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2024 DIGILAW 1955 (GUJ)

DIPTIBEN C. PARMAR v. STATE OF GUJARAT

2024-10-21

VAIBHAVI D.NANAVATI

body2024
JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. Heard Mr. Bhuvnesh Gahlot, learned advocate appearing for Mr. N.K. Majmudar, learned advocate for the petitioner, Mr. Premal Joshi, learned advocate for the respondent no. 4 and Ms. Pooja Ashar, learned A.G.P. for the respondent nos. 1 to 3. 2. By way of the present petition, the petitioner has prayed for the following reliefs: “(A) admit this petition. (B) issue appropriate writ, order or direction, quashing and setting-aside the resolution passed by the concerned respondent authorities dated 18.3.2010 by which service of the petitioner has been put an end to and be pleased to hold that the action on the part of the concerned respondent authorities in terminating the services of the petitioner by passing resolution dated 18.3.2010 is illegal, arbitrary, illogical and irrational. (C) issue appropriate writ, order or direction, directing the concerned respondent authorities to reinstate the petitioner to the post of Assistant Professor and to give appointment to the petitioner on permanent basis to the post of Assistant Professor in view of the fact that the petitioner’s name was figured at S. No. 3 in the waiting list prepared pursuant to the advertisement being No. 31/2007-08, there were six vacant posts of Assistant Professor when the waiting lists was in force. (D) pending admission and final disposal of the present petition, be pleased to issue appropriate writ, order or direction, directing the concerned respondent authorities to reinstate the petitioner to the post of Assistant Professor with all consequential benefits of continuity of service till the aforesaid petition is finally heard and decided subject to final outcome of the petition. (E) pass such orders as thought fit in the interest of justice.” 3. Briefly stated, the petitioner came to be initially appointed as Assistant Professor, Obstetric and Gynec at the Government Hospital, Surat in the pay-scale of Rs.10000-15200 with usual allowances on purely temporary and ad-hoc basis for a period of six months or till the post is filled up on regular basis or till further order, whichever is earlier, subject to the approval of the Government and pursuant to the directions issued in Special Civil Application No. 13294 of 2004. The said order of appointment is duly produced at Annexure-A at Page 12. The said order of appointment is duly produced at Annexure-A at Page 12. The petitioner was thereafter, transferred from Medical College, Surat to M.P. Shah Medical College, Jamnagar by order dated 10.04.2007, which is duly produced at Annexure-C. The respondent no. 4-Gujarat Public Service Commission issued advertisement no. 31/2007-08 and the petitioner applied for the same for the post of Assistant Professor. The petitioner was called for interview however, the petitioner, by communication dated 02.03.2009, was informed that the name of the petitioner figured at S. No. 3 in the waiting list. It was communicated in the said communication that the said waiting list would be in operation for a period of 2 years from 23.08.2008 or till the result of the next examination for the said post is declared, whichever is earlier, which is duly produced at Annexure-D. The waiting list was in force upto 23.08.2010 or till the result of the next examination. 3.1. It is the case of the petitioner that as per the knowledge and information of the petitioner, two posts of the Assistant Professor, Obstetric and Gynec were filled-in in M.P. Shah Medical College, Jamnagar. The copy of the communication dated 29.03.2010 is duly produced at Annexure-E. It is the further case of the petitioner that from the said communication, it transpires that there were six permanent vacant posts of Assistant Professor and since the name of the petitioner figured at S. No. 3 and there were six posts, the concerned authorities ought to have operated the waiting list prepared pursuant to the advertisement no. 31/2007-08 and the petitioner ought to have been given appointment as Assistant Professor, Obstetric and Gynec inasmuch as, the waiting list could remain in force till 23.08.2010. However, instead of giving appointment to the petitioner for the said post, by resolution dated 18.03.2010, the concerned authorities terminated the services of the petitioner on the ground that the petitioner was not selected in the oral interview held pursuant to the advertisement being no. 31/2007-08 published by the GPSC. 3.2. Being aggrieved by the impugned resolution passed by the respondent-authorities, the petitioner preferred Special Civil Application No. 8502 of 2010, challenging the said resolution dated 18.03.2010, terminating the services of the petitioner. 