be confined to the vacancies notified\n                 for that examination and not for any\n                 vacancy arising in future unless a policy\n                 decision is taken by the Government to that\n                 effect. Appointment in future vacancies\n                 from waiting list prepared by the\n                 Commission should be exception rather\n                 than the rule. It has many ramifications. In\n                 any case, the High Court should not have\n                 assumed upon itself the role of appointing\n                 authority unless it found that the\n                 Government was acting arbitrarily. No rule\n                 has been shown that selection of direct\n                 recruits was to take place every year. In\n                 absence of such rule, the proviso could not\n                 apply. However, its validity was not\n                 challenged either in the High Court or in\n                 this Court. It has, therefore, to be\n                 construed so as not to defeat the objective\n                 of its enactment. For its working\n                 reasonably it has to be understood that\n                 once recruitment by direct selection has\n                 been made in any year then the quota ofPage 9 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                              JUDGMENT DATED: 14/07/2022\n\n\n\n                 direct recruits till then should be deemed to\n                 have been exhausted and if any vacancy\n                 could not be filled for any reason then it\n                 should be deemed to have lapsed and\n                 could'not be carried forward. Read in this\n                 manner the quota of direct recruits till\n                 1980 exhausted. But it could not affect\n                 quota of 1981-82 and 1982-83, therefore,\n                 no appointments on the quota of direct\n                 recruits for 1981-82 and 1982-83 could be\n                 made from the waiting list of 1980. The\n                 entire exercise undertaken by the High\n                 Court of finding out number of vacancies\n                 was thus an exercise in futility. Further,\n                 what the High Court has done is that it has\n                 not worked out the vacancies only till the\n                 examinations were held but it went further\n                 to hold that since the result of the next\n                 examination was declared in 1983 the\n                 vacancies for direct recruits arising\n                 between the date the result of 1980\n                 examination was declared and before the\n                 result of 1982 was declared could be filled\n                 from the waiting list of 1980. In other\n                 words, the waiting list instead of being a\n                 list for filling the vacancy in exigencies\n                 arising out of non-joining of a candidate for\n                 the year for which the examination was\n                 held became a source of recruitment for the\n                 vacancies which were to arise between\n                 1980 and 1983. And if the vacancies which\n                 arose in 1981-82 and 1982-83 are filled by\n                 this method then the examination of 1982\n                 was held for which vacancy as normally the\n                 Government sends the requisition for the\n                 vacancies existing on the date of sending\n                 the requisition. We can appreciate the\n                 anxiety of the High Court that if\n                 examinations are not held regularly as has\n                 happened between 1983 to 1993 it may\n                 result in depriving fresh candidates from\n                 being selected and their post may be filledPage 10 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                              JUDGMENT DATED: 14/07/2022\n\n\n\n                 by promotees. But such concern could not\n                 result in nullifying entire procedure. The\n                 better course would have been to direct the\n                 Government to work out the vacancies and\n                 fill them by holding an examination, if\n                 necessary, in addition to the examination\n                 already held. But the procedure adopted by\n                 the High Court, of giving such vacancies to\n                 candidates who were in the waiting list\n                 does not appear to be correct. There was no\n                 contingency nor/the State Government had\n                 taken any decision to fill the vacancies from\n                 the waiting list as it was not possible for it\n                 to hold the examination nor any emergent\n                 situation had arisen except the claim of\n                 some of the candidates from the waiting list\n                 that they should be given appointment for\n                 vacancies which arose between 1980 and\n                 1983 and between 1983 and 1993. Such\n                 claim of the appellants who had appeared\n                 in a particular examination and were placed\n                 in the waiting list could not be sustained. In\n                 fact, the action of the State Government in\n                 not sending the requisition every year or at\n                 most every second year to the Commission\n                 for holding an examination for vacancies\n                 which had arisen or were likely to arise was\n                 liable to be commented upon and the State\n                 Government should have been directed to\n                 take care in future that the examinations\n                 