Gujarat High Court

Hetal Chirag Patel vs State Of Gujarat Thro Secretary on 28 December, 2018

Author:
Harsha Devani

Bench:
Harsha Devani
,
A. P. Thaker

C/LPA/814/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/LETTERS PATENT APPEAL NO. 814 of 2018

In SPECIAL CIVIL APPLICATION NO. 11163 of 2012

With
CIVIL APPLICATION NO. 1 of 2018
With
R/CROSS OBJECTION NO. 82 of 2018
In
LETTERS PATENT APPEAL NO. 814 of 2018
With
R/LETTERS PATENT APPEAL NO. 815 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6057 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 816 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6965 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 817 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6966 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 818 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6967 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 819 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6968 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 820 of 2018

Page 1 of 102
C/LPA/814/2018 JUDGMENT

In
SPECIAL CIVIL APPLICATION NO. 6969 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 821 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6970 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 826 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7246 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 827 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6110 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 828 of 2018
In
SPECIAL CIVIL APPLICATION NO. 5961 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 829 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6108 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 830 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6106 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 831 of 2018
In
SPECIAL CIVIL APPLICATION NO. 7584 of 2011
With

Page 2 of 102
C/LPA/814/2018 JUDGMENT

CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 832 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6107 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 833 of 2018
In
SPECIAL CIVIL APPLICATION NO. 5758 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 834 of 2018
In
SPECIAL CIVIL APPLICATION NO. 8252 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 835 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6453 of 2011
With
CIVIL APPLICATION NO. 1 of 2018
With
R/LETTERS PATENT APPEAL NO. 836 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6486 of 2011
With
CIVIL APPLICATION NO. 1 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE HARSHA DEVANI

and
HONOURABLE DR.JUSTICE A. P. THAKER

==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?

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C/LPA/814/2018 JUDGMENT

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?

==========================================================
HETAL CHIRAG PATEL
Versus
STATE OF GUJARAT THRO SECRETARY
==========================================================
Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE with MS MEGHA JANI(1028) for
the APPELLANT(s) No. 1,2,3,4,5
MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
RESPONDENT No.1, 2
MR DG SHUKLA(1998) for the RESPONDENT(s) No. 3
MR KB PUJARA(680) for the RESPONDENT(s) No. 4
MR SN SHELAT, SENIOR ADVOCATE with MR MOHSIN KOREJA for the
RESPONDENT No.5
MR GM JOSHI with VYOM H SHAH(9387) for the RESPONDENT(s) No.
28,6,7
MR MANISH S SHAH(5859) for the RESPONDENT(s) No. 33,34
MR NACHIKET D MEHTA(6529) for the RESPONDENT(s) No.
15,16,17,18,19,20,21,22
MR. NISARG D SHAH(7299) for the RESPONDENT(s) No. 23,24,25,26,27
MR.HEMANG H PARIKH(2628) for the RESPONDENT(s) No. 11,12,13,14
MR.SANAT B PANDYA(6976) for the RESPONDENT(s) No. 29,30,31,32
MR SHALIN MEHTA, SENIOR ADVOCATE with MS VIDHI J BHATT(6155) for
the RESPONDENT(s) No. 9
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,4,8
NOTICE SERVED(4) for the RESPONDENT(s) No. 10

MR DHAVAL DAVE, SENIOR ADVOCATE with MR NIRAL MEHTA for
RESPONDENT No.31 in LPA No.815/2018
MR ANSHIN DESAI, SENIOR ADVOCATE with MR CHETAN PANDYA and
MR PANKAJ CHAUDHARI for RESPONDENT No.6 in LPA No.833/2018
MR ADITYA D BHATT for RESPONDENT No.31 in LPA No.828/2018
MR MOHSIN KOREJA for RESPONDENT No.16 to 19 in LPA 815/2018
==========================================================

CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER

Page 4 of 102
C/LPA/814/2018 JUDGMENT

Date : 28/12/2018

ORAL JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. This batch of letters patent appeals is directed against
the common judgment and order dated 21.4.2017 passed by
the learned Single Judge in the captioned writ petitions
whereby the learned Single Judge has inter alia issued
directions to fill in the forty one vacancies which were left
unfilled on account of non-joining of candidates by applying
the principles laid down by this court in the case of
D.G. Dalal
v. State of Gujarat
, (2002) 2 GLR 1011. It appears that
initially there was no challenge to the impugned judgment. The
State Government and the Gujarat Public Service Commission
decided to accept the judgment and started implementing the
same and towards that end passed an order dated 12.12.2017
appointing five candidates who had earlier been appointed to
posts of their lower preference, to the post of Deputy
Superintendent of Police wherein it was indicated that those
five candidates would be placed at merit No.49, 54, 57, 58 and
130, respectively. Since these candidates were to be placed
above the appellants and their appointments were likely to
have an impact on the seniority of the appellants, the
appellants preferred these letters patent appeals together with
applications for leave to appeal as they were not parties to the
main petitions. By an order dated 24.1.2018, leave to appeal
came to be granted keeping all issues open. Since there was a
delay of 233 days in preferring the appeals, applications for
condonation of delay also came to be filed. By an order dated
29.6.2018, the applications for condonation of delay came to
be rejected by this court. Being aggrieved, the appellants

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approached the Supreme Court, which by an order dated
11.7.2018, condoned the delay and observed that the appeals
be heard finally in accordance with law.

2. In Special Civil Applications No.6057, 6966, 6967 to 6973,
5923, 7246, 6110, 6108, 6106, 7581, 6107, 5758, 8252 and
6786 of 2011, the select list dated 26.4.2011 was subject
matter of challenge. Some of the petitions were based on the
allegation that the revised select list had been prepared on the
wrong application of the decision of the Supreme Court in the
case of
Public Service Commission, Uttaranchal v.
Mamta Bisht and others
(2010) 12 SCC 204; whereas others
were based on the allegation that the revised list was prepared
on the wrong application of the decision of the Supreme Court
in the case of
Union of India v. Ramesh Ram and others

(2010) 7 SCC 234.

3. The petitioner in Special Civil Application No.6543 of
2001 challenged his exclusion from the category of meritorious
reserved category (MRC) candidates because he had availed
age relaxation of SC category and prayed that the select list
be struck down to that extent.

4. In Special Civil Application No.11163 of 2012, the
petitioner sought a direction to the respondents to give
appointment to the petitioner as Deputy Superintendent of
Police, Class-I as SEBC male candidate on the vacancy arising
due to non-joining of one SEBC male candidate Mr. Vadhvana
Rohitkumar Rameshkumar and to direct the respondents to
give all consequential benefits of seniority and monetary
benefits as if the petitioner was offered the appointment as

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Deputy Superintendent of Police Class-I immediately after the
vacancy arose due to non-joining of Mr. Vadhvana Rohitkumar
Rameshkumar.

5. Thus, by and large the petitions were directed against the
revised select list dated 26.4.2011, whereas two petitions were
on a slightly different footing where reliefs as referred to
hereinabove were claimed. Apart from the captioned petitions,
another petition being Special Civil Application No. 8203 of
2012 came to be heard along with this group of petitions and
was decided by the impugned common judgment and order. In
the said petition there were allegations of favouritism and
manipulation of record to appoint one Reema Munshi the
respondent No.4 therein on the post of Deputy Superintendent
of Police, who according to the petitioner therein was ineligible
to hold that post. The petitioner therein had prayed for a writ
of quo warranto against the said respondent No.4. The said
petition came to be allowed by holding that Reema Munshi was
ineligible to hold the post of Deputy Superintendent of Police
and consequently, she was directed to forthwith vacate the
post. The said Reema Munshi challenged the impugned
judgment and order to the extent it was passed in Special Civil
Application No. 8203 of 2012 by way of a letters patent appeal
being Letters Patent Appeal No. 727 of 2017, which came to be
decided by a judgment and order dated 20/21.12.2017
whereby the letters patent appeal came to be allowed and the
direction passed by the learned Single Judge to the respondent
No.4 to vacate the post of Deputy Superintendent of Police
came to be set aside. Since the fact that this petition was
clubbed with the captioned petitions and all the petitions were

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heard and decided together has some bearing on the outcome
of the captioned petitions, it is necessary to place these facts
on record.

6. Since in majority of the petitions, the validity of the
revised select list dated 26.4.2011 has been challenged, the
main controversy in these appeals revolves around the same.

7. For the sake of convenience, reference is made to the
averments as appearing in Special Civil Applications No.6057
of 2011.

8. Special Civil Application No.6057 of 2011 has been filed
by, in all, ten petitioners. The petitioners No.1 to 5 are women
belonging to the General Category and the petitioners No.6 to
9 are men belonging to the SEBC category whereas the
petitioner No.10 is a woman belonging to the SEBC category.

9. The facts, as averred in the petition, are that the Gujarat
Public Service Commission (hereinafter referred to as the
"Commission") published an advertisement dated 26.6.2006
being Advertisement No.87/06/07 for the posts of Gujarat Civil
Services (Class-I & II). Being eligible and qualified, the
petitioners applied for the same and successfully passed the
preliminary examination as well as the main examination and
they were placed in the final select list published by the
Commission vide notification dated 13.5.2010. The petitioners
were issued individual intimation letters dated 3.8.2010 to the
effect that they were declared successful and the result
declared by the Commission on 13.5.2010 had been made
final. Thereafter, the petitioners awaited the appointment

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C/LPA/814/2018 JUDGMENT

orders; however, the Commission published
notice/advertisement dated 26.4.2011 whereby it had
cancelled the aforesaid final selection list dated 13.5.2010 and
published a revised selection list wherein the petitioners were
not included. Being aggrieved, the petitioners approached this
court by way of the above referred writ petitions.

10. At this juncture it may also be germane to briefly refer to
the contentions raised in the petition, to understand the scope
of such petitions.

11. The contentions raised in the petitions are that once the
final selection list was published, the preparation of the second
list without notice to the successful candidates was in breach
of the principles of natural justice. It was contended that in the
Examination Rules there is no power of review either with the
State Government or the Commission, giving them the power
to review the final selection list. It was also contended that the
respondents have ignored the binding precedent namely, the
judgment of this court in Dr. Komal Manubhai Katara v.
GPSC rendered in Letters Patent Appeal No.1412 of 2009 on
10.9.2009.
It was contended that the decision of the Supreme
Court in
Union of India v. Ramesh Ram
, (2010) 7 SCC 234 is
not applicable to the facts of the present case, wherein rule
16(2) of the Civil Services Examination Rules, 2005 came up
for interpretation whereas there is no equivalent of rule 16(2)
in the Gujarat Civil Services (Class I and Class II) Competitive
Examination Rules, 2000 (hereinafter referred to as "the
Gujarat Rules") which govern the present recruitment.

12. It was also contended that the authorities have

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committed an illegality in not preparing the waiting list in the
light of the amendment dated 17.1.2009/19.1.2009 namely,
the Gujarat Civil Services (Class I and Class II) Competitive
Examination Rules, 2009 whereby the existing rule 17 has
been substituted by a new rule 17. It was contended that such
amendment which came into force in the year 2009 cannot be
made applicable to the present recruitment which was initiated
by the advertisement dated 26.6.2006. It was submitted that
since all the 317 vacancies would not be likely to be filled up
from the select list, a waiting list/extended merit list was
required to be prepared so as to fill up the existing notified
vacancies so as to do justice to the petitioners and other
similarly situated candidates who would be getting
appointments if all the 317 notified vacancies are completely
filled up.

13. By the impugned judgment and order, the learned Single
Judge has disposed of the petitions with the following
directions:-

"41. So far other petitions are concerned, the following
directions are issued.

41.1 Though the impugned merit list dated 26.04.2011
prepared and published by the Gujarat Public Service
Commission is unsustainable on facts and in law, instead
of setting aside the said merit list, (for the reasons noted
in the body of the judgment, more particularly in para :

35.1 and 35.3), and consequently setting aside all the
appointments of about three hundred candidates and
their further promotions in the respective hierarchy, it is

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directed that, the posts, which have remained unfilled
because of non-joining of the candidates appointed by
the Government vide appointment orders, claimed to
have been issued on 06.05.2011, based on the impugned
select list dated 26.04.2011, shall be offered to the next
meritorious candidates in the recruitment in question
(Advertisement No.87/2006-07). It is further directed
that, while giving such appointments, the ceiling of the
notified vacancies (total 317 vacancies) shall also be kept
in view by the Authorities.

41.2 While giving such appointments, the ratio
laid down
by
this Court in the case of
D.G. Dalal
(supra), as
confirmed by the Supreme Court of India shall also be
kept in view.

41.3 The appointments of these candidates shall be
treated to be notional from 06.05.2011 and they shall be
entitled to all consequential benefits, except arrears of
pay. (vide the decision of the Supreme Court of India in
the case of
State of Jammu and Kashmir Vs. Sat Pal

reported in (2013) 11 SCC 737).

For this purpose, the
State Authorities may even take guidance from the
procedure which it had undertaken while giving effect to
the directions of this Court, in the case of
D.G.Dalal

(supra), which culminated into office orders passed by
the General Administration Department of the
Government of Gujarat on 04.08.2008 and consequential
orders, the copies of which are made available to this
Court by the State.

41.4 The above exercise shall be completed within a
period of three months from the date of receipt of this

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order.

14. Mr. Mihir Thakore, Senior Advocate, learned counsel with
Ms. Megha Jani, learned advocate for the appellants in each of
the appeals, invited the attention of the court to the decision of
the Supreme Court in the case of
Union of India v. Ramesh
Ram
(supra), to submit that
the said decision
was delivered on
the basis of the rules framed by the Central Government. It
was submitted that rule 16 of the Civil Services Examination
Rules (hereinafter referred to as the "CSE Rules") relating to
the civil services examination held by the Union Public Service
Commission came up for interpretation in that decision. The
attention of the court was invited to sub-rule (4) of the CSE
Rules which provides for reduction of the total number of
recommended candidates by the number of candidates
belonging to the Scheduled Castes, the Scheduled Tribes and
Other Backward Classes who acquire the merit at or above the
fixed general qualifying standard without availing themselves
of any concession or relaxation in the eligibility criteria. Such
rule also provides that the Commission shall prepare a list of
recommended candidates and shall also declare a consolidated
reserve list of candidates which will include candidates from
the general and reserved categories ranking in order of merit
below the last recommended candidate under each category.
Reference was made to sub-rule (5) of rule 16 of the CSE
Rules which provides for allocation of candidates
recommended in terms of sub-rule (4) by the Government to
the services and forwarding of requisition by the Government
to the Commission for names of candidates from the reserve
list for filling up the vacancies which remain unfilled in each

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category. It was pointed out that rule 19 of the CSE Rules
provides that due consideration will be given at the time of
making allocation on the results of the examination to the
preferences expressed by a candidate for various services at
the time of his application. The appointment to various
services will also be governed by the Rules/Regulations in force
as applicable to the services at the time of appointment.

It was
submitted that the ratio of the decision in
Ramesh Ram

(supra) is whether a person who gets a general seat is entitled
to claim a reserved seat to get a better preference. That ratio
is not regarding at what stage such selection is to be made.

14.1 Reference was made to the Gujarat Rules as are
applicable to the recruitment in question and more
particularly, rule 9 thereof, to submit that in terms of the said
rule, once a candidate gives a post as his first preference, he
cannot change it. It was submitted that the learned Single
Judge has held that the choice of preference should be
exercised at the time of appointment and not by the
Commission at the time of forwarding the list. It was submitted
that the Commission does not give appointment and that the
list is prepared by the Commission as per the order of merit
after the examination and interview and considering the
preferences given by the concerned candidates. The attention
of the court was invited to the advertisement dated 26.6.2006,
to point out that the Commission has to prepare the list as per
the vacancies advertised. Reference was made to rules 9 and
22 of the Gujarat Rules, to submit that rule 22 contemplates
forwarding of the results to the Government and the
Commission has to forward the list as contemplated under rule
22 read with rule 9 of the rules. It was submitted that the rules

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contemplate preparation of a select list containing the names
recommended by the Commission to the extent of vacancies
notified and that all candidates other than those whose names
are found in this list are unsuccessful candidates whose names
would be reflected in the list of unsuccessful candidates and
there is no other wait list or reserved list. It was submitted that
the Commission was required to give the order of preference
as given by the candidates under rule 9 of the Gujarat Rules
which was not to be revised under any circumstances.
As per
rule 17 of the Gujarat Rules, the Commission was required to
recommend candidates for each post and class. While the
appointments were to be given by the Government, the list
was to be prepared by the Commission and that the
Commission has not committed any error in making the list.
According to the learned counsel, it would make no difference
whether the list was made by the Government at the stage of
appointment or by the Commission at the stage of
recommendation, inasmuch as in view of the proviso to sub-
rule (1) of rule 9 of the Gujarat Rules, the preference given by
each candidate at the time of the interview test is final. It was
submitted that the Commission or the Government will have to
offer the higher post to the successful candidate as per his
preference and that there is nothing improper or contrary to
the decision of the Supreme Court in the case of
Ramesh
Ram
(supra) insofar as the preparation of the list is concerned.

