{"id":139173,"date":"2011-03-01T00:00:00","date_gmt":"2011-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-gujarat-on-1-march-2011-2"},"modified":"2016-05-27T09:17:22","modified_gmt":"2016-05-27T03:47:22","slug":"ravindra-vs-gujarat-on-1-march-2011-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-gujarat-on-1-march-2011-2","title":{"rendered":"Ravindra vs Gujarat on 1 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Ravindra vs Gujarat on 1 March, 2011<\/div>\n
Author: Abhilasha Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/14642\/2010\t 17\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 14642 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=====================================================\n \n\nRAVINDRA\nVITHALBHAI JIYANI - Petitioner(s)\n \n\nVersus\n \n\nGUJARAT\nPUBLIC SERVICE COMMISSION & 3 - Respondent(s)\n \n\n=====================================================\n \nAppearance : \nMR\nPARESH UPADHYAY for Petitioner \nMR DG SHUKLA for Respondent\nNo.1 \nMr.Maulik G.Nanavati, learned ASST.GOVERNMENT PLEADER for\nRespondents Nos.2 to\n4 \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 01\/03\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tRule.\n<\/p>\n
Mr.D.G.Shukla, learned advocate waives service of notice of Rule for
\nrespondent No.1. Mr.Maulik G.Nanavati, learned Assistant Government
\nPleader waives service of notice of Rule for respondents Nos.2 to 4.
\nOn the facts, and in the circumstances of the case, and with the
\nconsent of the learned counsel for the respective parties, the
\npetition is being heard and finally decided, today.\n<\/p>\n
2.\tBy
\nfiling this petition under Article 226 of the Constitution of India,
\nthe petitioner has prayed, inter alia, that a writ of mandamus or any
\nother appropriate writ or order be issued, declaring the action of
\nthe Gujarat Public Service Commission, in not recommending his  name
\nto the State Government for appointment on the post of Lecturer
\n(Chemistry), pursuant to a requisition having been made,as illegal,
\narbitrary and discriminatory. Further, it is prayed that the decision
\nof the respondent-authority of not giving appointment to the
\npetitioner on the post of Lecturer (Chemistry) pursuant to his
\nselection vide advertisement No.60 of 2006-2007, be quashed and set
\naside.\n<\/p>\n
3.\tBriefly
\nstated, the relevant facts  are that the petitioner was initially
\nappointed as Lecturer (Chemistry) on Ad-hoc basis on 28-2-2001. He
\nis, at present, working as such in the Government Polytechnic. On
\n15-5-2006, respondent No.1 -Gujarat Public Service Commission (“GPSC”
\nfor short) published  advertisement No.60 of 2006-07, inviting
\napplications for the post of Lecturer (Chemistry) (among others) in
\nthe Gujarat Education Service,Class-II in Government Polytechnic
\nColleges. Out of  9 posts of Lecturer (Chemistry) that were
\nadvertised,  one post was reserved for the  SC category candidate,
\none for an ST category candidate, 2 for SEBC category candidates and
\n2 for lady candidates in the General category.  The petitioner
\napplied for the post of Lecturer (Chemistry) in the unreserved
\n(General) category. After due procedure,  the petitioner was selected
\nfor the post of Lecturer (Chemistry), and his name appeared at
\nSr.No.3 in the waiting list. He was  intimated in this regard by the
\nGPSC vide communication dated 16-9-2009. Thereafter, candidates whose
\nnames figured in the select list were given appointment by the State
\nGovernment. Out of these candidates, the ones at Sr.Nos.4 and 5,
\nnamed, Keyurkumar Balvantray Desai and Kamleshkumar Ramkishan Gurjar
\ndid not join service, therefore, their appointment orders were
\ncancelled by the State Government vide order dated 19-7-2010,
\nresulting in  two posts falling vacant. Vide communication of the
\nsame date, that is, 19-7-2010, the State Government asked the GPSC to
\nsend names from the waiting list  of candidates for appointment to
\nthe post of  Lecturer (Chemistry). The GPSC recommended the names  of
\ntwo candidates in the waiting list, whose names figured above that of
\nthe petitioner, at Sr.Nos.1 and 2. As per the recommendation made by
\nthe GPSC, the State Government issued appointment orders in favour of
\nthose persons, namely, Hemendra Hasmukhrai Bhatt and Lakhdhirsinh
\nBhavansinh Rathod, on 25-8-2010. Since Lakhdhirsinh Bhavansinh Rathod
\n showed his unwillingness to join service, the State Government
\ncancelled his appointment vide order dated 13-9-2010. In view of the
\nabove, one post fell vacant,  therefore, vide communication dated
\n13-9-2010, the State Government once again sent a requisition to the
\nGPSC to recommend the name of the next meritorious candidate from the
\nwaiting list. This requisition was received in the office of the GPSC
\non 15-9-2010. The petitioner was the next meritorious candidate on
\nthe waiting list, whose name could  have been recommended by the
\nGPSC. However, the GPSC took the impugned decision that the name of
\nthe petitioner could not be recommended,  since the results of the
\nsubsequent advertisement No.199 of 2009-10, dated 16-2-2010, had been
\n published on 23-9-2010 and the waiting list pursuant to the previous
\nadvertisement was exhausted. The petitioner made a representation  to
\nthe GPSC on 5-10-2010, which came to be rejected. Aggrieved thereby,
\nthe petitioner has approached this Court by filing the present
\npetition.\n<\/p>\n
4.\tMr.Paresh
\nUpadhyaya, learned advocate for the petitioner has submitted that the
\nomission of the GPSC of not recommending the name of the petitioner
\nas per his standing  in the waiting list which has resulted in his
\nbeing deprived of appointment, is illegal, arbitrary, discriminatory
\nand against the settled position of law. The petitioner is already
\nworking since the year 2001 on the  post of Lecturer (Chemistry) on
\nad-hoc basis, subject to selection by the GPSC. The name of the
\npetitioner figured at Sr.No.3 of the waiting list in order of merit.