31/2007-08 published by the GPSC. 3.2. Being aggrieved by the impugned resolution passed by the respondent-authorities, the petitioner preferred Special Civil Application No. 8502 of 2010, challenging the said resolution dated 18.03.2010, terminating the services of the petitioner. Since the GPSC was not impleaded as party respondent in the said proceedings, the petition came to be rejected on the ground that necessary parties were not impleaded in the petition however, liberty was reserved in favour of the petitioner to file a fresh petition. The order dated 17.09.2010 passed in the said petition is duly produced at Annexure-H. 3.3. In view of the aforesaid, the petitioner has filed the present petition, challenging the resolution dated 18.03.2010, duly produced at Annexure-A by which, the services of the petitioner came to be terminated. 4. Mr. Gahlot, learned advocate for the petitioner submitted that the petitioner was at S. No. 3 in the waiting list, which was prepared pursuant to the advertisement being no. 31/2007-08 and there were six posts vacant for the post of Assistant Professor at the time when the said waiting list was in force and in view thereof, rather than terminating the services of the petitioner by the impugned resolution dated 18.03.2010, the petitioner was required to be appointed on the said post. 5. Mr. Premal Joshi, learned advocate for the respondent-authorities placed reliance on the affidavit-in-reply filed by the respondent no. 4 and submitted that the respondent-GPSC recommended 19 candidates by letter dated 23.04.2008 to the State Government. Pursuant to the same, the appointment orders came to be issued qua those candidates. It is submitted that three candidates belonging to the unreserved category and one candidate belonging to the ST category did not report and, therefore, the State Government by letters dated 20.02.2009 and 21.02.2009, requested the GPSC to recommend the names of four candidates in the said category. It is submitted that as per the result dated 03.04.2008, pursuant to the advertisement no. 31/2007-08, waiting list was prepared by the respondent - GPSC, which is duly produced at Annexure-I. It is submitted that as three candidates of unreserved category and one candidate of the ST category did not report for duty and considering the request from the State Government, the GPSC by letter dated 21.04.2009, recommended the names of the candidates, who figured at S. Nos. 1 and 2 in the waiting list belonging to the unreserved category. 1 and 2 in the waiting list belonging to the unreserved category. For the remaining third post of unreserved category, no candidate was recommended from the waiting list kept for women candidates of the unreserved category because, they were selected and kept on waiting list with relaxed standard only for the reserved post of women. It is submitted that the petitioner figured at S. No. 3 in the waiting list of the unreserved category. Out of the two recommended candidates, one candidate-Dr.Kunjan Contractor, figured at S. No. 2, did not resume the duty and, therefore, the State Government by letter dated 10.05.2010, forwarded the proposal to recommend the names from the waiting list. 5.1. Reliance is placed on the circular dated 24.12.2008 issued by the General Administration Department of the State and it is submitted that the period of waiting list would be in force upto two years from the date of recommendation or till the declaration of the result of the subsequent advertisement, whichever is earlier and in view thereof, the said period came to an end on 22.04.2010, while the proposal of the State Government was forwarded on 10.05.2010 and in view thereof, the waiting list came to be exhausted and no names could be recommended to the State Government and accordingly, the respondent-State was informed by the GPSC on 28.06.2010. 6. Ms. Pooja Ashar, learned A.G.P. also relied on the affidavit-in-reply filed by the respondent no. 1 at page 34. Placing reliance on paragraph 5 of the said reply, it is submitted that the petitioner failed to qualify the GPSC examination twice on its full merit i.e. 2005-06 and 2007-08. It is submitted that the State Government had sent proposal to the GPSC by communication dated 10.05.2010 to recommend the names of the candidates for the purpose of filling up the vacant post. However, since the GPSC did not recommend the names vide communication dated 28.06.2010, stating that the said waiting list expired and, therefore, the said waiting list could never come into operation. It is submitted that by communication dated 06.02.2007, the GPSC was advised to terminate the services of the petitioner on the ground that the petitioner has not cleared the GPSC examination however, the State sent a proposal on 01.03.2009 to the GPSC for continuation of the ad-hoc service of the petitioner. It is submitted that by communication dated 06.02.2007, the GPSC was advised to terminate the services of the petitioner on the ground that the petitioner has not cleared the GPSC examination however, the State sent a proposal on 01.03.2009 to the GPSC for continuation of the ad-hoc service of the petitioner. However, the respondent-GPSC, by letters dated 01.04.2009 and 28.04.2009, rejected the proposal to continue the petitioner’s adhoc services. It is submitted that since the GPSC time and again advised not to continue the ad-hoc appointee, the resolution dated 18.03.2010 came to be passed. It is submitted that the ad-hoc posts will not be filled up by similarly situated persons like the petitioner and if the new person is given a chance and if he fails in the selection in GPSC examination in that case, the same treatment will be given to that employee as well and, therefore, the ad-hoc appointee has no right to continue on the ad-hoc post and, therefore, the petition is required to be dismissed. 