D.G. Dalal v. State Of Gujarat, Gujarat High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1963 SC 591 — Khandige Sham Bhat v. Agricultural Income-tax Officer	The provided opinion cited this case but did not specify in the text the exact rule or principle extracted from it.	The opinion listed the case among authorities considered; the text does not explain a specific application of this precedent to the issues decided.
AIR 1993 SC 1947 — Venkateshwara Theatre v. State of Andhra Pradesh	The provided opinion cited this case but did not specify in the text the exact rule or principle extracted from it.	The opinion listed the case among authorities considered; no discrete application explanation appears in the text.
AIR 1980 SC 2056 — Kamal Kanti Dutta v. Union of India	The opinion listed this case as one of the Supreme Court authorities referenced; no precise principle from the case is separately described in the opinion text.	The Court referenced this authority (and in one place noted reliance by other cited cases on its paras) but did not identify a narrowly stated single principle from it in the reasoning recorded here.
AIR 1986 SC 1205 — Municipal Corporation, Ahmedabad v. Jan Mohammed	Cited in the opinion; the text notes it relied upon AIR 1980 SC 2056 (Kamal Kanti Dutta) Paras 38, 58, 67 but does not isolate a distinct proposition beyond that.	Included among authorities examined; the opinion does not describe a specific mechanistic application beyond listing it.
AIR 1981 SC 1922 — K.P. Varghese v. Income Tax Officer, Ernakulam	The opinion cited this case but did not specify the exact principle cited from it in the text.	The case appears in the list of precedents considered; no discrete application detail is stated in the opinion excerpt.
AIR 1984 SC 1543 — Maharashtra S.B.O.S. & H.S.Education v. Paritosh	The text cites this case (paras 16, 21, 22 at page 1551) but does not extract a particular proposition in the immediate reasoning recorded.	Listed among authorities; the opinion does not detail a specific application for this case in the adjudication recorded here.
JT 1996 (3) SC 679 — State of Andhra Pradesh v. Mc Dowell & Co.	Cited by the opinion; no specific rule or principle from it is stated in the provided text.	Mentioned as part of the body of precedents considered; the opinion does not indicate a particular application point from this citation.
AIR 1993 SC 978 — R. L. Bansal v. Union of India	Cited by the opinion without a specified extract of principle in the text.	Included among cited cases; the opinion does not further explain how it was applied in its analysis as recorded here.
AIR 1993 Delhi 40 — Sandhya Kabra v. University of Delhi (Full Bench)	Cited in relation to admissions jurisprudence and the allocation/allotment of seats (education context); the opinion notes it was relied on by the respondents' counsel.	The Court treated educational/admissions cases as distinguishable in large part from service-selection cases and explained limited applicability; the opinion records that such admissions cases operate in a different arena.
AIR 1971 SC 1439	The opinion references this report/citation but does not provide a case name or specify the principle relied upon in the text provided.	The mention is in the context of educational-case discussion; no discrete application of this report is set out in the opinion excerpt.
AIR 1994 Delhi 108 — Dr. Veena Gupta v. University of Delhi	Cited in relation to educational/admissions jurisprudence (allocation of seats in PG medical courses); the opinion records it among authorities relied upon by respondents.	The Court distinguished admissions jurisprudence from service-selection issues and observed that the educational cases were in a different context and not directly applicable to the service matters at hand.
AIR 2000 All. 191 — Dr. Naveen Jamval v. Dr. Arvind Kumar Kenkane	Cited by the respondents' counsel as a recent authority in the admissions context; the opinion does not extract a more specific rule in the text provided.	Referenced in the course of argument and subsequent consideration; the Court required petitioners to address related points arising from this recent decision but treated educational decisions as largely inapposite to service matters.
AIR 1998 SC 680 — Rajiv Mittal v. Maharshi Dayanand University	Cited in relation to student-admission cases; the opinion records the citation but does not isolate an express principle from the case within the excerpt.	Listed among cited authorities concerning admissions; the Court regarded education cases as operating in a different field from service rules and thus not controlling here.
AIR 1989 SC 711 — Union of India v. M.V.V.S. Murthy	The opinion describes this as a case relating to Civil Service (Combined) Examination and recounts the factual finding: a candidate who preferred IAS only was offered IPS but did not join; the Supreme Court found the candidate could not claim IPS since a lower candidate had been selected for IPS.	The case was cited by respondents; the opinion records the summary of facts from Murthy but does not treat it as controlling for the present disputes; rather it is part of the jurisprudential background examined.
AIR 1997 SC 2643 — State of Bihar v. Kaushal Kishore Singh	Cited by the opinion; the text records reliance upon certain observations (para 5) but notes the factual distinction that in Kaushal Kishore no merit list had been prepared.	The Court found Kaushal Kishore Singh inapposite because that case involved no merit list and different selection criteria; it therefore could not support the State's position here.
AIR 1994 SC 1311 — Malaprabha Cooperative Sugar Factory Ltd. v. Union of India	Cited by the respondents on remedial discretion considering administrative impact; the opinion quotes para 110 (a passage about courts considering administrative burdens when granting relief).	The Court recorded the respondents' reliance on administrative inconvenience as a discretionary factor but held that administrative inconvenience cannot justify subverting merit where an alternative (re-allotment to protect merit) is available.
AIR 1987 SC 2354 — Balram Gupta v. Union of India	Cited by respondents and discussed as part of administrative/individual rights jurisprudence; the opinion does not extract a distinct rule beyond noting the case was relied upon and distinguished by respondents.	The opinion notes the case but does not record a specific application of it to justify the respondents' practice; the Court did not find it controlling for the primary issues.
1987 (2) GLH 429 — A. N. Meman v. High Court of Gujarat	Cited as an example where delay and laches affected relief (promotions challenged many years after they occurred).	The Court observed that gross delay/laches in Meman is not analogous to the present facts; it therefore did not bar relief here.
