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Judgment
Jayant Patel, J.—Rule. With the consent of the parties, matter is finally heard today.
In all these petitions, prayers of the petitioners are for appropriate direction to the respondent commission to prepare contingent list of
candidates in the order of merit for Clause I and II posts of Gujarat Civil Services in pursuance to the advertisement at annexure SA bearing No.
82/2000.
Heard Mr. Shelat for the petitioners and Mr. Dharmesh R. Patel for Mr. S.K. Patel for respondent No. 1 and Mr. Desai for respondent No. 2.
Mr. Shelat for the petitioners at the outset submitted that though the prayers are made in the petitions for directing the respondent No. 1 to prepare
contingent list in the Clause I and Clause II cadre, the petitioners are restricting their petitions only for the purpose of preparation of list for unfilled
posts which have remained vacant on account of non-joining of selected candidates or disqualification of selected candidates or for any other valid
reasons. He submitted that as per the statement made in the affidavit in reply total posts of 24, namely, one post of Clause I and 23 posts of
Clause II have remained vacant and they are not filled up though the appointment orders were issued for giving appointment to the selected
candidates, since they have not joined for the reasons as referred to hereinabove. He, therefore, submitted that the GPSC may be directed to
forward the list to the extent of next meritorious candidates on the basis of process undertaken pursuant to the advertisement for preparation of list
for Clause I and Clause II posts.
Mr. Desai, Ld. AGP submitted that as such in the petitions prayer was made for preparation of contingent list and as the rules do not provide
for preparation of contingent list on the aspect of rejoinder for the post remained vacant no affidavit in reply has been filed. However, he submitted
that if such posts have remained vacant unless there are other legal impediments for filling up of posts and financial constraints and other valid
reasons on the part of the State Govt. the next meritorious candidate can be directed to be considered. So far as the GPSC is concerned Mr.
Patel has submitted that as such the GPSC has acted under the instructions of the State Govt. and it is for the State Govt. to answer the said
aspects and if it is so requisitioned by the State Govt. the GPSC will consider the same.
Having considered the above, it appears that there is no dispute on the point of that initially 12 posts of Clause I and 164 posts of Clause II
were mentioned in the advertisement. The GPSC has communicated that the posts required to be filled up are 12 posts of Clause I and 243 posts
of Clause II, total 255 posts and such aspect is reflected in the interview letter copy whereof is annexure SB. It is true that Rule 17 provides for
arrangement of candidates in the order of merit on the basis of marks obtained at the written examination and interview and in that order the
Commission has to recommend the qualified candidates for appointment to the extent of number of vacancies to be filled in. Therefore, the
recommendation by the Commission has to be to the extent of vacancies to be filled in. If the vacancies are 255 posts the recommendation is
required to be made by the Commission accordingly. It may be that at the time when the first recommendation was forwarded the Commission
may not be in a position to know the number of posts remaining vacant due to nonavailability of candidates or due to disinterest of candidates to
accept the offer of appointment or for any other reasons known to law. However, if the posts have remained vacant due to nonavailability of
candidates for any other reasons same is required to be filled up from amongst the next available meritorious candidate and the list so prepared
deserves to be operated to that extent. Reference may be made to the decision of this Court in the matter of Vinodkumar Rajabhai Rathod v. State
of Gujarat reported in 2005(1) GL 321. At the same time, if the Govt. has taken any policy decision due to financial constraints or otherwise or
any other valid reasons not to fill up the vacant posts it may stand on different footing, but, in any event, as and when such financial constraints and
ban are lifted, only those who have participated in the regular selection process and found to be next meritorious are required to be considered to
the extent of posts advertised or the posts which were to be filled up at the time when the selection process was undertaken and such would
include the posts remained vacant due to non-joining by the selected candidates for any other reason whatsoever. Say, in other words, until all the
posts are filled up, the candidates who have participated in the regular selection process are required to be considered for appointment as and
when the State Govt. is to consider the matter for appointment. As the posts in the present case are for Clause I and II cadre, it would be only
done through recommendation by GPSC and therefore it would be for the State Govt. to intimate to the GPSC regarding the number of candidates
who have not accepted the appointment for any reason whatsoever and it would be required for GPSC to forward the list of next meritorious
candidates to that extent in the respective category by recommending for the appointment. If the such list is received such candidate can be
considered for appointment unless the policy decision is taken for banning the recruitment due to valid reasons.
In view of the aforesaid, I find that the following directions deserves to be issued:
(i) The respondent No. 2-State Govt. shall intimate to the respondent No. 1 regarding total number of candidates together concerned category,
who have not accepted the appointment or have not joined the duty for any reason and such shall be intimated by the respondent No. 2 to
respondent No. 1 within a period of four weeks from the date of receipt of writ of this court.
(ii) After the intimation is received by the respondent No. 1 from the respondent No. 2, the respondent No. 1 shall prepare the list to that extent
from amongst the next meritorious candidates in respective category and shall send the recommendation for to be considered for appointment on
Clause I or Clause II post, as the case may be. Such exercise shall be undertaken and necessary recommendations shall be forwarded within a
period of four weeks from the date of receipt of intimation by the respondent No. 1 from the respondent No. 2.
(iii) After the recommendations as indicated herein above are received by the respondent No. 2 from the respondent No. 1 unless there is ban on
recruitment by way of policy decision of the State Govt. due to any valid reason, the State Govt. shall consider the concerned candidate for
appointment on Clause I or II category, as the case may be.
It is clarified that the present order shall not operate as bar to the State Govt. in taking appropriate decision for baning the recruitment for valid
reasons. However, in the event such ban is lifted, the candidates shall be considered for appointment as and when such contingency arises by the
State Govt. and in any case until all the posts for which reference is made in the communication of interview dated 27.5.04 are filled up, such
recommendation shall continue to operate as valid.
It is also clarified that the present directions shall not be construed as conferring any additional right in favour of any of the petitioners for inclusion
in the recommendation unless they are found to be next meritorious candidate and GPSC will be required to consider the next meritorious
candidates to the extent of availability of vacant posts irrespective of the fact that whether they have preferred petition before this court or not.
7.The petition is allowed in terms of aforesaid directions. Rule partly made absolute. Considering the facts and circumstances, there shall be no
order as to costs.