are held regularly. But in no case the\n                 vacancies arising in future should have\n                 been offered to the candidates in the\n                 waiting list of the earlier year. The\n                 direction of the High Court, therefore, to\n                 appoint the candidates from the waiting list\n                 in the vacancies which, according to its\n                 calculation, arose between the years 1980\n                 to 1983 and between 1983 to 1993 cannot\n                 be upheld.Page 11 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                              JUDGMENT DATED: 14/07/202211. The entire appointment of direct\n                 recruits, therefore, from the waiting list\n                 was not proper. But these persons have\n                 been appointed and are working now at\n                 least for five years. It would, therefore, be\n                 unjust and harsh to quash their selection at\n                 this stage. Therefore, while refraining from\n                 quashing     the   appointment     made    in\n                 pursuance of the direction issued by the\n                 High Court, we are of the opinion that the\n                 waiting list for one year cannot furnish\n                 source of recruitment for future years,\n                 except in very exceptional cases. It is,\n                 however, necessary to add that non-holding\n                 of examination at the instance of the\n                 Government could not result in reducing\n                 the quota of direct recruits to be worked\n                 out on the principle for determination of\n                 such vacancies. Therefore, if vacancies had\n                 collected between 1983 and 1993 due to\n                 interim orders passed by the courts, and\n                 they have not been taken into account when\n                 the examination for 1993 was held then it\n                 would     be   expedient    to   direct   the\n                 Government to work out the same\n                 immediately and send the requisition to the\n                 Commission for holding selection for if the\n                 next examination is going to be held within\n                 one year from today. We may clarify that it\n                 is nobody's case that the quota rule has\n                 broken. Therefore the direction is being\n                 issued to protect the quota of direct\n                 recruits during 1983 to 1993 in the peculiar\n                 facts of the present case.12. Taking up the application of direct\n                 recruits, who have been appointed in\n                 pursuance of the decision of the High\n                 Court, for deemed date of appointment and\n                 grant of seniority at the same place as\n                 those appointed in 1980 or in 1983 on the\n                 basis of selection held in 1980 and 1982,Page 12 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                              JUDGMENT DATED: 14/07/2022\n\n\n\n                 suffice it to say that even the appointment\n                 of these candidates was not in accordance\n                 with law yet we have not set it aside on\n                 equitable     considerations.     Further,  a\n                 candidate appointed in pursuance of a\n                 direction issued by the High Court in 1989\n                 in respect of a vacancy which might be\n                 deemed to have existed in 1981-82 cannot\n                 get seniority over those candidates who\n                 were appointed either from the same batch\n                 on the basis of better aggregate marks or\n                 over those candidates who were selected in\n                 the subsequent examination. No parallel\n                 could be drawn from Ashra 's case. He was\n                 found to have been illegally excluded from\n                 the select list as a result of operation of a\n                 letter issued by the Commission which was\n                 found to be arbitrary. He was, therefore,\n                 entitled to be placed in the select list. He\n                 was, therefore, entitled to deemed date of\n                 appointment. That cannot apply to those\n                 who were in the waiting list. A candidate\n                 from      the    waiting     list   appointed\n                 subsequently cannot claim appointment\n                 from a back date. Even otherwise\n                 appointment of a candidate operates from\n                 the date he is appointed and not from the\n                 date those from the select list are\n                 appointed. Same principle applies even\n                 amongst inter-se appointees from the\n                 waiting list. For instance, if A, B and C are\n                 appointed from the waiting list as and when\n                 vacancy arises" say in 1990, 1991 and\n                 1992, respectively, then their seniority shall\n                 be counted from the date of their\n                 appointment and B cannot claim it from\n                 1990 or 1991 nor C can claim either from\n                 1991 or 1990. The claim of the direct\n                 recruits is, therefore, rejected and it is\n                 directed that they shall be given seniority\n                 from the date of their appointment and not\n                 from any back date."Page 13 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                            JUDGMENT DATED: 14/07/20228. By the above quoted paragraphs, it was held that the\n\n   circular of 24.12.2018 was bad and could not be\n\n   restricted to the post of Medical and the Education\n\n   Department.       