IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3844 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MAHENDRASINH H. JADEJA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3844 of 1990 MR MR ANAND, SR. COUNSEL WITH MR. A.M. RAVAL, for Petitioners No. 1-7 MR. S.N. SHELAT, ADVOCATE GENERAL WITH MS. NANDINI JOSHI, AGP for Respondent No. 1 & 2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 16 / 03 /2002 C.A.V. JUDGEMENT 1. Mahendrasinh H. Jadeja and others-petitioners have filed this petition with a prayer for issue of a writ of mandamus directing the State Government through the Secretary, General Administration Department - respondent No. 1 herein and the Gujarat Public Service Commission-respondent No. 2 to appoint the petitioners to a post in Gujarat Administrative Service (`GAS' for short) Class I in order of their ranking in selection at Annexure-A and go on making appointment till the shortfall of direct recruits is exhausted. The petitioners have further prayed that this court may direct the State Government to confer upon the petitioners the benefit of deemed date of appointment to a post of GAS Class I with effect from the date they were entitled to appointment in order of their ranking in the select list and confer upon them all consequential benefits as to seniority, pay fixation, arrears of pay, future promotions etc. 2. All these contentions were placed before this Court (Coram: S.K. Keshote, J) on 25.11.1997 and at that time the court heard the matter and disposed of it with a direction to the Chief Secretary of the State of Gujarat to constitute a High Power Committee under his Chairmanship consisting of the Revenue Secretary, the Secretary General Administration Department, and the Law Secretary. The petitioners shall lodge their claim of seniority as well as their grievance against the seniority list challenged in this petition before the Chief Secretary to the State of Gujarat within certain period and after giving an opportunity of hearing to the petitioners, the matter will be decided by passing a reasoned order. The Committee will consider the relevant decisions in this behalf. Thereafter, the petitioners represented their case. However, the Committee by its order dated 27.11.1999 has rejected the representation of the petitioners (see: page 108). The petitioners, have therefore challenged the said order of the Committee in this petition. 3. The facts which emerge from the record of this petition are as under:- 3.1 Respondent No. 2, Gujarat Public Service Commission (hereinafter referred to as `GPSC') had by its advertisement dated 1.10.1985 invited applications for 101 posts in GAS Class I along with other posts. The petitioners underwent written test and secured marks to be called for personal interview. Having been successful in personal interview/oral test, they were selected and placed in the waiting list for Class I service. The waiting list consisted of 96 persons. The names of petitioners appear in the waiting list. It was stated that in all 101 persons who are in Part I select list have been appointed. In addition thereto, first 13 persons in the Part II of the select list i.e. the waiting list hitherto have been appointed or are in the process of being appointed. 3.2 The petitioners state that Article 309 of the Constitution of India provides for recruitment and conditions of service of persons serving the Union or the a State. In exercise of power conferred under Article 309 of the Constitution of India read with the order of the President published in Government of India, Ministry of Home Affairs, Order No. G.S.R. 35-E, dated 9.2.1974 the Governor of Gujarat enacted Rules known as Gujarat Administrative Service Rules, 1974 (hereinafter referred to as `the Rules') 3.3 Rule 3 of the Rules provides for the constitution of Gujarat Administrative Services. Rule-4 provides for the composition of the Service - The service shall consist of the following officers, namely: (a) Officers who had been regularly holding any of the posts specified in clauses (a) and (b) of sub-rule (2) of Rule 3 on the appointed date. (aa) Officers who had been regularly appointed to any of the posts specified in clauses (a) and (b) of sub-rule (2) of Rule 3 but holding on the appointed day posts other than the aforesaid posts, on account of temporary promotion, or on deputation. (b) Officers recruited to the Services in accordance with the provisions of Rule 5. 3.3A Rule 5 provides for recruitment to the service which reads as under: "(1) Recruitment to the service, after the appointed date, shall be made by promotion and by direct selection in the ratio of 2:1 as indicated below: (i) By promotion of officers of proved merit and efficiency who have put in not less than 5 years service in the cadre of Mamlatdars or, as the case may be of the Officers belonging to Gujarat Development Service, Class II and who have passed the departmental examination prescribed for the time being by the Government for services in the said cadres, and (ii) by direct selection on the result of a competitive examination held by the Gujarat Public Service Commission in accordance with the rules made by Government for the Gujarat Civil Services Recruitment (Examination) Rules, 1969 as amended from time to time. Provided that promotions from amongst the officers of the cadre of Mamlatdars and from amongst officers belonging to the Gujarat Development Service, Class II shall be in the ratio of 3:1 or such other ratio as may be fixed by the Government from time to time. Provided further that an