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2022 DIGILAW 399 (GUJ)

Dhirendra Arjunbhai Dafda v. Gujarat High Court

2022-03-23

BIREN VAISHNAV

body2022
JUDGMENT : 1. This petition is filed by three petitioners praying for a direction to the respondent No.1 i.e. the High Court of Gujarat on the administrative side to give appointments to the petitioners as Gujarati Stenographers, Grade-III, pursuant to the advertisement dated 13.08.2018 as the names of the petitioners are at serial nos. 1, 6 and 17 in the wait list dated 14.08.2019. It is the case of the petitioners that candidates with less merit than the petitioners are given appointments on 05.08.2020 and the unfilled vacancies are required to be filled in as per the Government Resolution dated 10.08.2016. 2. Heard Mr.K.B.Pujara, learned advocate for the petitioners and Ms.Trusha K Patel, learned advocate for the respondent Nos.1 and 2. Though served, nobody appears for the respondents 3 and 4. 3. Mr.K.B.Pujara, learned advocate for the petitioners would submit as under: 3.1 Drawing the Courts attention to the advertisement, issued by the respondent No.1, he would submit that by the said advertisement dated 13.08.2018, applications were invited for 184 vacancies of Gujarati Stenographers, Grade-III (Class-3), in the subordinate Courts of the State of Gujarat. The category wise vacancy also has been pointed out by Mr.Pujara, learned advocate. 3.2 Mr.Pujara, learned advocate, would submit that out of 184 vacancies notified, only 168 candidates were appointed and a selection list was prepared on 14.08.2019. A waiting list on the same date was prepared of 17 candidates. The petitioners, three in number, found their names at serial numbers 1, 6 and 17. 3.3 The case of the petitioners is that all the 168 candidates on the selection list were offered appointment but several candidates did not join. Inviting the attention of the Court to the conditions in the advertisement, Mr.Pujara, learned advocate, would submit that the advertisement itself i.e. Clause-7, made it clear that the Centralized Waiting List would be operated as per the Government Resolution dated 10.08.2016. As per Clause-6 of the Government Resolution, if a candidate of the select list given appointment does not join duty or leaves the service within one year of joining, then the vacancies arising due to such reasons have to be filled up by candidates of the concerned category from the wait list. The case of the petitioners, therefore, is that the petitioners should have been given appointments on the vacancies of general category or of S.C and SEBC category. The case of the petitioners, therefore, is that the petitioners should have been given appointments on the vacancies of general category or of S.C and SEBC category. 3.4 Relying on Clause-7(b) of the advertisement, Mr.Pujara, learned advocate, would submit that as per the Clause, the number of candidates to be included in the Select List shall be equal to the number of vacancies notified. Despite this, though the advertisement was for 184 candidates, the Select List was only of 168 candidates, and therefore, not in accordance with Clause-7(b) of the advertisement. In a tabulated form, Mr.Pujara, learned advocate, would point out that seven candidates had resigned within one year from the date of the selection and therefore the petitioners automatically ought to have been appointed from the Wait List which was in operation for a period of one year counting 14.08.2019 as the relevant date. As far as making submissions for each petitioner is concerned, Mr.Pujara, learned advocate, would submit as under: (A) For petitioner No.1, it was the case of Mr.Pujara, learned advocate, that he had obtained 65.82 marks and was at serial number 1 on the waiting list. He had the highest merit, therefore, if any vacancy in the general category or the S.C category had to be filled in, the petitioner No.1 was entitled for appointment. He would submit that a candidate at serial no.12 of the wait list, one Sanjaykumar Badhabhai Chavda, of S.C category with lower merit of 63.88 marks had been appointed. The candidate, Shri Sanjaykumar Chavda, is given posting at Kheda which was not one of the three choices given by him. Mr.Pujara, learned advocate, would submit that even on the basis of merit position of a candidate, if it is not possible to recommend his or her name in any of the districts of his or her choice, he or she had to be recommended for appointment in any other district. Since the petitioner belongs to the S.C category with highest merit, he was entitled to be appointed on any vacancy of general or S.C category. Mr.Pujara, learned advocate, would submit that the petitioner No.1 is serving on a temporary basis at the District Court, Bhuj and this was his last chance to compete in the selection. (B) For petitioner No.2, Mr.Pujara, learned advocate, would submit that he