JT 1994 (3) SC 559 — Gujarat State Dy. Executive Engineers' Association v. State of Gujarat & Ors.	Cited regarding the legal status of waiting lists: the opinion records the case's view that a waiting list prepared in an examination is not a source of recruitment for future years except in exceptional circumstances.	The Court held that this authority does not support the Government here because, in the present matter, the waiting list candidates of the same selection-year were being preferred over higher-merit candidates in that same selection; the facts are distinguishable.
AIR 1976 SC 133 — Dilip Kumar v. State of M.P.	Cited by petitioners on interpretation principles and alternative construction; the opinion records counsel's reliance on para 22 (no case should be held to fall within an unreasonable interpretation).	The Court applied interpretive principles (harmonious construction and saving the validity of a rule where possible) consistent with the guidance relied upon by petitioners.
AIR 1991 SC 537 — Kumari Shrilekha Vidyarthi v. State of U.P.	Cited for the proposition that governmental actions must meet Article 14 standards; petitioners invoked paras 22, 31, 33, 36.	The Court relied on the general principle that actions must meet Article 14 tests and used such principles in concluding that merit must be protected when vacancies occur.
AIR 1996 SC 1356 — Delhi Science Forum v. Union of India	Cited by petitioners to support the approach that legal/constitutional bars to policy can be examined by courts.	The Court embraced the proposition that courts can examine legal/constitutional legality of administrative policy; this supported the conclusion that the Government's interpretation of Rule 9 could be reviewed and corrected.
AIR 1996 SC 11 — Tata Cellular v. Union of India	Cited by petitioners on rationality of governmental action (para 96 highlighted by counsel).	The Court considered the rationality principle but applied it in the service-selection context to hold that merit could not be sacrificed to administrative convenience.
AIR 1976 SC 49 — Rameshwar v. Jot Ram	Cited by petitioners for the proposition that relief is assessed as on the date of institution and courts may take note of subsequent events.	The Court acknowledged the principle that rights are viewed with regard to the institution date and the court may consider subsequent events; this reasoning supports certain remedial directions (e.g., directions to relate promotions/appointments back to due dates).
AIR 1986 SC 210 — B. Prabhakar Rao v. State of A.P.	Cited by petitioners in relation to fairness and common-sense assessment of classifications and arbitrariness.	The opinion refers to the decision to support the view that common-sense fairness should guide decisions about arbitrary classifications; it fed into the Court's rejection of the Government's interpretation that sacrificed merit.
JT 2001 (6) SC 260 — Arvindkumar Kankane v. State of U.P. (also referenced as Arvind Kumar v. State of U.P.)	Cited by respondents (a recent Supreme Court decision concerning admissions/allotment issues) and discussed during dictation of the order; the opinion records that petitioners were given opportunity to address this latest judgment.	The Court required further submissions and heard arguments; ultimately it distinguished admissions jurisprudence reflected in this decision from service matters and did not treat it as controlling.
AIR 1981 SC 1776 — Liladhar v. State of Rajasthan	Cited by petitioners to support the proposition that educational standards or admissions cases cannot be mechanically transposed to service law.	The Court noted the distinction between education/admissions jurisprudence and service selections and relied on service-case authorities instead for the central holding on merit.
AIR 1987 SC 454 — Ashok Kumar Yadav v. State of Haryana	Cited by petitioners among several service-law precedents to distinguish admissions jurisprudence.	The Court treated such service-law authorities as more relevant than admissions cases for the present service-selection dispute and used them to support the position that merit must be protected.
AIR 1993 SC 2374 — D. V. Bakshi v. Union of India	Cited by petitioners in support of their contentions about selection processes; the opinion does not isolate an express principle from the citation in the text provided.	Listed among petitioners' authorities; no discrete application description is recorded in the excerpt.
(1993) 1 SCC 17 — Indian Airlines Corporation v. Capt. K.C. Shukla & Ors.	Cited by petitioners as part of a cluster of service-selection jurisprudence distinguishing admissions cases; no isolated principle is extracted in the text provided.	Included among the authorities relied upon by petitioners; the Court emphasized area-wise legal development and treated service cases as more pertinent than admissions cases.
1981 SC 487 — Ajay Hasia	Referenced by petitioners ("notwithstanding the case of Ajay Hasia") as part of the jurisprudential background; the opinion does not elaborate a specific rule from Ajay Hasia for present purposes in the provided text.	Mentioned in the course of arguments; not treated as determinative of the service-selection issues under consideration in this opinion.
(1996) 6 SCC 44 — Union of India v. Dhanwanti Devi & Ors.	Cited for the exposition of the doctrine of precedent and ratio decidendi (the opinion quotes a passage explaining that only the ratio decidendi is binding).	The Court invoked the principles on precedential weight and ratio decidendi from this authority to explain how precedents should be read and applied in resolving the present issues.
AIR 1983 SC 1155 — Deena v. Union of India	Cited for the proposition that precedents are authorities for what they decide and must be applied carefully only to identical situations.	The Court quoted Deena to underscore that precedents must be applied by reference to their ratio and facts; this guided the Court's selective reliance or distinction of earlier decisions.
AIR 1968 SC 346 — State Of Mysore v. S.R. Jayaram	Cited and described at length: the Supreme Court struck down the latter part of Rule 9(2) of Mysore Rules because it vested arbitrariness in Government by permitting allocation contrary to order of merit; the opinion reproduces the rule and the Supreme Court's reasoning that such a power subverts recruitment objectives and violates Articles 14 and 16.	The Court treated Jayaram as directly applicable and controlling on the core principle: merit must prevail and arbitrary governmental assignment contrary to merit is impermissible. The Court applied Jayaram's ratio to conclude the Government's practice here (preferring waiting-list candidates of same selection over higher-merit selectees) was unlawful and must yield to merit-based re-allotment.
Reference to "Hari Kishan Khosla" (mentioned in the context of precedential debate)	The opinion refers to this case in the course of discussing the nature and weight of precedents but does not provide a citation or a principle taken from it in the provided text.	The Court quoted authority about precedents generally and did not ascribe a determinative role to this particular case in the reasoning recorded in the excerpt.