officer on promotion to a post in the Service shall be required to undergo such training as may be prescribed by the Government and such promoted officer shall be on probation for a period of one year." 3.4 On the basis of the said rules, the petitioners submitted that it is an unqualified provision for quota rule. It is submitted that vacancies not filled from any of the cadres are required to be carried forward and the number refers for each of the categories is required to be filled up by the candidates selected from that category only. The Government has also issued a Resolution dated 29.3.1988 by which the Government published seniority list of GAS Service Class I as on 31.12.1984. The Resolution contains Annexure `I' that had given periodwise workout of the total number of vacancies and how they were filled up by direct recruitment or by promotion. The total of this workout was that there were 147 vacancies carried forward for direct recruitment. In other words, the shortfall in the number of vacancies that should have been filled by direct recruitment was to the extent of 147. The petitioners relied on the Government Resolution dated 29.3.1988 along with the annexure showing shortfall of the direct recruits as on 31.12.1984. 3.5 The petitioners further submitted that the shortfall in the vacancies reserved for direct recruits has increased over the year and as on 31.3.1990 it was 161 i.e. 161 promotees were holding posts reserved for direct recruits and at one stage as on 30.11.1989 the shortfall of direct recruits was 238 but it has since been reduced to 161 because certain vacancies have been filled by direct recruits. It was submitted that the shortfall of direct recruits in the matter of appointment to GAS Class I is required to be covered up by appointment of direct recruits only, as per mandatory binding provision of Rule 5 of the Rules. Although 161 direct recruits are required to be taken, available direct recruits i.e. those who are qualified and selected by the Constitutional Body like G.P.S.C. are only about 83 (the waiting list is of 96 persons, but as stated earlier 13 hitherto have been appointed or are being appointed, so available candidates are 83 only (96-13 = 83). It was submitted that even if all the 83 selected persons are taken up for appointment to GAS Class I, there will still be a shortfall of direct recruits. In spite of this glaring reality, the Government went on making appointment by promotion. 3.6 It was further submitted by the learned counsel for the petitioners that the result by the G.P.S.C. notifying the petitioners' selection was declared on 30.11.1988 and was published in Gazette on 31.12.1988. The petitioner came to know about shortfall in the quota of direct recruits to be appointed by the Government. The petitioners along with others made a representation dated 16.2.1989 to the Hon'ble the Chief Minister pointing out the factual position as to the deficit of the direct recruits in GAS Class I. The petitioners did not receive any reply and therefore they made a reminder on 25.7.1989. With the said reminder the petitioner gave break up of the position of the direct recruits vis-a-vis promotees, showing the consistent pattern of shortfall of direct recruits and excess of promotees in the cadre. In respect of that in December, 1989 appointments were made to GAS Class I. However, the number was confined to 78 posts notwithstanding the fact that the deficit was much larger. The petitioners therefore again made representation-cum-reminder dated 21.3.1990 addressed to the Hon'ble the Chief Minister. The petitioners also made requests to the Secretary, G.A.D. by representation dated 21.3.1990 in the form of alternative prayer that if no immediate decision is taken about appointment of direct recruits, the existing select list may not be scrapped. Meanwhile the petitioners apprehend that G.P.S.C. will declare the result or will publish part of select list for GAS Class I which would result in cancellation of the select list and cause irreparable injury to the petitioners. Therefore, the petitioners had filed the present petition. 4. On the above facts, the petitioners made the following submissions: 4.1 The petitioners therefore submitted that due to mandatory provisions of Rule 5, vacancies not filled from any of the cadres are required to be carried forward and the number referred for each of the category is required to be filled up by the candidate selected from that categories only. 4.2 It was further submitted that while publishing the final seniority list of the officers appointed to the GAS during the period from 1974 to 1984, the Government of Gujarat issued Resolution dated 29.3.1988 wherein the Government was pleased to notify the shortfall of direct recruits to the extent of 147 (at page No. 34). The learned counsel relied on the statement showing the vacancies and distribution according to the ratio applicable. The petitioner has relied on the Government Resolution dated 29.3.1988 particularly on page 34 of the compilation and stated that since 1974 the Government had not filled up any post of direct recruit and for the first time the posts of direct recruit were filled up in 1981 and thereafter till 1984 there were vacancies of 147 posts and the said posts of direct recruits were filled up by promotion in violation of statutory quota rules. 