\nAs the person whose name figured above that of the petitioner has
\nrefused appointment, the GPSC ought to have recommended the name of
\nthe petitioner in answer to the requisition sent by the State
\nGovernment. The petitioner has a legitimate right to be considered
\nfor appointment as per his merit and standing in the waiting list.
\nHowever, due to the arbitrary and discriminatory action of the GPSC,
\nthe  petitioner is being deprived of appointment as Lecturer
\n(Chemistry) on regular basis, for no fault of his own. That the
\nservices of Lecturers working on ad-hoc basis are being terminated on
\navailability of regularly  selected candidates, therefore, the
\nimpugned action of the GPSC has exposed the petitioner to the
\npossibility of termination at this late stage, after having worked
\nsince the year 2001, even though he  ought to have been recommended
\nfor appointment. The GPSC has recommended the  name of Dr.Geetaben
\nValjibhai Vaghora vide letter dated 6-10-2010, pursuant to direction
\ngiven by this Court vide order dated 17-9-2010 passed in Special
\nCivil Application No.7528 of 2010, which in turn is based on the
\ndirection given  by this Court vide order dated 14-5-2010 passed in
\nSpecial Civil Application No.3869 of 2010. The directions of this
\nCourt are based on the settled position of law as reflected in a
\njudgment of this Court in the case of Vinodkumar Rajabhai Rathod
\nv. State of Gujarat,<\/a> 2005(2) GLR 1274 wherein
\nit has been held that appointment to the petitioner therein could not
\nbe denied as there was  a clear vacancy available for the post for
\nwhich he was placed in  the waiting list. In view of the above, the
\nname of the petitioner ought to have been recommended.\n<\/p>\n
5.\tMr.Maulik
\nG.Nanavati, learned Assistant Government Pleader for the respondents
\nNos.2 to 4 has submitted that the role of the State Government is
\nlimited to the extent that it  has sent a requisition to the GPSC to
\nrecommend the name of the next meritorious candidate from the waiting
\nlist on 13-9-2010 and it was upto the GPSC to have done the needful.