14.2 It was further submitted that by the Gujarat Civil
Services (Class I and Class II) Competitive Examination
(Amendment) Rules, 2009, which were notified vide
notification dated 17.1.2009, rule 17 of the Gujarat Rules of
2000 came to be substituted and it was provided that there

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shall be no waiting list and that the residual vacancies of posts,
if any, due to non-joining of candidates (who have been
allotted the post of Gujarat Civil Services Class I or Class II) for
any reasons, shall be carried forward to the next occasion of
recruitment. It was submitted that the amendment is only
clarificatory and does not modify the rule at all because even
as per the existing rule, there was no scope of wait list. The
Gujarat Rules of 2000 also did not contemplate a wait list, but
contemplated a list of unsuccessful candidates. It was
submitted that the first list was issued on 13.5.2010 and the
revised list was issued on 26.4.2011. While making the first
list, they were bound to follow the rules as prevailing then. It
was submitted that the existing rules were of 2009 and the
vacancies could not have been filled since the list of
recommended candidates was to the extent of vacant posts to
be filled up.

14.3 It was submitted that five candidates did not join
service on the post of Deputy Superintendent of Police and the
Government considering the Gujarat Rules of 2000, did not
appoint any one to those posts and proceeded to fill seats in
seriatim. It was submitted that no duty was cast upon the
Government to extend the list in the manner suggested.
Reference was made to the notification dated 6.5.2011
(Annexure-G to the petition), to point out that out of 68
vacancies for the post of Deputy Superintendent of Police, 68
appointments came to be made by the Government. However,
the candidates at Serial No.19, 29, 31 and 34 from the general
category candidates and No.42 from the Socially and
Educationally Backward Classes (SEBC) did not join. Therefore,
there were five vacant posts of Deputy Superintendent of

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Police, including one post in the SEBC category, which were
never filled up and were carried forward in the next
recruitment and were filled up.

14.4 Insofar as the applicability of the decision of the
Supreme Court in the case of
Ramesh Ram
(supra) is
concerned, it was contended that the view taken by the
learned Single Judge is not correct.

It was submitted that

Ramesh Ram
(supra) does not lay down any ratio as regards
the stage at which to apply the preference. It was submitted
that under rule 9(1) of the Gujarat Rules, once preference is
given, it is final and the list was prepared accordingly which is
not contrary to the decision of the Supreme Court in Ramesh
Ram.

14.5 It was submitted that insofar as the applicability of
the decision of the Supreme Court in the case of
Mamta Bisht

(supra) is concerned, the only ground for holding that the list is
not in accordance therewith is that in other cases it has not
been applied. Reference was made to paragraph 35.1 of the
impugned judgment, to submit that the question of exploring
other options would arise only when the list is illegal whereas
in the facts of the present case there being nothing illegal in
the revised list forwarded by the Commission, the question of
exploring other options would not arise.

It was submitted that
on application of the decisions of the Supreme Court in

Ramesh Ram and Mamta Bisht
(supra), forty candidates
were taken out of the first list of candidates recommended by
the Commission which has no relevance to the non-joining of
other candidates.

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14.6 Next, it was submitted that in case the successful

candidates do not join, if there is a wait list, it has to be
operated or forty one posts in the list will remain vacant.
However, the Gujarat Rules do not provide for any wait list and
there are only two lists; (i) a list of recommended candidates to
the extent of vacancies notified, and (ii) a list of unsuccessful
candidates. Accordingly, the candidates who were taken out of
the first list at the time of preparation of the revised list are
also amongst the unsuccessful candidates. It was submitted
that in the absence of a wait list, for the purpose of giving
effect to the orders passed by the learned Single Judge, the
vacant posts would be required to be filled from the list of
unsuccessful candidates.

14.7 Reference was made to the findings recorded by the
learned Single Judge in paragraph 35.3 of the impugned
judgment, wherein the learned Judge has observed that the
figures of the persons affected by the impugned action of the
respondent authorities and the number of vacancies remaining
unfilled from that very advertisement (notified vacancies) are
almost the same; thus, relief can be granted to the affected
candidates against the unfilled notified vacancies. It was
submitted that either one of the lists, namely, the old list or
the revised list that can be operated. However, it cannot be
said that the decisions of the Supreme Court in the case of

Ramesh Ram and Mamta Bisht
(supra) should also be
applied and at the same time, the old list should also be
operated. Referring to paragraph 39 of the impugned
judgment wherein the learned Single Judge has held that the
notified vacancies which have remained unfilled because of
non-joining of candidates, need to be filled up by the State by

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offering the same to the next meritorious candidates whose
details are already annexed with the merit list dated
26.4.2011, it was submitted that there is no merit list and that
there is a list of successful candidates and a list of
unsuccessful candidates and that the directions issued by the
learned Single Judge would result in giving effect to the list of
unsuccessful candidates.

14.8 It was pointed out that the candidate at Serial
No.221 was one Reema Munshi whose appointment had been
challenged by filing a writ of quo warranto and further that the
learned Single Judge has also made certain observations with
regard to one Manek Hira, the candidate at Serial no.222. It
was submitted that if in the case of the said candidate, the
Government had wrongly appointed her, it would make the
appointment bad but it would not vitiate the list.

14.9 Referring to the directions issued by the learned
Single Judge in paragraph 41.3 of the impugned order, it was
submitted that if the appointments are to be notional with
entitlement of consequential benefits, it directly affects the
appellant as the appellants will be pushed down from the
present position.

14.10 Reference was made to the decision of the Supreme
Court in the case of
Rajeshkumar Daria v. Rajasthan
Public Service Commission
, (2007) 8 SCC 785, to point out
that in the facts of the said case the court has granted relief
only to the candidates who had come before it and had
thought it fit, just and proper to accommodate those three
candidates without disturbing the selections and appointments

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already made.

14.11 It was submitted that that view adopted by the
learned Single Judge that the decision of the Supreme Court in
the case of
Ramesh Ram
(supra) has not been properly
applied and that the decision of the Supreme court in the case
of
Mamta Bisht
(supra) has been applied selectively, is not in
consonance with the said decisions. It was submitted that,
therefore, there being no infirmity in the revised list, the
question of issuing such directions as have been issued by the
learned Single Judge would not arise and the impugned
judgment and order passed by the learned Single Judge
deserves to be quashed and set aside.

14.12 Insofar as the maintainability of the cross objections
filed by the petitioner of Special Civil Application No.11163 of
2012 is concerned, the learned counsel
placed reliance upon

the decision of a Full Bench of the Madhya Pradesh High Court
in the case of
Jabalpur Development Authority v. Y.S.
Sachan
, 2004 (2) M.P.L.J. 178, wherein the court has held that
there can be no doubt that a respondent can defend the
judgment pasted in a letters patent appeal where the order of
the Single Judge is under assail. The question that arises for
consideration is whether in such an appeal a cross-objection
can be filed. The court held that a party who is aggrieved by an
order of the learned Single Judge can prefer an independent
appeal. The cross objection has a different connotation. A cross
objection or a cross appeal is filed after receipt of the notice
within the time provided under Order XLI, rule 22
of the Code
of Civil Procedure
. But there is no concept of filing of cross
objection in a letters patent appeal. The court held that in a

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letters patent appeal that arises from an appeal disposed of
under
section 96
of the Code of Civil Procedure or in other
appeal to which the Civil Procedure Code applies the matter
would be totally different and a cross objection would be
maintainable but in a matter relating to a writ appeal, no cross
objection can be filed. It was submitted that the present letters
patent appeals having been filed against a judgment rendered
in writ petitions, the cross objection is not maintainable.

15. Mr. D. G. Shukla, learned advocate appearing on behalf of
the Gujarat Public Service Commission, submitted that for the
reason that by virtue of the directions issued by the learned
Single Judge, the list prepared by the Commission was not
disturbed, the Commission did not deem it fit to challenge the
impugned judgment and order, despite certain strictures and
observations having been made therein. The attention of the
court was invited to the affidavit-in-reply filed on behalf of the
Commission, to submit that the respondents have complied
with the directions contained in the impugned judgment. It was
submitted that the list was revised consciously to apply the
principles
laid down by
the Supreme Court in
Ramesh Ram
and Mamta Bisht
(supra) and was forwarded to the State
Government whereafter the appointments were made. It was
urged that the allegations recorded in the impugned judgment
and order are not true and the same have not been brought to
the notice of the Commission or the State during the course of
submissions and have come on record only during the course
of dictation of judgment.

It was submitted that after the
decision of the Supreme Court in the case of
Rajesh Daria

(supra) there was a decision of this court in the case of Komal
Katara (supra) which was contrary to the decision of Rajesh

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Daria, but being a subsequent decision of this High Court, the
respondents were required to follow the same.

It was urged
that since the decision of the Supreme Court in the case of

Mamta Bisht
(supra) reiterated what was stated in
Rajesh
Daria
(supra) and was rendered subsequent to the decision of
this court in the case of Komal Katara (supra), the result was
revised by applying both the decisions viz.

in the case of
Ramesh Ram as well as
Mamta Bisht
(supra).

It was further
pointed out that the learned Single Judge has held that the
decisions of the Supreme Court in the case of
Ramesh Ram
and Mamta Bisht
(supra) are required to be applied to the
recruitment in question; and that there being no infirmity in
the application thereof, the select list may not be interfered
with. It was reiterated that it is only because the list was
maintained that the judgment and order passed by the learned
Single Judge was not challenged by the Commission.

15.1 Mr. Shukla further drew the attention of the court to
paragraph 32.7 of the impugned judgment and order, to
submit that the learned Single Judge has recorded that the
Commission and the State have not followed the decision in
the case of
Mamta Bisht
(supra) even in the recruitment on
the post of Assistant Conservator of Forest and Range Forest
Officers in the year 2014 which was subject matter in Special
Civil Application No.13857 of 2014 and Letters Patent Appeal
No.1103 of 2015. It was pointed out that insofar as the Letters
Patent Appeal No.1103 of 2015 is concerned, the controversy
involved therein was on a totally different footing viz.
,
in that
case
a reserved category candidate, who had availed of
relaxation, had claimed a general category post.

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16. Mr. Utkarsh Sharma, learned Assistant Government
Pleader, drew the attention of the court to rule 9 of the Gujarat
Rules, to submit that having regard to the said rule which lays
down as to how preference has to be exercised, if a
meritorious reserved category candidate is not in a position to
get the post of his higher preference as a general category
candidate, his migration to a reserved post would be automatic
inasmuch as the candidate is bound by the order of preference
indicated at the time of the interview test and is not permitted
to change his order of preference even at the time of granting
appointment. Therefore, what was done by the Commission
was in consonance with rule 9 of the Gujarat Rules.

16.1 The learned Assistant Government Pleader further
invited the attention of the court to rule 18(1) of the Gujarat
Civil Services Recruitment Examination Rules, 1980, to point
out that the said rules specifically provided for preparation of a
waiting list which would remain in force till the result of the
next examination is declared by the Commission. Drawing a
distinction between the said rules and the Gujarat Rules of
2000, it was pointed out that in the 2000 rules, this
requirement of preparing a wait list has been done away with,
which clearly shows that no wait list was contemplated therein.

17. Mr. S. N. Shelat, Senior Advocate, learned counsel with
Mr. Pathik Patel, learned advocate for the respondents No.5
and 72, submitted that the respondents No.5, 6, 7 and 8 who
are to be appointed against the vacant post of Deputy
Superintendent of Police in compliance with the impugned
judgment and order are all above serial No.77 in the merit list.
It was pointed out that those respondents are not the original

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petitioners, but are beneficiaries of the impugned judgment
and order passed by the learned Single Judge, all of whom had
given their first preference for the post of Deputy
Superintendent of Police and are placed higher than the
appellants in order of merit.

17.1 The attention of the court was invited to paragraph
3 of the impugned judgment and order, wherein the learned
Single Judge has referred to the earlier order dated 12.5.2018
passed in Special Civil Application No.6057 of 2011 at the time
of issuance of notice wherein it has been clarified that any
action taken by the respondents shall be subject to the final
decision of the petition. It was submitted that, therefore, in the
appointment orders of the appellants itself, it was provided
that the same were subject to the final decision of the petition,
despite which, they did not seek to be joined as parties in the
petition and even after the impugned judgment and order
came to be passed, they did not immediately approach this
court challenging the same; therefore, the appellants from
their very conduct are barred from challenging the impugned
order inasmuch as such challenge is bad on the ground of
delay and laches as well as acquiescence.
In support of such
submission, the learned counsel
placed reliance upon
the
decision of the Supreme Court in the case of
State of U.P. v.
Arvind Kumar Srivastava
, (2015) 1 SCC 347, wherein the
court has held that those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay would be treated as fence-sitters
and laches and delays, and/or the acquiescence, would be a
valid ground to dismiss their claim.

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17.2 It was submitted that the learned Single Judge has
exercised discretion to the effect that the meritorious

candidates be considered while filling in the vacancies and that
the contention that those who have not come to the court
should not be granted relief cannot be countenanced. It was
submitted that the appellants and all others were put to notice
that their appointments are subject to the result of the petition
and, therefore, if the court were to accept the ratio as
laid
down by
the learned Single Judge, they cannot claim any
equity. It was submitted that the learned Single Judge has
ultimately permitted to operate the merit list and that as on
today, the appellants are not affected prejudicially, inasmuch
as, the seniority list has not been prepared and, therefore, the
question may be premature at this stage.

17.3 Reference was made to the decision of the Supreme
Court in the case of
State of J &K v. Sat Pal
, (2013) 11 SCC
737, on which the learned Single Judge has placed reliance,
wherein one vacancy which was offered to one Trilok Nath only
came to be filled up. The court held that in such a situation,
respondent Sat Pal whose name figured in the merit/select list
ought to have been offered appointment against the said post.
The claim of respondent Sat Pal could not have been
repudiated, specially on account of his assertion, that his name
in the merit/select list amongst Scheduled Castes candidates
immediately below the name of Trilok Nath was not even
disputed in the pleadings before the court. It was submitted
that in the facts of that case there is no decision of the State
Government not to fill the notified vacancies.
Reference was
made to the findings recorded by the learned Single Judge in
paragraph 38 of the impugned judgment wherein it has been

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recorded that there is no decision of the State not to fill up the
vacancies, to submit that, therefore, in the absence of any
such decision having been taken by the respondents, the
vacancies to the extent the same were advertised were
required to be filled up.

17.4 It was further submitted that the amended rule 17
of the Gujarat Rules which says that there shall be no waiting
list and that the residual vacancies of posts if any due to non-
joining of candidates shall be carried forward to the next
occasion of recruitment, is not clarificatory or explanatory as
contended on behalf of the appellants and cannot be made
applicable to the recruitment in question. Reliance was placed
upon the decision of the Supreme Court in the case of
Y.V.
Rangaiah v. J. Sreenivasa Rao
, (1983) 3 SCC 284, for the
proposition that vacancies in the promotional post occurring
prior to the amendment have to be filled up in accordance with
the unamended rules. In the facts of the said case, the court
set aside the panel prepared for filling vacancies under the
amended rule and directed a fresh panel to be prepared under
the old rules.

Reference was made to the decision of the
Supreme Court in the case of
B.L. Gupta v. M.C.D.
, (1998) 9
SCC 223, wherein the court held that the vacancies that had
arisen prior to the amendment of the rules in 1995 can only be
filled in accordance with the 1978 rules and that any vacancy
which arises after 1995 will have to be filled as per the
amended rules.

17.5 Reliance was placed upon the decision of the
Supreme Court in the case of
N.T. Devin Katti v. Karnataka
Public Service Commission
, (1990) 3 SCC 157, wherein the

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court held that generally a candidate has a right to be
considered in accordance with the terms and conditions set out
in the advertisement as his right crystallises on the date of
publication of advertisement, however, he has no absolute
right in the matter. If the recruitment rules are amended
retrospectively during the pendency of selection, in that event
selection must be held in accordance with the amended rules.
Whether the rules have retrospective effect or not, primarily
depends upon the language of the rules and its construction to
ascertain the legislative intent. The legislative intent is
ascertained either by express provision or by necessary
implication; if the amended rules are not retrospective in
nature the selection must be regulated in accordance with the
rules and orders which were in force on the date of
advertisement. A candidate cannot be deprived of the right to
be considered for selection in accordance with the rules as
they existed on the date of advertisement on the amendment
of rules during the pendency of selection unless the amended
rules are retrospective in nature. Mr. Shelat submitted that
when no decision is taken not to fill the vacancies, the
meritorious candidates who are waiting should be given an
opportunity and that such candidates should not be ignored if
merit is the consideration. Therefore, the learned Single Judge
was wholly justified in directing that the vacancies on account
of non-joining of candidates should be filled up in order of
merit.

17.6 It was further submitted that the application of
principles
laid down in
the decision of the Supreme Court in the
case of
Ramesh Ram
(supra) has to be undertaken when an
individual is to be offered appointment.

Reference was made

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to the decision of the Supreme Court in the case of
Tripurari
Sharan v. Ranjit Kumar Yadav
, (2018) 2 SCC 656, wherein
the court held that
Ramesh Ram
(supra) pertained to
selection to posts in services through the UPSC examination.

17.7 It was submitted that even if the two decisions of
the Supreme Court have to be applied to the facts of the
present case, the learned Single Judge was wholly justified in
throwing the seats open to the meritorious candidates. It was
submitted that the question of preparing a waiting list does not
arise as there is only a merit list which has to be applied till the
vacancies are available. It was submitted that the State
Government has accepted the judgment and is inclined to
comply with it but for the present appeal.