4.3 The learned counsel for the petitioners submits that shortfall in vacancies reserved for direct recruits has increased over the year and on 31.3.1990 it was 161. For that purpose the petitioners have relied on page 35 of the petition which shows the position of promotion of direct recruits of GAS Class I. The petitioners therefore submit that there is an admitted position that in spite of shortfall of 161 direct recruits, Gujarat Public Service Commission has selected only about 83 persons (waiting list of 96 persons out of that 13 persons are selected). The learned counsel for the petitioners submitted that if all these 83 persons are selected then also there is shortfall of direct recruit. The learned counsel for the petitioner submits that the advertisement dated 1.10.1985 invited application for only 101 posts contrary to Rule 5 of GAS Rules/ the statutory quota rules. The petitioners are challenging issuance of the advertisement not following the statutory binding quota rules which has resulted into excess promotion to more than 79 posts already existing at that time. 4.4 The petitioners further submit that in spite of the above admitted position and knowing fully well that there is a shortfall of direct recruits, the respondents declared that the select list is valid for two years or till next result is declared by the Gujarat Public Service Commission. The select list was valid upto 30.11.1990 but it may lapse on the declaration of the result of the Gujarat Public Service Commission in the month of May, 1990. 4.5 It has been contended that the petitioners have challenged before expiry of selection (waiting) list and this court has interfered and kept alive the waiting list while admitting the matter. From the record it appears that on 23.5.1990 the court issued notice for admission and directed that meanwhile respondents are directed not to fill in posts of GAS Class I and thereafter on 13.8.1990 the court passed the following order: "Learned counsel Mr. A.R. Dave appearing for the respondents requests for time. Time granted. Ad-interim relief granted earlier to continue till September 11, 1990. It is clarified that qua the petitioners the select list produced at Annexure-A shall not be deemed to have lapsed till further order." 4.6 The learned counsel for the petitioners further submitted that by order dated 27.11.1999 the Government rejected the applications/representations of the petitioners. It was submitted that the Government had filled up 79 posts of Deputy Collectors, Class I by giving promotion to Mamlatdar which were reserved for direct recruits having shortfall of the direct recruits, the Government has violated the quota rules. 4.7 It was submitted that while rejecting the representation of the petitioners the Government has taken into consideration that the waiting list (in para 2 at page 111) for ten candidates (petitioners) will remain in force. It was contended by the petitioners that the Government has filled up 79 posts of Deputy Collectors, Class I, by giving promotions to the Mamlatdars which was reserved for direct recruits having shortfall of direct recruits. Thus it was submitted that the Government has violated quota rules. 4.8 It was further submitted that the Government has stated that these promotees were pushed down but has not stated why the quota rule to fill up the post by direct recruitee has not been followed. The petitioners submit that in para 5 of the said order at page 112 of the petition the Government has relied on the GAD Circular dated 27.12.1983. It was submitted that the said Circular envisages only two situations for operating the waiting list. The second condition "b" is that if there is some extreme exigency the Government may as a matter of policy decision, pick up candidates from the waiting list even against the non-requisitioned vacancies. The petitioners submitted that the Government has not thought it fit to exercise condition "b" to follow the quota rules and the petitioners are denied their right of consideration in the matter of appointment only to favour the promotees which is in violation of Articles 14 and 16 of the Constitution of India. 4.9 The learned counsel for the petitioners stated the following proposition and in support of the same the petitioners have relied on several authorities in this behalf. As regards the first contention as to whether the Government can advertise the posts ignoring the quota rules and whether the post can be requisitioned in lesser numbers than the existing vacancies. It was further stated as to whether the waiting list after the interim order passed by this court can be operated. In support of the aforesaid contention the petitioners have relied on the decision of the Hon'ble Supreme Court in the case of STATE OF U.P. VS. RAMSWAROOP SAROJ reported in AIR 2000 SCW page 779 = AIR 2000 SC 1097 wherein the Hon'ble Supreme Court has on page 1099 at para 10 held as under: "Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November, 1996 and the writ petition was filed by the respondent in the month of October, 1997 i.e. before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. We may place on record that during the course of hearing of SLP before this Court, on 29.9.1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4.11.1999 and filed before this Court it is stated that as on 14.10.1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh." 4.10 Thus, this court may examine whether the petitioners were entitled to be appointed in case of shortfall of direct recruits in the year 1984-85 as of right or as a matter of right. 