Reading the circular of 10.08.2016,\n\n   what it does is amend the said circular which\n\n   provides that the concept of wait list shall apply to\n\n   the Class-III posts. Subsequently considering the case\n\n   of Yuvrajsinh (supra) the Court on 26.12.2011 in\n\n   Special Civil Application No.4238 of 2011 in context\n\n   of an appointment of Class-II Officer, in paragraph\n\n   No.5, held as under:"5) Having considered rival submissions and\n           record of the case, it is not in dispute that a\n           candidate-respondent no.3 who was appointed\n           on the post of Account Officer, Class-II, on her\n           appointment as Section Officer, Class-II, is\n           already relieved as per order dated 12.5.2011\n           and in view of what is held by the Hon'ble Apex\n           Court in the case ofGujarat State Deputy\n           Executive Engineers Association(Supra) in\n           para-8 that "a candidate in the waiting list in the\n           order of merit has a right to claim that he may\n           be appointed if one or the other selected\n           candidate does not join. But once the selected\n           candidates join and no vacancy arises due to\n           resignation etc. or for any other reason within\n           the period the list is to operate under the rules\n           or within reasonable period where no specific\n           period is provided then candidate from the\n           waiting list has not right to claim appointment\n           to any future vacancy which may arise unlessPage 14 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                            JUDGMENT DATED: 14/07/2022\n\n\n\n          the selection was held for it".Thus, in the facts of the case, respondent no.3\n          who was on probation, having joined the duty on\n          the post of Account Officer, Class-II, was\n          relieved since she was already appointed on the\n          post of Section Officer, Class-II and thus a clear\n          vacancy had arisen on the post of Account\n          Officer, Class-II and benefits carved out in a\n          case of direct selection pertaining to medical\n          and education, where the operation of waiting\n          list is permitted in a case where even the\n          candidate who resumed the duty and,\n          thereafter, is relieved for any good reason, is not\n          made applicable to the candidate appointed for\n          the post of Account Officer, Class-II, prima facie,\n          appears to be discriminatory and violative ofArticle 14of the Constitution of India. It is\n          without any rational or logic that why a\n          candidate to be appointed on the post of\n          Account Officer, Class-II in the department of\n          Finance or any such department is to be\n          deprived of the benefit of appointment from the\n          waiting list by assigning priority. Thus, what is\n          held by the Apex Court in the case ofGujarat\n          State Deputy Executive Engineers Association(Supra) and provision of circular dated\n          24.12.2008 since waiting list is operating,\n          certain benefit to a candidate of direct\n          recruitment for medical and education and\n          depriving the candidate for the post of Account\n          Officer, Class-II with regard to the operation of\n          waiting list is irrational and, therefore, I direct\n          respondents to consider case of the petitioner so\n          as to appoint the petitioner on the post of\n          Account Officer, Class-II on now vacant post.\n          Subject to further order that may be passed by\n          this Court, the matter is adjourned to 8 th\n          February 2012."Page 15 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                                 JUDGMENT DATED: 14/07/20229.In Special Civil Application No.10549 of 2020 in\n\n   context of the appointments to the post of Joint\n\n   Charity Commissioner relying on the decision in case\n\n   of     Gujarat   State       Dy.         Executive         Engineer'sAssociation(supra), the Court after analyzingthe\n\n   said decisionand relying on the decision in case of\n\n   Yuvrajsinh (supra) held as under:"4. Similarly, this court in Special Civil\n           Application No. 4238 of 2011 vide order dated\n           27.12.2011 has considered the decision of the\n           Apex Court in the case ofGujarat State\n           Deputy Executive Engineers Association vs.\n           State of Gujaratreported in 1994 (0)\n           GLHEL-SC 10019 and in para 5 has held as\n           under:"5)     Having       considered      rival\n                    submissions and record of the case, it\n                    is not in dispute that a candidate-\n                    respondent no.3 who was appointed\n                    on the post of Account Officer, Class-\n                    II, on her appointment as Section\n                    Officer, Class-II, is already relieved as\n                    per order dated 12.5.2011 and in view\n                    of what is held by the Hon'ble Apex\n                    Court in the case ofGujarat State\n                    Deputy        Executive        Engineers\n                    Association(Supra) in para-8 that "a\n                    candidate in the waiting list in the\n                    order of merit has a right to claim\n                    that he may be appointed if one or\n                    the other selected candidate does\n                    not join. But once the selected\n                    candidates join and no vacancy\n                    arises due to resignation etc.Page 16 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                 or