is at serial no.6 with 64.18 marks. He belongs to the S.E.B.C category. Mr.Pujara, learned advocate, would submit that the petitioner No.1 is serving on a temporary basis at the District Court, Bhuj and this was his last chance to compete in the selection. (B) For petitioner No.2, Mr.Pujara, learned advocate, would submit that he is at serial no.6 with 64.18 marks. He belongs to the S.E.B.C category. Person with lower merit of 64.12 one Alpeshkumar Makwana at serial no. 9 has been appointed in Surendranagar district and Ms.Rupalben Jagmalbhai Chhala, who is at serial number 14 in Wait List with 63.71 marks has been appointed in the Ahmedabad district. This causes grave injustice to the petitioner. Surendranagar district was the petitioner No's 2 first choice in which place Mr.Makwana, serial number 9 wait list candidate, the private respondent has been appointed. (C) With regard to petitioner No.3, Ms.Meenakshiben Babulal Kathi, the petitioner would submit that she is at serial no.17 in the Wait List, sole woman candidate belonging to the S.E.B.C category. Even otherwise, the posts advertised were less than the 33 % of the reservation earmarked for the women candidates. She had 63.06 marks and was therefore entitled to be appointed both as a SEBC category and a female candidate on the vacancy of a general as well as SEBC category. He would submit that one Aarti Parshottambhai Gabu, was appointed in the Baroda district for the post of SEBC female which remained vacant as she did not join duty. In accordance with the Resolution dated 10.08.2016, once that post fell vacant, the petitioner No.3 ought to have been appointed. Relying on the affidavit-in-reply Mr.Pujara, learned advocate, would submit that it is an admitted position that as far as Aarti Parshottambhai Gabu is concerned, she did not join duty, according to the respondents "at the relevant point of time". The relevant point of time admittedly is 09.10.2019. Relying on the affidavit in reply on behalf of the respondent No.1, Mr.Pujara, learned advocate, would submit that Ms.Gabu had not appeared for document verification on 09.09.2019. On 05.10.2019, she was directed to submit her willingness for appointment and she showed her unwillingness on 14.11.2019. The relevant point of time admittedly is 09.10.2019. Relying on the affidavit in reply on behalf of the respondent No.1, Mr.Pujara, learned advocate, would submit that Ms.Gabu had not appeared for document verification on 09.09.2019. On 05.10.2019, she was directed to submit her willingness for appointment and she showed her unwillingness on 14.11.2019. In other words, three months from the date of the wait list, the SEBC female candidate refused to take appointment, and therefore, the stand of the respondent that the post of Stenographer at the Baroda district Court was disbanded on 31.05.2020 and therefore, the decrease in the establishment of Gujarat Stenographer, Grade-III, at Baroda is misconceived. 3.5 Extensive reliance is placed on the rejoinder filed by Mr.Pujara, learned advocate and in support of his submission that the petitioner No.1 and the petitioner No.2 should have been given appointment and the stand of the respondents that the respondent Nos.1 and 2 have been denied appointment as they had availed age relaxation and therefore were not eligible for appointment in general category is contrary to the decisions of the Hon'ble Supreme Court in the case of Pradeep Singh Dehal v. State of Himachal Pradesh, reported in 2019 (9) SCC 276 and also contrary to the decision in the case of Jitendra Kumar Singh v. State of Uttar Praesh, reported in (2010) 3 SCC 119 . 4 For the respondents, Ms.Trusha Patel, learned counsel, extensively relied on the averments made in the affidavit in reply. She would submit that information was called from the establishment of the Principal Judicial Officers of the State at the relevant point of time on 24.07.2020 in respect of the operation of the Select List of 14.08.2019. According to Ms.Trusha Patel, learned advocate, on such information being received, the vacancies were filled in. Subsequent vacancies which have arisen after the publication of the advertisement of the fourth general centralized recruitment process cannot be considered as submitted by Mr.Pujara, by drawing attention to the working of the table to the reply. She submitted that in the instant recruitment process, the select list was forwarded and accordingly category wise and district wise available vacancies were concerned and a list of 14 candidates was prepared in view of the recruitment rules. She submitted that in the instant recruitment process, the select list was forwarded and accordingly category wise and district wise available vacancies were concerned and a list of 14 candidates was prepared in view of the recruitment rules. In response to the advertisement, initially 184 vacancies were notified, however, only 168 plus two candidates had qualified to be included in the select list taking into consideration the number of category wise vacancies and minimum qualifying marks in view of para 7(a) and (c) of the advertisement. She would submit that vacancies which have occurred after the expiry of the select list and the waiting list on 13.08.2020 cannot be taken into consideration. 