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SCA/3869/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3869 of 2010
=========================================================
JALPAK
SHRIKANT SHUKLA - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
PARESH UPADHYAY for
Petitioner(s) : 1,
MR NIKUNT RAVAL AGP for Respondent(s) : 1,
MS
LILU K BHAYA for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 14/05/2010
ORAL
ORDER
The
learned counsel for the petitioner has submitted that the petitioner
was placed at Sr. No. 1 in the wait list of the candidate/s selected
in pursuance of the advertisement published on 15.04.2006 for
recruitment to the post of ‘ Tutor in Operative Dentistry’. He has
submitted that in pursuance of the said advertisement candidates who
were placed in the select list were given the appointments. However,
one of the candidate who was placed at Sr. No. 2 in the select list
had not joined the duty. Therefore, in his place the petitioner
herein ought to have been given the appointment since one of the
candidate who was placed in the select list had not joined the duty
and the petitioner herein was placed at Sr. No. 1 in the wait list.
In support of his submission, the learned counsel for the petitioner
has placed reliance on the decision of this Court in the case of
Vinodkumar Rajabhai Rathod v. State of Gujarat & Ors.,
reported in 2005 (2) GLR 1274, wherein it has been held
that the Government could not deny appointment to the candidate on
the ground that the validity of select list has lapsed.
On
the other hand, it has been contended by the learned counsel for
respondent no. 2-GPSC that in pursuance of the advertisement dated
15.04.2006, the petitioner was placed at Sr. No. 1 in the wait list.
However, subsequently, respondent no. 2-GPSC had published another
advertisement dated 18.07.2007 and the results in respect of the said
advertisement for the same posts were declared on 16.09.2008.
Therefore, the wait list of the candidates prepared in pursuance of
the advertisement dated 15.04.2006 cannot be operated.
Heard
learned counsel for the respective parties. It is true that the
petitioner was placed at Sr. No. 1 in the wait list of the candidates
prepared in pursuance of the advertisement dated 15.04.2006 for the
post/s in question. Respondent no. 2-GPSC had subsequently published
another advertisement dated 18.07.2007 for recruitment of the
candidates to the same posts. However, it may be noted that the
subsequent advertisement dated 18.07.2007 was issued before the
results of first advertisement i.e. advertisement dated 15.04.2006
were declared. It is not in dispute that the candidate placed at Sr.
No. 2 of the select list prepared in pursuance of the advertisement
dated 15.05.2006 had not joined the duty. Therefore, evidently, one
seat had fallen vacant.
It
is well settled law that a candidate in the wait list has the right
to claim appointment if one or more candidate in the select list does
join the duty. In the present case, since second advertisement dated
18.07.2007 was issued before the declaration of the results of the
first advertisement dated 15.04.2006, the petitioner has a right to
claim appointment since one of the candidate/s in the select list had
not joined the duty and the petitioner was placed at Sr. No. 1 in the
wait list and subsequent advertisement never provides for any
reservation of the seats in connection with the examination conducted
in respect of any earlier advertisement.
Therefore,
looking to the aforesaid factual scenario and the principle laid down
in the case of Vinodkumar Rajabhai Rathod [Supra], I am of the
opinion that the case of the petitioner ought to have been considered
for appointment to the said post.
In
view of the above, RULE,
returnable in the 1st
week of September, 2010. Interim relief in
terms of para 6[C] is granted, subject to the result of this
petition.
Direct
Service is permitted.
[K.S.
JHAVERI, J.]
/phalguni/
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