SCA/1243/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1243 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 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 ? ====================================== MAHENDRAKUMAR PARSHOTTAMDAS SOLANKI Versus LALBHAI DALPATBHAI INSTITUTE OF INDOLOGY & others ====================================== Appearance : Mr. S.V. Parmar for the petitioner Mr. Dipak R Dave for respondent No.1 Mr. Vipul Mistry, Assistant Government Pleader for respondent Nos. 2 and 3 ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/05/2008 SCA/1243/1998 2/8 JUDGMENT ORAL JUDGMENT 1 This petition under Article 226 of Constitution of India reflects the pathetic state of affairs on the part of the State Government about denial of the legitimate claim of a member of Scheduled Caste who secured First Class in Graduate in the faculty of Arts with Sanskrit as special subject, and, after undergoing a valid selection procedure, came to be appointed on the post of Manuscript Cataloguer on a reserved category after obtaining pre-selection sanction by letter dated 17th January 1992 from the Office of the Joint Director, Education, State of Gujarat, Gandhinagar, but the respondents-Authorities did not allow him to resume duty on the ground that permission of the higher authority was awaited. 2 On 17th February 1995, the petitioner appeared at the interview for the post of Manuscript Cataloguer. By letter dated 16th March 1995, respondent No.1 communicated to respondent No.2 that the petitioner was appointed on the post of Manuscript Cataloguer in the pay-scale of Rs.950-1500 and further procedure to be followed at their end. It is the grievance of the petitioner that, despite appointment on the post in question, the respondents-authorities did not permit him to resume duty. 3 The respondents-Authorities have taken a shelter to deny post- appointment benefits including resumption of duty on the ground that there was economic drive in the State of Gujarat and, therefore, no further process pursuant to the appointment of the petitioner is undertaken. According to L.D. Institute of Indology, respondent No.1 herein, the letter dated 16th March 1995 written by the Coordinator of L.D. Institute of Indology to the Commissioner of Higher Education though mentions about appointment of the petitioner on the post of Manuscript Cataloguer in the pay-scale of Rs.950-1500, the reference to appointment in the said letter was incorrect and, in fact, the petitioner SCA/1243/1998 3/8 JUDGMENT was only selected and recommended as per the recommendation of the Selection Committee, which had undertaken selection procedure. On 17th February 1995, interview was taken of two eligible candidates, out of which, the petitioner's case was recommended for appointment. Therefore, the selectee cannot claim appointment as a matter of right. In support of the above submission, Mr. Dipak R. Dave, learned counsel for respondent No.1-Institute has relied upon various decisions of the Apex Court. He has submitted that, in the affidavit-in-reply, it is clearly mentioned that the petitioner was selected and not appointed. He has further submitted that, since the Institute was receiving 100% grant from the State Government, the appointment, as recommended by the Selection Committee, was subject to scrutiny and post appointment sanction by the Commissioner of Higher Education. Therefore, the petitioner being a selected candidate only recommended for the post of Manuscript Cataloguer, no right accrues in his favour and right from [1974] 3 SCC 220, in the case of State of Haryana vs. Subash Chander Marwaha and others, (1994) 2 SCC 630, in the case of J & K Public Service Commission and others vs. Dr. Narinder Mohan and others, (2006) 3 SCC 330, State of U.P and others vs. Rajkumar Sharma and others, the view of the Apex Court in the case of selected candidates that they have no indefeasible right is a good law and, in that view of the matter, no relief can be granted to the petitioner by this Court in exercise of power under Article 226 of the Constitution of India. He has further submitted that, subsequently, the post of Manuscript Cataloguer has been abolished and, therefore, no question arises for issuance of a mandamus to absorb, appoint or permit the petitioner to resume duty on the post in question. 4 Mr. Vipul Mistry, learned Assistant Government Pleader, reiterates SCA/1243/1998 4/8 JUDGMENT the submissions of learned counsel appearing for the respondent- Institute and submits that, in view of the economic drive, it was not possible to accord sanction to the appointment as recommended by the Selection Committee pursuant to the interview and letter dated 16th March 1995. According to the learned Assistant Government Pleader, permission was granted for appointment on post of Manuscript Cataloguer in the year 1992 from the reserved category candidate and the Institute receiving 100% grant from the Government was supposed to obtain sanction and post-appointment approval of any employee as per the prevailing government resolution. Therefore, the decision of the Commissioner of Higher Education not to accord sanction to selection of the petitioner is within the four corners of law and no interference is called for. 5 The learned counsel for the petitioner has produced on record the Government Resolution directing the Authorities concerned to undertake a special drive for the reserved category candidates in the matter of public employment. Relying upon the aforesaid Government Resolution, the learned counsel for the petitioner has submitted that the impugned action on the part of the respondents not to allow the petitioner, who is belonging to a reserved category, to resume duty on the post of Manuscript Cataloguer, is nothing, but violative of fundamental rights enshrined under Articles 14, 15, 16 and 21 of the Constitution of India and the action of the respondents is not only unjust, unreasonable, arbitrary, but it is also unconstitutional. 6 Heard learned advocates for the parties and perused the record. 7 By order dated 20th April 1998 passed by this Court [Coram: K.R. Vyas, J. as His Lordship then was], Rule was issued in the matter with the following observations: SCA/1243/1998 5/8 JUDGMENT “It will be open to the respondent No.2 to call upon the respondent No.1 to furnish all details about the appointment of the petitioner which are germane and necessary. As and when such a request is made, the respondent No.1 shall comply with the same so that the appointment of the petitioner cannot be withheld indefinitely. No sooner the ban is lifted, the respondent No.2 shall consider the case of the petitioner for granting approval to appoint him on the post in question.” 