17.8 Insofar as the applicability of the decision of this
court in the case of
D.G. Dalal
(supra) is concerned, reference
was made to paragraph 12 of that decision wherein the court
has observed that the Government of its own is under an
obligation to utilise the vacancies keeping in view the merit list
and that in any case merit should not be made a casualty. It
was submitted that, therefore, the Government of its own is
under an obligation to utilise these vacancies keeping in view
the merit list. It was urged that when the Government has
accepted the ratio of the decision of the learned Single Judge
and offered appointments to the respondents, this court may
not deny them the benefit. It was urged that no question of
interpretation arises and that it is the obligation of the
Government to operate the merit list and fill up the vacancies
and that this court may not upset the benefit given to the
respondents.

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18. Mr. Shalin Mehta, Senior Advocate, learned counsel
appearing for the newly added respondent No.9 in Letters
Patent Appeal No.814 of 2018 viz. Ruturaj Sankabhai Desai,
who is also a beneficiary of the impugned judgment, made
reference to rule 17 of the Gujarat Rules as it stood prior to the
amendment in 2009, to point out that the same requires the
Commission to recommend the qualified candidates for
appointment to the extent of the number of vacancies to be
filled in. It was submitted that there is nothing on record to
show that vacancies are carried forward or that a decision has
been taken not to fill up the vacancies; therefore, the merit list
is required to be operated till the number of vacancies
advertised are filled in. It was submitted that the amended rule
17 is a clear amendment and substitutes the old rule. Reading
both the rules conjointly it was pointed out that there are three
things in this rule which are not found in the old rule, namely,

(i) the amended rule provides that there shall be no waiting
list; (ii) the residual vacancies of posts, if any, due to non-
joining of candidate for any reason shall be carried forward;
and (iii) that the Commission shall recommend the candidates
qualified for appointment to the extent of the number of seats
advertised for, and not to the extent of vacancies. It was
submitted that, therefore, the amended rule 17 cannot be said
to be clarificatory and is clearly an amendment of the old rule.

18.1 Reference was made to rule 9 of the Gujarat Rules,
and more particularly, to sub-rule (2) thereof, which reads
thus: "The order of preference for the post indicated by the
candidate shall not confer any right for appointment to those
posts. Having regard to the rank in the order of merit and the

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number of posts available, the preference given by the
candidate shall be considered by the Government at the time
of his appointment". It was submitted that, therefore, before a
meritorious reserved category candidate is placed in a post of
his higher preference in a reserved category, at the time of his
appointment he is required to be asked whether he wants to
migrate to the post of reserved category or not, whereas in the
facts of the present case, when the Commission prepared the
list, it chose for all the meritorious reserved category
candidates and that the stage of the meritorious reserved
category candidates exercising option has been given a go-
bye. It was submitted that the Commission has only to indicate
the order of preference of each candidate and it is the function
of the Government at the time of allocation, whether to
consider a particular candidate in the general or reserved
category. Therefore, the Commission could not have applied
the decision of the Supreme Court in the case of
Ramesh
Ram
(supra) at the stage of preparing the list.

18.2 Referring to the decision of the Supreme Court in
the case of
Ramesh Ram
(supra), it was pointed out that rule
16(2) of the CSE Rules provides that reserved category
candidates recommended against unreserved vacancies may
be adjusted against reserved vacancies by the Government if
by this process they get a service of higher choice in order of
their preference. Therefore sub-rule (2) of rule 16 of the CSE
Rules gives liberty to the meritorious reserved category
candidates to choose between the general quota and the
reserved category quota, whereas insofar as the Gujarat Rules
are concerned, there is no rule similar to rule 16(2) of the CSE
Rules. It was submitted that preference has to be considered

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by the Government at the time of appointment and if the
Government is to do this, it naturally follows that a meritorious
reserved category candidate is required to be asked whether
he wants to migrate. It was submitted that migration cannot be
confused with preference.

A meritorious reserved category
candidate has a choice to stay in the open merit and that the
Commission by applying the decision of the Supreme Court in

Ramesh Ram
(supra) at the stage of preparation of the list
took away the choice of a candidate whether or not to migrate
and, therefore, the entire revised list is bad.

It was submitted
that who is to apply and at which stage the decision of the
Supreme Court in
Ramesh Ram
(supra) is required to be
applied is also important.

18.3 As regards the applicability of the decision of the
Supreme Court in the case of
Mamta Bisht
(supra), the
learned counsel
placed reliance upon
the findings recorded by
the learned Single Judge in paragraphs 31 to 33 of the
impugned judgment, to submit that on the findings recorded
by the learned Single Judge, he was wholly justified in holding
that the State and the Commission have applied the same
more for convenience and advantage and less for upholding
the law.

18.4 The attention of the court was invited to the
decision of a learned Single Judge of this court in the case of

Pravinchandra Hemchandbhai Panchal v. Gujarat Public
Service Commission
rendered on 21.11.2005 in Special Civil
Application No.7912 of 2005, wherein the learned Single Judge
has held that until all the posts are filled up, the candidates
who have participated in the regular selection process are

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required to be considered for appointment as and when the
State Government is to consider the matter of appointments
unless there is a ban on recruitment by way of a policy
decision of the State Government due to any valid reason. It
was submitted that the decision of the learned Single Judge
was carried in appeal by way of Letters Patent Appeal No.84 of
2006; however, the Division Bench had not disturbed the
judgment. It was submitted that, therefore, it is now not open
for the respondents to contend that as there is no provision for
wait list in rule 17 of the Gujarat Rules, the vacancies cannot
be filled up. It was submitted that thus rule 17 of the Gujarat
Rules has been interpreted by this court to mean that even if
no wait list is contemplated, all vacancies should be filled by
the next meritorious candidates, and that in appeal also, the
court can direct the Government to fill in all the posts as no
decision has been taken not to fill the vacancies.
It was
submitted that furthermore in the light of the decision of the
Supreme Court in the case of Jai Narain Ram v. State of
U.P., (1996) 1 SCC 332, all the vacancies should be filled up.

18.5 Insofar as the contention that relief should be
granted only to those who have come before the court, the
learned counsel submitted that the Supreme Court has not laid
down any absolute proposition of law in this regard. It was,
accordingly, urged that the appeals be dismissed and the
directions issued by the learned Single Judge be upheld.

19. Mr. Anshin Desai, Senior Advocate, learned counsel with
Mr. Chetan Pandya and Mr. Pankaj Chaudhari for respondent
No.6 in Letters Patent Appeal No. 833 of 2018 submitted that
delay, laches and acquiescence is an issue of merit and that

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the appellants herein are not entitled to the grant of any relief
by this court as they were fence-sitters. It was submitted that
the appellants herein had express or tacit knowledge that the
petitions were pending, despite which, they did not deem it fit
to be joined as parties nor did they seek to challenge the
impugned judgment immediately after the same was
delivered. It was contended that the appellants have no cause
of action to file the present letters patent appeals and that the
challenge to the impugned judgment is premature as no event
can be said to have occurred which causes any prejudice to
the appellants. It was submitted that the appellants have come
on an apprehension and seek adjudication of an issue which
has not happened, which, according to the appellants is likely
to happen. It was submitted that the State Government as well
as the Commission have accepted the impugned judgment
and, therefore, the appellants have no legal or fundamental
right to question the veracity of the impugned judgment.

19.1 It was contended that it is not permissible for this
court to examine the merits of the impugned judgment and
order, inasmuch as, locus of the petitioner is itself in question.
It was submitted that the inquiry into the irregularities and
illegalities on the part of the respondents during the course of
recruitment process was not beyond the purview of the
learned Single Judge and that the learned Single Judge was
wholly justified in relying upon the record while recording
conclusions with regard to the validity of the recruitment
process in question.

19.2 Reference was made to the decision of the Supreme
Court in the case of Bhakra Beas Management Board v.

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Krishan Kumar Vij, (2010) 8 SCC 701, wherein the appellant
therein had categorically raised the ground of delay of over
eight years in approaching the High Court for grant of the
relief, which the High Court had simply brushed aside and had
condoned such an inordinate, long and unexplained delay in a
casual manner. The Supreme Court held that the approach of
the High Court was neither proper nor legal.

19.3 Reliance was also placed upon the decision of the
Supreme Court in the case of
Jagdish Lal v. State of
Haryana
, (1997) 6 SCC 538, wherein the court held that delay
disentitles the party to the discretionary relief under
article
or
article 32
of the Constitution. It was, accordingly urged
that the appellants have no locus to challenge the impugned
decision and that the appeals being barred by delay, laches
and acquiescence, the court may not enter into the merits of
the impugned judgment and order and dismiss the appeals on
this ground alone.

20. Mr. Dhaval Dave, Senior Advocate, learned counsel with
Mr. Niral Mehta learned advocate for the respondent No.31 in
Letters Patent Appeal No.814 of 2018, namely the petitioner in
Special Civil Application No.6057 of 2018 viz. Ketki Trivedi as
well as for a respondent in Letters Patent Appeal No.835 of
2018 viz. Vadvia Dhirendrakumar, petitioner in Special Civil
Application No.6453 of 2011, submitted that the names of both
the candidates found place in the first select list published on
13.5.2010. However, their names got excluded from the
revised select list which gave rise to cause of action to them to
file a petition on the ground that the revised list should not be
permitted to operate as the respondents have no right to

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revise the list. The learned Single Judge came to the conclusion
that the revised list was bad and should be set aside and,
therefore, the revised list was required to be set aside and the
original list was required to be permitted to hold the field.
However, the learned Single Judge found that instead of
scrapping the revised list which has already been
implemented, equity can be done if forty seats which remained
vacant on account of non-joining of candidates are filled in by
accommodating such candidates, which is just, legal and
proper in the facts and circumstances of this case.

20.1 It was emphatically argued that the appellants have
no locus to move these appeals. According to the learned
counsel, an appeal can only be filed by a person who can be
said to be aggrieved by the judgment sought to be assailed
and that merely because leave to appeal has been granted by
this court, such person does not become an aggrieved person,
more so, because while granting leave, this issue has been left
open. It was submitted that by the interim order issued at the
time of issuing notice, it was clarified that the appointments
are subject to the final outcome of the petitions and that by
the impugned judgment; the appointments of the appellants
have not been disturbed. It was pointed out that the appellants
found place in both the lists and they are not affected in any
manner inasmuch as they still remain at the same stage of
seniority. It was submitted that on account of operation of the
revised select list pursuant to the order of the learned Single
Judge, no prejudice has been caused to any of the appellants
and there is no infringement of any enforceable legal right of
any of the appellants. It was contended that the appellants will
have locus to challenge the legality and validity of the

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impugned judgment provided there is some infringement of
legal right, however, mere inconvenience or prejudice would
not result into infringement of legal right. It was argued that if
ranking was to be disturbed there would be an infringement,
whereas the appellants are not able to show that a less
meritorious candidate has been placed above them nor are
they in a position to show that their seniority has been
disturbed. Therefore, today they have no cause of action for
preferring the appeals, inasmuch as, from any angle, they
cannot be said to be aggrieved.

20.2 Next, it was contended that a candidate only has a
right to promotion and there is no vested right. Moreover, no
right of the appellants has been taken away. It was submitted
that implementation of a judgment and directions to
implement the principles of law
laid down in
a previous
judgment cannot be said to infringe the legal right of the
appellants.
Reference was made to the decision of the
Supreme Court in the case of
Jasbhai Motibhai Desai v.
Roshan Kumar, Haji Bashir Ahmed
, (1976) 1 SCC 671,
wherein the court had held that where the appellant had not
been denied or deprived of a legal right and had not sustained
any injury to any legally protected interest, he has not been
subjected to a legal wrong and has not suffered any legal
grievance and, therefore, is not a "person aggrieved" and has
no locus standi to challenge an order which does not deprive
him of his legal right.

20.3 It was submitted that the learned Single Judge has
applied the decision of this court in the case of
D.G. Dalal

(supra) while directing filling up of the vacancies left over on

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account of candidates not joining. It was submitted that the
learned Single Judge has
placed reliance upon
material on
record and has found that various illegalities have been
committed by the State and Commission. According to the
learned counsel, it is immaterial as to how the material has
come on record, once it has come on record, the learned
Single Judge can rely upon it. It was submitted that the State
and the Commission who are really affected parties, have not
chosen to challenge the impugned judgment and hence, the
appellants cannot be permitted to challenge the same and on
this threshold point itself, the appeals should not be
entertained.

21. Mr. K. B. Pujara, learned counsel for the petitioner in
Special Civil Application No.11163 of 2012, who has also filed
Cross Objection No.82 of 2018 submitted that the name of the
petitioner was included in both the lists. In the first list, he was
at Serial No.176 and in the second list at 207. He belongs to
the SEBC category and had not opted for any Class-II post and
that his first preference was for the post of Deputy
Superintendent of Police. It was pointed out that in all sixty
eight vacancies of Deputy Superintendent of Police had been
notified, out of which, fourteen posts were reserved for SEBC
candidates. Out of these fourteen posts, four were reserved for
female. Out of sixty eight candidates, four unreserved category
candidates did not join and one Rohit Wadhwana belonging to
the SEBC category did not accept the post, therefore, at that
stage, the petitioner approached the authorities to fill the
vacant post by appointing him whereas none of the candidates
who were higher in order on merit than him had approached
this court. It was contended that the legal position demands

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that notified vacancies be filled up and that if a reserved
category candidate does not join, the next candidate has to be
offered appointment. It was submitted that if some candidate
does not join, another candidate who stakes a claim can be
given the post.

21.1 Reference was made to the judgment and order
dated 21.11.2005 passed by a learned Single Judge of this
court in Special Civil Application No.7912 of 2005 wherein the
petitioners sought preparation of list of unfilled posts which
had remained vacant on account of non-joining of selected
candidates or disqualified candidates or for any other valid
reason. The learned Single Judge held that if the posts have
remained vacant due to non-availability of candidates for any
reason, the same are required to be filled up from amongst the
next available meritorious candidates and the list so prepared
deserves to be operated to that extent.

21.2 Reference was made to the decision of a Division
Bench of this court in Letters Patent Appeal No.84 of 2006,
wherein the above judgment and order passed by the learned
Single Judge was subject matter of challenge, whereby the
appeal was disposed of with liberty to the appellants to seek
review of the judgment of the learned Single Judge. The
attention of the court was invited to the judgment and order
dated 31.7.2006 passed by the learned Single Judge on the
review petition filed by the State of Gujarat wherein the
learned Single Judge has held thus:

"3. Xxxxxx Even if the procedure for preparation of the
waiting list is given a go by, as per Rule 17 of the Rules

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of 2000, as sought to be canvassed on behalf of the State
Government, then also, the language of rule 17 provides
for recommendation "the Commission shall recommend
the qualified candidates for appointment to the extent of
the number of vacancies to be filled in. The number of
vacancies to be filled in as referred to in the rule shall
have reference to the number of vacancies so advertised
and, therefore, if the direction is given for forwarding the
name by the Commission to the Government to the
extent of number of vacancies to be filled in as per the
advertisement, such cannot be a valid ground for
recalling and/or review of the order."

The learned Single Judge, accordingly, held that the directive is
to consider a candidate for appointment on Class-I or Class-II
category and such direction is to operate unless there is a ban
on recruitment by way of policy decision of the State
Government due to valid reason. It was submitted that
the
above decision
of the learned Single Judge has attained finality
and therefore, the State authorities are bound to follow the
same.

21.3 Reference was made to the order dated 16.8.2010
passed in Miscellaneous Civil Application No.1768 of 2008 for
contempt on account of non-compliance of the order passed by
the learned Single Judge, wherein the Division Bench in the
context of application of the decision of this court in
D.G.
Dalal
(supra) observed thus:-

"In our view, the same may not be required and the
reason being that the appointments were offered to the
respective persons on the post of Class-I and II, as the
case may be at the relevant point of time in the year
2004-2005 or during that period. It is only after the order
passed by this Court and the litigation ended upto the
review, the right could be said to have been crystallised
for 27 posts from amongst the candidates who were in

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waiting list. The same was contingent upon non-joining of
the duty by the candidate who were offered appointment
but did not opt for joining the duty. Therefore, the
position of these 27 persons who are to be offered
appointment or the position of 27 posts which are to be
considered for the purpose of offering appointment
pursuant to the order passed in the present case would
stand on altogether different footing, more particularly
because they were in the waiting list and it is on account
of the order passed by this Court, their consideration has
accrued. Therefore, the State Government will have to
consider these 27 posts in one slot for the purpose of
offering preferences in order of merit to the candidates
concerned who are eligible to enter the zone of
consideration against present 27 posts only. Therefore,
such aspects should not operate as an obstacle in any
manner to the State Government in compliance of the
present order."

21.4 It was submitted that considering the lapse of time,
the Division Bench did not think it fit to apply the decision in
the case of
DG Dalal
(supra) as five years had passed. The
State accepted and implemented the order and that having
accepted the earlier orders, it would not be permissible for
them to raise such contention in the petition.

21.5 The learned counsel further drew the attention of
the court to a communication dated 10.7.2012 of one
Jagdishbhai Baldevbhai Desai, to point out that the said
candidate who was placed higher in order of merit than the
petitioner had given up his right in favour of the petitioner.
Reliance was placed upon the decision of the Supreme Court in

Jai Narain Ram
(supra), to submit that if a reserved category
seat has to be filled up, the person who comes to the court
gets the relief.
It was pointed out that the Supreme Court did

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not say that all the posts should be filled up but directed that
only one post should be filled up.

