SCA/8138/1990 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8138 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== RANJITSINH VAJESINH RATHOD & 4 - Petitioner(s) Versus DIST PANCHAYAT SERVICE SELECTION COMMITTEE & 4 - Respondent(s) ============================================================== Appearance : MRS KETTY A MEHTA for Petitioner(s) : 1 - 5. MR HS MUNSHAW for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 3, MR LB DABHI, AGP for Respondent(s) : 4, MR NM KAPADIA for Respondent(s) : 5, ================================================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 14/02/2006 ORAL JUDGMENT 1. The petitioners in all five, have filed this SCA/8138/1990 2/25 JUDGMENT petition under Article-226 of the Constitution of India praying for declaration that the Circular of the Government dated 12.6.1989 is illegal, and ultra vires the provisions of the Gujarat Panchayat Service Rules Selection Committee (Function) Rules. The petitioners have also prayed for the direction to the respondents to give appointments to the petitioners as Talati-cum-mantri from the select list prepared in the year 1988. The petitioners have also prayed for the declaration that the petitioners are entitled to appointment as Talaties in accordance with the provisions of the said Rules in the service of the District Panchayat Surat. The petitioners have also prayed for interim relief to the extent that the respondents should not cancel the select list prepared for the posts of Talati-cum-mantri in the year 1988 and they should be restrained from issuing any fresh SCA/8138/1990 3/25 JUDGMENT advertisement for the posts of Talati-cum- mantri and from appointing any one as Talati- cum-mantri unless the petitioners are appointed in view of the select list prepared in the year 1988. 2. This Court has issued rule on 28.11.1990 and ad interim relief was granted restraining the respondents from making any appointment to the post of Talati-cum-mantri except from the previous select list. During the pendency of this petition, the petitioners have preferred Civil Application No.594 of 1991 and this Court has passed an order on 25.4.1991, whereby ad interim relief granted by this Court on 28.11.1990 was allowed to continue until further order and it was further clarified that it would be open for the opponents to proceed further with selection procedure in so far as Surat District was concerned. However, the SCA/8138/1990 4/25 JUDGMENT select list was not allowed to be finalized until further order. 3. It is the case of the petitioners that the petitioners were selected for the posts of Talati-cum-mantri by the Panchayat Service Selection Committee through the District Panchayat Service Selection Committee after going through the selection procedure as prescribed by the Gujarat Panchayat Service (Function) Rules. The names of the petitioners were in the select list in the year 1988. The District Panchayat Service Selection Committee (Function) Rules, 1964 provide that the list prepared by the Selection Committee remains in force till the new list is prepared. It is the case of the petitioner that no list was prepared and hence the petitioners were entitled to be appointed as Talati-cum-mantri in view of the said statutory rules. It is SCA/8138/1990 5/25 JUDGMENT also the case of the petitioner that the said statutory rules were interpreted by this Court and it has been held that unless the new select list is prepared the old select list remains in force. 4. It is also the case of the petitioners that in the select list prepared in the year 1988 the petitioners were at Sr.Nos.111, 115, 167, 93 and 183 respectively. Despite the fact, that the aforesaid select list was in force, the District Panchayat was not operating the said list on the erroneous ground that the Government has issued a Circular dated 5.9.1989 informing the Secretary, Panchayat Seva Selection Committee that in view of the Circular dated 12.6.1989 the earlier circular dated 29.5.1982 and 5.4.1983 were cancelled and, therefore, the select list prepared should be treated as cancelled. SCA/8138/1990 6/25 JUDGMENT 5. Mrs.Ketty Mehta, learned advocate appearing for the petitioners has submitted that the Government Resolution dated 12.6.1989 states that the select lists are to be prepared according to the directions given in the said resolution and it remains in operation for one year. The said circular is only regarding the select list and the waiting list. The said circular will not apply to the select list which remains in force in accordance with the statutory rules till the new list is prepared by the Selection Committee. She has further submitted that though the said circular says that the select list should be kept in force only for a period of one year it will have an application prospectively. The said circular does not apply to the facts of the present case. She has further submitted that till the new list is prepared the petitioners' right to SCA/8138/1990 7/25 JUDGMENT be appointed cannot be denied in view of the decisions of this Court as well as of the Hon'ble Supreme. 