LPA/50219/1992 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 502 of 1992 With LETTERS PATENT APPEAL No. 503 of 1992 To LETTERS PATENT APPEAL No. 506 of 1992 With LETTERS PATENT APPEAL No. 110 of 1993 To LETTERS PATENT APPEAL No. 111 of 1993 In SPECIAL CIVIL APPLICATION No. 3688 of 1990 With LETTERS PATENT APPEAL No. 18 of 1993 To LETTERS PATENT APPEAL No. 21 of 1993 With CIVIL APPLICATION No. 550 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= N A BARAD & 2 - Appellant(s) Versus SECRETARY TO GOVERNMENT & 1 - Respondent(s) LPA/50219/1992 2/9 JUDGMENT ========================================================= Appearance : LPA No. 502 of 1992 MR MURALI N DEVNANI for Mr. Yogesh Lakhani for the Appellant(s) Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for the respondents LPA No.. 110/1993 & LPA 111/1993 Notice unserved : 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondents Nos. 1, 1 /2, 2, 3 Served by RPAD – R. 4 Mr. Dipak C. Raval for Mr. M.R. Anand for respondent No. 5 Rule served : 6-7 LPA No.503/1992 Mr. Yogesh S. Lakhani for appellant Nos. 1-2 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-2 Mr. K.K. Nair for respondent Nos. 3-6, 8 Notice served on respondent No. 7 LPA No. 504/1992 Chetna Pandey for Mr. S.V. Raju for appellant nos. 1-5 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-3 LPA No. 505/1992 Mr. J.R. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent No. 1 Rule served 1/A-3, 6-7 Deleted: 4 Mr. Dipak C. Rawal for Mr. M.R. Anand for respondent No. 5 LPA/50219/1992 3/9 JUDGMENT LPA No. 506/1992 Mr. J.R. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for the respondent Nos. 1-2 Notice served : 3-4, 8-9 Mr. H.J. Nanavati : 5 LPA No. 18/1993 Mr. J.R. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-2 Mr. Arun H. Mehta for respondent No. 3 LPA No. 19/1993 Mr. H.J. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-2 Rule served 3-6 LPA No. 20/1993 Mr. J.R. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-2 Mr. Nikhilesh J. Shah for respondent No. 3 Mr. Arun H. Mehta for respondent No. 4 LPA No. 21/1993 Mr. J.R. Nanavati for appellant No. 1 Mr. K.P. Rawal/Ms. Hansa Punani/Ms. Trusha Patel, AGPs for respondent Nos. 1-2 Rule served for respondent No. 3 Mr. Arun H. Mehta for respondent No. 4-6 ========================================================= LPA/50219/1992 4/9 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 09/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. In the group of original petitions, the original petitioners appeared in the examination conducted by Public Service Commission for direct recruitment and they were found eligible for being recruited in the Gujarat Service of Engineers Class-II. The Public Service Commission published separate list for Class-I & Class-II having regard to the qualifying marks obtained by the candidates for Class-I and Class-II and the original petitioners were not eligible for Class-I but were for Class-II. 2. The present petitioners filed Special Civil Applications before this Court under Article 226 of the Constitution of India contending that after the revised list published in the Government Gazette on 3.4.1986 in respect of examinations held in 1980, 1981, and 1982 no competitive LPA/50219/1992 5/9 JUDGMENT examination was held for Gujarat Service of Engineers Class-I and Class-II by Public Service Commission and that merit list which was published on 3.4.1986 was required to be operated by pushing up the candidates as per their position in the merit list so as to fill in all the vacancies which have been available every year on the basis of computations of vacant seats as directed by the learned Single Judge in B.V. Bramkshatriya case. It was further contended that approximately 500 vacancies have arisen in Gujarat Service of Engineers Class-I in different departments of the respondent State and if the ratio of 1:4 is applied at least 100 vacancies approximately would be available which were required to be filled in from the existing list. 3. The respondent State filed affidavit in reply that Gujarat Public Service Commission issued select list and wait list for the post of Gujarat Service of Engineers, Class-I and Class-II separately and the original petitioners have been