21.6 Next, it was submitted that the advertisement in
question was issued on 26.6.2006, whereas rule 17 of the
Gujarat Rules came to be amended subsequently in 2009. It
was contended that the selection process has to be completed
on the basis of the rules as they stood when the process
started, and that therefore, the amendment in rule 17 would
operate prospectively after 2009 and cannot be applied to the
recruitment in question. Reliance was placed upon the decision
of the Supreme Court in the case of
P. Mahendran v. State
of Karnataka
, AIR 1990 SC 405 <=> (1990) 1 SCC 411, for
the proposition 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 necessary intendment the rule cannot
be given retrospective effect except in matter of procedure.
Mr. Pujara submitted that since the amended rule was not
retrospective, it could not adversely affect the right of those
candidates who were qualified for selection and appointment
on the date when they applied for the post.

21.7 It was emphatically argued that Desai Ruturaj
Solanki who had accepted the post given to him at the relevant

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time, is sought to be brought in out of the blue for giving
appointment on the vacant post of SEBC male. It was
submitted that the action of the State in offering the post of
Deputy Superintendent of Police to Desai Ruturaj Sankabhai in
the category of SEBC Male is bad in law as the said candidate
had not approached this court at the relevant time seeking
relief to the effect that the vacant post be filled up and was
therefore, not entitled to the grant of any such benefit. It was
submitted that the petitioner is, therefore, aggrieved by the
directions issued by the learned Single Judge.

21.8 Reference was made to the sur-rejoinder filed on
behalf of the State Government and more particularly to the
table below paragraph 8 thereof, to submit that the name of
Desai Ruturaj Sankabhai does not find place therein. Reference
was made to the revised merit list, to point out that at item
No.130 Desai Ruturaj Sankabhai is treated as SEBC GM 94.
However, in the list shown in the sur-rejoinder the name of
Desai Ruturaj Sankabhai does not appear, despite which, he
has been offered appointment against the vacant SEBC post of
Deputy Superintendent of Police. It was emphatically argued
that none of the persons above the petitioner had come
staking their claims at the relevant time and hence, they
cannot be granted any relief.

21.9 Referring to the issues framed by the learned Single
Judge, it was submitted that five issues have been framed but
there is no issue qua the present petitioner and that except
Issue No.5, the petitioner's case has not been considered. It
was submitted that there is no adjudication of his petition and
nothing has been dealt with and in fact his petition has not

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been decided at all and none of the contentions raised by him
have been dealt with.

21.10 It was argued that the decision of this court in the
case of
D.G.Dalal
(supra) has no applicability to the facts of
the present case, inasmuch as, D.G. Dalal was rendered in the
context of the 1989 rules and as soon as the grievance arose
they had come to the court, which had considered their
grievance and granted relief to the petitioners and not to
others.

It was submitted that following the decision of this
court in
D.G. Dalal
(supra) does not give any relief to the
petitioner and on the contrary gives relief to others who had
not approached this court raising any grievance. It was
submitted that the petitioner has come before this court as an
SEBC candidate and there is a clear vacancy of SEBC Male.
None of the candidates having higher merit than him have
come to the court for all these seven years. Thus, no one has
come within reasonable time.

The learned Single Judge has not
considered the relief prayed for by the petitioner and on the
contrary has said that the decision of this High Court in
D.G.
Dalal
(supra) should be implemented which does not give
relief to the petitioner but to strangers who were not before
the court.

Therefore, the natural consequences had to be to
direct appointment of the petitioner as was done in
Ashok v.
State of Karnataka
, AIR 1992 SC 80. In that case, the
Supreme Court had recorded that the appointments under the
impugned rules were made as back as in 1987 and only the
appellants therein had approached the Tribunal for relief, the
case of other candidates cannot be considered as they never
approached for redress within reasonable time. The court was
thus inclined to grant relief only to the appellants before it who

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were vigilant in making grievance and approaching the
Tribunal in time. It was submitted that the petition ought to
have been allowed by the learned Single Judge and that the
judgment is required to be modified to that extent by granting
relief to the petitioner.

21.11 Referring to paragraph 35.1 of the impugned
judgment, it was pointed out that the whole idea was to give
relief to the persons who were before the court and in that
backdrop the ultimate decision has been rendered by the
learned Single Judge namely to grant relief to the affected
candidates against the unfilled vacancies. It was submitted
that while it has been held that the list is bad and relief be
granted to those who have come to the court, while issuing the
ultimate directions, the learned Single Judge has erred in
directing to make appointments in order of merit and by
applying the decision of this court in
D.G. Dalal
(supra). .

21.12 It was urged that in the entire litigation, there is not
one petitioner who has come with the grievance like him; none
of the parties before the learned Single Judge had requested to
apply the decision of this court in the case of
D.G. Dalal

(supra); there was no one who stated that they were the next
meritorious candidates and requested to be appointed; and
that the petitioner was the only person whose claim should
have been considered independently. Thus, the petitioner has
suffered injustice because of non-consideration of his petition
and the nature of directions issued and the manner in which
they are implemented. It was, accordingly, urged that the
cross-objection deserves to be allowed by allowing the petition
and granting the relief as prayed for vide paragraph 14(b) of

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the petition.

21.13 Reference was made to the decision of the Supreme
Court in the case of
State of Orissa v. Mamata Mohanty
,
(2011) 3 SCC 436, for the proposition that relief not claimed
cannot be granted. It was submitted that the beneficiaries of
the impugned judgment and order who were not the
petitioners before the learned Single Judge are defending the
impugned judgment. It was submitted that the relief granted
by the learned Single Judge is misdirected and merely because
of wrong directions there are beneficiaries who are trying to
defend such judgment.

21.14 Reference was made to the decision of the Supreme
Court in the case of
U.P. Jal Nigam v. Jaswant Singh
, (2006)
11 SCC 464, wherein the court was considering the question as
to whether when a person who is not vigilant of his rights and
acquiesces with the situation, his petition can be heard after a
couple of years on the ground that same relief should be
granted to him as was granted to a person similarly situated
who was vigilant of his rights and challenged his retirement
which was said to be made on attaining the age of 58 years.
The court held that the respondents were guilty since they had
acquiesced in accepting the retirement and had not challenged
the same in time and that if they would have been vigilant
enough, they could have filed writ petitions as others did in the
matter. Therefore, whenever it appears that the claimants
have lost time or whiled it away and did not rise to the
occasion in time for filing the writ petitions, then in such cases,
the court should be very slow in granting the relief to the
incumbent. Secondly, it has also to be taken into consideration

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that question of acquiescence or waiver on the part of the
incumbent whether other parties are going to be prejudiced if
the relief is granted.

21.15 It was submitted that the beneficiaries of the
impugned judgment have not approached this court seeking a
direction to fill up the vacancies which remained unfilled,
therefore, no relief could have been granted to them. It was
argued that the beneficiaries cannot be heard in support of the
directions as they were not litigants before the learned Single
Judge.

21.16 As regards the contention raised on behalf of the
appellants and other respondents that the cross-objection is
not maintainable, the learned counsel submitted that rule 84 of
the Gujarat High Court Rules provides that the provisions of

Order XLI of the Code of Civil Procedure
and rules regarding
appeals shall apply to letters patent appeals. It was submitted
that the decision of the Full Bench of the Madhya Pradesh High
Court would have no applicability to the facts of the present
case as the same was rendered in the context of the rules as
applicable to that High Court which are not akin to rule 84 of
the Gujarat High Court Rules and hence, the contention that
the cross objection is not maintainable deserves to be rejected.

22. Mr. G. M. Joshi, learned counsel with Mr. Asav Gadhvi,
learned advocate for some of the parties, adopted the
contentions advanced by Mr. S.N. Shelat. It was submitted that
in Special Civil Application No.8203 of 2012, the petitioner
sought for a writ of quo warranto, wherein, the whole file was
voluntarily placed before the court by the Government. The

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State was relying upon the official record for the whole
recruitment process and hence, once the record is before it,
the court would not be precluded from looking at the record as
a whole when the challenge is composite and the court was
offered the record for perusal.

22.1 It was submitted that incorrect application of the
decisions of the Supreme Court in the case of
Ramesh Ram
and Mamta Bisht
(supra) were not the only irregularities and
that the present case is a glaring example of the Commission
being dictated by the State Government in its General
Administrative Department. It was submitted that there were
glaring illegalities in the preparation of the second list and the
whole exercise undertaken by the Commission is ultra vires
and void. It was urged that the whole process could have been
set aside by the court but the final list has not been set aside
and with a view to salvage the situation, directions have been
issued to fill up the vacant posts. It was contended that if at all,
it is the State and the Commission which could have
challenged the impugned judgment on the ground that there
are glaring observations against them; however, the State and
the Commission have accepted the judgment and started
acting upon it. Therefore, the appellants of the present appeals
would be neither justified nor competent to challenge the
judgment and that the history shows that the appeal was not
preferred in time and it was stated that when the judgment
came the appellants did not think it proper to challenge it and
it was only after the judgment was being implemented that
they came to the court.

22.2 Referring to paragraph 7 of the memorandum of

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appeal wherein it has been averred that "Contrary to the
expectations that the State and/or GPSC would challenge the
judgment by filing an appropriate LPA, the appellants were
shocked to learn in around third week of December 2017 that
the Government had reallocated five candidates at Merit
No.49, 54, 57, 58 and 130 who were earlier allotted to the post
of Mamlatdar, Section Officer, Sachivalaya Mamlatdar,
Mamlatdar and Taluka Development respectively as Dy. S.P.s
with all ancillary benefits, like seniority, pay fixation, deemed
date, etc." it was submitted that the conduct of the appellants
is evident from the averments made in the memorandum of
appeal. It was submitted that the position of the appellants
does not change on account of the order giving appointments
to the five candidates. Moreover, the five affected respondents
are meritorious in their respective categories and are placed
higher up in the select list and none of them have been taken
out in the revised list. It was submitted that, therefore, the
challenge made by the appellants who are lower in merit than
the persons who are sought to be appointed upon
implementation of the impugned judgment must necessarily
fail.

22.3 Next, it was submitted that the amended rule 17 of
the Gujarat Rules is a declaratory provision and has to be read
prospectively. A person has a substantive right to be appointed
and such right cannot be taken away. It was submitted that the
right to be appointed if there are vacancies cannot be taken
away by the amended rule and that subordinate legislation
would only apply prospectively. It was submitted that the
record shows that there are illegalities other than the
application of the decisions of the Supreme Court in
Ramesh

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Ram and Mamta Bisht
(supra), in support of which, the
learned advocate
placed reliance upon
the observations made
by the learned Single Judge in paragraph 43.1 onwards.

23. In rejoinder to the submissions made by Mr. Pujara for the
petitioner in Special Civil Application No.11163 of 2012, Mr.
Shalin Mehta submitted that the petition has been answered
and that the learned Single Judge has turned down prayer by
directing the post to be filled up by the next meritorious
candidate. Therefore his petition is deemed to have been
rejected and, therefore, the petitioner was required to file an
appeal and the cross objection at his instance is not
maintainable.

23.1 Referring to rule 22 of
Order XLI of the Code of Civil
Procedure
, 1908, the learned counsel submitted that the
explanation thereto provides that a respondent aggrieved by a
finding of the court in the judgment on which the decree
appealed against is based may, under that rule, file cross
objection in respect of the decree insofar as it is based on that
finding, notwithstanding that by reason of the decision of the
court on any other finding which is sufficient for the decision of
the suit, the decree, is, wholly or in part, in favour of the
respondent. It was submitted that it is only if the decree is in
favour of the respondent that he can file cross objections
against any finding against him, whereas in the facts of the
present case, the petition of the petitioner is deemed to have
been rejected, and hence, the cross objection is not
maintainable at all.

23.2 Next, it was submitted that the vacant post can be

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filled by the candidates who are still in the list whereas the
name of this petitioner has been deleted from the list as he
had not joined the post which he had been offered. Therefore,
the decision of the Supreme Court in the case of Jai Narain
(supra) would not come to the aid of the petitioner. It was
submitted that even otherwise even on merits, the petitioner is
not entitled to be appointed against the post of Deputy
Superintendent of Police SEBC Male, inasmuch as, candidates
who are more meritorious than the petitioner are available.

23.3 Insofar as the contention that the respondents
having not approached this court seeking any relief, no relief
can be granted in their favour is concerned, the learned
counsel placed reliance upon the decision of the Supreme
court in the case of
State of U.P. v. Arvind Kumar
Srivastava
, (2015) 1 SCC 347, wherein the court has held that
the person who did not challenge the wrongful action in their
cases and acquiesced into the same and woke up after long
delay only because of the reason that their counterparts who
had approached the court earlier in time succeeded in their
efforts, then such employees cannot claim that the benefit of
the judgment rendered in the case of similarly situated persons
be extended to them. It was submitted that however, the court
has carved out an exception that this may not apply to those
cases where the judgment pronounced by the court was
judgment in rem with intention to give benefit to all similarly
situated persons, whether they approached the court or not. It
was submitted that normal rule is that a party has to come to
the court, but it cannot be said that there is no exception. In a
case where the court gives the judgment in rem, all are
entitled to relief. It was submitted that the directions to fill up

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the vacancies in order of merit are valid and in consonance
with the law
laid down by
the Supreme Court and that the
directions are not perverse and are in conformity with law,
and, therefore, the cross objections and the appeal both be
turned down.

23.4 Reference was made to the decision of the Supreme
Court in the case of
Manoj Manu v. Union of India
, (2013)
12 SCC 171, for the proposition that it is manifest that a person
whose name is included in the select list does not acquire any
right to be appointed. The Government may decide not to fill
up all the vacancies for valid reasons. Such a decision on the
part of the Government not to fill up the required/advertised
vacancies should not be arbitrary or unreasonable but must be
based on sound, rational and conscious application of mind.
Once it is found that the decision of the Government is based
on some valid reason, the court would not issue any
mandamus to the Government to fill up the vacancies. It was
submitted that in the facts of the present case, the
Government has not taken any decision not to fill up the
advertised vacancies, and hence, the learned Single Judge was
wholly justified in directing that the vacancies be filled up in
order of merit.

25. Mr. Hemang Parikh, learned advocate for the respondents
No.11 to 14 in Letters Patent Appeal No.814 of 2018 reiterated
the contentions raised by the learned counsel for the
respondents. It was submitted that the learned Single Judge
while issuing directions in paragraph 41.1 of the decision has
also considered the larger interest and directed that the
meritorious candidates should be given appointments. It was

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submitted that such directions being just and proper, the
vacant posts should be permitted to be filled up by meritorious
candidates. It was submitted that considering the dispute
between the two candidates, the learned Single Judge has
rightly directed that the next meritorious candidates should be
appointed.

26. Mr. Nachiket Mehta, learned advocate for respondents
No.15 to 22 in Letters Patent Appeal No.814 of 2018 has
adopted the submissions advanced by Mr. M. J. Thakore.

27. Mr. Nisarg Shah and Mr. Mohsin Koreja, learned
advocates for respondents No.16 and 19 respectively in Letters
Patent Appeal No.815 of 2018 have adopted the submissions
advanced by Mr. G.M. Joshi.

28. Mr. A. D. Bhatt, learned advocate for respondent No.31 in
Letters Patent Appeal No.828 of 2018 has adopted the
submissions advanced by Mr. Shalin Mehta and Mr. G.M. Joshi.

29. Mr. Sanat Pandya, learned advocate has adopted the
submissions made on behalf of the appellants.

30. In rejoinder, Mr. Mihir Thakore, learned counsel for the
appellants submitted that insofar as the locus of the appellants
to challenge the impugned judgment is concerned, by the
order dated 18.12.2017 passed by the Government, five
candidates have been placed at Merit No.38, 43, 53, 60 and

62. The resultant effect as per the directions issued by the
learned Single Judge is to give each of them seniority, as a
consequence whereof, these five candidates would be placed

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higher above the appellants in the seniority list. It was
submitted that the seniority list has been operated for the
purpose of promotion to the post of Superintendent of Police
up to Serial No.24 and by placing the five candidates above
them, the chances of promotion of the appellants would be
adversely affected. It was submitted that seniority is a material
factor in granting promotion which cannot be ignored and,
therefore, the appellants have locus to challenge the
judgment. It was submitted that there is no delay on the part
of the appellants as the moment the orders came to be made,
they preferred appeals. It was submitted that in the original
petition they did not seek to be impleaded as parties as the
petitioners therein were below them in the merit list and the
relief prayed for did not affect the appellants. It is the
directions issued by the learned Single Judge which affect the
appellants and with which they are aggrieved. It was submitted
that the appeals are not premature as appointment orders
placing five candidates above them have already been issued.

30.1 Next, it was submitted that at the time when the
decision of this court in
D.G. Dalal
(supra) came to be
rendered, the 1980 rules were in force. Rule 18 thereof
contained a provision for wait list. Since implementation of the
decision of this court in D.G. Dalal entailed a lot of reshuffling,
the 2000 rules were brought in to prevent such reshuffling and
the concept of wait list was done away with. It was submitted
that rule 17 read with rule 19 of the 2000 rules does not
contemplate a wait list or filling up vacancies arising out of
non-joining of the candidates. Consequently, when forty one
candidates have not joined and there is no wait list, by
necessary implication, such posts have to be kept vacant.

