KIRANKUMAR SHIVPRASAD DAVE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition the petitioner has prayed this court to direct Respondent No. 1 to issue appointment letter to the petitioner on permanent basis for the post of Translator/Assistant Grade-III on the basis of the waiting list and also on the basis of the letter dated 18.6.1991 (Annexure-D) addressed by the Deputy Secretary of the G.P.S.C. wherein it has been stated that the name of the petitioner has been kept in the waiting list at Sr. No. 1.

(2.) Mr. Trivedi L.A. for the petitioner has submitted that during the pendency of this petition two persons - (1) Seemaben Dave and (2) Divyaben working on the posts of Translator/Assistant Gr. III have resigned their posts on 26.2.1992 and 30.7.1993 respectively and therefore there are two clear vacant posts and the petitioner could have been appointed on one of the said posts pursuant to the waiting list. He submitted that during the pendency and final disposal of this petition the G.P.S.C. has issued a fresh advertisement on 1.3.1993 for 12 posts of Translator/Assistant Grade-III out of which 7 posts are for reserved categories and 5 posts are reserved for genera/unreserved category and selected 10 persons - four from reserved categories and 6 from general/unreserved category - and recommended their names to the Government for appointment and also prepared a waiting list of 4 persons out of which 2 are from reserved categories and 2 are from general/unreserved category on 18.8.1994. Therefore Mr. Trivedi submitted that the petitioner ought to have been appointed at least on the vacant post of Translator/Assistant Grade-III pursuant to the waiting list. In support of his submission Mr. Trivedi has heavily relied upon the judgment of the Supreme Court in the case of Gujarat State Dy. Executive Engineers Association vs. The State of Gujarat and others reported in 1994(2) Services Law Reporter p. 710 and para 8 of the said judgment at page 716. I am afraid the judgment cited by Mr. Trivedi instead of helping him would go against him. In para 8 of the said judgment the Supreme Court has observed: A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those ten seats only for which selection or competition was held. Reason for it is that whenever selection is held except where it is for single post it is normally held by taking into account not only the number of vacancies existing on the date when the advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selection is held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. (emphasis supplied) According to the said Judgment the candidate has no vested right except to the limited extent indicated or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.

(3.) Reverting back to the facts of this case it is clear that there were only two clear vacancies for unreaserved category for the post of Translator/Assistant Grade-III. It is stated in the reply affidavit filed by Shri Kalidas N. Trivedi Director of Languages Gujarat State Gandhinagar that (1) Shri Yagnesh Pandya and (2) Kum. Ragini Trivedi were selected and their names were recommended by G.P.S.C. to the Government for their appointment on the two vacant posts of Translator/Assistant Grade-III and they were given appointment orders on 16.11.1991 and pursuant to those appointment orders Mr. Pandya joined the service on 2.12.1991 and Kum. Ragini joined the service on 2.1.1992. Therefore the case of the present petitioner will not fall under the parameters of the Supreme Court judgment in the case of Gujarat State Dy. Executive Engineers Association (supra). The Supreme Court has clearly held in that judgment that the petitioner will have no vested right except to the limited extent which has been indicated in para 8 of the judgment or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons. That is not the case here. The petitioner is harping upon the fact that two persons have resigned from the service on 26.2.1992 and 30.7 and therefore the petitioner could have been appointed pursuant to the waiting list.