6. In support of her submission she relied on the decision of this Court in the case of Chaudhari Govabhai Nathubhai and others vs. Banaskantha Jilla Panchayat Seva Pasand Samiti and another, reported in 1988 (1) GLH (UJ) 14, wherein it is held that merely because process to prepare fresh selection list started, operation of the select list in which the petitioners found their place should not be stayed. In other words, this select list should be operated till the fresh list is prepared and, if there are vacancies, appointment should be made from this select list in accordance with rules. 7. She has further relied on the decision of SCA/8138/1990 8/25 JUDGMENT this Court in case of Kantibhai Parmabhai Vankar & Ors. vs. District Superintendent of Police, Sabarkantha & Ors., reported in 1990 (2) GLR 1259, wherein respondent was directed to consider the case of all the persons in the select list; and not to reject the claim of any of the persons in the select list on the ground that the period of one year has expired. The Court further observed that the select list cannot be continued indefinitely and the respondent was directed to consider select list as if it had been continued for the full year. 8. Mrs.Mehta has, therefore, submitted that since no new select list was prepared and the earlier select list was in operation wherein the petitioners' names were there, they should be appointed as Talati-cum-mantri. 9. Mrs.Mehta has further submitted that the new SCA/8138/1990 9/25 JUDGMENT criteria laid down in Government Resolution dated 12.6.1989 is not applicable to the select list which was already prepared earlier, as there is no retrospective application of the said resolution. In support of her submission she relied on the decision of Hon'ble Supreme Court in the case of P. Mahendra and others vs. State of Karnataka and others, reported in AIR 1990 Supreme Court 405, wherein it is held that it is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or SCA/8138/1990 10/25 JUDGMENT necessary intendment the rule cannot be given retrospective effect except in matter of procedure. In the case before the Supreme Court, the amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule seeking the change in the eligibility criteria for selection and appointment to the post of Motor Vehicles Inspectors was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post. Moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being SCA/8138/1990 11/25 JUDGMENT considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment. Moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. 10. She has further relied on the decision of this Court in the case of High Court of Gujarat vs. K.K.Parmar, reported in 1999(3) GLR 2378, wherein it is held that the eligibility has to be ascertained with reference to last date for making application. Even Rule 47(4) of the Rules does not contemplate that eligibility criteria should be satisfied with reference to date of vacancies. A reasonable reading of Rules 47(4) and 47(5) of the Rules makes it clear that the criteria for determination of eligibility is last date of making application. SCA/8138/1990 12/25 JUDGMENT 11. She has further relied on the decision of this Court in the case of Sanjay P. Patel vs. District Primary Education Officer & Anr., reported in 1997 (2) GLH 75, wherein it is held that the relevant date should be the date in the year in which the process of recruitment commences. There cannot be any dispute with the proposition of law that the process of recruitment starts with the date on which the notice inviting applications is issued and this process of recruitment ultimately culminates into appointment on the basis of a select list and thus the process of recruitment goes on till the selections are finalized on the basis of which the appointment orders are issued. 12. Based on the aforesaid judgments of this Court as well as Hon'ble Supreme Court, Mrs.Mehta submitted that since as per the SCA/8138/1990 13/25 JUDGMENT statutory rules the select list which was prepared in the year 1988 remains in force till the new list is prepared and by virtue of subsequent resolution of the State Government dated 12.6.1989 the said seniority list could not be scraped on the ground that its life was only of 1 year. 13. Mrs.Mehta has further submitted that this very issue has come up before this Court earlier in Special Civil Application No.3238 of 1989, wherein while deciding the said matter on 17.9.1991, this Court has declared and ordered that the 1982 general select list prepared by the respondent authorities, as also the 1984 special select list of S.T.Candidates are in force, and are operative as on the date of decision. Therefore, till such time that the respondent