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30.2 Dealing with the contention of the respondents that

the amended rule 17 cannot be applied to the recruitment in
question, it was submitted that the rule is clarificatory in
nature and does not change the rules of the game.
Insofar as
the decision of the Supreme Court in
B.L. Gupta and
another v. M.C.D.
, (1998) 9 SCC 223, as well as
N.T. Devin
Katti v. Karnataka Public Service Commission
, (1990) 3
SCC 157, on which reliance was placed by the learned counsel
for the respondents, it was submitted that in the facts of the
said cases, the source from which the appointment was to be
made was itself changing and if the source of promotion
undergoes a change, the principle will have applicability.

30.3 It was submitted that the alleged amendment does
not deprive any candidate of any vested right. The amendment
only provides that if there is a vacancy on account of no one
taking a post, there shall be vacant post and that post would
lapse and would be considered in the next recruitment. It was
submitted that the provision does not modify the rules,
inasmuch as the earlier rules also did not contemplate a wait
list. It was submitted that the amending rule, therefore, will
have to be read retrospectively with effect from the year 2000.
It was submitted that there is no challenge to the rules and
that those who have come to this court are those candidates
who were thrown out of the first list on application of the
decisions of the Supreme Court in the case of
Ramesh Ram
and Mamta Bisht
(supra).

30.4 Reference was made to the decision of the Supreme
court in Bihar State Electricity Board v. Suresh Prasad

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and others, (2004) 2 SCC 681, wherein the question before
the Supreme Court was whether the High Court was justified in
law in giving direction to the appellant to fill up the vacancies
which remained unfilled due to candidates not turning up to
join the post? The Supreme Court observed that the appellant
therein had taken steps for filling 25 vacancies in the post of
Operators pursuant to Advertisement No.3/86 and remaining
25 vacancies from Advertisement No.6/92. The results were
notified on the notice-board. The Board recommended names
of successful candidates under both the advertisements. Out of
22 candidates selected by the Board for appointment under
Advertisement No.3/86, 18 candidates did not turn up. The
court noted that the respondents No.1 to 7 therein had applied
for appointment under Advertisement No.3/86 dated
15.12.1986 and that they had qualified but were placed at
Serial No.23 onwards in the descending order. The court
observed that a panel of 22 candidates was prepared for
appointment under Advertisement No.3/86 and the
respondents No.1 to 7 fell beyond the cut off number. It was
observed that no statutory recruitment rules were shown
which required the appellant Board to prepare a waiting list in
addition to the panel. On behalf of the respondents No.1 to 7,
it was contended that when 18 candidates failed to turn up,
the appellant was bound to offer posts to candidates in the
waiting list.
The court held that no such rule has been shown in
this regard and, accordingly, held that its decision in the case
of
Shankarsan Dash v. Union of India
, (1991) 3 SCC 47,
squarely applies to the facts of that case.

The court further
referred to its decision in the case of
Jai Narain Ram v. State of
U.P.
, (1996) 1 SCC 332, and drew a distinction that in the facts
of the said case the matter was concerning filling of a reserved

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post. Further, a concession was made in the counter-affidavit
filed on behalf of the respondent State that since the post was
a reserved post; they can only be filled up by the candidates of
reserved categories. It was submitted that in the light of
the
above decision
, when the rules do not provide for preparing a
waiting list in addition to the list of recommended candidates,
if the selected candidates fail to turn up, the State Government
is not bound to offer those posts to other candidates.

30.5 Insofar as the decision of the learned Single Judge in
Special Civil Application No.7912 of 2005 is concerned, it was
submitted that such decision was based on a concession made
by the Assistant Government Pleader and that it is in view of
this judgment of the learned Single Judge that the Government
thought it fit to clarify rule 17 of the Gujarat Rules of 2000, and
it is in that light that the rule 17 as amended by the 2009 rules
has to be seen.

30.6 The learned counsel further
placed reliance upon

the decision of the Supreme Court in
CIT v. Vatika Township
(P) Ltd.
, (2015) 1 SCC 1, for the proposition that legislations
which modify accrued rights or which impose obligations or
impose new duties or attach a new disability have to be
treated as prospective unless the legislative intent is clearly to
give the enactment a retrospective effect, unless the
legislation is for purpose of supplying an obvious omission in a
former legislation or to explain a former legislation. It was
submitted that in this case the list has been prepared in 2011
while the amended rule 17 which came into force in 2009 has
not affected anyone who appeared in the exam and explains
the earlier rule. Referring to the decisions relied upon on

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behalf of the respondents on the question of retrospective
operation of a statute, it was submitted that all these
judgments relate to pre-requisite qualifications wherein the
amended provision had the effect of disqualifying candidates,
who under the unamended provision were qualified, thereby
taking away their substantive right to participate in the
recruitment, whereas in the facts of the present case, the
amended rule 17 of the Gujarat Rules, does not disturb the
eligibility criteria of the candidates, and therefore, those
decisions would not be applicable to the facts of the present
case.

It was submitted that the Supreme Court in
N.T. Devin
Katti v. Karnataka Public Service Commission
(supra),
has held that a candidate on making application for a post
pursuant to an advertisement does not acquire any vested
right of selection, but if he is eligible and is otherwise qualified
in accordance with the relevant rules and the terms contained
in the advertisement, he does acquire a vested right of being
considered for selection in accordance with the rules as they
existed on the date of advertisement. He cannot be deprived
of that limited right on the amendment of the rules during the
pendency of selection unless the amended rules are
retrospective in nature. It was submitted that thus that
decision was rendered in the context of facts where
subsequently the source was changed by making the
applicants ineligible, whereas the amended rule 17 does not
change the source and therefore, has to be applied while
making the select list in 2011. It was also contended that there
is no difference between the expressions "seats advertised"

and "vacancies advertised". It was submitted that there was
no wait list even as per the earlier rules. Since there was no
wait list, the question of filling up the vacancies on account of

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non-joining of meritorious candidates does not arise as the list
has already been exhausted.

30.7 It was further submitted that insofar as the
petitioner in Special Civil Application No.11163 of 2012 is
concerned, he did not accept the post that was offered to him
and consequently, in view of sub-rule (4) of rule 9 of the
Gujarat Rules, his name stood deleted from the list of
candidates recommended by the Commission for appointment
and, therefore, the question of offering him any post does not
arise.

30.8 Insofar as the application of the decision of the
Supreme Court in the case of
Ramesh Ram
(supra) is
concerned, it was submitted that it will make no difference
whether the list is finalised by the Commission or the State
Government by applying Ramesh Ram, because there is no
concept of migration under the rules. Even if the Commission
makes the list it will have to shift a meritorious reserved
category candidate from the general category to the reserved
category if he cannot get a seat of his higher preference in the
general category.

Reference was made to paragraph 32 of the
reported decision in
Ramesh Ram
(supra), to point out that
the Supreme Court has held that to prevent an anomaly
whereby a reserved category candidate who has qualified as a
part of the general list should not be disadvantaged by being
assigned to a lower service against the vacancies in the
general category especially because if he availed the benefit of
his reserved category status, he would have got a service of a
higher preference. With the obvious intention of preventing
such an anomaly, rule 16(2) provides that an MRC candidate is

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at liberty to choose between the general quota or the
respective reserved category quota. It was submitted that
insofar as the Gujarat Rules are concerned, no one is at a
disadvantage as all the candidates are allocated posts in terms
of the order of preference given by them, and an MRC
candidate is automatically shifted to the reserved category if
he is not able to get the post of his higher preference in the
general category. It was submitted that in the facts of the
case of Ramesh Ram there is no wait list, but only a reserve
list. Moreover, the ratio of Ramesh Ram is that there cannot be
reservation of more than 50%. It was submitted that
the said
decision
does not lay down any principle of migration. It was
contended that there is no scope of migration available under
the Gujarat Rules and that the revised list has therefore, been
correctly prepared.

30.9 Lastly, it was submitted that if the two judgments in
the case of
Ramesh Ram and Mamta Bisht
(supra) are
properly applied, there is no challenge to the preparation of
the merit list on the basis of the Gujarat Rules of 2000, and,
therefore, if the court finds that the above decisions have been
properly applied while preparing the revised list, all the
petitions would fail as no other relief has been claimed.

30.10 Insofar as the maintainability of the cross objection
filed by the petitioner of Special Civil Application No.11163 of
2012 is concerned, it was submitted that the same would not
fall under Order XLI rule 22
of the Code of Civil Procedure

inasmuch as on a reading of sub-rule (1) of rule 22 together
with the Explanation thereto it is clear that the same
contemplates filing of cross objection against a finding

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recorded in a judgment wherein the decision is wholly or partly
in favour of such person; whereas in the present case the
learned Single Judge has not granted any relief in favour of the
petitioner and hence, in the absence of any decision in favour
of the petitioner, the cross objection is not maintainable.

31. In the light of the rival contentions advanced by the
learned counsel for the respective parties, the first question
that arises for consideration is whether the appellants have the
locus to prefer the present appeals?

31.1 For this purpose, it would be necessary to examine
as to whether the appellants can be said to be aggrieved by
the impugned judgment and order. While the impugned
judgment does not set aside the revised merit list which was
subject matter of challenge in the writ petitions, the learned
Single Judge has directed that the vacancies that remained
unfilled on account of non-joining of candidates be filled up
and has further directed that the decision of this court in
D.G.
Dalal
(supra) be followed. To comply with the said directions,
the respondents have resorted to reshuffling of posts by
pushing up candidates who initially were appointed on posts of
their lower preference in order of merit, to posts of their higher
preference. Accordingly, five posts of Deputy Superintendent
of Police which remained vacant as the candidates who were
appointed against such posts did not join are now sought to be
filled up. The persons who are now sought to be appointed to
these posts rank higher than the appellants in the merit list
and are, therefore, sought to be placed above the appellants
and consequently, the seniority and chances of promotion of

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the appellants is likely to be adversely affected. Significantly,
none of these persons who are sought to be placed above the
appellants had approached this court seeking any relief for
filling up the vacant posts.

These five persons are merely
beneficiaries of the directions issued by the learned Single
Judge to apply the decision of this court in
D.G. Dalal
(supra)
while filling up the vacancies, which has resulted in reshuffling
of seats to ensure that less meritorious candidates are not
placed above more meritorious candidates. It may also be
pertinent to note that these appeals are mainly defended by
the beneficiaries of the impugned judgment and order who had
neither challenged the revised merit list nor the action of the
State Government of not filling up the vacancies.

31.2 It is true that despite the fact that in their
appointment orders, it was specifically mentioned that the
same were subject to the final outcome of the petitions; the
appellants did not seek to be joined as parties therein. It,
however, appears that the appellants did not join in those
proceedings presumably because their names found place in
both the merit lists and those who had come to the court were
less meritorious candidates who were not likely to adversely
affect them in any manner. It is in the light of the wide
directions issued by the learned Single Judge to fill up all the
vacancies by offering them to the next meritorious candidates
and further to keep in view the ratio
laid down by
this court in
the case of
D.G. Dalal
(supra) while giving such appointments
as a consequence whereof the candidates who were not before
the court are sought to be placed above the appellants, that
the seniority and chances of promotion of the appellants are
adversely affected. The appellants are, therefore, directly

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affected by the implementation of the impugned judgment. A
person is said to be aggrieved by an order if that order directly
affects or prejudices his interest. Since the appellants are
directly affected and prejudiced by the impugned judgment,
consequently they are aggrieved parties and hence, it is open
for them to challenge the impugned judgment and order. The
contention that the appellants have no locus to challenge the
impugned judgment, therefore, does not merit acceptance.

31.3 Insofar as the decision of the Supreme Court in

Jasbhai Motibhai Desai v. Roshan Kumar
(supra) on which
reliance has been placed on behalf of the respondents is
concerned, the same was rendered in the facts of a case where
a rival cinema house was being set up which would adversely
affect the monopolistic commercial interest of the appellant
therein, causing pecuniary harm and loss of business from
competition. The court held that such harm or loss is not
wrongful in the eye of law, because it does not result in injury
to a legal right or a legally protected interest. The above
decision would have no applicability to the facts of the present
case, inasmuch as in service jurisprudence, anything that
adversely affects or prejudices a person's seniority or
prospects of promotion results in such person suffering from a
legal grievance.

31.4 As regards the decision of the Supreme Court in

Shiba Shankar Mohapatra v. State of Orissa
(supra)
wherein it has been held that fence-sitters cannot be allowed
to raise the dispute or challenge the validity of the order after
its conclusion
;
the said decision
would also not have any
applicability to the facts of the present case inasmuch as the

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petitioners in the writ petitions stood lower in merit than the
appellants and the reliefs prayed for did not affect the
appellants. It is on account of the directions issued by the
learned Single Judge, which are beyond the scope of the reliefs
prayed for in the petitions that the appellants have been
affected and are, therefore, aggrieved. Besides in
the above
decision
the court has held that the court exercising public law
jurisdiction does not encourage agitation of stale claims where
the right of third parties crystallises in the interregnum;
whereas in the facts of the present case third party rights are
being created on account of implementation of the directions
issued by the learned Single Judge in the impugned judgment.
The court has further held that the settled legal proposition
that emerges is that once the seniority has been fixed and it
remains in existence for a reasonable period, any challenge to
the same should not be entertained. In the present case, the
seniority of the appellants has been fixed and has remained in
existence for a reasonable period, and it is on account of the
directions issued in the impugned judgment that their seniority
is sought to be disturbed,

32. This court during the course of arguments had also
considered as to whether the impugned judgment could be
sustained without adversely affecting the appellants; however,
it is found that so long as the directions remain the same
would have a direct impact on the seniority and chances of
promotion of the appellants and hence, it is necessary to
examine the impugned order on merits. The contention that
the appellants do not have the locus standi to challenge the
impugned judgment is, therefore, rejected.

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33. Before adverting to the merits of the appeals, certain
facts are required to be noted. In paragraph 16 of the
impugned judgment and order, the learned Single Judge has
framed the following five issues:

"(1) Whether the decisions of the Supreme Court of India in
the case of Ramesh Ram and Mamta Bisht will have any
application in the recruitment in question?

(2) While following the above principles of law in the
recruitment in question, whether the actions of the State
and the GPSC are otherwise erroneous and / or
mischievous, as alleged by the petitioners?

(3) Whether any illegality is committed by the State while
giving appointments to the candidates from the
impugned revised merit list dated 26.04.2011, prepared
and published by the GPSC?

(4) Whether any ineligible person is appointed from the
impugned list and if yes, whether he / she is illegally
continued by the State in service, and for that purpose,
whether any manipulation / tampering is made with the
record by any officer, as alleged by the petitioners?

(5) After giving such appointments from the impugned merit
list dated 26.04.2011, at least 41 candidates have not
joined the service, which the State is refusing to make
available to the candidates who are next in merit, on the
basis of the very same examination, though the claim of
those next meritorious candidates is within the notified
and vacant posts. Whether this action of the State is
sustainable and / or whether the claim of the petitioners
should be accepted to the extent of notified vacant

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posts?"

34. It may be noted insofar as Issues No.3 and 4 are
concerned, the same arise out of Special Civil Application
No.8203 of 2012 and hence, are not the subject matter of
these appeals.

35. In these appeals, the court is primarily concerned with
Issues No.1, 2 and 5.

36.
In this backdrop, the next question that arises for
consideration is, whether the learned Single Judge was right in
holding that the decisions in
Ramesh Ram
(supra) and
Rajesh Daria as followed in
Mamta Bisht
(supra) were not
properly applied during the course of the recruitment process?

37. At this juncture, reference may be made to the impugned
judgment and order to see how the learned Single Judge has
dealt with this issue. The findings on the first issue are noted
under two heads. The first is qua the application of the
decision of the Supreme Court in
Ramesh Ram
(supra) and
the second is qua the application of the decision of the
Supreme Court in
Mamta Bisht
(supra).

37.1 Insofar as the first part as regards the applicability
of the decision of the Supreme Court in
Ramesh Ram
(supra)
is concerned, the learned Single Judge found that the decision
of the Constitution Bench of the Supreme Court of India is the
declaration of law, which needs to be applied with full force
and in totality even in the recruitment in question, though

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there may not be any rule like that in the State of Gujarat.

37.2 Insofar as the applicability of the decision of the
Supreme Court in
Mamta Bisht
(supra) is concerned, the
learned Single Judge first examined as to whether there was
any declaration of law in that decision and came to the
conclusion that there is no declaration of law in that decision,
but that the declaration of law can be traced in the decision of
the Supreme Court of India in the case of
Rajesh Kumar
Daria v. Rajasthan Public Service Commission
, (2007) 8
SCC 785. The learned Single Judge further held that the
decision of the Supreme Court in the case of Rajesh Daria is
the law and the same would apply to the recruitment in
question as well.
The learned Single Judge further held that the
decision of this court in Komal Katara (supra) would not have
any applicability to the recruitment in question.

37.3 In paragraph 19.6 of the impugned judgment, the
learned Single Judge held thus:-

"19.6 Considering the totality, it is held that the
decisions of the Supreme Court of India in the case of
Ramesh Ram and Rajesh Daria are the declarations of
law, which are applicable to all the recruitments and the
recruitment in question is no exception. The first issue is
thus answered in favour of the respondent Authorities."