\nAs the name of the petitioner was not recommended, the State
\nGovernment could not issue an appointment order in his favour.\n<\/p>\n
6.\tOn
\nthe other hand, Mr.D.G.Shukla, learned  advocate appearing for
\nrespondent No.1-GPSC has admitted that the name of the petitioner
\nfigured in the waiting list of selected candidates, for Lecturer
\n(Chemistry) in the General category. It is submitted that the waiting
\nlist would remain operative for two years, or till the declaration of
\nthe results of the subsequent advertisement for the same post,
\nwhichever is earlier. The  results for the post of Lecturer
\n(Chemistry),Class II in  Government Polytechnic Colleges pursuant to
\nthe subsequent advertisement, No.199 of 2009-10, were declared on
\n23-9-2010, therefore, as per Circular dated 24-12-2008, the operation
\nof the earlier waiting  list came to an end on 22-9-2010.\n<\/p>\n
7.\tThe
\nlearned advocate for the GPSC has not denied that the State
\nGovernment had sent a requisition for the post of Lecturer
\n(Chemistry) pursuant to the previous advertisement No.60 of 2006-2007
\nvide order dated 13-9-2010. The assertion of the petitioner that the
\nrequisition was received in the office of the GPSC on 15-9-2010 is
\nalso not denied. The stand taken by the learned advocate for the
\nGPSC, as asserted  in the
\naffidavit-in-reply filed by the said respondent  is that  the waiting
\nlist expired on 22-9-2010 as the results of the subsequent
\nadvertisement were declared on 23-9-2010, therefore, the name of the
\npetitioner cannot be recommended for selection for the post in
\nquestion.\n<\/p>\n
8.\tI
\nhave heard learned counsel for the respective parties, perused the
\naverments made in the petition and contents of the documents annexed
\nthereto. The undisputed facts emerging from the material on record
\nare that the petitioner was duly selected for the post of
\nLecturer(Chemistry) and his name figured at Sr.No.3 in the waiting
\nlist. Pursuant to  a requisition being sent, the candidates in the
\nselect list were given appointment. However, two candidates did not
\njoin, therefore, on a requisition dated 19-7-2010  sent by the State
\nGovernment, the GPSC recommended the names of candidates at Sr.Nos.1
\nand 2 of the waiting list. Out of these two candidates, one
\ncandidate, namely, Lakhdhirsinh Bhavansinh Rathod expressed his
\nunwillingness to join service, therefore, the State Government
\ncancelled his appointment vide order dated 13-9-2010. By order of the
\nsame date, that is, 13-9-2010 the State Government sent another
\nrequisition to the GPSC to send the name of the next meritorious
\ncandidate from the waiting list. The petitioner being the next
\nmeritorious candidate on the waiting list, anticipated that his name
\nwould be recommended by the GPSC. However, when his name was not so
\nrecommended, the petitioner represented to the GPSC on 5-10-2010 and
\nwas told that his representation has been rejected, and that his name
\ncould not be recommended for appointment to the post of Lecturer
\n(Chemistry) as the results of the subsequent advertisement No.199 of
\n2009-10, dated 16-2-2010, had been declared on 23-9-2010, and the
\nwaiting list stood exhausted.\n<\/p>\n
9.\tFrom
\nthe above factual scenario it clearly emerges that  the petitioner
\nhad applied for the post of Lecturer (Chemistry) pursuant to
\nadvertisement No.60 of 2006-07 dated 15-5-2006. The candidate whose
\nname figured above that of the petitioner did not join service,
\ntherefore, by requisition dated 13-9-2010,  the State Government
\nasked the GPSC to send the name of the next meritorious candidate.
\nThis requisition was received in the office of the GPSC on
\n15-9-2010. This fact is asserted in paragraph 3.6 of the petition and
\nnot denied in the affidavit-in-reply. Further, a perusal of a copy of
\nthe order dated 13-9-2010 reveals that it  bears the Stamp and Inward
\nNumber of  the office of GPSC dated 15-9-2010. This clearly shows
\nthat the requisition has been received in the office of the GPSC much
\nbefore the declaration of the result of the subsequent advertisement
\non 23.9.2010, which resulted in the expiry of the waiting list
\nprepared pursuant to the previous advertisement answered by the
\npetitioner.  On 13-9-2010  when the requisition was sent by the State
\nGovernment  and on 15-9-2010  when it was received by the GPSC, the
\nwaiting list was valid and  very much in operation. As such, there
\nwas absolutely no impediment for the GPSC in recommending the name of
\nthe petitioner. Why it has not done so at the relevant point of time,
\nis an aspect that has not been answered and been absolutely ignored
\nin the affidavit-in-reply filed by the GPSC. On a query being put by
\nthe Court in this regard, no clear answer has emerged. It is vaguely
\nsubmitted that administrative procedures take some time, and
\nthereafter, the waiting list stood exhausted. This explanation, if it
\ncan even be termed so, is totally unsatisfactory and has no basis
\nwhatsoever, leave alone any legal basis.\n<\/p>\n
10.\tIt
\nis not the case of the GPSC that the petitioner is not meritorious or
\nthat his name could not have been recommended for any other reason.
\nThe only reason being advanced is that before the name of the
\npetitioner was recommended, the result of the subsequent
\nadvertisement was declared. There is no valid or cogent explanation
\nwhy the name of the petitioner was not declared after receipt of the
\nrequisition dated 13.9.2010 on 15.9.2010, which is much before
\n22.9.2010. There is a time gap of about 8 days between receipt of the
\nrequisition and declaration of the result. The name of the petitioner
\ncould easily have been recommended during the relevant period of
\ntime. Admittedly, there is no question regarding the merit of the
\npetitioner and his legitimate right to be considered for appointment,
\nowing to his standing in the waiting list. The claim of the
\npetitioner is based on the fact that it was his name alone, that
\ncould have been recommended by the GPSC in his category, in answer to
\nthe requisition. This is an admitted position. As such, the right of
\nthe petitioner to claim appointment is a legitimate one. It is only
\ndue to the acts of omission and commission of the GPSC in not
\nrecommending his name that the petitioner has not been given
\nappointment. Such acts that have the effect of marring the legitimate
\nchances of appointment of a candidate, (in this case the petitioner)
\nwho has been selected after following due procedure, are nothing but
\na display of utmost arbitrariness and discrimination. There was no
\nobstacle in the way of the GPSC in recommending the name of the
\npetitioner  before the results of the next advertisement were
\ndeclared. Eight days is sufficient time for making such a
\nrecommendation, especially when the GPSC, which is the examination
\nconducting body,is well aware when the result of the next
\nadvertisement is to be declared. In the considered view of this Court
\nsuch a technical attitude of casual callousness  as displayed by the
\nGPSC,cannot be sustained, as it carries with it the consequences of
\ndepriving the petitioner of his legitimate claim to appointment,
\nthereby having a detrimental effect on his entire future prospects.
