Dismissed

Vaja Mehulkumar Pithabhai v. the State of Gujarat

Gujarat HC6 Mar 2007SCA/4666/2007

Case brief

AI extract

What is this about?

Single judge of Gujarat High Court dismissed Special Civil Appeals by candidates on a waiting list for teacher posts. The court held that inclusion in a merit or waiting list does not confer an indefeasible right to appointment and that such lists expire after the statutory period or unless expressly extended under specific rules, especially upon a fresh advertisement.

What did the court decide?

Petitioners not entitled to appointment or consideration; petitions dismissed with notice discharged.

Vaja Mehulkumar Pithabhai Vs the State of Gujarat — Service and Employment | Gujarat HC (2007)

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SCA/4666/2007

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1/16

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 4666 of 2007 To SPECIAL CIVIL APPLICATION No. 4667 of 2007

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For Approval and Signature:

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HONOURABLE MR.JUSTICE H.K.RATHOD

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=========================================================

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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VAJA MEHULKUMAR PITHABHAI & 1 - Petitioner(s)

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Versus

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THE STATE OF GUJARAT & 4 - Respondent(s)

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=========================================================

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Appearance :

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MR JK PARMARfor Petitioner(s) : 1 - 2.
GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
None for Respondent(s) : 3 - 5.

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=========================================================

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CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD

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Date : 06/03/2007

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ORAL JUDGMENT

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Heard the learned advocate Mr. JK Parmar on

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SCA/4666/20072/16

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JUDGMENT

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behalf of the petitioner, learned AGP Mr. Vipul
Mistry appearing for respondent.

¶29

Today, learned advocate Mr. Parmar placed the
draft amendment on record, which has been allowed
with a direction to the petitioner to carry out the
same within a period of one week from today.

¶30

The grievance of the present petitioner is that,
the respondent no. 3 published an advertisement
inviting applications for appointment against 644
posts of Vidhya Sahayak in various Primary Schools
within the Junagadh District, at annexure A.
Annexure A is advertisement for the year of 2004
dated 9/7/2004. According to the petitioner, he
possessed qualification of C.P.Ed. while petitioner
no. 2 possessed qualification of B. Ed. The
respondent no. 3 had prepared list of 644 posts, and
also prepared one more wait list of 100 candidates.
The respondent no. 3 had issued interview calls to
the petitioners on 21/10/2004 and also issued
letter dated 31/10/2004 for selecting the place of
service of both the petitioners by intimating to
remain present at District Education and Training
Bhavan, Bilkha Road, Junagadh on 9/11/2004.

¶31

This Court (Coram : Hon'ble Ms. R.M.Doshit, J)
had directed the Government to fill up the post of
candidate of C.P.Ed also.

¶32

According to the petitioners, some of the

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SCA/4666/20073/16JUDGMENT

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candidates of one list of 100 candidates have
approached this Hon'ble Court by filing SCA
15765/2004 which was admitted by this Court and the
said petition is pending before this Hon'ble Court.

¶35

However, according to the petitioner, inspite of
unsolved case of 100 candidates of one more wait
list, the respondent no. 3 had issued new
advertisement inviting the new applications for the
post of 738 by an advertisement on 24/1/2007.
Therefore, present petition is filed.

¶36

According to the petitioners, they are selected
candidates of one more additional list of candidates
and petitioners are having no other alternative
remedy, therefore, present petition is filed.

¶37

Today, in the draft amendment, the contentions
raised by the petitioners that applicants are
protected in pursuant to the oral order dated
10/7/2006 passed in Misc. Civil Application no.
392/2006 in Special Civil Application no. 192/2006
and allied contempt applications, where applicant is
eligible and entitled for his appointment as Vidhya
Sahayak as he has been already selected and his name
is in the waiting list. The copy of order dated
10/7/2006 is at Annexure F.

¶38

Learned advocate Mr. Parmar relied upon the
order of the Division Bench of this Court dated
10/7/2006 and submitted that this Court has directed

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SCA/4666/20074/16

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JUDGMENT

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to the District Primary Education Officer to give
appointment to the person who are on the waiting list
in order of their merits to the posts which have
become vacant on account of non joining by the
selected candidates or upon resignation given by the
selected candidates subject to the limit of posts
advertised. Therefore, Division Bench has observed
that this will have to be implemented within a period
of one month.