1. Through these 16 Special Civil Applications, the petitioners have sought to challenge the allotment of posts made to the concerned respondents or no allotment and the method of allotment or assignment of preference in the Gujarat Civil Services and have sought a direction for allotment afresh or re-allotment on the vacant posts and for that purpose, Rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980 has also been challenged in Special Civil Applications Nos. 931 of 1992, 5705 of 1996, and 3590 of 1990 to be ultra vires of Articles 14 and 16 of the Constitution of India.

2. It may be mentioned that in Special Civil Applications Nos.3597 of 1990, 5705 of 1996, 1662 of 1989 and 931 of 1992, there is no challenge to the allotment in favour of the concerned respondents, but the petitioners therein have claimed the post of their preference only.

3. During the course of hearing of these petitions on 29th June 2001, Mr. P.V.Hathi, learned Counsel for the petitioners submitted a statement prepared on the basis of the instruction received from the respective petitioners whom he represents. As per this statement, the petitioner in Special Civil Application No. 478 of 1990 of 1990, namely, Mr. D.G.Dalal and the petitioner in Special Civil Application No. 614 of 1990, namely Mr. Haresh Darji who were allotted to Class-II post of Assistant District Registrars in the year 1990 have already been promoted to Class-I post of District Registrar in Gujarat Co-operative Service and they are, therefore, not interested in getting their original allotment changed. They are, therefore, not interested in prosecuting the petitions referred to above and hence, both these petitions are required to be rejected as not pressed and the Rule issued therein is hereby discharged with no order as to costs.

4. Thus, only 14 Special Civil Applications, i.e. other than Special Civil Applications Nos. 478 of 1990 and 614 of 1990 remain for our consideration.