included in the select list as candidates in the select list for the appointment only to Class-II post to which they have been given appointment. According to the State Government, Gujarat Public Service Commission has never prepared and published common select list or wait list for both the Gujarat LPA/50219/1992 6/9 JUDGMENT Service of Engineers Class-I and Class-II. 4. The Commission has by separate list specifying qualifying marks for appointment to Class-I and Class-II separately prepared the select list and wait list so as to exhaust the requisition sent by the Government since there were 12 vacancies in Class-I. The same were filled in as per the direction in Brahmkshatriya's case and in accordance with the Rules. 5. It is clear that the original petitioners were not included in Class-I but included in Class-II only and they did not qualify by obtaining minimum qualifying marks prescribed for Class-I. This Court accepted the case of the original petitioners and that, even though they were not in the select list or in the wait list of Class-I having regard to the minimum qualifying marks obtained by them, learned Single Judge directed that vacancies available should be taken into account and even though they were appointed in Class-II they may be given appointment in Class-I. 6. The original petitioners were holding Class-II post LPA/50219/1992 7/9 JUDGMENT since long on the date of the petition. It is well established that the State Government can fill in the posts which are requisitioned and advertised for appointment and cannot fill in any other posts. The Hon'ble Supreme Court in the case of GUJARATA STATE DEPUTY EXECUTIVE ENGINEERS ASSOCIATION VS. STATE OF GUJARAT reported in 1994 3 JT SC 559 = 1994 Supp. (2) SCC 591 has discussed the relevant Rules of Executive Engineers Civil Gujarat Service Engineers of Class-I and Class-II which are also subject matter in this case and has held in paragraph 13 as follows: “In the result this appeal succeeds and is allowed. The order of the High Court is set aside subject to following directions: (1) Any candidate who has been appointed in pursuance of the order passed by the High Court shall be deemed to be in service from the date he has joined and his seniority shall be reckoned from that date only.” 7. Shri Arun Mehta, learned advocate on behalf of the LPA/50219/1992 8/9 JUDGMENT original petitioner contended that he should be given the same benefit but having regard to the judgement of the Hon'ble Supreme Court in the case of GUJARAT STATE DY. EXECUTIVE ENGINEERS' ASSOCIATION (supra) such a relief cannot be granted by this Court. 8. On the contrary the Hon'ble Supreme Court in paragraph No. 13(2) and (3) issued the following directions: “(2) No fresh appointment shall be made. (3) If vacancies for direct recruits have accrued between 1983 to 1993 and they have not been taken into account when the examination for 1993 was held then they shall form part of the requisition to be sent by the Government to the Commission either for the next examination if it is going to be held within one year or a fresh examination may be held in the alternative for such vacancies only within a period of one year from today.” 9. Learned counsel for the appellant urged that the LPA/50219/1992 9/9 JUDGMENT directions of the Hon'ble Supreme Court which were given in the case of GUJARAT STATE DY. EXECUTIVE ENGINEERS' ASSOCIATION (supra) while concluding the case by adopting the doctrine of prospective overruling may be considered to be given in this case. We are afraid that this argument cannot be countenanced as the directions itself contained the stipulation that they were given in the peculiar facts of the case and since the directions which are sought to be made applicable have been given in the peculiar facts of the case they cannot be applied in genarality and therefore we have to follow the substantive law as laid down by the Hon'ble Supreme Court and the substantive law requires us to allow the appeals and the judgement under appeal is required to be set aside. In view of the above, the appeals are allowed. The judgement under appeal is set aside. Interim relief is vacated. Civil Applications stand disposed accordingly. (BHAGWATI PRASAD, J) (D.H. WAGHELA, J) (pkn)