¶42

In view of the above observations made by the
Division Bench of this Court, learned advocate Mr.
Parmar relied upon the letter dated 7/7/2006
addressed to the Director of Primary Education, by
State Government that order passed by this Court has
not been challenged to the Higher forum, therefore,
due to resignation, if any post is found to be vacant
from the selection of year 2004, they should have to
fill up the post by candidates from the waiting list.
The period of one year of the wait list of 2004 is
exempted by the State Government. Therefore, learned
advocate Mr. Parmar submitted that petitioner is
entitled to appoint on the basis of the fact that he
was selected and his name is included in the waiting
list.

¶43

I have considered the submissions made by
learned advocate Mr. Parmar and I have also perused
the order passed by the Division Bench of this Court
as well as the letter dated 7/7/2006 addressed to the
Director of Primary Education, by State Government.

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SCA/4666/2007

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5/16

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JUDGMENT

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The question that if any candidate has been
selected and his name has been included in the select
list /waiting list, whether such candidate is having
any legal right to be appointed or not. The second
question is that select list is having one year
period to be remained in operation which was
exempted by the State Government for the selection of
wait list 2004 only. If any vacancy is accured due
to resignation, death and non-reporting by the
candidates, same can be filled up from the candidate
of waiting list of 2004.

¶48

In view of these facts, the observation made by
the Division Bench of this Court is relevant,
therefore, it is to be considered that the Division
Bench has observed in para 4 in Misc. Civil
Application no. 392 of 2006 in Special Civil
Application no. 192 of 2006 and group matter dated
10/7/206, quoted as under:

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“In pursuance of the above statement made
by the learned Assistant Government Pleader,
we direct all concerned District Primary
Education Officer, who are opponents in these
applications, to give appointment to persons
who are on the Waiting Lists in order of their
merits to the posts which have become vacant
on account of non joining by the selected
candidates or upon resignation given by the
selected candidates subject to the limit of
posts advertised. We are sure that the
appointments shall be made as soon as possible
and preferably within one month from today.”
(Emphasis supplied).

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SCA/4666/2007

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6/16

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JUDGMENT

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The Division Bench has observed that these
opportunities were available to the candidates of
waiting list in order of their merits to the posts
which have become vacant on account of non joining by
the selected candidates or upon resignation given by
the selected candidates subject to the limit of posts
advertisedmeans wait list cannot be operated beyond
the limit of posts so advertised in the year of 2004.

¶54

Therefore, this arrangement, to operate further
merit list is up to the post advertised by the
department. According to the petitioner, initially
post has been advertised for 644 posts. Recently,
the posts have been advertised on 24/1/2007 for 738.

¶55

In view of this background, petitioner being
candidate whose name has been included in wait list
has no right to get appointment as per decision of
Apex Court reported in AIR 2007 SC page 210 in case
of Union of India and Ors Vs. V. B. Valluvan and
others.

¶56

On 24/1/2007, advertisement has been issued
which invited against existing vacancy occurred on
the date of advertised that included the remaining
post which has not been filled up from the select
list of 2004. Therefore, moment the advertisement
has been issued on 24/1/2007 the duration which was
extended by the State Government or exempted comes to
an end because it becomes a part and process of

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SCA/4666/2007

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7/16

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JUDGMENT

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subsequent advertised dated 24/1/2007. Therefore,
this aspect which has been considered by this Court
in SCA 20353 to 20373 of 2006 dated 1/3/2007,
relevant observation made by this Court in para 5 are
quoted as under:

¶61

“5.I have considered the

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submissions made by both the learned
advocates. It is a settled law laid
down by the Apex Court that merely
having the name in the merit list /
wait list, it cannot give any legal
right which can be enforced against
the respondent by the petitioners.

¶63

5.1The Apex Court, in case of State
of U.P. and Anr. v. Om Prakash and
others, reported in 2006 (111) FLR
226, in Para.21, has observed as
under :

¶64

“21.That apart this Court has
consistently held that inclusion of
candidate's name in merit list does
not confer any indefeasible right to
be appointed. (See : Shankarsan Dash
v. Union of India, 1991 (62) FLR 981
(SC) and Union Territory of
Chandigarh v. Dilbagh Singh, (1993) 1
SCC 154.”

