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2023 DIGILAW 921 (GUJ)

Padma Babubhai Patni v. State Of Gujarat

2023-08-03

J.C.DOSHI, SUNITA AGARWAL

body2023
JUDGMENT : SUNITA AGARWAL, J. 1. Heard learned counsel for the parties and perused the record. 2. The intra Court appeal is directed against the judgment and order dated 19.4.2022, whereby the writ petition seeking for appointment to the post of Staff Nurse in Panchayat Department in SEBC (Socially and Educationally Backward Class) category has been dismissed. 3. The brief facts relevant to decide the controversy in hand are that the petitioner/appellant herein participated in a selection process for appointment to the post in question, which was initiated by the advertisement dated 28.8.2018. The first final select list was declared on 8.2.2019 as per Rule 11(1) of the Gujarat Panchayat Services (Class III) Recruitment and Examination Rules, 2012. As demonstrated before us, the last selected candidate in the first select list had secured 40.900 marks. Total 73 posts of SEBC category were sought to be filled up by the said select list. However, against the resultant vacancies, which arose on account of non-joining of the selected candidates, an additional select list was declared on 21.9.2019 of total 59 candidates, which included 15 candidates of SEBC category. The candidates included in the additional select list dated 21.9.2019 were allocated districts as per their choices on 4.10.2019 and the board had published the district allotment list, accordingly. 4. A request was made by the respondent board vide letter dated 25.9.2019 to the State Government, pursuant to which the Government Resolution dated 23.7.2020 was issued, whereunder the respondent board was permitted to declare waiting list/additional final select list upto 35% of the total vacancies. As 73 vacancies were belonging to SEBC category in the advertisement in question, as per the stand of the respondent board, they could fill up only 26 vacancies, which were, in fact, resultant vacancies occurred on account of non-joining or non-reporting of the selected candidates placed in the first and final select list dated 8.2.2019. 5. Pursuant to the Government Resolution dated 23.7.2020, second additional final select list/recommendation list dated 12.10.2020 was published of 43 candidates, which included 11 candidates of SEBC category. The second additional final select list dated 12.10.2020 is the last select list declared by the respondent. 6. It is brought on record, which is admitted that in the second final select list dated 12.10.2020, the last selected candidate had secured 39.900 marks. The writ petitioner/appellant herein had also secured 39.900 marks. The second additional final select list dated 12.10.2020 is the last select list declared by the respondent. 6. It is brought on record, which is admitted that in the second final select list dated 12.10.2020, the last selected candidate had secured 39.900 marks. The writ petitioner/appellant herein had also secured 39.900 marks. The result is that two candidates secured same marks and as such, applying the policy of the board, the candidate older in age was given appointment. The result is that the petitioner/appellant herein has been excluded from the second final list, i.e. the last select list declared by the board. 7. This stand of the respondents as noted in the order of the learned Single Judge could not be disputed by the learned counsel for the appellant. The submissions of the learned counsel for the appellant are that the respondent board has erred in computing 35% of 73 posts, whereas the limit of 35% was to be computed out of the total vacancies notified for the post in question, which were much more in number. It is then stated that the total vacancies of 26 even could not be filled as some of the candidates, who were placed in the first and second additional list did not join the post. The result is that total 73 + 26 posts which could be filled up by the respondents under the Government Resolution dated 23.7.2020 had not been filled up. 8. The contention is that the exclusion of the candidature of the petitioner/appellant herein on the premise that the petitioner/ appellant herein could not make it to the final second additional select list is, thus, arbitrary and illegal. 9. Noticing that above submission of the learned counsel for the petitioner/appellant herein, in view of the stand taken by the respondent as noted herein above, suffice it to note that in the last and final select list declared on 12.7.2020, the petitioner/appellant herein could not be selected because of being older in age than the last selected candidate. There is no dispute about the fact that the last selected candidate in the final and last select list dated 12.7.2020 had attained 39.900 marks. For the resultant vacancies, which could have arisen on account of non-joining of the candidates placed in two additional select list, cannot be a reason to entertain the claim of the petitioner/appellant herein for issuance of mandamus. For the resultant vacancies, which could have arisen on account of non-joining of the candidates placed in two additional select list, cannot be a reason to entertain the claim of the petitioner/appellant herein for issuance of mandamus. The learned Single Judge has rightly noted that it is not the case of the petitioner/appellant herein that in the select list, her name had figured on the list and she could not be appointed. It is also not the case of the petitioner/appellant herein that the last selected candidate, who had attained the same marks of 39.900 was not entitled for priority and her selection being older in age was illegal. 10. The contention that the Government Resolution dated 23.7.2020 had been issued in order to ensure that all vacancies are filled up, as the process of selection consumes lot of time, energy and money of the public at large is not of much substance, inasmuch as, a selection process has to be brought to its logical end at one or the other point of time. It cannot be allowed to continue in perpetuity. The resultant vacancies which arose on account of non-joining or non-reporting of the selected candidates, if any, were rightly left to be filled up in the next recruitment. Reference be made to the decision of the Apex Court as placed before us, wherein, it is held that merely because, a candidate is selected and kept in the waiting list, he does not acquire any absolute right for appointment. It is open to the Government/recruitment body to make the appointment or not, whether to fill up a post or not is a policy decision. 11. The insistence of the learned counsel for the appellant is that the averments made in paragraph 4.1 to 4.3 of the affidavit-in- reply filed on behalf of the Gujarat Panchayat Service Selection Board itself indicate that there were vacancies which were not duly filled in. The rejection of the claim of the petitioner/appellant herein on the premise that she could not make it to the select list is, thus, illegal. This submission of the learned counsel for the petitioner/appellant herein does not impress us for the above noted facts and circumstances of the instant case. The rejection of the claim of the petitioner/appellant herein on the premise that she could not make it to the select list is, thus, illegal. This submission of the learned counsel for the petitioner/appellant herein does not impress us for the above noted facts and circumstances of the instant case. Merely because the petitioner/appellant herein was placed in the select list having attained same marks as that of the last selected candidate, she is not entitled for the relief claimed for. No infirmity could be found in the judgment impugned passed by the learned Single Judge. The appeal is accordingly, dismissed being devoid of merits. Notice is discharged. No order as to costs.