for any other reason within the\n                 period the list is to operate under\n                 the rules or within reasonable\n                 period where no specific period is\n                 provided then candidate from the\n                 waiting list has not right to claim\n                 appointment to any future vacancy\n                 which may       arise   unless  the\n                 selection was held for it".Thus, in the facts of the case,\n                 respondent     no.3    who     was    on\n                 probation, having joined the duty on\n                 the post of Account Officer, Class-II,\n                 was relieved since she was already\n                 appointed on the post of Section\n                 Officer, Class-II and thus a clear\n                 vacancy had arisen on the post of\n                 Account Officer, Class-II and benefits\n                 carved out in a case of direct selection\n                 pertaining to medical and education,\n                 where the operation of waiting list is\n                 permitted in a case where even the\n                 candidate who resumed the duty and,\n                 thereafter, is relieved for any good\n                 reason, is not made applicable to the\n                 candidate appointed for the post of\n                 Account Officer, Class-II, prima facie,\n                 appears to be discriminatory and\n                 violative ofArticle 14of the\n                 Constitution of India. It is without any\n                 rational or logic that why a candidate\n                 to be appointed on the post of Account\n                 Officer, Class-II in the department of\n                 Finance or any such department is to\n                 be deprived of the benefit of\n                 appointment from the waiting list by\n                 assigning priority. Thus, what is held\n                 by the Apex Court in the case ofGujarat    State    Deputy     Executive\n                 Engineers Association(Supra) and\n                 provision of circular dated 24.12.2008Page 17 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                           JUDGMENT DATED: 14/07/2022\n\n\n\n                   since waiting list is operating, certain\n                   benefit to a candidate of direct\n                   recruitment for medical and education\n                   and depriving the candidate for the\n                   post of Account Officer, Class-II with\n                   regard to the operation of waiting list\n                   is irrational and, therefore, I direct\n                   respondents to consider case of the\n                   petitioner so as to appoint the\n                   petitioner on the post of Account\n                   Officer, Class-II on now vacant post.\n                   Subject to further order that may be\n                   passed by this Court, the matter is\n                                  th\n                   adjourned to 8 February 2012."5.   Even as recently as on 07.12.2021, while\n          considering the interpretation of the circular\n          dated 24.12.2008 in context of the appointments\n          to the post of Additional Public Prosecutors and\n          Motor Vehicle Prosecutors, Class-II, a co-\n          ordinate bench of this court in Special Civil\n          Application No. 14265 of 2019 has held as\n          under:"7.    The     facts,     as    narrated\n                   hereinabove, are not in dispute that\n                   the petitioner was selected and placed\n                   in the waiting list on the post of Motor\n                   Vehicle Prosecutor, Class-II. It is not\n                   in dispute that the result was declared\n                   on 28.09.2017 and as per the policy of\n                   the State Government introduced with\n                   a circular dated 24.12.2008 and\n                   resolution dated 27.07.2018, the\n                   waiting list remained in operation for\n                   two years i.e. upto 28.09.2019. One of\n                   the      candidates       Mr.Kalyansinh\n                   Sukhdevan Gadhvi, who joined service\n                   on 20.03.2018 had left the job on\n                   12.03.2019 since he was appointed to\n                   the    post    of     Assistant    PublicPage 18 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                 Prosecutor, Class-II. Thus, on being\n                 relieved, the post fallen vacant within\n                 a period of 2 years during the\n                 subsistence of the waiting list. It is\n                 also not in dispute that the next\n                 candidate, who would be eligible for\n                 the appointment is the present\n                 petitioner.   When      the  petitioner\n                 requested the respondent authorities\n                 to appoint him on the vacant post vide\n                 communication dated 18.06.2019, his\n                 case for appointment was rejected by\n                 placing reliance on the circular dated\n                 24.12.2008, more particularly, in view\n                 of paragraph no.1. The same reads as\n                 under:-"(1) In the case of competitive\n                      examination or direct selection\n                      without examination, if any\n                      candidate out of the candidates\n                      recommended by the Commission\n                      does not join, the Department\n                      can demand the equal number of\n                      candidates from the waiting list.But, the posts of medical and\n                      education included in