R K JHALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has challenged the appointment order dated May 27, 1980 at Annexure "a" to the petition appointing respondent No. 3, Shri Devendra kumar Mavjibhai Makwana, as Assistant Regional Transport Officer on probation for a period of two years from the date of his taking over charge in the office of the Regional Transport Officer, Ahmedabad. The grievance of the petitioner is that the petitioner, though duly qualified and selected by the Gujarat Public Service Commission, respondent No. 4 herein, has not been appointed by the respondent No. 1, The petitioner was selected by the Gujarat Public Service Commission for the post of Assistant Regional Transport Officer (for short "arid") in August 1978, The said select-list was to be valid for a period of two years and as such the select-list was to expire on August 27, 1980 as per the Government Circular dated April 4, 1979. It is the case of the petitioner that he was selected along with two other candidates, namely, Messrs M. S. Parmarand Padamsing S. Patel, who were given appointments to the posts of ARTOs before expiry of the said select-list. According to the petitioner, the respondent No. 3, who was previously selected by GPSC as a candidate for the post of ARTO, was appointed by the impugned order, at Annexure "a", though the said select-list had expired in May 1978.

(2.) IT is not in dispute that Mr. D. M. Makwana, respondent No. 3 herein, had preferred Special Civil Application No. 969 of 1978 for direction to the State Government to appoint him as ARTO on basis of the respondent No. 3 having been selected by the Gujarat Public Service Commission in the interview held in 1978. In the said Special Civil Application filed by the respondent No. 3, this Court passed the following order of ad interim relief on May 26, 1978.

(3.) THE learned Advocate for the petitioner, next submitted that the impugned order was vitiated by mala fides. According to Mr. Anand, the appointment of respondent No. 3 was made in great haste and during the President's rule in the State of Gujarat, and it was made just three days before the Assembly elections on May 30, 1980. In submission of Mr. Anand, the respondent No. 3 happens to be the brother of Shri Yogendra Makwana, who was a Minister in the Central Government at the relevant time. The respondent No. 3 and the respondent State have denied the allegations of mala fides contending, inter alia, that the respondent No. 3 was appointed on his selection by the Gujarat Public Service Commission in 1977 and on the basis of he being a Scheduled Caste Candidate against the Scheduled Caste vacancy. It is true that the respondent No. 3 had agitated his claim for appointment as the ARTO by making representations to the Committee of Welfare of Scheduled Caste and Scheduled Tribe, New Delhi. It also transpires from the record that Mr. Yogendra Makwana, brother of the respondent No. 3, being an M. P. in the year 1978-79 had forwarded the representation of the respondent No. 3 for appointing him as ARTO on basis of respondent No. 3 being the SC candidate. The respondent No. 3 had also requested Mr. Ibrahim Kalania, M. P. , for justice and for appointment as ARTO. It is clear from the affidavit-in-sur-rejoinder filed by the respondent No. 3 that his brother Shri Yogendra Makwana had become the Minister in January 1980 and the Central Government was ruled by the Janata Party in June 1978 and as such there was no question of any influence having been exercised by his Minister-brother for the appointment of respondent No. 3. Respondent No. 3 also relied upon the letter dated April 16, 1978 by the then Minister of Home, Government of India, to the Chairman of the Committee on the Welfare of S. C. /s. T. , New Delhi, stating, inter alia, that where at a particular selection, there are no reserved vacancies and candidates belonging to Scheduled Castes and Scheduled Tribes are appointed in that selection on their own merit the question of adjusting them against the future vacancies which may be reserved at subsequent selections would not arise. The State Government was, therefore, duly justified in not showing the name of Shri K. M. Makwana against a roster point reserved for S. C. The selection of respondent No. 3 in 1977 was pursuant to special reservation in SC/st. Accordingly the respondent No. 3 had to compete with other SC/st candidates. In 1978 when the other advertisements for the post of ARTO was published, the respondent No. 3 was on the wait list. As aforesaid, the respondent No. 3 filed Special Civil Application No. 969of 1978 and pursuant to the interim order passed by this Court, the respondent No. 3 was appointed to the post of ARTO. Respondent No. 3 has specifically denied that he made attempts to bring pressure on the respondent State from any quarter as alleged by the petitioner. In view of the aforesaid order passed by this Court, the panel on which the name of the respondent No. 3 appeared was kept subsisting and respondent No. 3 was pressing his claim on the basis of reservation of SC candidates, and non-inclusion of his name in select-list prepared for general category candidates. In facts and circumstances of the case, there is no merit in the allegation of mala fides.