SCA/4809/1994 of B P KUMPAVAT Vs STATE OF GUJARAT on 21 December 1995

ORAL JUDGMENT:

Heard the learned counsel for the parties. Reply tothe writ petition has not been filed though rule was issuedon 31st March, 1994, returnable on 25th April,1994. Mr.Bambania, learned counsel for the respondents made requestto the court to grant one more indulgence to the respondentsto file reply. I fail to see any justification for therequest which has been made by Mr. Bambania. After rulewas issued in this case, one year and nine months havepassed, and despite having such a long time available tothem the respondents have not chosen to file reply. It isreally a sorry state of affair in the Government. Itexhibits how the Government takes the litigations. Thismatter pertains to the petitioners who are out of employmentand seeking appointment on the basis of their selectionwhich has been made after inviting applications from theopen market. It is the second time that the petitionershave approached this court in the matter. Taking intoconsideration all these facts the request made by Mr.Bambania is declined.

2. The petitioners came to be appointed in the serviceof the respondents on the post of Computer after selectionin the year 1984. The respondents invited applications fromthe employment exchange for recruitment to the post ofStatistical Assistant, a post higher in status than the postof computer. The petitioners complained that no publicadvertisement has been given inviting applications on theseposts and the names have been sponsored from the office ofthe District Employment Exchange. When the petitioners arein service and that too in a regular service, their namescould not have been sponsored by the employment exchange andas such they would have been denied the right ofconsideration for appointment in public employment. Thepetitioners having come to know about the fact therespondents are going to make appointment by selection onthe post of Statistical Assistant, made request to therespondents to consider their candidature. The petitionershave come up with the case that they possess all therequisite qualifications as required for appointment on thepost of Statistical Assistant. As it usually happens in theDepartments, adopting technical approach in the matter, thatis, names of the petitioners have not been sponsored by theemployment exchange, the respondents have not called thepetitioners for interview for the post of StatisticalAssistant. At this juncture the petitioners were left withno option except to approach this Court for protection ofthe fundamental right as conferred to them under Articles 14and 16 of the Constitution of India by filing special civilapplication No.2258 of 1991. In that petition this Courtdirected the respondents by interim order to interview thepetitioners for the post of Statistical Assistants. Inpursuance of the order of this Court the respondents have permitted the petitioners to appear before the selectioncommittee, they have been interviewed and, as stated by thepetitioners, their names have been placed at serial No.4 and15 respectively in the select list.

3. The grievance made by the petitioners in the presentwrit petition is that though they are at serial No.4 and 15in the select list, the respondents have given appointmentto candidate at serial No.17. The petitioners maderepresentations from time to time to the respondents, whohave not responded to either of the representations. Whenthe petitioners felt helpless at the hands of therespondents to get the relief, they filed the present writpetition before this Court.

4. On 31st March, 1994 rule was issued to the respondents as aforesaid and interim relief was granted infavour of the petitioners, whereunder the respondents wererestrained from making appointment of the candidates who arebelow serial No.17 till further orders. The contention ofthe petitioners that appointment has to be made strictly inthe order of merits, and the action of the respondents toby-pass the meritorious candidates and to give appointmentto less meritorious candidates is violative of theprovisions contained in Articles 14 and 16 of theConstitution of India deserves acceptance. Mr. Bambania,learned counsel for the respondents is also not in aposition to successfully defend the contention raised by thelearned counsel for the petitioners.

5. In absence of reply on behalf of the respondents,the facts as contained in the writ petition standuncontroverted. When the respondents have to makeappointment in the order of merits of the candidates in theselect list, and if they have violated the order of merit,then certainly it is a case of violation of the provisionsof Articles 14 and 16 of the Constitution of India. Thepetitioners have a fundamental right for consideration forappointment and further right of appointment in the order ofmerit where the respondents have decided to make appointmenton the basis of merit list prepared by the selectioncommittee. It is not the case of the respondents that themerit list has not been given effect to and appointmentshave not been made.

6. In the result this writ petition is partly allowed.The respondents are directed to consider the case of thepetitioners for appointment on the post of StatisticalAssistant. In case any candidate lower in merit than thepetitioners has been given appointment, then thepetitioners, in the order of their respective merit, shall be given appointment with effect from the date ofappointment of the person or persons just below them in themerit list. In case the respondents decide to giveappointment to the petitioners on the basis of the saidmerit list, the petitioners shall not be entitled to arrearsof salary of the post of Statistical Assistant but they willbe entitled to all other consequential benefits likeseniority from the date of deemed appointment. Rule madeabsolute in the aforesaid terms. No order as to costs.