direct\n                      selection have more mobility.Therefore, when the candidate\n                      recommended by the Commission\n                      does not join in the case of direct\n                      recruitment,      the   concerned\n                      Department can demand the\n                      candidate from the waiting list to\n                      fill such post and to fill the post\n                      being vacant after the candidate\n                      resigns post joining duty and\n                      during the probation period or he\n                      is    relieved   for   any    other\n                      reasons."8. It is the case of the respondentPage 19 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                         JUDGMENT DATED: 14/07/2022\n\n\n\n                 authorities that such benefit would\n                 only be available to the candidates,\n                 who had applied in medical and\n                 teaching fields. It is specifically stated\n                 in the impugned communication that\n                 the post of Motor Vehicle Prosecutor,\n                 Class-II does not fall within the\n                 educational field or medical field and\n                 hence, any post, which has fallen\n                 vacant within one year cannot be filled\n                 in.9. At this stage, it would be apposite\n                 to refer to the observations made by\n                 this Court in the interim order dated\n                 27.12.2011 passed in Special Civil\n                 Application No.4238 of 2011. This\n                 Court while interpreting the aforesaid\n                 clause    of   the    circular   dated\n                 24.12.2008 has observed thus:-"5) Having considered rival\n                      submissions and record of the\n                      case, it is not in dispute that a\n                      candidate respondent no.3 who\n                      was appointed on the post of\n                      Account Officer, Class-II, on her\n                      appointment as Section Officer,\n                      ClassII, is already relieved as per\n                      order dated 12.5.2011 and in\n                      view of what is held by the\n                      Hon'ble Apex Court in the case ofGujarat State Deputy Executive\n                      Engineers Association(Supra) in\n                      para-8 that "a candidate in the\n                      waiting list in the order of merit\n                      has a right to claim that he may\n                      be appointed if one or the other\n                      selected candidate does not join.But once the selected candidates\n                      join and no vacancy arises due to\n                      resignation etc. or for any otherPage 20 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                   JUDGMENT DATED: 14/07/2022\n\n\n\n                 reason within the period the list\n                 is to operate under the rules or\n                 within reasonable period where\n                 no specific period is provided\n                 then candidate from the waiting\n                 list has not right to claim\n                 appointment     to   any     future\n                 vacancy which may arise unless\n                 the selection was held for it".Thus, in the facts of the\n                 case, respondent no.3 who was\n                 on probation, having joined the\n                 duty on the post of Account\n                 Officer, Class-II, was relieved\n                 since she was already appointed\n                 on the post of Section Officer,\n                 Class-II and thus a clear vacancy\n                 had arisen on the post of Account\n                 Officer, Class-II and benefits\n                 carved out in a case of direct\n                 selection pertaining to medical\n                 and     education,    where    the\n                 operation of waiting list is\n                 permitted in a case where even\n                 the candidate who resumed the\n                 duty and, thereafter, is relieved\n                 for any good reason, is not made\n                 applicable to the candidate\n                 appointed for the post of Account\n                 Officer, Class-II, prima facie,\n                 appears to be discriminatory and\n                 violative ofArticle 14of the\n                 Constitution of India. It is\n                 without any rational or logic that\n                 why a candidate to be appointed\n                 on the post of Account Officer,\n                 Class-II in the department of\n                 Finance or any such department\n                 is to be deprived of the benefit of\n                 appointment from the waiting list\n                 by assigning priority. Thus, whatPage 21 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                      is held by the Apex Court in the\n                      case ofGujarat State Deputy\n                      Executive Engineers Association(Supra) and provision of circular\n                      dated 24.12.2008 since waiting\n                      list is operating, certain benefit\n                      to    a   candidate    of    direct\n                      recruitment for medical and\n                      education and depriving the\n                      candidate for the post of Account\n                      Officer, Class II with regard to\n                      the operation of waiting list is\n                      irrational and, therefore, I direct\n                      respondents to consider case of\n                      the petitioner so as to appoint\n                      the petitioner on the post of\n                      Account Officer, Class-II on now\n                      vacant post. Subject to further\n                      order that may be passed by this\n                      Court, the matter is adjourned to\n                      8th February 2012."This Court, while placing reliance\n                 on the judgment of the Supreme Court\n                 in the case ofGujarat State Deputy\n                 Executive Engineers' Association vs.