NITINBHAI P VARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, a Junior Clerk in the Regional Transport Officer, Bhavnagar, under the Director of Transport, Government of Gujarat, filed this Special Civil Application and prayer has been made for issuance of a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or directions declaring the action of the respondents in not operating the select list of the selected candidates, for the post of Assistant Regional Transport Officer, and not making appointment of the petitioner in pursuance of the select list is illegal, arbitrary and unconstitutional. Further prayer has been made for direction to the State Government to fill up the vacancies of ARTOs by way of direct recruitment, by operating the waiting list and making appointments of the persons, who are already selected including the petitioner and to give the deemed date of appointment. Further consequential prayers have also been made.

(2.) The facts which are not in dispute are that the post of Assistant Regional Transport Officer in the Transport department of the Government of Gujarat is a post to be filled in both by direct recruitment and promotion under the provisions of Assistant Regional Transport Officers Recruitment Rules, 1972 (hereinafter referred to as the Rules, 1972). These rules were framed under Art. 309 of the Constitution. The direct recruitment has to be made amongst the candidates who are selected on the post by the Gujarat Public Service Commission. The ratio of promotion and direct recruitment is 2 : 1 under the Rules, 1972 i.e., first two vacancies by promotion and third by direct recruitment. An advertisement for the post of ARTOs came to be released by the GPSC on 16th October, 1982. The petitioner has not produced on record a copy of the said advertisement, and as such, it is not clear that how many posts of ARTOs were advertised for selection and appointment by the GPSC. However, it is not in dispute that the interviews were held for the post of ARTOs in pursuance of the said advertisement in the month of May, 1985 and result thereof was declared in the month of October, 1985. So the selection result was declared after three years of the date of publication of the advertisement. It is not in dispute that the petitioner's name figured in the waiting list published by the GPSC. So his name was not there in the main list of the selectees. The case of the petitioner is that ten vacancies of ARTOs are lying vacant in the department, and as such, the waiting list should have been operated and he should have been given the appointment. It has further been stated that one post of RTO is vacant since 2.8.1983 at Bhavnagar and one post of RTO is vacant at Nadiad since 19.2.1986 and therefore, in case two ARTOs are promoted to these two posts then two more posts of ARTOs will be available for recruitment.

(3.) Reply to the Special Civil Application has been filed by the respondents. They have come up with a case that the select list which has been prepared by the GPSC out of which four persons named in para-2 thereof have already been given the appointment on the dated mentioned against their names. It has been stated that even those four persons who have been given the appointments to the posts of ARTOs are in excess of the quota available to the direct recruits under the rules. Further statement has been made that direct recruits are in excess of their statutory quota and therefore, there is no question of appointing the present petitioner to the post of ARTO. It has next been contended that as per the Government circular dated 4.4.1979, the wait list containing the petitioner's name ought to have been scrapped by the State Government as the said list was prepared and published in the month of October, 1985, and thereafter two years have elapsed in the month of October, 1987. Replying to the contention of the petitioner that ten posts of ARTOs are lying vacant, the respondents have stated that not a single post of ARTO is vacant, which could be filled in by direct recruitment. Replying to the contention of the petitioner of the two posts of RTOs and promotion thereon and consequent availability of two more posts of ARTOs, the respondents contended that even if the Government decides to promote two ARTOs to the post of RTOs then also two vacancies those may be occurred would go to promotees only in the light of ratio prescribed by Rule 5 of the Recruitment Rules, 1972.