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2020 DIGILAW 82 (GUJ)

Sagar Yogeshkumar Nathalal v. State Of Gujarat

2020-01-17

A.S.SUPEHIA

body2020
JUDGMENT : 1. The present writ petition has been filed seeking quashing and setting aside the communication dated 17.11.2006 passed by the respondent Nos. 2 and 3. 2. The brief facts of the case are as under: 2.1 The respondent No.3 issued an advertisement dated 15.12.2000 inviting applications for four (4) vacancies of Community Organizer for Urban Development project of Ahmedabad Municipal Corporation, out of which three(3) posts were reserved for Socially and Educationally Backward Class (SEBC) and one post was reserved for Schedules Tribe. The pay-scale of the said post was Rs.5000-8000/with all available allowances. The prescribed age limit was not more than 45 years and the prescribed qualification was graduation. The petitioner had applied for the said post in the SEBC category. He appeared at the examination and passed the same successfully. Thereafter, the petitioner was called for an oral interview before the Staff Selection Committee on 31.12.2001 by the call letter dated 18.12.2001. The petitioner appeared at the oral interview and he was duly selected and placed in the waiting list at Sr.No.1. It was clarified that the said selection list/waiting list shall remain in operation for a period of two (2) years. 2.2 The candidate No.1–Prajapati Jagdishkumar Chhaganlal (SEBC) and candidate No.4–Damor Vinodkumar Laxmanbhai (ST) came to be appointed on 08.03.2004 on the said post. The respondent Nos. 2 and 3 sent a proposal to the respondent No.1 for filling up four (4) vacancies of Community Organizer and the respondent No.1 approved the said proposal for filling up three (3) vacancies by the Government Resolution dated 10.12.2003. 2.3 It is the case of the petitioner that though he repeatedly requested the respondents to give appointment to him on the said post in view of the fact that he was duly selected and was placed at Sr.No.1 in the waiting list and there were five (5) to seven (7) vacancies even on 01.10.2004, he was not offered the appointment. 2.4. It appears that on the representation of the petitioner, the Hon’ble Minister for Social Justice addressed a letter dated 17.05.2006 to the respondent No.3 for doing the needful for giving the appointment to the petitioner. Thereafter, in the public relation programme, the Hon’ble Chief Minister also forwarded the petitioner’s representation to the Principal Secretary, Urban Development and Urban Housing Department as well as to the Municipal Commissioner, Ahmedabad Municipal Corporation vide letter dated 26.09.2006. Thereafter, in the public relation programme, the Hon’ble Chief Minister also forwarded the petitioner’s representation to the Principal Secretary, Urban Development and Urban Housing Department as well as to the Municipal Commissioner, Ahmedabad Municipal Corporation vide letter dated 26.09.2006. The Urban Development and Urban Housing Department addressed a letter dated 11.10.2006 to the Municipal Commissioner, Ahmedabad Municipal Corporation for doing the needful immediately. In response to the said letters more particularly, to the letter dated 26.09.2006, from the office of the Hon’ble Chief Minister, the respondent Nos. 2 and 3 have addressed a letter dated 17.11.2006, wherein it is stated that the selection list/waiting list dated 31.12.2001 has already expired, hence he cannot be offered the appointment. The same is challenged in the present writ petition. 3. Learned advocate Mr.K.B.Pujara for the petitioner submitted that the aforesaid stand of the respondent Nos.2 and 3 is contrary to the record and if the selection list/waiting list prepared by the Staff Selection Committee, vide Resolution No.54 dated 31.12.2001 was to operate only for a period of two (2) years, then the candidates namely Geeda Jagdishkumar Bachubhai and Desai Hargovindbhai Lalbhai could not have been given appointment on 01.10.2004 on the said post. He submitted that the said appointment having been given on 01.10.2004 that means the selection list/waiting list dated 31.12.2001 was not intended to be valid for two (2) years only but in fact it has been operated even after a period of two (2) years as the period of two (2) years had expired on 31.12.2003 and the said appointment is given from the said list on 01.10.2004. Thus, he submitted that the appointment has been given after completion of two (2) years and their appointment is required to be set aside. 