LPA/2040/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2040 of 2007 In SPECIAL CIVIL APPLICATION No. 25761 of 2007 With CIVIL APPLICATION No. 14363 of 2007 In LETTERS PATENT APPEAL No. 2040 of 2007 In SPECIAL CIVIL APPLICATION No. 25761 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= N K PANDYA - Appellant(s) Versus THE STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance : MR PARESH UPADHYAY WITH MR VAIBHAV A VYAS for Appellant(s) : 1, MRS ML SHAH, ASST. GOVERNMENT PLEADER for Respondent(s) : 1-3, 5, MR DG SHUKLA for Respondent(s) : 4, MR SHALIN N MEHTA for Respondent(s) : 6, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/2040/2007 2/13 JUDGMENT Date : 01/05/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. With the consent of the learned advocates, the Appeal is heard and decided today. This Appeal preferred under Clause 15 of the Letters Patent arises from the order dated 16th October, 2007 made by the learned Single Judge in above Special Civil Application No.25761 of 2007. The appellant before us is the writ petitioner. On 16th January, 2002, the Gujarat Public Service Commission [hereinafter referred to as “the Commission”], the respondent No.4 herein, issued a public advertisement to invite applications from eligible candidates for appointment to six posts of Assistant Commissioner of Labour (Class-I) under the Government of Gujarat. In response to the said advertisement, the appellant, a Government Labour Officer (Class-II) and the respondent No.6 Smt. Swati Mohan Patel had applied for selection and appointment as Assistant Commissioner of Labour (Class-I). After LPA/2040/2007 3/13 JUDGMENT holding competitive test and interview, the Commission prepared a merit list. Six persons from the said merit list were placed on the select list in order of their merit. The respondent No.6 Smt. Swati Mohan Patel was included in the select list at serial No.6 whereas the appellant was placed on the wait list at serial No.1. Feeling aggrieved by selection and the appointment of the respondent No.6 as Assistant Commissioner of Labour, the appellant made certain inquiries to ascertain whether she did possess the requisite experience specified in the recruitment rules. In other words, whether she was eligible for appointment as Assistant Commissioner of Labour (Class – I). On such inquiry, it was learnt by the appellant that the certificates of experience produced by the respondent No.6 in support of her application were not genuine and that she did not possess the requisite experience specified under the recruitment rules. He, therefore, moved the Commission and the State Government to cancel the candidature and appointment of the respondent No.6 LPA/2040/2007 4/13 JUDGMENT and to appoint the appellant as Assistant Commissioner of Labour. As his request was not responded to, the appellant filed the above Special Civil Application No.25761 of 2007 for various reliefs; (i) for cancellation of the candidature of the respondent No.6 – Smt. Swati Mohan Patel, (ii) to cancel her appointment, and (iii) to appoint the appellant as Assistant Commissioner of Labour (Class – I). The petition came up for hearing before the learned Single Judge on 16th October, 2007. The learned Single Judge was, by impugned order, pleased to direct “the respondent State authority including the Commission to decide the representation made by the petitioner dated 23rd July, 2007 and examine the issue and if require to investigate, further properly and find out that complaint made by petitioner against respondent No.6 – Smt. Swati Mohan Patel is genuine or not and verify it after giving reasonable opportunities of hearing to respondent No.6 – Smt. Swati Mohan Patel before taking decision in respect to representation made by the petitioner and then to LPA/2040/2007 5/13 JUDGMENT pass appropriate reasoned order in accordance with law within a period of three months from the date of receiving the copy of this order and communicate the decision to the petitioner immediately.” In view of the above direction, the learned Single Judge was pleased to dispose of the petition without expressing any opinion on merits. Therefore, the present Appeal. Pending the present Appeal, the above referred direction dated 16th October, 2007 issued by the learned Single Judge has been complied with. By order dated 22nd February, 2008 made by the State Government, the allegation made by the appellant in respect of the eligibility of the respondent No.6 has been upheld. In view of the said finding, the service of the respondent No.6 has been terminated. Her service has also been terminated on account of her poor performance and unsuitability. We are informed that the aforesaid order dated 22nd February, 2008 has been challenged by the respondent No.6 before this Court in Special Civil Application No.3574 of 2008. The writ petition is LPA/2040/2007 6/13 JUDGMENT admitted to final hearing and will come up for hearing on interim relief. Mr. Upadhyay has submitted that inspite of the order dated 22nd February, 2008, the cause of action still survives. He has submitted that it was the duty of the Commission to verify the genuineness of the documents produced by the concerned applicant. Had that exercise been done at the relevant time, the respondent No.6 would not have been allowed to participate in the selection procedure or atleast she would not have been selected for appointment. In absence of the respondent No.6 the appellant, then placed at serial No.1 on the wait list, would have found his place in the select list. The legitimate claim of the appellant for appointment as Assistant Commissioner of Labour (Class – I) has, thus, been thwarted on account of the indolence/negligence of the Commission as well as of the State Government. He has, therefore, submitted that the wrong committed by the Commission and the State needs to be rectified. The appellant needs to be included in the select list prepared by the Commission and the appellant be LPA/2040/2007 7/13 JUDGMENT appointed as Assistant Commissioner of Labour (Class – I). In support of his contention, Mr. Upadhyay has relied upon the judgment of this Court in the matter of Vinodkumar Rajabhai Rathod V/s. State of Gujarat [2005 (1) GLH 321] and the judgment of the