5. In the first group, i.e. Special Civil Applications Nos. 613, 615 to 622 of 1990 in which the petitioners are represented by Mr. Hathi, a common advertisement dated 1st Oct. 1985 was issued by the Gujarat Public Service Commission (which will be hereinafter referred to as "the Commission") for filling up of 101 Class-I posts and 188 Class-II posts with different designations. Through this advertisement, applications were invited from eligible candidates as per the respective recruitment Rules. The last date for submission of the applications was 31st Dec. 1985. Out of the vacancies which were advertised through this advertisement, the reserved posts were separately shown. The candidates seeking these posts were required to show their order of preference in the application and were required to appear in the combined competitive examination to be held for Class-I and Class-II posts under the Gujarat Civil Services Recruitment (Examination) Rules, 1980 framed in exercise of the powers conferred by the proviso to Article 32 of the Constitution of India read with the order by the President published in Govt. of India Gazette, Ministry of Home Affairs, dated 17th Feb. 1980 and in super session of all orders on the subject that may be in force. The petitioners had applied in response to the aforesaid advertisement inviting applications indicating their preference for different posts. It was a combined selection for Category-I and Category-II posts in Gujarat State. As per Schedule-I, Rule 2(E3), the posts in Category-I are as under:

1. Posts under Gujarat Administrative Services.

2. District Registrars of Cooperative Societies.

3. Superintendents of Prohibition and Excise, Class-I.

4. Deputy Superintendents of Police.

Posts in Category-II are as under:

1. Mamlatdars.

2. District Inspectors of Land Records.

3. Assistant Registrar of Cooperative Societies.

4. Sales Tax Officers.

5. Government Labour Officers.

6. Taluka Development Officers or Block Development Officers.

7. Superintendents of Prohibition and Excise, Class-II.

8. Section Officers in Secretariat Departments and Allied Offices.

9. Deleted.

The Commission conducted the written examination in two parts. The examination for the first part was held in June 1986 and the examination for the second part was held in Sept. 1987. The petitioners passed both these examinations and were then called for viva-voce (oral interview) which was held between March and June 1988. On the basis of this selection, the Commission prepared the merit list, both for general seats and reserved seats for Category-I and Category-II posts and also prepared separate waiting list for Class-II posts. It may be mentioned that the list which was prepared for Category-II posts was treated as waiting list for Category-I posts. Thus, in all, there were three lists, the Category-I list, Category-II list which is also the waiting list for the Category-I and the waiting list for the posts of Category-II. The names of the petitioners stood at different positions at Sr. No. 128, 129 to 135, 140, 143 and 145A in the list of candidates selected for different posts under Category-II. The break-up of the posts in Category-II as has been given out by the petitioners is as under:

Section Officer : 78 Sales Tax Officer : 42 Mamlatdar : 27 Taluka Development Officer : 13 Govt. Labour Officer : 14 Assistant District Registrar, Co-operative Societies : 10 District Inspector of Land Records: 4 According to the procedure, the concerned Department in the Secretariat is required to intimate the General Administration Department its requirement of new recruits and the General Administration Department, in turn, to communicate the same to the Commission and thereupon the Commission is required to notify its intention to hold the examination. A candidate who desires to compete for more than one of the scheduled posts is required to submit a single application and he has to express his desire to compete for any or all of the posts in the specified categories by tick marking the boxes in the application form for which he wishes to be considered and to state the order of preference by figures viz. 1, 2, 3 and so on. On the basis of the examination held in Part-I and Part-II plus Part-III, i.e. viva voce and personality test, the Commission is required to fix the qualifying aggregate marks to be obtained by the candidate in the combined competitive examination. In the instant case, the written examinations were held in the year 1986-87, interviews were held in the middle of the year 1988 and the merit list was prepared and submitted to the Government in the month of November 1988. The process of allotment of posts and appointments to be made was taken up by the General Administration Department after the submission of the two merit lists, under the Government Resolution dated 11th Dec. 1986. This Government Resolution dated 11th Dec. 1986 laying down the principles and guidelines for appointment of SC/ST and such other candidates to be considered for appointment on general seats was subjected to challenge in Special Civil Application No. 6691 of 1987 but the challenge failed. Accordingly, the list which was prepared by the Commission on the basis of the principles contained in the said Government Resolution dated 11th Dec. 1986 remained to be a valid list in operation. The petitioners were selected for Category-II posts while the name of respondent no. 3 was shown at Sr. 87 of the merit list for Category-I posts and the names of respondents nos. 4 and 5 were shown at Sr. No. 127 and 142 for Category-I posts of the same merit list for Category-II posts and all of them were recommended for reserved posts for SC candidates.