3.1 Learned advocate Mr.Pujara submitted that though there was a specific condition in the advertisement to produce the Creamy Layer Certificate, along with the application the respondents have undertaken the interview and selected those candidates, who had not produced the said certificate. He submitted that the candidate at Sr.No.2-Geeda Jagdishkumar Bachubhai, who had secured 62 marks, had not produced the Creamy Layer Certificate and hence, his appointment is required to be set aside and instead the petitioner, who has secured 64.5 marks is required to be appointed and the marks allotted in the interview are required to be ignored since the same were not disclosed in advance. 4. 4. Per contra, learned advocate Mr.H.S.Munshaw, while inviting attention of this court to the contents of the advertisement dated 15.12.2000 submitted that the petitioner was not offered appointment since he did not obtain the requisite minimum marks in the oral interview and was also not having experience as required under the advertisement. He specifically stated that the condition No.2 of the advertisement narrates that the candidates have to undergo the interview before final selection. Learned advocate Mr.Munshaw submitted that after the selection list is prepared, four (4) candidates were issued the appointment orders, after taking necessary approval from the Government. He submitted that as per the advertisement, the aforesaid posts were to be filled in, from which three (3) posts were required to be filled by SEBC category candidate and one (1) post was to be filled through Schedule Tribe category candidate. He has submitted that after the written test was held on 06.10.2001, total 222 candidates, including the petitioner attended the test. He submitted that the petitioner applied in the SEBC category and after the written test was processed, it was decided by the Selection Committee to call those candidates, who have secured 60 marks or more in the interview. He submitted that the file was placed before the Municipal Commissioner, Ahmedabad Municipal Corporation and vide order dated 18.12.2001, the Staff Selection Committee was constituted and it was instructed to hold the interview at 10 a.m. on 31.12.2001 and accordingly, two (2) candidates, including the petitioner were issued the call letters. Learned advocate Mr.Munshaw submitted that the Staff Selection Committee consisted of (i) Deputy Municipal Commissioner (Administration), (ii) Deputy Municipal Commissioner (West Zone), (iii) Municipal Chief Auditor, (iv) Minakshiben Shukla, Deputy Director Chetna and (v) Director, AIDS Control. He has submitted that the committee met on 31.12.2001 and prepared the select list as well as waiting list, after interviewing all the candidates based on their qualification and experience as well as performance during the interview and thereafter, the Deputy Municipal commissioner (Administration) addressed the letter dated 02.01.2002 to the Under Secretary, Government of Gujarat (Urban Development and Urban Housing Department) informing about the recruitment procedure, including the written test and oral interview as well as merit list. 4.1 As regards the contention raised by the learned advocate Mr.Pujara for the petitioner of non-production of the Creamy Layer Certificate, learned advocate Mr.Munshaw submitted that candidate at Sr.No.2Geeda Jagdishkumar Bachubhai had produced the Creamy Layer Certificate on 29.12.2001 i.e. before the Staff Selection Committee held the interview on 31.12.2001. 4.2 Learned advocate Mr.Munshaw submitted that the petitioner has not made any of the selected candidates as party respondents and hence, in absence of such candidates being made as the party respondents, their appointments cannot be set aside. 4.3 Learned advocate Mr.Munshaw also pointed out the details of marks given to the candidates, who had appeared in the interview. He submitted that a perusal of the notings of the Staff Selection Committee reveal that the petitioner is not selected because he did not possess the requisite experience in the field of Social Work and Community Development and he was not having any degree of Masters in Social work (M.S.W.), whereas the other candidates, who are selected, were having such experience. It was submitted that for the appointment to the post of Community Organizer, it is mandatory that the candidates must have experience in the field of Social Work as they have to deal with public at large. Learned advocate Mr.Munshaw pointed out the criteria of each and every candidates with regard to their experience and has submitted that since the petitioner was having the experience of one (1) year as an apprentice in the respondent corporation, the petitioner was not selected though, he had secured more marks in the merits. Learned advocate Mr.Munshaw submitted that there were more meritorious candidates, who have secured more marks than the petitioner hence, the petitioner was not selected because of his inexperience. He submitted that in the present petition, the petitioner has not challenged the selection process and hence, in absence of such challenge, the petition cannot be entertained. He further submitted that the petition is required to be rejected as the petitioner has approached this court after delay of seven (7) years. 