Hon'ble Supreme Court in the matter of Gujarat State Dy. Executive Engineers' Association V/s. The State of Gujarat & Others [JT 1994 (3) SC 559]. The Appeal is contested by the State Government. Mrs. Shah has submitted that the appellant had found his placement on the wait list, may be at serial No.1. The wait list was prepared in the year 2004. In view of the prevalent Government policy, life of the wait list is for a period of two years. After the expiry of two years, the wait list shall expire automatically. The same cannot be operated thereafter. For the very reason, the appellant cannot now be appointed as Assistant Commissioner of Labour (Class – I). In support thereof, she has relied upon the Government Circular dated 16th June, 1999. Mr. Shukla has appeared for the Commission. He LPA/2040/2007 8/13 JUDGMENT has submitted that once the merit list is prepared; names of the candidates placed in the select list are forwarded to the State Government; nothing more is required to be done by the Commission. The role of the Commission ends with the preparation of the select list and forwarding of the names of the selected candidates to the State Government. Mr. Mehta has appeared for the respondent No.6. He has submitted that the respondent No.6 did not have a fair opportunity to support her case. She has challenged the order dated 22th February, 2008 before this Court. The matter is pending for hearing on interim relief. No relief, therefore, can be granted to the appellant herein. He has further submitted that the selection and appointment of the respondent No.6 was made on a post reserved for a female candidate. Therefore also, even in absence of the respondent No.6, the appellant could not have been selected and placed on the select list for appointment to the post reserved for female candidate. Mr. Mehta has submitted that under no circumstances the select list should be operated more LPA/2040/2007 9/13 JUDGMENT than a year after it is prepared. In support thereof, he has relied upon the judgment of the Hon'ble Supreme Court in the matter of State of Rajasthan & Others V/s. Jagdish Chopra [(2007) 8 SCC 161]. We do agree that in view of the prevalent Government policy and as a matter of healthy practice a wait list should not be operated for indiscriminately long time. In case of the State Government, the State Government has decided that the select list prepared by the Commission after giving competitive test shall remain operative for a period of two years. It is undoubtedly true that in the present case wait list had been prepared in the year 2004, it can not operate after the date of its expiry. The issue raised in the present Appeal is not that of operating the wait list after its expiry; but of revising the select list, considering that the respondent No.6 who was then selected was not eligible to compete for appointment to the post of Assistant Commissioner of LPA/2040/2007 10/13 JUDGMENT Labour. The appointment to the post of Assistant Commissioner of Labour is governed by the relevant recruitment rules. Rule 1 of the said rules provides for appointment by direct selection or by promotion. Rule 2 thereof provides for eligibility for appointment by direct selection. The said rule provides inter alia, “about three years' experience as Labour Officer in any Government Office or Industrial undertaking gained after obtaining a degree or diploma mentioned in clause (b)(ii) of this rule.” The respondent No.6 had, in support of her application, produced certain certificates declaring that she had acquired requisite experience after she had obtained required educational qualification. It was all along the complaint of the appellant that the certificates produced by the respondent No.6 were not genuine and that she had not gained the necessary experience. By order dated 22nd February, 2008, made by the State Government the said allegation has been held to be true. It is recorded that the experience certificate allegedly issued by the Cadila Healthcare LPA/2040/2007 11/13 JUDGMENT Private Limited was not genuine and that the other two certificates, issued by the Mahatma Gandhi Labour Institute, did not answer the requirement under the recruitment rules. It is obvious that the Commission failed to verify the documents produced by the respondent No.6. Had that exercise been done at the relevant time, her candidature would have been cancelled or she would not have been included in the select list prepared by the Commission. In our opinion, it is a right case where the Commission and the State Government should be called upon to correct the wrong, they have committed. For the aforesaid reasons, we direct the respondent – Gujarat Public Service Commission to revise the select list for the appointment to the post of Assistant Commissioner of Labour (Class-I) prepared pursuant to the advertisement published on 16th January, 2002, keeping in view that the respondent No.6 – Smt. Swati Mohan Patel is found ineligible for appointment as Assistant Commissioner of Labour (Class – I). After revising the select list as aforesaid, the Commission will forward the name of LPA/2040/2007 12/13 JUDGMENT the selected candidate at serial No.6 to the State Government. On receipt of such name, the State Government will, subject to verification and other lawful procedure, issue appointment order to such candidate. The aforesaid exercise shall be completed by the Commission within four weeks from today. The State Government will, subject to verification and other lawful procedure, issue appointment order within three weeks from the date of receipt of the name of selected candidate No.6. The appointment so made will be ad-hoc and subject to the result of the Special Civil Application No.3574 of 2008 and any order made on that writ petition. The Assistant Commissioner of Labour so appointed will take seniority below the five Assistant Commissioners of Labour appointed by Government Notification dated 29th July, 2004 but shall not be entitled to any other service benefits for the period till the date of the appointment. The Appeal is allowed in the above terms. Civil Application stands disposed of. Parties will bear their own cost. LPA/2040/2007 13/13 JUDGMENT (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc