- (1.) Seniority and quota violation between promotees and direct recruits, that too amongst engineers, keeps on coming to this court every now and then. But the dispute which has come by way of this appeal, directed against the judgment and order of the Gujarat High court, is slightly different from the beaten path. Although the issue primarily relates to construction of a circular issued by the State government on 4/4/1979 providing for that, "the waiting lists which are prepared on the basis of the result of the competitive examination by the Commission, such waiting lists shall remain in force till the date of result of the subsequent examinations are declared", the real issue that arises is if such waiting list could remain alive for 10 years and could furnish source of recruitment. Equally important, rather of far-reaching consequence, is the issue whether the High court could issue a direction to appoint candidates from the waiting list to future vacancies as the quota of direct recruits had not been worked out by applying correct principles. To add to this is the claim of those selected after lapse of 10 years, that they too should be granted deemed date of appointment as was done by the High court in earlier petition filed by some of the candidates who had appeared in the exams held in 1980 and 1982 but had failed and on having succeeded from the High court in 1984 were given their placement from 1981 and 1983.
(2.) Service is the Engineering Service of State of Gujarat. In 1980, examinations were held for selection of Class I and Class II Engineers under Executive Engineers (Civil) Gujarat Service of Engineers Class I Recruitment Rules, 1979 (for short "the Recruitment Rules") framed under Article 309 of the Constitution of India. Rule 4 of the Recruitment Rules empowered the Gujarat public service commission (for short "the Commission") to fix qualifying marks in any or all the subjects. In exercise of this power the Commission decided to hold an examination which consisted of 1100 marks (900 for written and 200 for viva voce). It appears that after the examinations were held the Commission for the first time fixed a minimum qualifying marks of 50%, (that is, 100 marks out of 200 of viva voce) for selection. The results were declared in December 1981. One of such candidates Shri Ashra who had appeared in the examinations, but had not been selected even though he had secured good marks in the written examination and on aggregate had secured higher marks than those who had been selected, approached the High court by way of Writ Petition No. 3820 of 1981 claiming that the fixing of qualifying marks was arbitrary. Similar Writ Petition No. 5381 of 1983 was filed by one Shri Patel after the result of the next examination held in 1982 was declared in 1983. Both the writ petitions were decided by a common order on 5/11/1984. Their claim was upheld, the fixation of qualifying marks was struck down and the Commission was directed as under: ".. To consider the question of inclusion of the petitioners' names in the merit lists on the basis of aggregate marks in the written as well as viva 595 voce tests ignoring the concept of minimum qualifying marks for viva voce test. If the petitioners are entitled to the inclusion of their names on merits on the basis of aggregate marks, the merit lists shall accordingly be revised and appropriate recommendations shall be made to the State government. If the petitioners are entitled to appointments to the posts in question on the basis of inclusion of their names in the merit lists, such appointments shall be given to them by the State government. In such an event, they shall also be given appropriate seniority in accordance with their ranking in the merit lists. In other words, the petitioners shall be placed above those who rank below them in the merit lists in the seniority list of the posts in question. If necessary, they may be given deemed date of appointment without any monetary benefit. "this direction became final as the Special Leave Petition filed against this order was dismissed by this court. Consequently, it was given effect to and the list was redrawn. The effect of redrawing the list was that those candidates who had filed the writ petition succeeded and were placed in the list of selected candidates and were appointed as such. It further resulted in alteration of the waiting list. For instance, the candidates in the waiting list at serial nos. 1 and 7 were pushed down to nos. 4 and 12 and some of the candidates who had earlier been disqualified were placed higher in the revised waiting list. However, those who had been appointed were not disturbed as the High court while deciding the writ petition had directed that the entire selection was not being quashed as, "it would be equally improper to disturb selection of those who had been selected and appointed on the basis of such merit list. In our opinion, the ends of justice would be met if the Commission is directed to revise the merit lists in accordance with the directions given hereafter. "
(3.) Thus one phase of litigation, initiated by those candidates who had secured better marks in aggregate but had failed to secure qualifying marks, came to an end. The second phase of litigation, with which this appeal is concerned and the seed for which, too, was sowed in 1982, itself, immediately after declaration of result of 1980 examination was initiated by those candidates who had secured qualifying marks but could not secure sufficient marks to be placed in the select list but had been placed in the waiting list. They filed Writ Petition No. 4411 of 1982 claiming that the vacancies worked out for the examination held in 1980 were not in accordance with quota rules. It was claimed that since under the rule in operation till 1982 the vacancies of direct recruits lapsed if no examinations were held a direction be issued to the government to work out the vacancies and appoint candidates from waiting list of 1980. Similar relief was claimed by others in writ petitions filed after declaration of result in 1983.;