4.1 With respect to petitioners Nos. 1 and 2, she would submit that the petitioner No.1 belong to the Schedule Caste category. The petitioner No.1 had availed of age relaxation and the upper age of 35 years of general category candidates. He was therefore not eligible for appointment in the general category as cannot be considered on the general seat. 4.2 Reliance is placed on a Policy Circular dated 29.01.2000 published by the Government of Gujarat which provided that if a candidate belonging to a reserved category avails of the benefit of relaxation in eligibility criteria, he would not be entitled to be posted in a post meant for general category. The person below him in the wait list has been considered on the basis of his merit and preference. 4.3 With regard to the petitioner no.2, also, Ms.Trusha Patel, learned advocate, would submit that Mr.Makwana and Ms.Chhala had not availed of any relexation and upper age and being MRC candidates they were considered against general seats in view of the circular of 29.01.2000 and therefore the petitioners Nos. 1 and 2 were not entitled to the appointments on the basis of they having availed of age relaxation. She would submit that the decisions in the case of Pradeep Singh Dehal (supra) and Jitendrakumar (supra) no longer hold the field. Reliance is placed by Ms.Trusha Patel, learned advocate, on the decision in the case of Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission, reported in 2019 (7) SCC 383 . She would submit that the decisions in the case of Pradeep Singh Dehal (supra) and Jitendrakumar (supra) no longer hold the field. Reliance is placed by Ms.Trusha Patel, learned advocate, on the decision in the case of Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission, reported in 2019 (7) SCC 383 . Also reliance is placed on a decision in the case of Gaurav Pradhan v. State of Rajasthan & Ors., reported in 2018 (11) SCC 352 and in the case of Deepa E.V. v. Union of India, reported in 2017(12) SCC 680 ., which indicate that when a reserved category gets age relaxation, if there is a policy which is invoked, then in accordance with the ratio of the judgment in the case of Jitendrakumar, that judgment has to be read in context of the statutory provision. In the present case, as held by Niravkumar (supra), since there was a policy of the State not to grant age relaxation, the case of the petitioners 1 and 2 will be governed by the policy of the State and the judgment of Jitendrakumar would not apply. 4.4 As far as petitioner No.3 is concerned, she would submit that at the relevant point of time, two vacant posts of SEBC were available. Petitioner No.3 belong to SEBC category. As per information received from the administrative branch of the High Court for the district Court of Vadodara, there was no vacancy available due to disbandment of Courts. Therefore, the vacancy arisen due to non joining of Ms.A.P.Gabu, under the SEBC category was not considered. As such, during Annual General Transfer, 2020, vide notification dated 31.05.2020, issued by the Gujarat High Court, three Additional District Judges were transferred from Vadodara to other districts and against them two additional districts were posted at Vadodara. Hence, one post of Gujarati Stenographer, Grade-III, Class-III, was decreased due to disbandment of one Court. She would rely on the notification of 31.05.2020. She would submit that Ms.Gabu did not appear for document verification on 09.09.2019 and submitted her unwillingness on 14.11.2019. An additional affidavit in rejoinder was filed by the High Court on the administrative side relying on the decisions which are referred to hereinabove. 5. Having considered the contentions raised by the learned counsels for the respective parties, the Court will proceed to adjudicate the issue of the petitioners Nos. An additional affidavit in rejoinder was filed by the High Court on the administrative side relying on the decisions which are referred to hereinabove. 