authorities prepare and publish fresh select lists (general for all the SCA/8138/1990 14/25 JUDGMENT categories of candidates, or special for S.T.Candidates), in accordance with the rules, if they want to make appointments on the post of Talati-cum-mantri, they shall make appointments only from the existing select lists of 1982 and 1984, in the order of sequence of candidates on those lists, and it will be open to the respondent authorities to first fill up the 24 vacancies of the S.T.Candidates from the 1984 select list, even before making appointments of the candidates from the 1982 select list. 14. This issue has again come up before this Court in Special Civil Application No.2614 of 1989 with Special Civil Application No.3081 of 1989 and while deciding the said matters in December, 1991, this Court has held that in both these matters, the select/waiting lists in question shall remain operative until a fresh SCA/8138/1990 15/25 JUDGMENT selection is made in terms of paragraph-3 of the Circular dated 29.5.1982 and the respondents shall fill up the vacancies to the posts in question from these select/waiting lists until they remain operative, that is until result of a fresh selection is declared in terms of paragraph-3 of the circular dated 29.5.1982. 15. Based on the aforesaid two judgments of this Court involving the identical issue Mrs.Mehta submitted that the petitioners should be appointed to the posts of Talati-cum-mantri as the select list prepared in the year 1988 still remains in force and because of the stay granted by this Court in 1991 the new select list was not finalized. 16. Mr.L.B.Dabhi, learned AGP and Mr.H.S.Munshaw, the learned advocate appearing for the SCA/8138/1990 16/25 JUDGMENT Panchayat on the other hand have strongly opposed this petition. An affidavit in reply is filed on 24.1.1991 by the Deputy District Development Officer, wherein it is stated that the petition filed by the similarly situated persons was dismissed by this Court. Copy of the order passed in Special Civil Application No.2505 of 1990 on 12.4.1990 is attached alongwith the said affidavit wherein it is held that select list is to be prepared covering upto the existing vacancies and further vacancies which may arise in the year. This would be clear from Rules 16 and 19 of the aforesaid Rules. Once the select list for a particular year is exhausted there is no question of appointing anybody who are on the waiting list. Further affidavit in reply is filed on 31.1.2006, wherein it is stated that an advertisement was published for filling up of in all 70 posts of Talati-cum-Mantri and SCA/8138/1990 17/25 JUDGMENT subsequent to processing of applications received by the District Panchayat Service Selection Committee, written test and oral interviews were held by the Committee and a list of 307 candidates was prepared and forwarded to the appointing authority. It is further stated that the said select list was operated and in all 85 candidates were issued appointment orders on the basis of merits on 30.8.1989. It is further stated that on 12.6.1989 the Government of Gujarat through Panchayat and Rural Housing Department issued a Resolution with certain directions and particularly with regard to preparation and operation of the select list and prevented the District Panchayat from filling up more than advertised posts from the select list. In view of this resolution and direction from the Government of Gujarat, the District Panchayat Service Selection Committee has passed a SCA/8138/1990 18/25 JUDGMENT Resolution No.2 in its meeting dated 4.9.1990 resolving that the old list be cancelled. It is further stated that Surat District Panchayat has issued other advertisement for in all 40 posts in the year 1990-91 and prepared a select list of 40 candidates and waiting list of 6 candidates, but as the interim relief was granted by this Court in this petition, the said list was not at all operated and no appointment orders were issued. It is further stated that only 85 posts were filled up pursuant to the advertisement No.19/1985-86. In all 70 posts were to be filled up as per the advertisement. Thereafter not a single appointment was made or a list was prepared pursuant to the advertisement. It is further stated Panchayat Sahayaks were paid fixed emolument of Rs.2,500/- per month. It is further stated that in all 37 dependents were appointed as Talati-cum-Mantri during the last SCA/8138/1990 19/25 JUDGMENT more than 15 years. It is, therefore, stated that the District Panchayat has filled up in all 85 posts upto 1989 as against 70 advertised posts and, therefore, as per the law laid down by the Hon'ble Supreme Court of India and this Court, the said old list cannot be operated further. 