38. As noticed earlier, the challenge to the revised list was on
two counts. Firstly, on the ground that the rules did not
contemplate revision of a list which was already published; and

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secondly, on the ground that the decision of the Supreme
Court in
Ramesh Ram
(supra) would not be applicable to the
recruitment in question and that in the light of the decision of
this court in Dr. Komal Manubhai Katara (supra) the
decision of the Supreme Court in Mamta Bisht would also not
be applicable. Insofar as the first ground is concerned, a bare
perusal of the impugned judgment reveals that such ground
has not been dealt with, despite which, the original petitioners
have not raised any grievance about the same. Insofar as the
second ground is concerned, the learned Single Judge has held
against the petitioners, but the petitioners have accepted the
said findings recorded by the learned Single Judge and have
not challenged the same.

39. The learned Single Judge then decided issues No.3 and 4
which relate to the process of appointment by the State
Government after the merit list was forwarded by the
Commission, wherein the learned Single Judge has found
several irregularities and illegalities. The learned Single Judge
in paragraph 27.1 of the impugned judgment has held that
issues No.3 and 4 need to be answered by holding that number
of illegalities in procedure and in substance - both, are
committed by the State while giving appointments to the
candidates from the revised merit list dated 26.4.2011 and
further that ineligible person(s) is appointed and for that
purpose, even manipulation and tampering is also made with
the record, which could be by some officer(s), which the State
needs to find out and deal with. Thus, it is evident that issues
No.3 and 4 relate to a stage after the forwarding of the revised
merit list by the Commission to the State Government and,
therefore, have no connection with the issue involved in the

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petitions which give rise to these letters patent appeals
wherein the validity of the merit list was subject matter of
challenge.

40.
Insofar as the findings on the first part of issue No.1 are
concerned, the learned Single Judge held that the application
of the decision of the Supreme Court in
Ramesh Ram
(supra)
could be by the State at the stage of allocation of the service
and not by the Commission while preparing the merit list.

41. At this juncture, reference may be made to the findings
recorded by the learned Single Judge in this regard, which are
extracted herein below for ready reference:

"29.5 Though there cannot be any dispute that
Ramesh Ram is the law of the land and recruitment in
question is no exception to it, the application thereof
could be by the State at the stage of allocation of the
service, and not by the GPSC while preparing the merit
list. In the present case, it is done by the GPSC and not
by the State. This is not merely an error, it has resulted
into serious consequences, without any cure thereof.
Thus, it has resulted in illegality - in procedure and in
substance, both. Breach in procedure is to the extent
that it was to be applied by the State after the
recommendations are received from GPSC, however it is
applied by the GPSC before recommendations are made
to the Government. Breach in substance is to the extent
that there is exclusion of number of candidates from the
select list on the ill-perceived application of Ramesh
Ram, though in some cases the concerned MRC had not
only not asked for it, he had specifically refused to do so.
These two aspects are interwoven and can be explained
from the following examples which are not hypothetical
but based on the impugned merits list dated 26.04.2011.

29.6 There are number of candidates, belonging to
reserved category, who got the place in the select list on
their own merits, without availing any concession and

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were thus Meritorious Reserved Category Candidate
(MRC), however they were treated to be Reserved
Category Candidate (RC) by GPSC itself by applying
Ramesh Ram, on assumption that thereby they might get
the posts of their higher preference. However, when the
recommendations were made to the Government of
those candidates, and when the appointments were
given to them by the State, ultimately those candidates
did not join the service at all. Ramesh Ram would not
come in play qua those candidates at all. This has
resulted into exclusion of few reserved category
candidates from the select list. This is the damage which
the GPSC and the State both have done to the reserved
category candidates. To elaborate this point further, it is
noted that, one candidate viz., Rohitkumar
Rameshchandra Wadhwana, Merit Rank No.76, total
Marks obtained - 638, had not availed any concession as
SEBC candidate and therefore his name was included as
general category candidate in the merit list of 2010 at
Serial No.76.(This aspect is noted in the footnote of the
2010 list.) In the impugned list dated 26.04.2011 he is
shown as SEBC candidate I.e. though he was an MRC, he
is now treated to be a reserved category candidate. This
is done by the GPSC on assumption that if he continues
to be an unreserved category candidate I.e. MRC, he may
not get Deputy Superintendent of Police, which is the
post of his first preference. Therefore he is treated as
SEBC candidate. His name therefore is included in
Annexure- III-B with the impugned list dated 26.04.2011.

The effect thereof is that resultantly, one SEBC candidate
is pushed out of the list. It is noted that the said
candidate ultimately did not join the service at all. Thus
the ratio of Ramesh Ram which was to apply at the stage
of allocation of service, that too at the option of the
concerned MRC, is forcefully applied by the GPSC though
that candidate was not to join the service at all, even if
he was to get the post of his first choice. The damage of
applying Ramesh Ram wrongly is already done and still
the cure thereof is denied by the GPSC and the State,
both. It is this situation which needs to be taken care of
by this Court. It is also noted that this example is only
illustrative and not exhaustive.

29.7 The illegality does not end there. There were many
reserved category candidates, who got the place in the
select list on their own merits without availing any

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concession and were thus Meritorious Reserved Category
Candidates (MRCs), however they were treated to be
Reserved Category Candidate (RC) by GPSC by applying
Ramesh Ram, on assumption that thereby they might get
the posts of their higher preference. However, when the
recommendations were made to the Government of
those candidates, and when in turn the appointments
were given to them by the State, actual benefit is not
passed to the deserving candidates but is siphoned away
by other candidates. For this purpose, one example is
noted in the later part of this judgment (para : 43.7).

30. From the above, the conclusion is that, though the
decision of the Supreme Court of India in the case of
Ramesh Ram will have application in the recruitment in
question also, it is unauthorisedly applied by the GPSC at
a premature stage, since it was to be applied by the
State, at the stage of allocation of service to the MRCs.
The further conclusion is also that it is applied to even
those candidates, where it was not required. The
consequence of this illegality is that it has resulted in
exclusion of many reserved category candidates from the
revised merit list dated 26.04.2011 (the impugned one),
who were already there in the first select list of the year
2010 which was qua this very recruitment."

42. It may be noted insofar the findings recorded in
paragraph 29.7 of the impugned judgment are concerned,
there is no factual basis for such findings. There is no material
whatsoever to show that any reserved category seats have
been siphoned away by any other candidate. The record of the
case shows that out of the meritorious reserved category
candidates, only one candidate did not join. Those meritorious
reserved category candidates who are allocated seats of their
higher preference in the reserved category have not raised any
grievance that they would have preferred a seat of their lower
preference in the general category; and in any case, in view of
the proviso to sub-rule (1) of rule 9 of the Gujarat Rules, since
it is not permissible to change the order of preference, a

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meritorious reserved category candidate who gets a seat of his
higher preference in the reserved category cannot refuse a
post of his higher preference and seek a post of his lower
preference in the general category.

43. As regards the second part of Issue No.1, namely the
application of the decision of the Supreme Court in
Mamta
Bisht
(supra) is concerned, the learned Single Judge held that
though the decision of the Supreme Court in the case of

Rajesh Daria
(supra) as followed in the case of Mamta Bisht
will have application in the recruitment in question also, the
action of the respondent authorities, on facts, is found less to
uphold the law, more to take advantage of it. The learned
Single Judge, accordingly, has held thus:

"33. For the above reasons, it is held that, though the
decisions of the Supreme Court of India in the case of
Ramesh Ram and Rajesh Daria (as followed in Mamta
Bisht) will have application in the recruitment in question,
as answered vide issue No.1, while following the said
principles of law, the actions of the State and the GPSC
are not only erroneous but have been mischievous. The
stand of the State and the GPSC that the impugned
action was taken by them to uphold the law, is rejected
and it is declared that it was more for their convenience
and advantage, less for upholding the law."

Thus, while holding that the decisions of the Supreme Court in
Ramesh Ram and Rajesh Daria (as followed in Mamta
Bisht) would be applicable to the recruitment in question, the
learned Single Judge has held that while following the said
principles of law, the actions of the State Government and the
Commission are erroneous and mischievous.

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44. In paragraph 35.1, the learned Single Judge has inter alia
held that since the illegality has started from the preparation
of the impugned merit list dated 26.4.2011, the correction
should also start from that stage itself. The petitions therefore,
need to be allowed by setting aside the impugned select list
dated 26.4.2011 prepared and published by the Commission.
The learned Single Judge was however of the view that the
consequences of doing so would be very far reaching and
therefore, tried to explore other options. The learned Single
Judge thought that one way which can salvage the situation to
a substantial extent is that the total number of affected
persons by the impugned action of the respondents is forty. It
has come on record that at least forty one candidates have not
joined. After referring to the details of the vacancies, the
learned Single Judge observed that relief can be granted to the
affected candidates against the unfilled notified vacancies and
that instead of setting aside all subsequent actions of the
State, direction needs to be given to the State and the
Commission to offer appointments to the next meritorious
candidates on the notified unfilled vacancies from the
advertisement in question. The learned Single Judge further
observed that while undertaking this exercise, the decision of
this court in the case of
D.G. Dalal
(supra) shall also be kept
in view.

45. Thus, insofar as the application of the decision of the
Supreme Court in
Ramesh Ram
(supra) is concerned, the
learned Single Judge has held that though that decision would
be applicable to the recruitment in question, the same has to
be applied at the stage of allocation of posts by the
Government and not at the time of preparation of the list by

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the Commission recommending names of candidates to the
extent of the advertised vacancies. The correctness of such
view has to be examined in the context of the rules applicable
to the recruitment in question, namely the Gujarat Civil
Services (Class I and Class II) Competitive Examination Rules,
2000. For this purpose, reference may be made to relevant
rules:-

46. Rule 9 of the Gujarat Rules provides for Order of
Preference and says that:

"(1) A candidates at the time of interview test shall
indicate in his own hand writing, the order of preferences
for the posts to which he desires to be considered for
appointment in such manner as may be prescribed by
the Commission:

Provided that the preference once given by the
candidate shall be treated as final and no request for
revision, addition, alteration or change in the preference
shall be entertained by the Commission or by the
Government.

(2)(a) The order of preference for the posts
indicated by the candidate shall not confer any right for
appointment to those posts. Having regard to the rank in
the order of merit and the number of posts available, the
preference given by the candidate shall be considered by
the Government at the time of his appointment.

(b) Where a candidate has not given preference
for any post, or the candidate has given preference only
for a few posts, and the number of posts for which he has
given preference are not available to accommodate the
candidate as per his preference, such candidate shall be
considered for appointment to any of the remaining posts
after the process of appointment of the other candidates,
who have given preference for all the scheduled posts, is
completed.

(3) The appointment of a candidate to a particular

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post shall be subject to the provision of recruitment rules
in force relating to that post.

(4) Where a candidate fails to join the post offered
to him, his name shall be deleted from the list of
candidates recommended by the Commission for
appointment.

(5) Where the candidate has been appointed to a
particular post, no request shall be entertained by the
Government for change of appointment to another post."

47. Thus, in terms of the sub-rule (1) of rule 9 of the Gujarat
Rules read with the proviso thereto, the candidate has to give
his order of preference at the time of interview and is not
permitted to change the same thereafter. Evidently, therefore,
allocation of seats would be in the order of preference given by
the candidate subject to availability of posts.

48. Rule 17 bears the heading "List of order of merit" and
reads thus:

"17. The names of the candidates shall be arranged by
the Commission in the order of merit on the basis of
aggregate marks finally awarded to each candidate in the
Main Examination (written) and interview test and in that
order, the Commission shall recommend the qualified
candidates for appointment to the extent of the number
of vacancies to be filled in:

Provided further that where the vacancies reserved for
candidates belonging to Scheduled Caste, Scheduled
Tribe and Socially and Educationally Backward Class,
(including Nomadic Tribes and Denotified Tribes) cannot
be filled up on the basis of the qualifying aggregate
marks fixed for general category, the Commission may
relax the standard of aggregate marks to make up the
deficiency in the reserved posts."

49. Thus, to the extent the above rule is relevant for the

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present purpose, it provides that the Commission shall prepare
a list in order of merit and recommend the qualified candidates
for appointment to the extent of the number of vacancies to be
filled in. Accordingly, in the present case, the Commission was
required to recommend names of 317 candidates in the order
of merit.

50. While recommending the names of 317 candidates, it is
not as if the Commission had to just recommend candidates in
terms of the marks obtained. While doing so, the Commission
was required to keep in view the reservation of seats for the
various categories like Scheduled Caste, Scheduled Tribe,
Socially and Educationally Backward Class, etc. as well as
reservation for women. For this purpose, the Commission was
required to ascertain as to how many reserved category
candidates would qualify for general category seats so that the
number of candidates who should be recommended in the
reserved category can be worked out. Similarly, while
computing the horizontal reservation in case of women, such
exercise was also needed to be carried out.

51. Rule 19 of the Gujarat Rules provides for "Result of
examination" and reads thus:

"(1) The Commission shall publish, in the Official
Gazette, the result of the examination in a single list of
Class-I and Class-II posts.

(2)(a) The result of the candidates, whose
names are to be recommended to the Government for
the appointment to the posts of Class-I and Class-II, shall
be arranged according to the order of merits of
candidates along with the seat number and the total
marks obtained by each of the candidates.

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(b) The Commission shall also display on its notice
board the result of unsuccessful candidates containing
the names, seat number and total marks obtained by
each of the candidates.

(3) The Commission shall send a copy of the
result so published in the Official Gazette to the
Government."

52. On a plain reading of the above rule, it is evident that it
contemplates publication of the result in a single list in the
order of merits of candidates. Clause (b) of sub-rule (2) of rule
19 of the Gujarat Rules requires the Commission to display the
result of unsuccessful candidates. The rule does not
contemplate preparation of any wait list.

53. Rule 22 provides for forwarding the result to the
Government and reads thus:

"22. The Commission, on declaration of the result shall
forward to the Government the list of candidates who are
recommended for appointment along with necessary
particulars such as whether candidate belongs to
Scheduled Castes, Scheduled Tribes or Socially and
Educationally Backward Classes including Nomadic Tribes
and Denotified Tribes" and his date of birth,
qualifications, order of preference for post and such other
particulars as the State Government may direct."

54. On a conjoint reading of rules 17, 19(2)(a) and 22 of the
Gujarat Rules, it emerges that names of candidates to the
extent of notified vacancies are required to be recommended
and the result of the candidates whose names are to be
recommended for appointment is required to be arranged in
the order of merit. The list so prepared shall contain necessary
particulars as to whether the candidate belongs to any

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reserved category, his date of birth, qualifications and order of
preference for post. Thus, the order of preference for post is
required to be indicated in the list itself.

55. It may be noted that the Gujarat Rules do not have any
rule akin to rule 16 of the Civil Services Examination Rules
which came up for interpretation in the case of
Ramesh Ram

(supra); however, it is an admitted position that the decision of
Ramesh Ram has to be applied even to this recruitment
inasmuch as the learned Single Judge has held Issue No.1 in
favour of the Government and the petitioners in the writ
petitions have not challenged such finding. The question that
then arises for consideration is the manner and the stage at
which the decision is to be applied and whether the course of
action adopted by the respondents would render the revised
list invalid.

56. A perusal of the decision of the Supreme Court in

Ramesh Ram
(supra) shows that it was the constitutional
validity of sub-rules (2) and (5) of rule 16 of the Civil Services
Examination Rules that was subject matter of challenge
therein. The court was, therefore, concerned with the validity
of those rules. Reference may be made to the relevant
extracts of
the said decision
which read as under:-

"19. The case of the contesting respondents is that the
newly introduced system which is different from the
single list system followed earlier (prior to amendment of
the CSE Rules) will undermine the rights of the reserved
category candidates to get assigned to services of higher
preference (e.g. IAS, IPS or IRS). They also urged that this
system will reduce the aggregate number of reserved
candidates who will be selected while simultaneously

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increasing the number of general candidates. It also puts
candidates who come through the second list at a
disadvantage in terms of seniority and promotions for
rest of their career in their respective services. By the
impugned order, the High Court had vindicated these
grievances, particularly those raised by OBC candidates.

20. In the light of the submissions made by the learned
counsel appearing for different appellants, the following
questions arise for consideration:

I. Whether the reserved category candidates who
were selected on merit (i.e. MRCs) and placed in the list
of general category candidates could be considered as
reserved category candidates at the time of "service
allocation"?

II. Whether Rules 16(2), (3), (4) and (5) of the CSE
Rules are inconsistent with Rule 16(1) and violative of

Articles 14
, 16(4)
and
of the Constitution of India?
III. Whether the order of the Central Administrative
Tribunal was valid to the extent that it relied on
Anurag
Patel v. U.P. Public Service Commission
, (2005) 9 SCC
742 (which in turn had referred to the judgment in
Ritesh
R. Sah v. Dr. Y.L. Yamul
, (1996) 3 SCC 253, which dealt
with reservations for the purpose of admission to
postgraduate medical courses); and whether the
principles followed for reservations in admissions to
educational institutions can be applied to examine the
constitutionality of a policy that deals with reservation in
civil services."