7. Mr. Gahlot, learned advocate for the petitioner reiterated the contentions raised earlier and submitted that as such, the waiting list would operate till 23.08.2010 in view of the advertisement no. 31/2007-08 published by the GPSC wherein, the petitioner was figured at S. No. 3 however, the petitioner’s services came to be wrongly terminated on 18.03.2010 before the said period was over. 8. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner came to be appointed on ad-hoc basis on 28.10.2005 as Assistant Professor, Obstetric and Gynec at the Government Hospital, Surat in the payscale of Rs.10000-15200 with usual allowances for a period of six months or till the post is filled up on regular basis or till further orders, whichever is earlier, subject to the approval of the State Government and the directions issued in Special Civil Application No. 13294 of 2004. The petitioner came to be transferred to M.P. Shah Medical College, Jamnagar by order dated 10.04.2007, which is duly produced at Annexure-C. The respondent no. 4 issued advertisement being no. 31/2007-08 and the petitioner applied for the same for the post of Assistant Professor. The petitioner was called for interview and by communication dated 02.03.2009, the petitioner was informed that the petitioner figured at S. No. 3 in the waiting list. 4 issued advertisement being no. 31/2007-08 and the petitioner applied for the same for the post of Assistant Professor. The petitioner was called for interview and by communication dated 02.03.2009, the petitioner was informed that the petitioner figured at S. No. 3 in the waiting list. The said waiting list would remain in operation for a period of 2 years i.e. till 23.08.2010. Upon completion of two years, the said waiting list would be exhausted. 9. Considering the documents produced on record and submissions advanced by the learned advocates appearing for the respective parties, it emerges that the said waiting list wherein, the petitioner figured at S. No. 3, was exhausted on 22.04.2010. Pursuant to the six vacancies that occurred, the respondent-State communicated to the respondent no. 4 to send the names of the candidates to fill up the said vacancies. The said communication was sent by the State on 10.05.2010 before which, the list was exhausted on 22.04.2010. Prior thereto, the petitioner’s services came to be terminated by the impugned resolution dated 18.03.2010. In view thereof, the waiting list stood exhausted upon completion of two years before the State sent its proposal. Further, there were two more advertisements issued by the respondent-GPSC being III-117/2009-2010 and IV-123/2009-2010. On perusal of the affidavit-in-reply, it appears that the petitioner chose not to participate pursuant to the said advertisements. 10. It is apposite to refer to the ratio laid down by the Hon’ble Apex Court in the case of Sarvepalli Ramaiah (Dead) as per Legal Representatives and Others v. District Collector, Chittoor District and Others, (2019) 4 SCC 500 . Paragraphs 43 and 44 thereof, read as under: “43. Judicial review under Article 226 is directed, not against the decision, but the decision-making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision-making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact. 44. The decision of the Collector was based on materials and thus not liable to be interfered with. The High Court very rightly did not interfere with the decision. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact. 44. The decision of the Collector was based on materials and thus not liable to be interfered with. The High Court very rightly did not interfere with the decision. It was not for the High Court, exercising its extraordinary power of judicial review, to re-analyse the evidence on record and adjudicate the disputed question of whether the Mahanth of the Mutt had at all granted Saswatha Patta to the predecessors-in-interest of the appellants, whether the takeed was duly executed by the Mahanth, whether the ryotwari pattas were genuine or otherwise valid or not. Nor was it for the High Court to adjudicate the disputed fact of whether the land in question was in fact a water body or the dried bed of a water body. Cultivation is often carried out on the dried bed of water bodies. That does not denude the land of its character as a water body.” 11. In view of the aforesaid undisputed facts, no interference is called for under Article 226 of the Constitution of India as the waiting list came to be exhausted on 22.04.2010, the services of the petitioner came to be terminated before that on 18.03.2010 and the respondent-State forwarded the proposal on 10.05.2010. 12. For the foregoing reasons, the present petition is devoid of merits and the same is dismissed. Rule is discharged.