¶65

SCA/4666/2007

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8/16

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JUDGMENT

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5.2The petitioners were selected in
respect to advertisement of 2004 and
their names were included in the
merit list / wait list. Thereafter,
if any future vacancy arise, the
petitioners have no legal right of
appointment. (See : Union of India &
Ors. v. B. Valluvan and others, AIR
2007 SC 210).

¶69

5.3Recently, the Apex Court, in
case of Union of India and Others v.
B. Valluvan and others, reported in
(2007) 1 SCC (L&S) 28, has in Para.10
and 17, as under :

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“10.Recruitment process, as is

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well known, must be commensurate with
the statute or the statutory rule
operating in the field. We have
noticed hereinbefore, advertisement
was made for three posts. It was not
indicated therein that another panel
for filling up of the future
vacancies was to be prepared by the
Selection Committee. In the select
list prepared by the Selection
Committee, the name of the 1st
respondent was at Sl. No.4.

¶72

SCA/4666/2007

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9/16

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JUDGMENT

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Recommendations were made containing
the names of 19 persons for future
vacancies. Only because a panel has
been prepared by the Selection
Committee, the same by itself, in our
opinion, would not means that the
same should be given effect to
irrespective of the fact that there
was no such rule operating in the
field. The Selection Committee was
bound to comply with the selection
process only in terms of the extant
rules. It was bound to follow the
stipulationsmadeinthe
advertisement itself. Even in the
advertisement it was not indicated
that a select list would be prepared
for filling up of future vacancies.
The Selection Committee, having been
appointed only for recommending the
names of suitable candidates, who
were fit to be appointed, could not
have embarked upon the question as
regardslikelihoodoffuture
vacancies.

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17.The life of a panel ordinarily
is one year. The same can be extended
only by the State and that too if the
statutory rule permits it to do so.

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SCA/4666/2007

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10/16JUDGMENT

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The High Court ordinarily would not
extend the life of a panel. Once a
panel stands exhausted upon filling
up of all the posts, the question of
enforcing a future panel would not
arise. It was for the State to accept

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the said recommendations of the
Selection Committee or reject the
same.Ashasbeennoticed
hereinbefore, all notified vacancies
as also the vacancy which arose in
2000 had already been filled up in
the year 2000, the question of
referring back to the panel prepared
in the year 1999 did not arise. The
impugned judgment, therefore, cannot
be sustained.”

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5.4This Court cannot direct the

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respondents to operate merit list /
wait list when duration of select

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list is for a period of one year is
over. The State Government has
extended the period only for limited
purpose in light of the directions
issued by this Court in respect to
persons those who have resigned after

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SCA/4666/2007

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11/16

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JUDGMENT

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receiving the appointment order and
persons those who have not reported
after receiving the appointment order
or in case of death. But, according
to my opinion, that extended period

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also comes to an end a moment fresh

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advertisement has been issued by the
respondent authorities which included

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vacancy which has been occurred on
the date of advertisement, means the
vacancy occurred due to death of a
person and not reporting after
receiving the appointment order and

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resignation after receiving the

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appointment order also included in
the fresh advertisement issued by the
respondent authorities in the year
2007. Therefore also, petitioners are
not entitled to have legal right to
getappointmentoncefresh

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advertisement has been issued on the

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basis of existing vacancy available
at the time of issuing advertisement.