"35. The learned counsel for the respondent questioned
the rationale of declaring CSE results in two phases in
order to support the proposition that even if MRC
candidates are given a service of a higher preference,
they should not oust lower-ranked reserved category
candidates. However, Rule 16(2) should not be
interpreted in an isolated manner since it was designed
to protect the interests of MRC candidates. MRC
candidates having indicated their status as SC/ST/OBC at
the time of application, begin their participation in the
examination process as reserved candidates. Having
qualified as per the general qualifying standard, they
have the additional option of opting out of the reserved
category and occupying a general post. Where, however,
they are able to secure a better post in the reserved list

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their placement in the general list should not deprive
them of the same. In that respect, the adjustment
referred to in Rule 16(2) does not, in fact, denote any
change in the status of MRC from general to reserved. To
the contrary, it is an affirmation of the reserved status of
MRC candidate. Rule 16(2) exists to protect this reserved
status of the MRC candidates.

36. We must also take note of the fact that when MRC
candidates get adjusted against the reserved category,
the same creates corresponding vacancies in the general
merit list (since MRC candidates are on both lists). These
vacancies are of course filled up by general candidates.
Likewise, when MRC candidates are subsequently
adjusted against the general category [i.e. without
availing the benefit of Rule 16(2)], the same will result in
vacancies in the reserved category which must in turn be
filled up by wait-listed reserved candidates. Moreover,
the operation of Rule 16 does not result in the ouster of
any of the candidates recommended in the first list. Many
of the wait-listed candidates are accommodated in the
second stage, and the relatively lower ranked wait-listed
candidates are excluded. It is pertinent to note that these
excluded candidates never had any absolute right to
recruitment or even any expectation that they would be
recruited. Their chances depend on how MRC candidates
are adjusted."

"42. Therefore, we are of the firm opinion that MRC
candidates who avail the benefit of Rule 16(2) and are
eventually adjusted in the reserved category should be
counted as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats
vacated by MRC candidates in the general pool will
therefore be offered to general category candidates. This
is the only viable solution since allotting these general
category seats (vacated by MRC candidates) to relatively
lower-ranked reserved category candidates would result
in aggregate reservations exceeding 50% of the total
number of available seats. Hence, we see no hurdle to
the migration of MRC candidates to the reserved
category."

"59. On behalf of the respondents in the appeals, it was
submitted that Rules 16(2), (3), (4) & (5) infringes Article

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16(4). We do not accept this proposition since Rule 16(2)
and the subsequent sub-rules merely recognise and
advance inter se merit among the reserved category
candidates in the manner that has been demonstrated
before us by the learned Solicitor General. Therefore,
Rule 16 protects the interests of a reserved category
candidate selected in the general (unreserved) category
by giving him the option either to retain his position in
the open merit category or to be considered for a
vacancy in the reserved category, if it is more
advantageous to him/her.

60. The need for incorporating such a provision is to
arrest arbitrariness and to protect the interests of the
meritorious reserved category candidates. If such rule is
declared redundant and unconstitutional vis-à-vis
Articles
, 16
and
then the whole object of equality clause
in the Constitution would be frustrated and MRC
candidates selected as per the general qualifying
standard would be disadvantaged since the candidate of
his/her category who is below him/her in the merit list,
may by availing the benefits of reservation attain a
better service when allocation of services is made. Rule
16 in essence and spirit protects the pledge outlined in
the Preamble of the Constitution which conceives of
equality of status and opportunity."

57. At this juncture, reference may be made to the
averments made in the affidavit-in-reply of the Commission
wherein the manner in which the second list has been
prepared has been set out. It has been averred therein that the
first list was prepared by applying the decision of this court in
Komal Katara (supra) that is, on a misunderstanding that the
female candidates making it to the merit list on their own merit
without availing any benefit of female reservation were not to
be counted towards female reservation and that only those
female candidates who were included in the merit list by
relaxing the general merit standard were to be counted
towards female reservation. Out of the 317 vacancies, 101

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were earmarked for female candidates in addition to the
female candidates who were otherwise finding place in the
merit list generally in the respective category. Accordingly, 28
female candidates who had found place in the list on their own
merit were not taken into account and were excluded from the
female reservation quota and thereafter 28 female candidates
were pushed up from the different categories by relaxing the
minimum merit standard for each such category of female
candidates and placed in the merit list. This resulted in 128
female candidates getting into the merit list against a total 101
vacancies for female reservation.

57.1 It is further averred that while implementing the
decision of the Supreme Court in
Rajesh Daria
(supra), 28
female candidates who found place in the list on their own
merit were also counted towards the women's reservation
quota of 101 and consequently, 28 female candidates were
pushed out in the second list. It is further averred that as many
as 17 MRC candidates have been offered more preferred posts
in conformity with the decision of the Supreme Court in
Ramesh Ram.

58.
In the aforesaid backdrop, having regard to the Gujarat
Rules of 2000 which govern the recruitment in question, what
is required to be examined is as to how the principles
laid
down in

Ramesh Ram and Rajesh Daria
(supra) can be
applied to the recruitment in question.

59. At this juncture, reference may be made the procedure
provided under rule 16 of the Civil Services Examination Rules
as referred to in the decision of the Supreme Court in Ramesh

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Ram (supra). The court observed thus:

"Proviso to sub-rule (1) lays down that a candidate who
belongs to the SC, ST and OBC categories and who has
qualified on his own in the merit list shall not be
recommended against the vacancies reserved for such
classes if such candidate has not availed of any of the
concessions or relaxations in the eligibility or the
selection criteria. The other sub-rules provide as to how
meritorious reserved category candidates are to be
adjusted and once they get services of their preference
after availing the benefit of their reserved status (as SC,
ST, OBC or any other applicable category), the
candidates whose names are in the consolidated reserve
lists are to be subsequently adjusted. The consolidated
wait list includes the candidates from general category
and reserved category. If an MRC candidate who belongs
to OBC category has availed the benefit of his status for
better service allocation then the seat vacated by him
will go to a general category candidate. If he chooses not
to avail the benefits of special status then he would be
counted in general category and the seat vacated by him
in the reserved category will automatically go to a
candidate who belongs to the same reserved category.

As already explained, the current process entails
that a reserved candidate, although having done well
enough in the examination to have qualified in the open
category, does not automatically rescind his/her right to
a post in the reserved category."

60. A perusal of the above decision reveals that rule 16 of the
CSE Rules provided for two lists; one general category list
which includes the meritorious reserved category candidates
and the other a reserved category list with equal number of
names of general category and reserved category candidates
to the extent of the number of meritorious reserved category
candidates included in the general category list are included. If
a meritorious reserved category candidate who belongs to the
OBC category has availed the benefit of his status for better

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service allocation, then the seat vacated by him will go to a
general category candidate. If he chooses not to avail the
benefits of special status then he would be counted in general
category and the seat vacated by him in the reserved category
will automatically go to a candidate who belongs to the same
reserved category.

61. Thus, while the Civil Services Examination Rules
specifically makes provision for a reserved list so as to meet
with the situation of migration of meritorious reserved
category candidates to the reserved category, in the Gujarat
Rules there is no similar provision.
In the absence of such a
provision, what could be the mode of application of the ratio of
the decision of the Supreme Court in
Ramesh Ram
(supra) is
the question. However, one thing is clear, namely that, the
decision does not lay down any ratio to the effect that
preference has to be considered at the stage of allotment of
post by the Government.

62. In this backdrop, it may be noted that in view of the
provisions of rule 9 of the Gujarat Rules, the order of
preference has to be given by a candidate at the time of
interview test which shall be treated as final and no request for
revision, addition, alteration or change therein shall be
entertained by the Commission or the State Government.
Therefore, once a candidate gives his order of preference, he is
bound by it and cannot change it even at the stage of
allocation of posts. Therefore, in case of a meritorious reserved
category candidate, if he is in a position to get a general
category post of his higher choice, he is required to be
considered against such post. In case he is in a position to get

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a post of his higher preference in the reserved category, he
has to be considered against such post in which case, his
status would be that of a reserved category candidate.
Therefore, to that extent one seat in the reserved category
gets reduced and one seat in the general category gets
increased. Now if this exercise is carried out at the stage of
allocation, if a meritorious reserved category candidate has to
be allotted a reserved category seat, then one general
category seat would remain vacant and one reserved category
candidate from the list of names recommended by the
Commission would be required to be pushed out creating an
incongruous situation in the absence of any reserved list of
candidates. Therefore, considering the scheme of the Gujarat
Rules, which do not provide for exercise of any option at the
stage of allotment of posts and which do not permit change of
order of preference, the course of action adopted by the
respondents whereby the Commission has prepared the list by
considering the preferences given by the meritorious reserved
category candidates appears to be the most appropriate
manner of implementing the decision of the Supreme Court in

Ramesh Ram
(supra).

63. A perusal of the select list shows that it has been
prepared by the Commission on an application of the decisions
of the Supreme Court in
Ramesh Ram and Mamta Bisht

(supra). For the purpose of applying Ramesh Ram, the
Commission has taken into consideration the order of
preference given by the candidates and where a meritorious
reserved category candidate is not in a position to get the post
of his first preference in the general category, he has been
considered against the reserved post of his higher preference.

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Significantly, none of the meritorious reserved category
candidates have challenged the course of action adopted by
the respondents nor has any such candidate raised a grievance
that he was forced to migrate to a reserved seat on a post of
his higher preference though he would have preferred to have
retained a post of lower preference in the general category.
Except for the fact that some reserved category candidates
have not joined service at all, which would have been possible
even if preferences were considered at the stage of allocation
of posts by the Government, no prejudice can be said to have
caused to anyone on account of the decision of Ramesh Ram
being implemented at the stage of preparation of list by the
Commission. Besides, as noted hereinabove, as the rules do
not provide for a wait list, preparing the list of recommended
candidates by applying Ramesh Ram at the stage of
preparation of list, results in less posts remaining vacant,
inasmuch as it is only in such cases where the candidates do
not join that the posts would remain vacant, whereas if
Ramesh Ram were to be considered at the stage of allocation
of posts by the Government, the list of recommended
candidates would have to be prepared by considering all
meritorious reserved category candidates in the general
category and when any such candidate opts for a post of his
higher preference in the reserved category, a reserved
category candidate would have to be taken out of the list as
such post would be then required to be filled in by a general
category candidate, but the number of general category
candidates in the list of recommended candidates would not
be sufficient to fill up such general category posts, which would
result in such posts remaining vacant and additionally posts
would also remain vacant on account of non-joining of

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candidates. For example if there are a 100 general category
posts and in the list of 100 recommended candidates, there
are 80 general category candidates and 20 meritorious
reserved category candidates. Out of the 20 meritorious
reserved candidates, 12 opt for reserved category posts of
their higher preference, as a result of which 12 general
category posts would be required to be filled up by general
category candidates. Therefore, in all, the number of posts that
are required to be filled up by general category candidates
would go up to that extent, viz. 80 + 12 general category
posts, but the list contains only 80 general category
candidates, as a result of which the 12 posts would remain
vacant as there is no provision for a wait list or reserved list.
Furthermore, the last 12 reserved category candidates from
the list of recommended candidates would have to be pushed
out of the list as no reserved category posts would be available
for allocation. Apart from this there might be candidates, who,
after allocation of posts may not join service, which would
result in such posts also remaining vacant. Therefore, applying
Ramesh Ram at the stage of allocation of posts would result
in more posts remaining unfilled than by applying the decision
at the stage of preparation of the list of recommended
candidates.
In the aforesaid premise, having regard to the
existing rules, no infirmity can be found in the course of action
adopted by the State Government and the Commission in
applying
Ramesh Ram
(supra) at the stage of preparation of
the list of recommended candidates.

64. In this case, the rules do not provide for preparation of a
wait list and hence, once the entire list of the names
recommended by the Commission to the extent of vacancies

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notified is operated, there is no other list from which further
appointments can be made, inasmuch as the rules
contemplate a list of candidates recommended for the posts to
the extent of vacancies and a list of unsuccessful candidates.
Accordingly, the posts that remained vacant on account of
non-joining of candidates could not be filled in as the list had
been exhausted. It is for this reason that about 41 seats
remained vacant.

65.
Insofar as the application of the decision of the Supreme
Court in the case of Mamta Bisht is concerned, which
basically follows the decision of the Supreme Court in
Rajesh
Daria
(supra), no infirmity has been pointed out by any of the
learned counsel for the respondents regarding the application
thereof. It is nobody's case that the decision of the Supreme
Court in the case of Mamta Bisht is required to be applied at
the stage of allocation of posts.

In
Rajesh Daria
(supra), the
Supreme Court has held that social reservations in favour of
SC, ST and OBC under
Article 16(4)
are "vertical reservations".
Special reservations in favour of physically handicapped,
women, etc. under
Articles 16(1)
and
15(3)
are "horizontal
reservations". Where a vertical reservation is made in favour of
a Backward Class under
Article 16(4)
, the candidates belonging
to such Backward Class, may compete for non-reserved posts
and if they are appointed to the non-reserved posts on their
own merit, their number will not be counted against the quota
reserved for the respective Backward Class. Therefore, if the
number of SC candidates, who by their own merit, get selected
to open competition vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates, it cannot be
said that the reservation quota for SCs stood filled. The entire

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reservation quota will be intact and available in addition to
those selected under open competition category. But the said
principle applicable to vertical (social) reservations will not
apply to horizontal (special) reservations. Where a special
reservation for women is provided within the social reservation
for SCs, the proper procedure is first to fill up the quota for SCs
in order of merit and then find out the number of candidates
among them who belong to the special reservation group of
"Scheduled Caste women". If the number of women in such list
is equal to or more than the number of special reservation
quota, then there is no need for further selection towards the
special reservation quota. Only if there is any shortfall, the
requisite number of Scheduled Caste women shall have to be
taken by deleting the corresponding number of candidates
from the bottom of the list relating to Scheduled Castes. To
this extent, horizontal (special) reservation differs from vertical
(social) reservation. Thus women selected on merit within the
vertical quota will be counted against the horizontal
reservation for women.

66.
In the facts of the present case, while preparing the first
list the Commission had applied the decision of this court in
Komal Katara (supra), which is contrary to the decision of the
Supreme Court in
Rajesh Daria
(supra) and while preparing
the revised list they have followed the decision of the Supreme
Court in Rajesh Daria, as a result of which, 28 female
candidates at the bottom of the first list whose names found
place therein on account of application of the decision of this
court in Komal Katara (supra) were pushed out of the revised
list.

It is not the case of any of the respondents that the
decision of the Supreme Court in
Mamta Bisht
(supra) cannot

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be applied at the stage of preparation of the list of
recommended candidates. Strong reliance has been placed
upon the findings of illegalities and irregularities in the
recruitment process as recorded by the learned Single Judge in
the impugned judgment; however, no infirmity has been
pointed out as regards the application of the decision of the
Supreme Court in the case of Mamta Bisht while preparing
the list of recommended candidates.

67. The learned Single Judge, in the impugned judgment, has
referred to various instances wherein the decision of the
Supreme Court in the case of
Rajesh Daria
(supra) as
followed in the case of Mamta Bisht has not been followed by
the Commission imputing mala fides in applying the decision in
the present case. It is also observed that Mamta Bisht is
sought to be relied upon mala fide only because it was
rendered in 2010 after the merit list was prepared though the
decision of the Supreme Court in Rajesh Daria was already
holding the field and was not followed while preparing the first
merit list.

The learned Single Judge while holding that the
decision of Supreme Court in
Mamta Bisht
(supra) would be
applicable to the recruitment in question, has alleged selective
implementation of the law by the Commission; however no
specific findings as regards the correctness or otherwise of the
application of
the said decision
have been recorded. This issue
has been lost sight in the spate of allegations and imputations
of mala fides. Thus, the learned Single Judge has recorded a
finding that the decision of the Supreme Court in Rajesh
Daria as followed in Mamta Bisht would be applicable to the
recruitment in question, which finding has not been called in
question by the respondents. Nothing has been pointed out

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before this court to show that such decision has been wrongly
applied by the Commission at the time of preparation of the
list of recommended candidates.

Under the circumstances, in
the absence of any infirmity in the application of the decision
of the Supreme Court in
Mamta Bisht
(supra) at the time of
preparation of the list of recommended candidates, those
candidates who have been pushed out on account of
application of
the said decision
while preparing the revised list
are not entitled to the grant of any relief.

Therefore, those
original petitioners who had approached this court challenging
the revised list on the ground of application of the decision of
the Supreme Court in
Mamta Bisht
(supra) not being entitled
to the grant of any relief, the question of issuing directions to
fill up vacant seats to that extent did not arise.

68. A perusal of the impugned judgment and order reveals
that the learned Single Judge has not examined as to what is
the prejudice caused to the petitioners on account of applying
the decisions of
Ramesh Ram and Rajesh Daria
(supra) at
the stage of preparation of the list of recommended candidates
by the Commission and as to which of the petitioners were
affected by such action. It may be noted that it is the
petitioners in the captioned petitions who had approached this
court contending that their names were illegally removed from
the revised list on a wrong application of the decisions of the
Supreme Court in Ramesh Ram and Mamta Bisht. Therefore,
what was required to be examined was whether the decisions
were properly applied and if not which of the petitioners were
affected by such improper application, and it is these
petitioners alone, who could have been granted relief by the
learned Single Judge.