17. Mr.L.B.Dabhi, learned AGP appearing for the State Government has relied on the decision of this Court in the case of Special Civil Application No.7937 of 1989 decided on 12.1.2006, wherein also identical issue was involved and Court has taken the view that simply because the petitioners' names were there in the select list, they have not got any vested right of appointment. In that case, the select list prepared in the year 1985 has remained in operation till 1989. As against 100 vacancies, 80 posts were already fill in. SCA/8138/1990 20/25 JUDGMENT The select list was prepared for 177 candidates. The Court, therefore, held that the Court cannot direct the Government to make appointment irrespective of the fact that there was a ban and subsequently, the earlier select was cancelled by virtue of the Resolution of 12.6.1989 as by that time, already four years have passed and the Courts have consistently taken the view that the select list should be prepared for one year looking to the requirement of posts to be filled in. 18. Over and above this, he relied on the decision of the Hon'ble Supreme Court in the case of Vinodan T. & Others vs. University of Calicut and others (2002) 4 SCC 726, wherein the Court has taken the view that the persons selected for a post do not acquire a right to be appointed to such post. The Court has also held that even if vacancies exist, it is open SCA/8138/1990 21/25 JUDGMENT to the authority concerned to decide how many appointments should be made. The Court has observed that the principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. He further relied on the decision of Hon'ble Supreme Court in the case of S.Renuka and others vs. State of A.P. And another (2002) 5 SCC 195, wherein the Court has taken the view that selected candidates have no right to be appointed. 19. He has further submitted that looking to the aforesaid judgments as well as resolution passed by the respondent authorities and in light of the Recruitment Rules, the action of the respondents in not granting appointment to the petitioners is justifiable and it cannot be said to be an arbitrary, unlawful or SCA/8138/1990 22/25 JUDGMENT discriminatory. 20. After having heard the learned advocates appearing for the respective parties and after having gone through their respective pleadings as contained in the petition as well as affidavit in reply and after having gone through the authorities cited before the Court, the Court is of the view that the select list prepared in the year 1988 cannot be directed to be implemented in the year 2006. The Court is also of the view that even if it is assumed that the select list prepared in the year 1988 remains in operation till the new list is prepared, in that case also, the advertisement was given inviting applications, examination was held and the process of preparation of the select list was started. However, because of the stay granted by this Court the said select list was not finalized. Due to this, it cannot SCA/8138/1990 23/25 JUDGMENT be held good to direct the authorities to implement the earlier select list of 1988. The Court is also of the view that in the present case, the applications were invited for 70 posts of Talati-cum-mantri whereas 85 posts were filled in from amongst that list and subsequently no further appointment as made. After so many years the select list cannot be allowed to be operated. Even otherwise, decisions cited by Mrs.Mehta are not rendering any assistance to the case of the petitioners, as in those decisions question arose before the Court with regard to retrospective application of amendment to the statutory rules. Here there is no question of retrospective application of rules. The Government Resolution dated 12.6.89 prescribes that the select list will remain in force for period of 1 year. However, even as per Rule-21 and 19 of the Rules, select list remains in operation till the declaration of SCA/8138/1990 24/25 JUDGMENT the result of the examination held for recruitment of posts. Results were declared and selection list was prepared. However, it was not operated because of the stay. Taking any view of the matter, it cannot be said that the petitioners are entitled to appointment to the post of Talati-cum-Mantri merely on the basis that their names are there in the select list. None of the petitioners have found their place amongst first 85 in the list. It is, therefore, the case of discrimination or arbitrary selection where persons getting less marks were appointed. As stated in the petition, they are all after first 90 candidates and hence before their turn came in the select list, no further appointment was made because of pending litigations, government ban etc. 21. In the above view of the matter, the Court SCA/8138/1990 25/25 JUDGMENT does not find any substance in the present petition and the petition is accordingly dismissed. Interim relief granted earlier stands vacated. It is open for the respondent authority to invite applications and prepare fresh selection list for appointment to Talati- cum-mantri, in accordance with the prevailing rules and regulation. (K. A. PUJ, J.) kks