SK VARSAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and/or order quashing and setting aside the decision of the Government conveyed to the petitioner as an enclosure to the communication dated 4 -4 -1997 (Annexure F). It is also further prayed to direct the respondents to consider the name of the petitioner against the vacant advertised post of Under Secretary and to appoint the petitioner as Under Secretary if found suitable. It is also further prayed to direct the respondents to give 4 -4 -1995 or any other subsequent date as the deemed date of appointment as Under Secretary with all consequential benefits.

(2.) IT is the case on behalf of the petitioner that pursuant to the advertisement issued by the GPSC on 31 -3 -1993 for direct selection for the post of Under Secretary in the Gujarat Secretariat Service (Class I) for 10 post, which all were reserved for scheduled tribe, as the petitioner was eligible, he applied for the said post. It is the case on behalf of the petitioner that the said advertisement was issued as a special drive to clear the backlog of reserved vacancies for scheduled tribe in the cadre. That after due process of selection, the result was published by the GPSC on 16 -2 -1994, wherein the name of the petitioner was shown at serial No.2 in the waiting list. That the petitioner was informed by the GPSC by letter dated 19 -2 -1994 about his result. That on the basis of the result published by the GPSC, the Government issued appointment orders on 4 -4 -1995 for all the 10 candidates, who were in the select list. That out of the said 10 candidates, one Shri R.K. Malavia at serial No.10 did not join the service and conveyed his unwillingness to join the service vide letter dated 25 -5 -1995. As the candidate at serial No.1 in the waiting list was also not interested to join the service, he also conveyed his unwillingness to the Government by letter dated 31 -1 -1996. It is the case on behalf of the petitioner that thereafter, the petitioner represented to the Government from time to time for the appointment in the cadre of Under Secretary and one of the representations is dated 19 -7 -1996. That by communication dated 4 -4 -1997 from the office of the Minister of Tribal Development (pursuant to the representation made by the petitioner to the concerned Minister) along with the copy of the undated note written by the Addl. Chief Secretary (Personnel), GAD, the petitioner was conveyed that he cannot be considered for appointment since the waiting list in which the name of the petitioner was included has lapsed. That being aggrieved by and dissatisfied with the said communication and the action of the respondents in not considering the case of the petitioner in the cadre of Under Secretary and not appointing the petitioner by implementing the waiting list, the petitioner has preferred the present Special Civil Application for the aforesaid reliefs.

(3.) MS Harshal Pandya, learned advocate appearing on behalf of the petitioner has submitted that while rejecting the representation of the petitioner and not appointing the petitioner in the cadre of Under Secretary, the respondents have relied upon the circular dated 4 -4 -1979. However, the said instruction/circular would not be applicable as the same is an amendment in the original instruction dated 20 -4 -1970 and the main circular dated 20 -4 -1970 was issued to deal with the situation wherein government wants more name against the posts which have increased after the requisition was sent to the GPSC. It is submitted that in the present case, the petitioner is not claiming any post which was not advertised and therefore, the said instruction dated 20 -4 -1970 and the amendment therein dated 4 -4 -1979 cannot be applied in the present case. It is submitted that the advertisement was for 10 posts and the select list was prepared of 10 candidates and a waiting list was prepared and when a candidate in the select list did not join the duty and even the candidate above the petitioner in the waiting list also shown his unwillingness to join the duty, it was the duty of the respondents to further implement and operate the waiting list and the next available candidate was the petitioner and therefore, the respondents ought to have appointed the petitioner if found suitable. It is also further submitted that the purpose for preparing the waiting list is that, if for some reason, a candidate in the select list does not join the duty, the waiting list is to be operated and the candidate in the waiting list is to be appointed on the post, which was offered to a candidate in the select list.