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69. In the light of the above discussion, this court finds that
the learned Single Judge has answered Issue No.1 correctly.
However, insofar as Issue No.2 is concerned, for the reasons
recorded hereinabove, this court cannot bring itself to agree
with the learned Single Judge that
Ramesh Ram
(supra) has
to be applied at the stage of allocation of posts and that

Mamta Bisht
(supra) has been applied mala fide. In the light
of the above discussion, the actions of the State and the
Commission cannot be said to be erroneous. Insofar as the
actions of the State and the Commission being mischievous
are concerned, in the opinion of this court, when no such
allegation was made in any of the petitions, the learned Single
Judge was not justified in suo motu embarking upon an inquiry
on the basis of the record produced before him in a petition
which was heard along with the captioned petitions and
wherein there were allegations of mala fide and tampering etc.
in the process of allocation of posts. Moreover, the judgment of
the learned Single Judge in Special Civil Application No. 8203 of
2017, wherein there were allegations of illegalities,
irregularities and mala fide has already been set aside by a co-
ordinate bench by a judgment and order dated 20/21.12.2017
passed in Letters Patent Appeal No.727 of 2017.

Assuming for
the sake of argument that the Government and the
Commission have selectively applied the decision of the
Supreme Court in
Mamta Bisht
(supra), even then, once a
finding is recorded that the principles laid down therein would
be applicable to the present recruitment, merely because in
other cases such decision has not been applied would not
vitiate the revised list.

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70. Next, it may be noted that the learned Single Judge has
after finding that the impugned revised list is invalid, tried to
simplify the matter by directing that as there are forty affected
persons and forty-one vacancies, the same may be filled up by
offering the same to the next meritorious candidates and
further to apply the decision of this court in
D.G. Dalal
(supra)
while doing so. It may be noted that in this case the
appointments have been made in the year 2011 and six years
have elapsed thereafter.

While implementing the decision of
this court in
D.G. Dalal
(supra) the respondents are required
to carry out reshuffling for the purpose of ensuring that less
meritorious candidates are not placed above the candidates
who are higher in merit, on account of which, several
complications have arisen. Moreover, instead of the original
petitioners getting relief, candidates who at no point of time
had raised any grievance are getting the benefit of the
judgment.

71. The learned Single Judge has held that the notified
vacancies in the advertisement in question which have
remained unfilled because of non-joining of candidates need to
be filled up by the State by offering them to the next
meritorious candidates. On behalf of the respondents, viz., the
original petitioners as well as the beneficiaries of the impugned
judgment, it has been contended that in the absence of the
State having taken a conscious decision not to fill up the
vacancies, such vacancies are required to be filled up. In this
regard, a perusal of the reliefs prayed for in the writ petition
shows that the writ petitioners had challenged the select list
dated 26.4.2011 and had sought a direction to the respondents
to operate and implement the final select list dated 13.5.2010

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and to give the petitioners appointments accordingly. Except
for the petitioner in Special Civil application No.11163 of 2012,
none of the petitioners had come before this court seeking
filling up of the vacancies arising out of non-joining of
candidates. However, the learned Single Judge upon finding
that the impugned revised list requires to be set aside, has
instead of disturbing the appointments already made has
maintained the list as it is, but has issued directions for filling
up the posts that remained vacant on account of non-joining of
candidates. Therefore, when in the light of what is discussed
hereinabove, this court has upheld the validity of the
impugned revised list, the question of filling up the vacancies
as directed by the learned Single Judge would not arise.
Moreover, as noticed earlier, the rules contemplate preparation
of single list whereby names of the candidates are required to
be recommended by the Commission to the extent of the
vacancies advertised. The names of rest of the candidates
would find place in the list of unsuccessful candidates.
Therefore, if there are any vacancies on account of non-joining
of candidates, there is no other list on which the respondents
could fall back upon for the purpose of filling up of such
vacancies.

72. in the opinion of this court, rule 17 as substituted by the
Amending Rules of 2009 only makes explicit what was implicit
in the existing rule 17, namely that there shall be no waiting
list. Therefore, the question as to whether the amended rule
17 of the Gujarat Rules would operate prospectively or
retrospectively does not require to be gone into. Besides, as
rightly pointed out by the learned counsel for the appellants,
the decisions relied upon by the learned counsel for the

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respondents on the prospective operation of the rules have all
been rendered in the context of facts where the rules changed
the eligibility criteria for appointment to a post, which made
the candidates ineligible for such post thereby affecting their
substantive right to be considered for appointment, which is
not so in the present case. However, it is not necessary to
dwell any further on this issue.

73. Insofar as the other illegalities and irregularities referred
to in the impugned judgment on the basis of the original
Government record is concerned, the same relate to the stage
of making appointment and have no relevance insofar as the
preparation of revised merit list is concerned. Besides as
noticed earlier, the record was produced by the Government as
it sought to rely upon the same in the case of Reema Munshi,
the petitioner in Special Civil Application No.8203 of 2012,
whose appointment was under challenge and against whom a
writ of quo warranto was sought from the court. All the
observations in relation to Issues No.3 and 4 primarily relate to
the said case. It may be recalled that the decision of the
learned Single Judge to the extent of that writ petition was
called in question by the said candidate by filing an appeal
before this court and a Division Bench of this court by a
judgment and order dated 20/21.12.2017 rendered in Letters
Patent Appeal No.727 of 2017 allowed the letters patent
appeal and set aside the directions of the learned Single Judge
that the appellant original respondent No.4 shall vacate the
post of Deputy Superintendent of Police. Therefore, the
question of relying upon the same in the context of the other
writ petitioners does not arise. In case if at the stage of
allotment any illegality has been committed, it is for the

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individual affected candidate to raise such grievance. In this
case, the court is concerned with the validity of revised merit
list and the observations of illegalities and irregularities in the
manner of appointment which is subsequent to the preparation
of the revised list have no relevance.

74. The contention that the appellants cannot be said to be
aggrieved as no less meritorious candidate has been placed
above the appellants on account of operation of the impugned
judgment, loses sight of the fact that no more meritorious
candidate had challenged the select list or come to the court
seeking a relief that the vacancies be filled in. Therefore, for
years together the appellants have been placed on the
seniority list in a particular order which would be disturbed if
anyone is placed above them, even if they be more meritorious
candidates.

75.
In all these petitions, the petitioners in their individual
capacity have come before this court challenging the revised
list whereby their names which found place in the first list
stood excluded on account of application of the decisions of
the Supreme Court in
Ramesh Ram and Rajesh Daria

(supra). The scope of the petitions, therefore, was restricted to
the validity of the revised list and the grant of relief to the
petitioners therein. Therefore, what was to be examined was
whether the petitioners were entitled to any relief. If any of the
petitioners was wrongly excluded from the list, he or she would
have been entitled to the grant of relief. However, in the
absence of any finding that any of the petitioners was wrongly
excluded from the merit list, the course of action adopted by
the learned Single Judge was not permissible. In any case,

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relief could be granted to the petitioners who had come before
the court, and no general directions could have been issued in
the manner as has been done which results in mass reshuffling
at this stage and filling up of seats by candidates who had not
come before this court, the implementation whereof has given
rise to umpteen number of petitions. The learned Single Judge,
by issuing such general directions, and not restricting the
reliefs to the petitioners alone, has literally opened a Pandora's
Box. The impugned judgment and order passed by the learned
Single Judge, therefore, cannot be sustained.

76. Insofar as the petitioner in Special Civil Application
No.11163 of 2012 is concerned, at the outset, it may be noted
that the learned Single Judge in paragraph 9 of the judgment
has referred to the submission of the learned counsel for the
petitioner. In paragraph 12.2, the response thereto by the
learned Advocate General has been recorded thus:

"12.2 Replying to the case the petitioners of Special
Civil Application No.11163 of 2012, learned advocate
general has submitted that the said petitioner could not
have been offered the post of Dy.S.P. since he was not
within the zone of merit, at the time of allotment. It is
submitted that if the candidate appointed does not join,
the said post is not made available to any other
candidate and the same is carried to the next
advertisement. It is further submitted that the said post
even otherwise, can not go to this petitioner, since there
are many more persons above him in the merit list. It is
submitted that this petition also be dismissed."

77. However, thereafter there is no discussion as regards the
merits or otherwise of the case and no relief has been
specifically granted to the petitioner and his petition appears
to have been answered along with the remaining petitioners by

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issuing directions to fill in the vacancies by offering the posts
to the next meritorious candidates in the recruitment in
question keeping in mind the ratio
laid down by
this court in
the case of
D.G. Dalal
(supra). From the averments made in
the affidavit-in-reply filed on behalf of the respondents, it
emerges that the petitioner is not the next meritorious
candidate insofar as the post of Deputy Superintendent of
Police SEBC Male is concerned, and there are SEBC Male
candidates who had given first preference for this post who are
more meritorious than this petitioner. In the impugned
judgment, the learned Single Judge has not considered the
case of the petitioner separately, though the same stood on a
different footing, inasmuch as the said petitioner had not
challenged the revised merit list but had sought a direction to
the respondents to forthwith appoint him to the post of Deputy
Superintendent of Police Class I as SEBC Male candidate on the
vacancy arising due to non-joining of one SEBC Male candidate
Mr. Vadhvana Rohikumar Rameshchandra. However, all the
petitions have been decided by giving common directions to
the respondents to fill up the vacant posts by offering them to
the next meritorious candidates in the recruitment in question
keeping in mind the
ratio
laid down in
D.G. Dalal. Therefore,
strictly speaking, it cannot be said that the petition has been
dismissed or that the relief prayed for has been turned down. If
the petitioner was the next meritorious candidate insofar as
the post of Deputy Superintendent of Police SEBC Male is
concerned, in terms of the said directions, he would have been
entitled to appointment to that post. Besides, it is the
appellants who have filed this appeal challenging the order
passed on this petition. If no relief had been granted to the
petitioner, there was no question of the appellants herein

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being aggrieved so as to prefer an appeal against the order
passed in the said petition. Therefore, the contention that
unless there is an order passed in favour of the petitioner, he
cannot file cross-objection does not merit acceptance. In this
factual background, it is not necessary to refer to the various
decisions relied upon by the learned counsel for the respective
parties on the maintainability of the cross objection.

78. Examining the case of this petitioner on merits, there are
two impediments to the grant of relief prayed for by him:

firstly, that he is not the next meritorious candidate insofar as
the post of Deputy Superintendent of Police SEBC Male is
concerned; and secondly, sub-rule (4) of rule 9 of the Gujarat
Rules, provides that where a candidate fails to join the post
offered to him, his name shall stand deleted from the list of
candidates recommended by the Commission for appointment.

79. Insofar as the first issue is concerned, it has been
contended that the candidates who are placed above the
petitioners on merit, have not approached this court and when
it is the petitioner alone who has staked claim to such vacancy,
it is he alone who should be considered; and in view of the
clear vacancy, he should be given the appointment.

80. Insofar as the candidates placed higher in merit than the
petitioner who have not approached this court seeking any
relief are concerned, in the opinion of this court, the learned
counsel for the petitioner is justified in contending that no
relief can be granted to them.
In
Ashok v. State of
Karnataka
, (1992) 1 SCC 28, before the Supreme Court the
K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 were

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challenged on the ground that the percentage of marks for
viva voce as 33.3% were excessive and in violation of the
decisions of the Supreme Court.

The court held that 50 marks
for interview out of 150 are clearly in violation of the judgment
of that court in
Ashok Kumar Yadav v. State of Haryana
, (
1985)
4 SCC 417, and Mohinder Sain Garg v. State of Punjab
, (1991)
1 SCC 662. The court after examining the record of the
Selection Committee, found that a large number of candidates
had been selected though they had secured much lesser
marks than the appellants in the qualifying examination but
had secured very high marks in the viva voce out of 50 marks
kept for this purpose. The court further found that it was an
admitted position that if the marks for interview were kept
even at 15 per cent of the total marks and merit list was
prepared accordingly, then both the appellants were bound to
be selected and a large number of selected candidates would
have gone much lower in the merit list than the appellants. In
view of the fact that the result of the impugned selections was
declared in 1987 and the selected candidates have already
joined the posts, the court did not consider it just and proper to
quash the selections on the above ground. The court held that
however, the rules were clearly in violation of the dictum
laid
down by
it in the above referred cases and in case the marks
for viva voce would have been kept say at 15 per cent of the
total marks, the appellants before it were bound to be selected
on the basis of marks secured by them in interview, calculated
on the basis of converting the same to 15 per cent of the total
marks. Accordingly, the appeal came to be allowed with a
direction to the respondents to give appointments to the two
appellants in case they are found suitable in all other respects
according to the rules. The learned counsel appearing on

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behalf of the State of Karnataka pointed out that there are
many other candidates who had secured much higher marks
than the appellants in case the above criteria is applied for
selection. The Supreme Court observed that in view of the fact
that appointments under the impugned rules were made as
back as in 1987 and only the appellants therein had
approached the Tribunal for relief, the case of other candidates
cannot be considered as they never approached for redress
within reasonable time. The court was thus inclined to grant
relief only to the appellants therein who were vigilant in
making grievance and approaching the Tribunal in time.

81. Thus, in the above judgment, the Supreme Court found
that admittedly if the marks secured by the appellants therein
were calculated in consonance with the decisions referred to
therein, both of them were bound to be selected. It is in this
background that the relief came to be granted to those
appellants. At the same time, the court confined the relief to
the appellants therein, despite the fact that there were more
meritorious candidates available on the ground that they had
never approached for redress within reasonable time.

82. The above decision would be squarely applicable to the
facts of the present case, and accordingly, those candidates
who were more meritorious than the petitioner could not have
been granted any relief as they had never approached for
redress within reasonable time. At the same time, it may be
noted that
in that case
, the court found that both the
appellants were bound to be selected if the principles
laid
down in
the earlier decisions had been followed, which is not
so in the present case. The petitioner herein was not bound to

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be selected inasmuch as, there was one vacant post of Deputy
Superintendent of Police SEBC Male and there were several
candidates who were ranked higher in merit than him.

83. Moreover, in this case, as averred in paragraph 3 of the
memorandum of petition, the petitioner was offered
appointment as DILR (District Inspector of Land Records) Class-
II by the Revenue Department by a notification dated 6.5.2011.
However, the petitioner did not want to accept the said Class-II
post and, therefore, he did not join the service as DILR Class-II.
The Revenue Department addressed a letter dated 19.5.2011
to the petitioner informing him that if he would not join duty as
DILR Class II on or before 31.5.2011, his appointment as such
would be cancelled. In response thereto, the petitioner
addressed a letter dated 23.5.2011 stating that at the time of
oral interview when the preference was asked for, he had
given preference only for the Class-I posts of (1) Dy. S.P., (2)
District Registrar and (3) Superintendent, Prohibition and
Excise. The petitioner had not given preference for any post of
Class-II. The petitioner had also requested that in the event of
any vacancy in Class-I, the petitioner may be issued
appointment order but he was not interested in appointment
as DILR Class II.

84. Thus, though offered a post, the petitioner failed to join
the same. Sub-rule (2)(b) of rule 9 of the Gujarat Rules
provides that where a candidate has not given preference for
any post, or the candidate has given preference only for a few
posts, and the number of posts for which he has given
preference are not available to accommodate the candidate as
per his preference, such candidate shall be considered for

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appointment to any of the remaining posts after the process of
appointment of other candidates, who have given preference
for all the scheduled posts, is completed. Thus, though the
petitioner had given preference for only Class-I posts, as no
post of his preference was available, he was offered the post of
DILR Class-II.

85. Sub-rule (4) of rule 9 of the Gujarat Rules provides that
where a candidate fails to join the post offered to him, his
name shall be deleted from the list of candidates
recommended by the Commission for appointment. Thus, by
operation of sub-rule (4) of rule 9 of the Gujarat Rules, the
petitioner, having failed to join the post offered to him, his
name stood deleted from the list of candidates. Once his name
stood deleted from the list of recommended candidates, even
otherwise the question of offering him appointment against
any subsequent vacancy would not arise. Therefore, on both
counts, the cross objection must fail, namely, the petitioner not
being the next meritorious candidate was not otherwise
entitled to be appointed to the post; and apart from the fact
that the rules do not contemplate filling up vacancies arising
on account of non-joining of candidates, the name of the
petitioner having been deleted from the list of recommended
candidates, the question of considering him for appointment
on any subsequent vacancy does not arise.

86. In the light of the above discussion, the appeals succeed
and are, accordingly, allowed. The impugned judgment and
order passed by the learned Single Judge in the captioned
petitions, is hereby quashed and set aside. Cross-Objection
No.82 of 2018 fails and is hereby dismissed.

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87. Before parting, it may be noted that admittedly the
principles enunciated by the Supreme Court in Ramesh Ram
and Rajesh Daria as followed in
Mamta Bisht
(supra) are
required to be followed by the State Government for the
purpose of recruitment. However, under the existing rules the
implementation of such decisions gives rise to several
difficulties as is apparent from the complications that have
arisen in the present case, which also result in advertised posts
being left vacant. Therefore, the State Government would be
well advised to amend the rules so as to obviate such
difficulties in future.

88. In the light of the order passed in the main appeals, the
civil applications for stay do not survive and are, accordingly,
disposed of.

(HARSHA DEVANI, J)

(A. P. THAKER, J)
Z.G. SHAIKH

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