\n                 State of Gujarat and Ors., 1994 (0)\n                 GLHEL-SC-10019 has held that such\n                 discrimination of the candidates on\n                 the ground of medical and education\n                 fields with regard to appointment of\n                 the candidates would be violative ofArticle 14of the Constitution of India.\n                 It appears that thereafter pursuant to\n                 the interim direction issued by this\n                 Court, the concerned petitioner was\n                 appointed     by   the    order    dated\n                 16.07.2012, hence the writ petition\n                 was disposed of by observing that the\n                 parties will governed by the interim\n                 relief dated 27.12.2011. Thus, the\n                 aforesaid observations made by thisPage 22 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                 Court with regard to very same\n                 provisions of the circular dated\n                 24.12.2008 have become final and\n                 hence, the respondent authorities\n                 cannot take shelter against the said\n                 provisions for denying the case of the\n                 petitioner for the appointment to the\n                 post of Motor Vehicle Prosecutor,\n                 Class-II. It is interesting to note that\n                 the aforesaid resolution was also\n                 subject matter of challenge in Special\n                 Civil Application No.15682 of 2014\n                 and allied matters and by the\n                 comprehensive        judgment      dated\n                 21.10.2016, this Court has set aside\n                 the circular dated 24.11.2008 and\n                 declared its arbitrary and violative ofArticles 14and16of the Constitution\n                 of India by observing thus:-"48. For the foregoing reasons,\n                      the present petitions are hereby\n                      allowed. The circular dated\n                      December 24, 2008 issued by the\n                      General            Administration\n                      Department,     Government         of\n                      Gujarat, is held to be unjust,\n                      arbitrary and violative ofArticles\n                      14and16of the Constitution of\n                      India insofar as it restricts the\n                      operation of waiting list for filling\n                      up the posts in the eventuality of\n                      resignation of the candidates or\n                      of those who have left or those\n                      who have been relieved from the\n                      posts, in Education and Health\n                      Departments only."Thereafter, the GAD issued a\n                 resolution      dated       27.04.2018\n                 incorporating the provisions with\n                 regard to operation of waiting list. ThePage 23 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                 same reads as under:-"(2) In respect of all the services/\n                     post in one cadre of the State\n                     Government to be filled by\n                     competitive     examination       for\n                     recruitment or by direct selection\n                     when          the         candidate\n                     recommended by the Commission\n                     or by the prescribed Recruitment\n                     Selection Board resigns within\n                     one year of his joining or leaves\n                     the job due to death or any other\n                     reasons or he is relieved for any\n                     other reasons, and if the post\n                     remains vacant, such post can be\n                     filled   from     the     waitlisted\n                     candidates. But, the posts of\n                     medical and education included\n                     in direct selection have more\n                     mobility. Therefore, when the\n                     candidate recommended by the\n                     Commission does not join in the\n                     case of direct recruitment, the\n                     concerned      Department        can\n                     demand the candidate from the\n                     waiting list within the prescribed\n                     time limit of such waiting list\n                     only to fill such post and to fill\n                     the post being vacant after the\n                     candidate resigns post joining\n                     duty and during the probation\n                     period/death or he is relieved for\n                     any other reasons and the post\n                     remain vacant."10. The grievance of the petitioner\n                 will get satisfied in view of the\n                 aforesaid provision, however, the\n                 benefit of the said resolution is not\n                 extended to the petitioner for the\n                 reason that the same has prospectivePage 24 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                        JUDGMENT DATED: 14/07/2022\n\n\n\n                 effect.    