5. He submitted that in the present petition, the petitioner has not challenged the selection process and hence, in absence of such challenge, the petition cannot be entertained. He further submitted that the petition is required to be rejected as the petitioner has approached this court after delay of seven (7) years. 5. In response to the aforesaid submissions, the learned advocate Mr.Pujara submitted that as far as the objection raised by the respondents about challenging the action of the respondents after a delayed period is concerned, the same requires to be ignored since after the respondents issued the appointment orders in the year of 2004, the petitioner approached various authorities as well as the concerned Hon’ble Minister and addressed letters to the Municipal Commissioner, Ahmedabad Municipal Corporation and ultimately, by the communication dated 17.11.2006 (Annexure-I), the petitioner was informed that the select list is not in force and hence, after receipt of the aforesaid communication, the petitioner has filed the present writ petition. 5.1 Learned advocate Mr.Pujara also submitted that Director of Municipality vide communication dated 03.01.2002, addressed to the Commissioner of the respondent corporation has expressed that the recruitment process does not appear to be proper and hence, such process may be cancelled with immediate effect. Thus, learned advocate Mr.Pujara submitted that in view of the aforesaid communication, the respondent could not have further proceeded with the recruitment process. 6. Learned advocate Mr.Munshaw, while pointing out the letter dated 10.12.2003 submitted that the State Government, after the communication of the Director of Municipality, had sanctioned the proposal of filling up the post of Community Organizer and accordingly, after such approval was granted by the State authority, the respondent corporation issued the appointment orders to two (2) candidates namely Prajapati Jagdishkumar Chhaganlal and Damor Vinodkumar Laxmanbhai vide order dated 08.03.2004. Thereafter, on 23.09.2004, the State Government (Urban Development and Urban Housing Department) has also further given approval to such appointment and hence, the letter dated 03.01.2002 written by the Director of Municipality loose significance. In support of his submissions with regard to the allotment of marks for the interview, he placed reliance on the judgment dated 14.02.2008 passed in Special Civil Application No. 16706 of 2012. 7. Heard the learned advocates for the respective parties at length. The original record of the recruitment process is also perused by this court. 8. In support of his submissions with regard to the allotment of marks for the interview, he placed reliance on the judgment dated 14.02.2008 passed in Special Civil Application No. 16706 of 2012. 7. Heard the learned advocates for the respective parties at length. The original record of the recruitment process is also perused by this court. 8. The prayer made in the writ petition reflects that the petitioner is challenging the communication dated 17.11.2006, by which he has been informed that the select list is not in operation after lapse of two (2) years. Further prayer is sought seeking a direction upon the respondent authorities appointing the petitioner as a Community Organizer. Thus, the petitioner has not challenged the appointment of any of the candidates. Though, no prayer is made for setting aside the appointment of the selected candidates, by way of oral submissions their appointments are questioned. The petitioner has also not made the candidates, who are appointed pursuant to the selection process, as party respondents and various submissions are advanced with regard to their illegal appointments more particularly, concerning one candidate Shri Geeda Jagdishkumar Bachubhai (SEBC). It is vehemently stressed by the petitioner that the appointment of Shri Geeda Jagdishkumar Bachubhai is illegal as he had not produced the Creamy Layer Certificate. Unquestionably, Shri Geeda Jagdishkumar Bachubhai is not made a party respondent and hence, his