\nIt cannot be lost sight of that the petitioner is working as Lecturer
\n(Chemistry) on ad-hoc basis since the year 2001 and his services can
\nbe terminated by appointment of a regularly selected candidate. It is
\nhighly unfair that when he has a legitimate right for appointment on
\nhis own merit, the GPSC has failed to answer the requisition
\npromptly, exposing the petitioner to the possibility of termination
\nby a regularly selected candidate. The unfairness is further
\ncompounded by the fact that the petitioner himself is a regularly
\nselected candidate.\n<\/p>\n
11.\tIn
\n Vinodkumar Rajabhai Rathod v. State of Gujarat (Supra),<\/a> on
\nthe facts of that case, the select list was not operated for more
\nthan two years on account of Government instructions and litigations.
\nThe Court directed the GPSC to forward the name of the candidate at
\nSr.No.1 of the waiting list for the post of Lecturer (Physics) and
\ngive appointment to such candidate.\n<\/p>\n
12.\tThe
\ncase of the petitioner before this Court stands upon a much better
\nfooting. Here, on 13-9-2010 when the State Government sent the
\nrequisition  to the GPSC to recommend the name of the next
\nmeritorious candidate on the waiting list, which is the petitioner,
\nthe said waiting list was very much in operation. Therefore, the
\nrequisition having been made within a period of two years and before
\nthe declaration of the result of the subsequent advertisement, is a
\nvalid requisition as per the provisions of Circular dated 24-12-2008
\nof the State Government relied upon by the GPSC and annexed as
\nAnnexure-I to its affidavit in reply. The said Circular further
\nprovides that if the requisition is received during office hours, the
\nGPSC shall recommend the name of the candidates for appointment. The
\nrequisition  dated 13-9-2010, having been received by the GPSC on
\n15-9-2010, it was incumbent upon the GPSC to have recommended the
\nname of the petitioner for appointment and a formal order of
\nappointment would have been passed by the State Government in this
\nregard. The GPSC has, either due to a casual and careless attitude,
\napathy, or deliberately,  not answered the requisition, until the
\nresults of the next advertisement were declared, knowing fully well
\nthat such action would result in the expiry of the waiting list in
\nwhich the name of the petitioner figures. Having done so, the said
\nrespondent  then takes a technical stand that the name of the
\npetitioner cannot be recommended as the results of the subsequent
\nadvertisement have been declared, and the waiting list has expired.
\nIn the considered view of this Court, the GPSC cannot be permitted to
\ntake advantage of its own wrong. The said action of the GPSC is not
\nonly in violation of the provisions of the Government Circular dated
\n24-12-2008, but is also highly arbitrary and discriminatory,
\ntherefore, cannot be permitted to stand.\n<\/p>\n
13.\tIn
\nview of the above discussion and for the aforestated reasons, the
\npetition is allowed. The respondent No.1 – GPSC is directed to
\nforward the name of the petitioner for  appointment pursuant to
\nadvertisement No.60 of 2006-2007, within a period of 15 days from
\ntoday. On receipt thereof, the State Government shall, after
\ncompleting all the requisite formalities, offer appointment to the
\npetitioner as Lecturer (Chemistry) within a period of one month.\n<\/p>\n
14.\tRule
\nis made absolute. Respondent No.1-GPSC shall pay costs of Rs.5000\/-
\nto the petitioner within one week from today.\n<\/p>\n
   \t\t           \t(Smt.Abhilasha Kumari,J)<\/p>\n
arg<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Ravindra vs Gujarat on 1 March, 2011 Author: Abhilasha Kumari,&Nbsp; Gujarat High Court Case Information System Print SCA\/14642\/2010 17\/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14642 of 2010 For Approval and Signature: HON’BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-139173","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRavindra vs Gujarat on 1 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ravindra-vs-gujarat-on-1-march-2011-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ravindra vs Gujarat on 1 March, 2011 - 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