5. Having considered the contentions raised by the learned counsels for the respective parties, the Court will proceed to adjudicate the issue of the petitioners Nos. 1 and 2, who were SC and SEBC candidates respectively. Petitioners Nos. 1 and 2 were on the wait list at serial number 1 and 6 respectively. They secured 65.82 and 64.18 marks. It is the case of the petitioners Nos. 1 and 2 that they being higher in merit, the private respondents as far as petitioner No.2 is concerned, who got less merit and less marks could not have been appointed. When a response came in the affidavit in reply that the petitioner Nos. 1 and 2 had availed of age relaxation and therefore were not entitled to the benefit of being considered on merit, reliance was placed by the learned counsel for the decision in the case of Pradeep Singh Dehal v. State of Himachal Pradesh & Ors. Reliance was placed on paragraphs 14, 15 and 16 thereof, where the Hon'ble Supreme Court held that the benefit of reservation is conferred to scheduled castes, scheduled tribes and OBC category or such other categories in accordance with the decision in the case of Indra Sawhney v. Union of India, reported in 1992 Supp 3 SCC 217. Reliance was also placed in the case of Vikas Sankhla v. Vikas Kumar Agarwal, reported in 2017 (1) SCC 350 ., to submit that the concessions which are availed of by the reserved category candidates are in nature of age relaxation, lower qualifying marks etc, and therefore, every person is first a general category candidate. 5.1 Reliance was also placed in a decision in the case of Jitendrakumar (supra). 5.1 Reliance was also placed in a decision in the case of Jitendrakumar (supra). The subsequent decisions of the Hon'ble Supreme Court in the case of Niravkumar (supra), which referred to the decision of Jitendrakumar, considered the view and held that if there is a policy of the State which requires to be interpreted which is the policy of 29.01.2000 in the present case, the submission made by the State Counsel therein that the relaxation/concession in age granted to the candidates at the initial stage only enables such candidate belonging to the reserved category without granting him preferential advantage in the matter of selection cannot be treated as an incident of reservation. 5.2 Referring to the Circular dated 29.01.2000, issued by the Government, according to Ms.Patel, a contention raised by the counsel for the respondent therein which clearly showed that the concession in age in the matter of selection to the post cannot be treated as an incident of reservation. Therefore, relaxation in age at the initial qualifying stage would not fall foul of the Circular. The Hon'ble Supreme Court specifically held that the ratio in the case of Jitendrakumar, shall not apply to the facts of the case. For the purpose of the benefit, paragraphs 24 to 32 are reproduced as under: "24. According to learned Sr. Counsel, the benefit of reservation under Article 16(4) of the Constitution of India is a group right whereas under Article 16 (1) of the Constitution of India, it is an individual right. It is emphasized that reservation under Article 16(4) of the Constitution of India will take into its fold concessions. Once a candidate falls within the reserved category, he/she can only exit the Group i.e. from the benefit of Article 16(4) of the Constitution of India to Article 16(1) of the Constitution of India on fulfillment of two circumstances, namely, (a) imposition of a creamy layer and (b) merit selection. That is where there is a level playing field in respect of the selection process, without any benefit under Article 16(4) of the Constitution of India. According to the learned Sr. Counsel, a level playing field would be of candidates who have not availed of any concessions or relaxation. All things have to be equal for all the candidates. 25. According to learned Sr. According to the learned Sr. Counsel, a level playing field would be of candidates who have not availed of any concessions or relaxation. All things have to be equal for all the candidates. 25. According to learned Sr. Counsel, there is a distinction between relaxation and concession which pertain to a particular selection process and mere support mechanism (such as General Coaching) independent of a criteria for a particular selection. According to the learned Sr. Counsel, selection process would include all stages. There can be no distinction that relaxation in age and fee can be treated as provisions pertaining to eligibility i.e. to bring a candidate within the zone of consideration. According to the learned Sr. Counsel, it is hair splitting to divide the selection process into further parts. Each undermines the concept of "level playing field". Learned Sr. Counsel further submitted that the Division Bench has misinterpreted Section 3 of the Act of 1994. It has to be read as a whole. Section 8 is in nature of exception to Section 3 (6), because it creates a non-level playing field. 26. In order to emphasize that reservation under Article 16 (4) of the Constitution of India is a group right, and includes preferences, concessions and exemptions, Mr. L.N. Rao relied on certain observations of this Court made in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp (3) Supreme Court Cases 217. According to him, the fact that only age and fee relaxations were given does not take the reserved category candidates out of the group category. He has also relied on the judgment rendered in the case of Post Graduate Institute of Medical Education & Research, Chandigarh and others v. K.L.Narsimhan and another, 1997 (6) SCC 283 in support of the submission that once a candidate takes advantage of relaxation in the eligibility criteria, he/she has to be treated as a reserved category candidate. 