The Gujarat High Court has said candidates qualified for recruitment to post of Additional Public Prosecutors, Class II, have no enforceable right to be recommended for appointment since the state government is the authority to determine the number of vacancies while also considering the fact that the number of vacancies had come down after the high court had surrendered 275 ad-hoc posts in the cadre of Civil Judge created under the Swarnim Gujarat Scheme.
Justice NV Anjaria dismissed a batch of petitions filed by candidates who had qualified the stages of recruitment for the post of Assistant Public Prosecutor (APP), Class II, undertaken by the Gujarat Public Service Commission (GPSC).
Their names figured in the list of total 543 candidates but were not included in the list sent by the commission to the state government for appointment. Only 425 names were finally sent to the government.
The petitioners had moved court seeking a stay on the process of appointment of those 425 candidates whose names were recommended by GPSC.
It is to be noted that a total of 554 posts of APP, class II, were advertised on February 12, 2014. The result of the interviews was declared on July 4, 2017, in which 543 names were enlisted as selected candidates while 11 posts in ST category were left vacant for want of suitable candidates.
Of these 543 candidates, only 422 names were recommended by GPSC to the state government which the petitioners rued was “illegal and arbitrary”.
State govt authority to determine number of vacancies
The court took note of an affidavit filed by the state government in August 2017, which stated that at the material time the sanctioned working strength of the Civil Judges and Judicial Magistrate First Class was 429, which was augmented by creation of 375 posts of ad-hoc nature in the cadre of Civil Judge and JMFC under the Gujarat Swarnim Project which made the total number of posts to be 804 out of which 534 posts were vacant.
It was stated that at one stage, by communication dated 9th April 2013, a requisition was sent to GPSC to fill up 554 posts in terms of the Rules called Assistant Public Prosecutor in the General State Service Class II Recruitment Rules, 2008.
What the court held relevant to the issue was the submission in the affidavit that pending the process of recruitment, the Registrar General of the High Court had intimated by communication dated July 28, 2016, that the high court has surrendered 275 ad-hoc posts out of the aforementioned 375 ad-hoc posts in the cadre of Civil Judge created under Swarnim Gujarat Scheme. It was further resolved by the high court to convert the remaining 100 ad-hoc posts into regular posts of Civil Judge in various districts.
“The implication was indicated that there would be thenceforth the requirement of less number of APPs,” the court noted.
The court also referred to Assistant Public Prosecutor in the General State Service Class II Recruitment Rules, 2008, read with Assistant Public Prosecutor Gujarat General State Service Class II Recruitment (Examination) Rules.
“The conjoint reading of Rule 14(2) and 16(1) of the aforesaid Rules suggest that the recommendation by the GPSC amongst the candidates qualified in the process for the purpose of appointment would be to meet the vacancies to be filled in, which number is to be determined by the State Government. It is the number of vacancies adjudged by the State Government would form the basis for recommendation by GPSC. The number of recommended candidate matches the requirement expressed by the State Government,” said Justice Ajaria.
“The number of vacancies advertised need not result into the selection of an equal number of candidates. The selected candidates would be those who have cleared the qualifying standards set in the examination process. The total reading of the aforesaid Rules also indicate that the total numbers of selected candidates may also not to be the number of vacancies to be filled in. In other words, all those selected and recommended by the GPSC may not be the probable appointees.
“As per the contemplation of Rule 14(2), once the extent of the number of vacancies to be filled in is determined by the State Government, the GPSC shall recommend the qualified candidates. The State Government had acted on relevant material and on rational criteria as was revealed from the facts pleaded in affidavit-in-reply dated 29th August 2017. On the basis of the relevant data, the State Government arrived at the number of 374 being the posts of APPs to be filled in,” noted the court.
The court while dismissing the petitions said they all “suffered from a centripetal defect of fundamental nature”.
“The petitioners were the candidates who had been successful in the interview and accordingly their names were enlisted by the GPSC as qualified candidates. They were not even in the select list for being appointed. It was a stage of making recommendation by the GPSC under the Rules. It is a well-settled principle that a person in the merit list of selected candidates does not have indefeasible right to be appointed. The stage in the present case was a stage even prior to this juncture. The number of candidates to be recommended by the GPSC was to meet with the extent of vacancies to be filled in,” it said.
Read the Judgment Here