7.1 The above order was passed on 20th April 1998 by this Court and yet even after ten years, according to the learned counsel appearing for the respondents, the so-called ban on economic drive still continues. At the same time, it is not in dispute that, on various posts for various departments of the State of Gujarat, recruitment in the matter of public employment has taken place. Therefore, the above plea is advanced by the respondents only with a view to deprive the legitimate right of a member of Scheduled Caste Category and the State, which adheres to welfare policy and is duty bound to achive the constitutional goal enshrined in Part III and Part IV of the Constitution of India, has apparently denied such benefits, which speaks volumes about the attitude of the State Authorities and reflects the state of affairs how the benefits of reservation in the matter of public employment do not actually percolate at the ground level. 8 On 17th January 1992, the Joint Director, Education Department, State of Gujarat, granted permission and sanction to fill up the post of Manuscript Cataloguer from the Scheduled Caste category. Pursuant to the above sanction, an advertisement was issued and on 17th February 1995 the Selection Committee, consisting of the Members of the Governing Body, representative of the Government, subject experts and coordinators in the Institute selected the petitioner on being found eligible for appointment on the post of Manuscript Cataloguer. SCA/1243/1998 6/8 JUDGMENT Thereafter, on 16th March 1995, the Coordinator, Shri Ujamsingh Kapadia of L.D. Institute of Indology addressed a communication to the Commissioner of Higher Education, State of Gujarat, conveying that: “Shri Solanki Mahendrakumar Parshottamdas, the petitioner herein, is recommended by the Selection Committee pursuant to the interview held on 17th February 1995. Pursuant to the letter of approval in this regard dated 17th January 1992 received from the Office of the Commissioner of Higher Education, and after fulfilling all the conditions, Shri Solanki Mahendrakumar Parshottamdas is appointed in the pay-scale of Rs.1500 on the post of Manuscript Cataloguer. Therefore, appropriate procedure to be followed by your office.” In view of the above letter, subsequent stand taken by the Institute in the affidavit-in-reply that there was no appointment of the petitioner and only selection was made, is nothing but a somer-sault on the part of the Institute to deprive the petitioner of his legitimate right and the endorsement given to such stand taken by the Institute by the State Government is also illegal per se. 9. Further, the contention raised by the learned counsel for the respondents with regard to abolition of the post of Manuscript Cataloguer later on has also no merit. As submitted by Shri Parmar, learned counsel for the petitioner, the above action is culmination of highhandedness and arbitrariness on the part of the respondents- authorities and solely with a view to deprive the petitioner of actual resumption of duty. On the contrary, there are Government Resolutions dated 26.9.1986 and 10.7.1989 issued by the General Administration Department of the State of Gujarat to fill up the posts reserved for SC/ST by a special drive so that the back-log can be cleared. The above two Government Resolutions clearly mandate the respective Heads of different Departments of State of Gujarat to recruit SC/ST candidates on reserved posts, which were carried forward due to non-availability of SCA/1243/1998 7/8 JUDGMENT reserved category candidates. In the present case, though qualified candidate belonging to reserved category was available, the respondents have ultimately taken a drastic action of abolishing the post of Manuscript Cataloguer and the petitioner was not permitted to resume duty till the above post actually came to be abolished. Such action is nothing, but unreasonable, arbitrary, colourable exercise of power and in violation of Articles 14, 15 and 16 of the Constitution of India and deserves to be quashed and set aside. 10. The decisions relied on by the learned counsel for the respondents were in different set of facts and circumstances. 10.1 In Subash Chander Marwaha, (1974) 3 SCC 220, a selection list was prepared by the Public Service Commission on the basis of competitive examination for appointment for subordinate judges and the question whether the Commission or the State or the High Court can depart from the order of merit given in the list is answered by the Apex Court in the affirmative holding that the petitioners in the select list have no legal right. 10.2 In Dr. Narinder Mohan and others, (1994) 2 SCC 630, the Apex Court held that regularisation of ad-hoc appointees without being subjected to open competitive examination to be held by the Public Service Commission is declared as invalid and continuance for some years does not entitle ad hoc appointees to regularization. 10.3 In Rajkumar Sharma and others, [2006] 3 SCC 330, the Apex Court held that the selectees cannot claim appointment as a matter of right 11 In the present case, the facts are that the petitioner was appointed, but denied post-appointment benefits and the issue involved in the present case is appointment of a reserved category candidate, and not selection. Therefore, the afore-referred judgments cited by the learned SCA/1243/1998 8/8 JUDGMENT counsel appearing for the Institute are not applicable to the facts of the present case. 12 No other point is raised by the learned advocates for the parties. 13 Therefore, now, since the post of Manuscript Cataloguer has been abolished and the petitioner is well qualified Graduate with Sanskrit as main subject and secured first class in graduation, he deserves a suitable appointment in the very Institute, or, in the alternative, respondent No.2 shall consider the case of the petitioner for alternative equivalent post by relaxing the age-limit, if any, either in respondent No.1-Institute or in any other establishment of the State Government and issue an appointment letter to the petitioner accordingly. 14 Considering over all facts of the case, this petition is allowed. It is held that the petitioner is eligible and entitled to be given an order of resumption of duty pursuant to the appointment made by letter 16th March 1995. The respondents are directed to permit the petitioner to resume duty on the post of Manuscript Cataloguer or any other equivalent post within four weeks from the date of receipt of writ of this order. 15 Rule is made absolute with no order as to costs. (ANANT S. DAVE, J.) (swamy)