27. With regard to the interpretation to be placed on the Act of 1994, Mr. L.N.Rao submitted that Section 3 preserves the definition of the group throughout. 27. With regard to the interpretation to be placed on the Act of 1994, Mr. L.N.Rao submitted that Section 3 preserves the definition of the group throughout. According to him, Sections 3 (6) and Section 8 are to be read together in the following way i.e. in Section 3(6), the term "gets selected on the basis of merit in an open competition" denotes a level playing field in Open Competition permitting exit from the group into the merit category. Section 8 lowers the level playing field "for any competitive examination" and clubs three categories together- (a) fees, (b) interview and (c) age limit. According to the learned Sr. Counsel, the invocation of Section 8 wholly excludes the operation of Section 3 (6) to which Section 8 is an exception. He further submitted that relaxation and concessions may be of various kinds. Each is a part of Article 16 (4) of the Constitution of India and could have egalitarian consequences. In support of the submissions, reliance is placed on observations of this Court made in paragraph 743 in the case of Indra Sawhney (supra). 28. According to the learned Sr. Counsel, there is a distinction between social support mechanisms prior to an examination, (which are also a part of Article 16 (4) of the Constitution of India) and the relaxations/concessions which relate to the selection process itself. According to the learned Sr. Counsel, supplemental and ancillary provisions to ensure full availment of provisions for reservation would be a part of reservation under Article 16 (4) of the Constitution of India. He submitted that the selection process has to be seen as a whole. It cannot be split up into different parts. Section 8 is an exception to Section 3(6). In view of the above, according to the learned Sr. Counsel, the Division Bench has erroneously held that in view of Section 8 of the Act of 1994, reserved category candidates can be permitted to compete with the General Category candidates. 29. The learned Sr. Counsel has also submitted that the learned Single Judge has wrongly distinguished the judgment in the case of K.L.Narsimhan (supra) on the basis that it was over-ruled by a larger five Judges Bench in the case of Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and others, (1998) 4 SCC 1 . 29. The learned Sr. Counsel has also submitted that the learned Single Judge has wrongly distinguished the judgment in the case of K.L.Narsimhan (supra) on the basis that it was over-ruled by a larger five Judges Bench in the case of Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and others, (1998) 4 SCC 1 . The aforesaid judgment was over-ruled only on one particular point raised in the review application. The aforesaid judgment had decided three appeals in a common judgment. Review was filed only in one. Therefore, the judgment in other cases is not over-ruled. It has in fact been subsequently referred to in Dr.Preeti Srivastava and Anr. v. State of M.P. and Ors., 1999(7) SCC 120 , Bharati Vidyapeeth and Ors v. State of Maharashtra and Anr., 2004 (11) SCC 755 and State of Madhya Pradesh and Ors. V. Gopal D.Tirpathi and Ors., 2003 (7) SCC 83 . Therefore, according to Mr. L.N.Rao, the reasoning given therein is still relevant. 30. The learned Sr. Counsel then relied on the judgment in the case of Union of India and another v. Satya Prakash and others, JT 2006 (4) SC 524, in support of the submission that only a candidate who has been selected without taking advantage of any relaxation/concession can be adjusted against a seat meant for General Category Candidate. Learned Sr. Counsel then submitted that the vacancies which are reserved for Women candidates remained unfilled, and therefore, ought to have been filled from the men candidates belonging to the General Category. Even these vacancies have been illegally carried forward. The reservation in favour of women is referable to Article 15 (3) of the Constitution of India and not Article 16 (4) of the Constitution of India. Therefore, it is horizontal reservation in which carry forward rule would not be applicable. Even with the carry forward rule which is applicable only to vertical reservations, 50% cap as approved in Indra Sawhney case (supra) cannot be permitted to be breached. In fact in the present case, the reserved category candidates have occupied one third of the posts meant for the General Category. If the argument of the State is accepted in addition to the quota of 50% (with carry forward), another 183 out of 1014 (18%) would be added. 