4.11 The second contention was regarding as to whether waiting list can operate or not. In support of this contention, the learned counsel for the petitioners has relied on the judgement of GUJARAT STATE DY. EXECUTIVE ENGINEERS' ASSOCIATION VS. STATE OF GUJARAT AND OTHERS reported in 1994 Supp. (2) SCC 591 wherein the Hon'ble Supreme Court has on page 597 at para 6 observed as under:- "Even then we would examine if the exercise undertaken by the High Court of determining the quota and direction to Government to appoint is well founded in law. Before deciding these issues it ay be pointed out that the direction to work out vacancies and appoint candidates from the waiting list, the High Court did not find that the selection held in 1980 was for lesser number of vacancies than was available for direct recruits. Rather it held that vacancies of 1979-80 and 1981-82 could not be taken into account as even if there were any they had lapsed under proviso to Rule 3. It is not disputed that selections were held, both, in 1980 and 1982 for certain number of vacancies and the candidates who were found suitable were placed in the select list. And those who had got lesser marks were placed in the waiting list. Therefore, the vacancies advertised for which selections were held had been filled in accordance with the Recruitment Rules on recommendations made by the Commission. No further exercise was necessary. But the High Court proceeded to determine the quota after taking into consideration (a) vacancies in permanent posts (b) vacancies in temporary posts - whether duly created or existing (c) vacancies on account of retirement and (d) vacancies on account of the officers sent on deputation to other Departments and Corporations for reasonably long period for the purpose of applying quota rules. It did not agree with the State Government that apart from (a) and (b) the vacancies arising out of (c) and (d) could not be taken into account for determining the quota. Consequently, it issued directions to the State Government to appoint persons from the waiting list and if the quota of direct recruits in one year exhausted then they were to be accommodated in vacancies thus calculated for the next year. One of the reasons for this direction was the enforcement of the proviso to Rule 3 which provided that if the vacancies of direct recruits were not filled in one year they shall not be carried forward and shall lapse. The High Court held that this rule was likely to cause hardship to the direct recruits as was apparent from the list filed by the State Government which clearly demonstrated that large number of promotees were appointed in excess of their quota." 4.12A Further on page 599 at para 10 of the said judgement the Hon'ble Supreme Court has held as follows: "How a waiting list is to operate in the State is clear from a circular issued by the State Government on 27.12.1983. xxxxxxxxxxx Although the circular was issued in 1983 but it only attempted to clarify what was the implied purpose of a waiting list. Even without it, the operation of a waiting list should be confined to the vacancies notified for that examination and not for any vacancy arising in future unless a policy decision is taken by the Government to that effect. Appointment in future vacancies from waiting list is prepared by the Commission should be exception rather than the rule. It has many ramifications. In any case, the High Court should not have assumed upon itself the role of appointing authority unless it found that the Government was acting arbitrarily. No rule has been shown that selection of direct recruits was to take place every year. In absence of such rule, the proviso could not apply. However, its validity was not challenged either in the High Court or in this Court. It has, therefore, to be construed so as not to defeat the objective of its enactment. For its working reasonably it has to be understood that once recruitment by direct selection has been made in any year then the quota of direct recruits till then should be deemed to have been exhausted and if any vacancy could not be filled for any reason then it should be deemed to have lapsed and could not be carried forward." 4.12B The Hon'ble Supreme Court in the aforesaid case laid down a law that future vacancies cannot be filled up from the waiting list. But in that case there was no shortfall of direct recruits at the time of advertisement. Here in this case there are admittedly vacancies of 69 posts and in that situation petitioners of this petition are not seeking any appointment from future vacancies but are seeking vacancies from their own quota which the Government is statutorily required to follow. The petitioners state that they are relying upon this judgement to show the statutory rule is binding. 4.13 The learned counsel for the petitioners stated that in this case the petitioners as well as the respondents have relied on the judgement of the case of GUJARAT STATE DEPUTY ENGINEERS' ASSOCIATION (supra). The State has relied upon to say that the petitioners cannot claim right of appointment because (1) they are in the waiting list; and (2) the placement in the waiting list cannot be used for availing the appointment to the posts, which are not advertised. This submission would be valid, if the State had worked out the vacancies in accordance with the quota rule and issued the advertisement for direct recruit as required by the statutory quota rule. Even according to the respondent State as on 31.12.1984, the deficit of direct recruit was 147. The advertisement for the post was issued on 1.10.1985. The selections were notified in November, 1988 and recruitment began in December, 1989. So having violated the quota rule from the