Hanifbhai Munafbhai Shaikh v. State of Gujarat — 1996 DIGILAW 155 (GUJ)

ORDER : S. K. Keshote, J. The matter was called in the first round, then in the second round and lastly the third round, but nobody is present on behalf of the respondent No. 3. 2. Heard the learned Counsel for the petitioner and the respondents Nos. 1, 2 and 4. The petitioner belongs to socially and economically backward class community. He possesses the academic qualification of B.A. (Economics) in First Division and Masters Degree in Labour Welfare (MLW). The Gujarat Panchayat Services Selection Board vide its advertisement issued in the local daily newspaper "Sandesh" dated 6-12-1989 invited applications for the post of District Extension Educator. The petitioner applied for the said post. He was called for interview vide letter dated 13-12-1989 for appearing on 29-12-1989. On 29-12-1989 after conducting the interview of the candidates the Gujarat Panchayat Services Selection Board declared the result i.e. the merit list and in the list the name of the petitioner stood at serial No. 1. The petitioner has also been informed about his selection by the Board vide its letter dated 29-12-1989. When the petitioner did not receive the appointment order for a long time he inquired with the Deputy Secretary of Panchayat Department and also in the Office of the Gujarat Panchayat Services Selection Board. On inquiry he had been informed that since the post advertised was unreserved post and since the petitioner belongs to a reserved community he was not appointed on the post and the respondent No. 3 who is a member of general community had been given the appointment. The petitioner by this writ petition has challenged the appointment of the respondent No. 3. The learned Counsel for the petitioner contended that the denial of the appointment of the petitioner on the ground that the post was non-reserved and he belongs to the reserved category is violative of Arts. 14 and 16 of the Constitution of India. The learned Counsel for petitioner contended that is is open to the reserved category candidates to compete with the general candidates for the post which is unreserved. The appointments have to be made on the basis of the merit list irrespective of the fact whether the petitioner belongs to reserved category or not. The learned Counsel for petitioner contended that is is open to the reserved category candidates to compete with the general candidates for the post which is unreserved. The appointments have to be made on the basis of the merit list irrespective of the fact whether the petitioner belongs to reserved category or not. The learned Counsel for the petitioner further contended that the candidates who belong to the reserved category have the right to compete against the general posts and they cannot be denied the appointment only on the ground that they belonged to reserved category. The learned Counsel for the petitioner next contended that against the reserved category post a general candidate could not be given appointment but vice versa is not correct. None of the respondents has filed a reply to the writ petition and the averments therein stand uncontroverted. Miss Sejal Mandavia, learned Counsel for the respondents Nos. 1, 2 and 4 does not dispute that the petitioners name was there at serial No. 1 in the merit list. What she has contended is that the petitioner has applied as reserved category candidate which is apparent from the fact that he paid fees for the form of selection which has been prescribed for the reserved category candidate. I fail to see any merit in this contention. The post on which the recruitment was to be made was a non-reserved post. There is no bar for the candidates belonging to the reserved category to compete with the unreserved category. The reserved category candidates have a fundamental right of consideration for appointment to a post in the public employment against the non-reserved category candidates. This right is available to the reserved category candidates under Arts. 14 and 16 of the Constitution of India. So far as the reserved category posts are concerned that stands on a different footing and those posts are only restricted to be filled in by the candidate of the concerned reserved category. I find sufficient merit in the contention of Shri Girish Patel, learned Counsel for the petitioner that the general category candidates have no right against the reserved category posts but vice versa is not correct. The learned Counsel for the respondent has failed to point out any provision of the service rules or from the Constitution of India which debars the reserved category candidates to compete for the post of non-reserved category. The learned Counsel for the respondent has failed to point out any provision of the service rules or from the Constitution of India which debars the reserved category candidates to compete for the post of non-reserved category. Even if such a provision is made or would have been there, it would not have stood to the test of Arts. 14 and 16 of the Constitution. Every citizen who is eligible for the post advertised irrespective of the category to which he belongs has a right of consideration for appointment to the public employment. This is a fundamental right conferred under Arts. 14 and 16 of the Constitution of India. Merely because certain reservations have been made in the public employment for different communities or the class, the candidates belonging to that class do not become (ineligible to compete against the general category post. It is open to all the candidates of all communities i.e. the general and the reserved. In the present case, the petitioner has been placed at serial No. 1 by the Selection Board and the denial of appointment to him on the ground that he belongs to backward class and the post is general category is highly arbitrary and unjust and violates the provisions of Arts. 14 and 16 of the Constitution of India. The learned Counsel for the respondents Nos. 1, 2 and 4 contended that the merit list has currency for one year and that has already come to an end. I fail to find any merit in this contention for two reasons. Firstly, the respondents have acted upon the merit list instead of given the appointment to the candidates at serial No. 1, the candidate at serial No. 2 in the merit list has been given the appointment. Secondly, the petitioner has challenged that appointment immediately on knowing of the same before this Court. The merit list has been prepared on 29-12-1989 and before expiry of one year this writ petition has been filed on 29-11-1990. Otherwise also, where the appointment had been made on the basis of the merit list there is no question of lapse of the same. It is only a case where the appointment of the respondent No. 3 has to be quashed and set aside and the petitioner has to be given appointment. 3. In the result, this writ petition succeeds and the same is allowed. It is only a case where the appointment of the respondent No. 3 has to be quashed and set aside and the petitioner has to be given appointment. 3. In the result, this writ petition succeeds and the same is allowed. It is hereby declared that the appointment of the respondent No. 3 on the post of District Extension Educator made in pursuance of the selection held on 29-12-1989 by the Panchayat Services Selection Board is declared to be ultra vires under Arts. 14 and 16 of the Constitution and consequently the said appointment is quashed and set aside. The respondents are directed to consider the case of the petitioner for appointment on the said post on the basis of select list in which his name is at serial No. 1. However, it is made clear that the petitioner shall not be entitled for any salary during the interregnum but he shall be entitled for all other benefits such as notional fixation of salary, seniority, continuity of service etc. The respondents Nos. 1, 2 and 4 are directed to pay to the petitioner Rs. 2000/- by way of costs of this petition. Petition allowed.