31. Learned Sr. In fact in the present case, the reserved category candidates have occupied one third of the posts meant for the General Category. If the argument of the State is accepted in addition to the quota of 50% (with carry forward), another 183 out of 1014 (18%) would be added. 31. Learned Sr. Counsel reiterated that the purpose of reservation is not to distribute largesse, but to create empowerment among the disadvantaged. The test is, therefore, "adequacy", not mechanical over-empowerment, which must be constantly maintained. Learned Sr. Counsel also emphasized that the provisions contained in Article 16 (4) (a) and (b) of the Constitution of India are all enabling provisions and subject to (a) creamy layer, (b) 50% cap (c ) compelling reasons and (d) proportionality. In the present case, the State has failed to give any details with regard to adequacy of representation. Finally, learned Sr. Counsel submitted that reservation in favour of women is even otherwise violative of Article 16 (2) of the Constitution of India. 32. On the other hand, Mr. Dwivedi, learned Senior counsel appearing on behalf of the respondents submitted that in fact no cause of action has arisen in favour of the appellants. All of them are qualified candidates who did not make it to the final select list on the basis of comparative merit. He then submitted that in fact the selected candidates who are likely to be affected, have not been made parties. It has also been submitted that in any case, no relief can be granted to the appellants, at this stage as all the posts had already been filled. Therefore, the submissions made by the appellants are merely an academic exercise." 5.3 Reading the aforesaid decision would indicate that what was followed was the principle laid down in Gaurav Pradhan (supra) that the ratio of the judgment of Jitendrakumar had to be read in the context of the statutory provision there which was not applicable to the facts of the present case. Based on this position of law, therefore, the case of the petitioners Nos. 1 and 2 for being considered for appointment to the post of Gujarat Stenographer, Grade-III (Class-III), does not merit consideration. The petition is therefore, dismissed vis-a-vis petitioners nos. 1 and 2 herein. 5.4 As far as petitioner No.3 is concerned, she was an SEBC candidate in the female category. The wait list was notified on 14.08.2019. 1 and 2 for being considered for appointment to the post of Gujarat Stenographer, Grade-III (Class-III), does not merit consideration. The petition is therefore, dismissed vis-a-vis petitioners nos. 1 and 2 herein. 5.4 As far as petitioner No.3 is concerned, she was an SEBC candidate in the female category. The wait list was notified on 14.08.2019. From the affidavit in reply filed by the respondents, it is evident that on 09.09.2019, Aartiben P Gabu, an SEBC female candidate when called for document verification, withdrew her williing to be appointed on 14.11.2019. Therefore, three months from the date of the waiting list, a clear vacancy arose and the right of the petitioner No.3 who was the only SEBC female candidate accrued in the matter of appointment. The stand of the respondent that it was during the correspondence, "at the relevant point of time" on 31.05.2020 that they were informed of disbanding of one Court of the Baroda District resulting in decrease of the vacancies is misconceived. 5.5 It is well settled by several decisions and also the position of law being that on the date when the vacancy accrued, the candidate first available in the wait list of that category had a right to be appointed is clear. Facts of this case would indicate that when Ms.Gabu, showed her unwillingness to join on the SEBC female category post on 14.11.2019, that day was the day when the right of the petitioner No.3 accrued for being considered for appointment. It is not open for the respondents to then contend that the internal communications indicated that the relevant dated was 31.05.2020 when the vacancies decreased due to disbandment. This stand of the respondent No.1 is contrary to the position of law, which otherwise operates. 6 Accordingly, as far as petitioner No.3 is concerned, the petition would stand allowed. Accordingly, the respondents are directed to consider petitioner No.3 and offer appointment to her on the post of Gujarati Stenographer, Grade-III at a vacancy at a suitable vacancy on a post which will relate back to the date of Ms.Gabu's refusal on 14.11.2019. The petitioner No.3 shall be appointed as Gujarati Stenographer, Grade-III (Class-III), on the basis of the aforesaid directions. The petition is allowed qua petitioner No.3 only. Accordingly, the petition is dismissed for petitioners Nos. 1 and 2 and allowed for petitioner No.3. Direct service is permitted.