appointment cannot be doubted at this stage in wake of such fact. The petitioner was placed at Sr.No.1 in the waiting list, and unless any appointment of the candidate in the select list is set aside, he cannot claim appointment only on the basis that the appointment orders were issued after a period of two years, i.e. the life of the select list. This Court cannot issue any directions for appointing the petitioner, who was placed in the waiting list, without hearing the affected candidate, who is placed in the select list. 9. As regards the contentions raised by the petitioner with regard to the procedure adopted by the Staff Selection Committee about nondisclosure of the marks of oral interview despite there being criteria fixed is concerned; unquestionably, the petitioner has not challenged the selection process in which he has participated. 9. As regards the contentions raised by the petitioner with regard to the procedure adopted by the Staff Selection Committee about nondisclosure of the marks of oral interview despite there being criteria fixed is concerned; unquestionably, the petitioner has not challenged the selection process in which he has participated. Be that as it may, the respondents have constituted one Selection Committee of five (5) persons as mentioned hereinabove and thereafter, carried out the recruitment process and examined the cases with regard to qualification and experience of each of the candidates and after a thorough examination, have issued the appointment orders. 11. As noted hereinabove, the petitioner has not challenged the selection process and hence, no oral submission of setting aside the selection process can be entertained. This court has perused the original file with regard to the recruitment process. The qualification and experience of each of the candidate is also examined by this court. The petitioner is placed at Sr.No.1 of the waiting list of the candidates belonging to SEBC category. The petitioner is assigned 64.5 marks. 12. At this stage, it would be apposite to refer to the eligibility criteria specified in the advertisement dated 15.12.2000 prescribed for the post of Community Organizer. The translated description is reproduced as below: “Qualification: Social education in sociology such as Degree Science, Commerce or Law in a second class graduate, local knowledge of collective organization public relations, cooperative practices, and labour welfare reform proposals will be given preference to. Knowledge of Gujarati and English language is required.” 13. Thus, a perusal of the eligibility which is prescribed for the post of Community Organizer reveal that candidate must have experience in the field of Social Work and Community Development, Cooperation as well as reformation with regard to Labour Welfare. 14. The experience of the petitioner reveals that he has only one (1) year of experience as apprentice clerk in the respondent corporation. This court has also perused the experience of the selected candidates and the same would reveal that they have far more experience than the petitioner in the field of Social Work and Community Development. 14. The experience of the petitioner reveals that he has only one (1) year of experience as apprentice clerk in the respondent corporation. This court has also perused the experience of the selected candidates and the same would reveal that they have far more experience than the petitioner in the field of Social Work and Community Development. Candidate No.1Prajapati Jagdishkumar Chhaganlal has two (2) years and seven (7) months’ experience in Gujarat AIDS and Awareness Prevention Unit and he has worked as a Social Worker since 01.06.1998, candidate No.2Geeda Jagdishkumar Bachubhai has two (2) years and eight (8) months’ experience and he his holding the degree of M.S.W. and he was working as a Field Worker in Sri. Kutla Bhaluka Gram Megha Mandal from 04.10.1994 to 10.06.1997 and candidate No.3Desai Hargovindbhai Lalbhai has been working since Seven (7) years and eight (8) months as a Social Worker in Rajpipla Nagarpalika. Thus, except the petitioner, all the selected candidates are having more experience as per the criteria of the advertisement hence, no illegality can be found in placing the petitioner in waiting list though he had secured more marks. One of the candidates, Shri Gohil Bharat Kumar, who has secured 66 marks, i.e. more than the petitioner, is placed below him at Sr.No.4 in the waiting list since he was having less experience than the petitioner. Looking to the aforesaid experience of the petitioner, he has been placed in the waiting list, below the selected candidates/Hence, this court does not find any illegality in the process of selection. 