Thus,    the     respondent\n                 authorities have accepted that in case\n                 the post falls vacant during the\n                 subsistence of the waiting list, the\n                 same is required to be filled-in by the\n                 candidate from the waiting list.\n                 Assuming that the resolution dated\n                 27.07.2018 has a prospective effect,\n                 the same will not dilute the\n                 proposition of law enunciated by this\n                 Court in the aforenoted judgments\n                 and orders. The judgment dated\n                 21.10.2016 passed in Special Civil\n                 Application No.15682 of 2014 and the\n                 interim    order   dated    27.12.2011\n                 passed in Special Civil Application\n                 No.4238 of 2011 will squarely cover\n                 the issue raised in the writ petition.\n                 Before the impugned order dated\n                 18.06.2019 was passed, the aforesaid\n                 judgment was already declared and\n                 even implemented.11. In view of the foregoing analysis\n                 and observations, the writ petition is\n                 allowed.          The         impugned\n                 communication dated 08.06.2019 is\n                 hereby quashed and set aside. The\n                 respondents are directed to appoint\n                 the petitioner to the post of Motor\n                 Vehicle Prosecutor, Class-II from the\n                 date with effect from 12.03.2019 i.e.\n                 the date when the post fell vacant or\n                 any suitable date. Appropriate orders\n                 shall be passed appointing the\n                 petitioner on the said post within a\n                 period of two months from the date of\n                 receipt of the writ of this order. It is\n                 clarified that the intervening period\n                 shall only be counted or considered\n                 for the purpose of seniority and pay\n                 fixation only. Rule is made absolute."Page 25 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                            JUDGMENT DATED: 14/07/20226.   Ms. Surbhi Bhati, learned AGP would rely\n          on a decision of the Apex Court in the case ofState of Orissa vs. Rajkishore Nanda and\n          others[(2010) 6 SCC 777] to submit that a\n          candidate on the waiting list would not get a\n          right to be appointed.She would also rely on\n          the decision of the Apex Court in the case ofState of Punjab vs. Raghbir Chand Sharma\n          and Another[AIR 2001 SC 2900] and Dinesh\n          Kumar Kashyap vs. South East Central\n          Railwayreported in (2019) 12 SCC 798.In\n          support of her submission that mere existence of\n          vacancies or empanelment does not create any\n          indefeasible right to appointment, she has relied\n          on a decision of the Apex Court in the case ofKerala SRTC vs. Akhilesh V.S.[(2019) 14\n          SCC 96].7.   Considering the facts on hand, it is clear\n          that this court on more than one occasion has\n          held that restricting the applicability of the\n          circular dated 24.12.2008 only to the fields of\n          medical and education departments violatesArticles 14and16of the Constitution of India.In the case ofAkbar Majidbhai Kachra vs. State\n          of Gujaratrendered by this court in Special Civil\n          Application No. 14265 of 2019, considering all\n          these decisions, the co-ordinate bench of this\n          court has also opined the same. Admittedly, the\n          advertisement is issued before 27.07.2018.8.    Accordingly, the petitions are allowed. The\n          respondents are directed to appoint the\n          petitioners on the post of Joint Charity\n          Commissioner        and      Assistant     Charity\n          Commissioner as per their cases. The petitioner\n          of Special Civil Application No. 10549 of 2020\n          shall be appointed with effect from 03.07.2019\n          and the petitioner of Special Civil Application\n          No. 12416 of 2020 shall be appointed with effect\n          from 13.06.2020 on the said posts. Appropriate\n          orders shall be passed appointing the petitionersPage 26 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022C/SCA/367/2019                            JUDGMENT DATED: 14/07/2022\n\n\n\n               on the said posts within two months from the\n               date of receipt of the writ of the order of this\n               court. It is clarified that the intervening period\n               shall be counted or considered for the purposes\n               of seniority and pay fixation only.           Civil\n               application is disposed of."10. Accordingly, the stand of the GIDC that even though\n\n       the vacancies had occurred immediately on the first\n\n       two candidates who joined and resigned, since it was\n\n       not a class-III post and the same was not applicable,\n\n       cannot be accepted.11. Accordingly, the petition is allowed. The respondents\n\n       are directed to appoint the petitioner on the post of\n\n       Manager/Regional         Manager        pursuant             to       the\n\n       advertisement in question in the SEBC category. The\n\n       appointment order shall be issued within eight weeks\n\n       from the date of receipt of copy of this order.12. Rule is made absolute accordingly.13. In view of the disposal of the main petition, Civil\n\n       Application will not survive and hence the same is\n\n       also disposed of.(BIREN VAISHNAV, J)\nANKIT SHAHPage 27 of 27Downloaded on : Mon Jul 18 21:18:58 IST 2022