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SCA/4666/2007

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12/16

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JUDGMENT

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Once the duration of select list is

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over, this Court has no jurisdiction
and power to direct the respondents
to consider the case of petitioners

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for appointment, because petitioners

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are not having any legal and

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enforceable right merely their names

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have been included in the merit
list / wait list. By passage of time,

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if petitioners become ineligible for

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the post of Vidhya Sahayak, that
cannot be helped by this Court while
exercising the power under Article
226 of the Constitution of India. The

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respondent authorities shall have to
comply with the recruitment rules
while filling up the post of Vidhya
Sahayak and if any violation of that
statutory rules, it amounts to
vitiating the selection. Therefore,

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this Court cannot even direct the

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respondents to accommodate or to
consider the present petitioners,

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SCA/4666/2007

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13/16JUDGMENT

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those who are not eligible as per
advertisementissuedbythe
respondents. Therefore, in view of
the aforesaid facts, the petitioners
are not entitled to any relief as
prayed for in the present petitions.
The petitioners are not having any
legal right to be considered for the
post of Vidhya Sahayak. Therefore,
there is no substance in the present
petitions.Accordingly,present

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petitions are disposed of. Notice is
discharged.”

¶113

In view of the above observations and according
to my opinion petitioner's name is included as
candidate in wait list of 2004 can not have any legal
right or enforceable legal right to get appointment
on the basis of having name in wait list.

¶114

The exemption given by the State Government to
the period of one year for the wait list is limited
upto the date, on which fresh advertisement has been
issued on 24/1/2007. The earlier process has
technically come to an end because advertisement has
been issued on the basis of existing vacancies which

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SCA/4666/200714/16JUDGMENT

¶116

are available with the respondent on the date of
advertisement including vacancy which having accured
due resignation, non-reporting and death of the
candidates in respect of select list of 2004.
Therefore, petitioner is having no legal right which
can be enforced by way of writ of mandamus.

¶117

From perusal of record of the petition, it is
not made clear by the petitioner that from select
list how many vacancies accured due to resignation,
death and non-reporting or not accepted appointment
order. Petitioner is also not cleared that whether
vacancy is available in respect to select list of
2004 or not. In absence of any averments in the writ
petition, petitioner has not established any prima
facie case in his favour because if any vacancy is
available from select list of 2004 in the District
and new advertisement published on 24/1/2007, then
petitioner has no legal right to claim appointment
when period of select list is over. The moment, new
advertisement issued on the basis of existing
vacancies available on the date of issuing
advertisement, no claim of petitioners can be
considered, and existing vacancy included in such
Advertisement. Merely, name is included in the wait
list, petitioner is not entitled for the right of
appointment to the post of Vidhya Sahayak. The High
Court can not extend the period of panel and also
have no jurisdiction to issue direction to appoint
the candidate from the said panel.

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SCA/4666/2007

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15/16

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JUDGMENT

¶121

 This aspect has been examined by the Apex Court
in Case of Rani Lakshmibai Kshetriya Gramin Bank Vs.
Chand Beharia Kapoor and others reported in AIR 1998
S.C. Page 3104, the relevant paras 9 and 12 are
quoted as under:

¶122

“9.Comingtothesecond
question, it requires no detailed
scrutiny and it is well established
that inclusion of name in the list of
successful candidates does not confer
an indefeasible right to be appointed.
It has been so held in the
Constitution Bench decision of this
Court in case of Shankarsan Dash Vs.
Union of India, said case the Court
has gone to the extent of following
(at p. 1586 of AIR SCW):

¶123

“It is not correct to say that if
a number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the
successful candidates acquire an
indefeasible right to be appointed
which can not be legitimately denied.
Ordinarily the notification merely
amounts to an invitation to qualified
selection they do not acquire any
right to the post, the State is under
no legal duty to fill up all or any of
the vacancies.”

¶124

12.Though the panel ordinarily
remains alive for one year but in
accordance with the guidelines of the
Government of India, Ministry of
Finance it would be open to Board to
extend the said period under
intimation to the Government in
Banking Division. In the case in hand
the resolution of the Board dated
28/3/1985 indicates that the life of
the panel had been extended by for a

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SCA/4666/2007

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16/16

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JUDGMENT

¶128

further period of six months, and
therefore, after expiry of the said
period it was not open for the Court
to issue direction to appoint people
from the said panel.”

¶129

Therefore, there is no substance, in the present
petition which required any interference by this
Court. Accordingly, present petition is dismissed.

¶130

asma

Vaja Mehulkumar Pithabhai v. the State of Gujarat

Case brief

What is this about?

What did the court decide?

Vaja Mehulkumar Pithabhai v. the State of Gujarat

Case brief

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What did the court decide?

What the court decided

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