15. Apropos the contention raised with regard to the candidate No. 2 Shri Geeda Jagdishkumar Bachubhai about nonproduction of the Creamy Layer Certificate, it is not disputed that before holding the meeting by the Selection Committee i.e. 31.12.2001, he had produced the Creamy Layer Certificate on 29.12.2001. The condition envisaged in the advertisement does not state that if the candidate has not annexed the Creamy Layer Certificate along with the application, his/her application would stand rejected. There are number of candidates, who were called by the Selection Committee to produce the Creamy Layer Certificate before 31.12.2001. As noted hereinabove, the petitioner has not made the aforesaid candidate as a party-respondent, hence, this court cannot express any adverse opinion with regard to his non-production of the Creamy Layer Certificate along with his application. 16. There are number of candidates, who were called by the Selection Committee to produce the Creamy Layer Certificate before 31.12.2001. As noted hereinabove, the petitioner has not made the aforesaid candidate as a party-respondent, hence, this court cannot express any adverse opinion with regard to his non-production of the Creamy Layer Certificate along with his application. 16. The record also reveals that after the selection process and the preparation of the merit list; there was doubt raised by the Director of Municipality with regard to the recruitment process vide his communication dated 03.01.2002. Thereafter, the State Government granted approval to the Municipality vide Resolutions dated 10.12.2003 and 23.09.2004 for filling up three (3) posts of Community Organizer. After such approval was granted, the Municipality issued the appointment orders. Hence, the condition stipulated in the Select list specifying its life for two years cannot stifle the issuance of appointment orders to the meritorious candidates after the State Government granted the approval of filling up of the posts on the proposal sent by the Municipality. The petitioner has also not challenged such action of the State Government granting approval for filling up of the posts. 17. The petitioner has neither challenged the selection process nor has he made the selected candidates as party respondents, hence, the respondents cannot be directed to appoint the petitioner to the post of Community Organizer even if the posts have fallen vacant or remained vacant. The petitioner can claim right only to such post for which the recruitment was undertaken. The foundation of seeking appointment is premised on the recruitment process which was undertaken for filling up the vacant posts which existed when such advertisement was issue. The advertisement was issued for filling up four posts, i.e. three post of SEBC category and one post of ST category, which are filled up. The Supreme Court in the case of Raj Rishi Mehra vs State of Punjab, 2013 (12) SCC 243 , while examining the rights of appointment of the waitlisted candidates, has observed thus: “5. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India V/s. Ishwar Singh Khatri 1992 Supp (3) SCC 84, Gujarat State Dy. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India V/s. Ishwar Singh Khatri 1992 Supp (3) SCC 84, Gujarat State Dy. Executive Engineers Association V/s. State of Gujarat and others 1994 Supp (2) SCC 591, State of Bihar V/s. Secretariat Assistant Successful Examinees Union 1986 and others (1994) 1 SCC 126 , Prem Singh and others V/s. Haryana SEB and others 1996) 4 SCC 319, Ashok Kumar and others V/s. Chairman, Banking Service Recruitment Board and others (1996) 1 SCC 283 , Surinder Singh and others V/s. State of Punjab and another (1997) 8 SCC 488 , Madan Lal and others V/s. State of J&K and others (1995) 3 SCC 486 , Kamlesh Kumar Sharma V/s. Yogesh Kumar Gupta and others (1998) 3 SCC 45 , State of J&K and others V/s. Sanjeev Kumar and others (2005) 4 SCC 148 , State of U.P. and others V/s. Rajkumar Sharma and others (2006) 3 SCC 330 , Ram Avtar Patwari and others V/s. State of Haryana and others 2007) 10 SCC 94 and Rakhi Ray and others V/s. High Court of Delhi and others (2010) 2 SCC 637 .” Thus, it is no more res integra that the candidates whose names are included in the waiting list are not entitled to be appointed against the unfilled posts. In the present case, all the posts are filled up, hence no directions can be issued for appointing the petitioner on the vacancies which have subsequently fallen vacant. 18. The writ petition fails. Rule is discharged. There shall be no order as to costs.