6. So far as the allotment of the posts based on merit under Category-I and Category-II is concerned, there is no dispute. However, the dispute arises if a vacancy becomes available on account of somebody not joining or not availing the appointment in Category-I who had not been made any allotment earlier. In such cases, the course of action which has been adopted is to operate the waiting list for giving appointments in the Category-II posts and the candidates who have already been allotted some preference as per their merit in the first instance itself are not considered for such vacancy even if they held a higher merit position in comparison to those who are there in the waiting list. It is this procedure which has given rise to the filing of the present petitions. To illustrate the grievance, it has been pointed out that in case a candidate who is allotted to the post of Section Officer does not join or refuse to accept the allotment, such vacant post of Section Officer goes to a candidate from the waiting list even if he has a lesser merit and who is at a lower position and the said post of Section Officer is denied to a candidate of higher merit in the main select list of Category-II. In the instant case, the preferences were allotted to the petitioners in this group of Special Civil Applications as under:

Shri P.L.Panchal Allotted Post : G.L.O. (5th preference) Preferences : S.O. S.T.O.

Mamlatdar T.D.O.

G.L.O.

Shri J.D. Dave Allotted Post : A.D.R. (5th preference) Preferences : S.O. S.T.O.

Mamlatdar, D.L.R.

A.D.R.

Shri N.K.Ambaliya Allotted Post : G.L.O. (5th preference) Preferences : S.O. Mamlatdar T.D.O.

S.T.O.

G.L.O.

A.D.R.

Shri Ashwin Trivedi Allotted Post : A.D.R. (4th preference) Preferences : S.O. S.T.O.

Mamlatdar A.D.R.

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Shri Dilip Soni Allotted post : G.L.O. (4th preference) Preferences : S.O. Mamlatdar S.T.O.

G.L.O.

Shri R.R.Vaghasia Allotted Post : A.D.R. (5th preference) Preferences : Mamlatdar T.D.O.

S.T.O.

S.O.

A.D.R.

Shri Haresh Darji Allotted Post : A.D.R. (5th preference) Preferences : S.T.O. T.D.O.

Mamlatdar S.O.

A.D.R.

Shri K.G.Shah Allotted Post : G.L.O. (5th preference) Preferences : Mamlatdar S.T.O.

T.D.O.

S.O.

T.D.O.

G.L.O.

Shri Surersh Paddharia Allotted Post : G.L.O. (6th preference) Preferences : S.O. Mamlatdar S.T.O.

T.D.O.

A.D.R.

G.L.O.

Shri M.F.Joshi Merit List : 145-A Allotted Post : G.L.O. (4th preference) Preferences : Mamlatdar S.T.O.

A.D.R.

G.L.O.

T.D.O.

S.O.

It is the case of the petitioners that several posts of Section Officers, Sales Tax Officers and Mamlatdars remained unutilized because the candidates to whom the allotment had been made did not join. According to the petitioners, out of 78 posts of Sales Tax Officers, only 68 had joined and about 10 posts remained vacant. Similarly, against 42 posts of Sales Tax Officers and 27 posts of Mamlatdars, only 34 and 13 candidates respectively had joined, leaving 8 and 14 vacancies being available. These vacancies were utilized for candidates belonging to the waiting list although the petitioners held higher merit and they could be allotted and appointed on these posts as per their higher preference at Sr. Nos.1 and 2. Several posts in Category-I also remained vacant and unutilized and allotment of candidates to Category-II posts was altered and these posts were made available for Category-II candidates who were lower in the merit list. The break-up of the total number of advertised posts category-wise, total number of posts allotted, number of posts which were resumed and number of posts which remained vacant is reproduced as under as has been given in the statement at Annexure. F at page 54 of the paper book in Special Civil Application No. 478 of 1990 which was chosen by the parties for the purpose of reference to the pleadings and arguments although at the end of the arguments this petition was got rejected as not pressed.

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7. On the aforesaid premises, a prayer has been made for declaring Rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980 to be unconstitutional and a declaration has been sought that the allotments of posts made to the concerned respondents be declared to be illegal and contrary to the Rules and in alternative, the State Government be directed to make fresh allotments or re-allotments on the vacant posts of Section Officer, Mamlatdar and Sales Tax Officer in accordance with the preference shown by the petitioners and to direct the respondent State Government to make fresh allotments to various posts including one post of District Registrar from the merit list dated 30th Nov. 1988 strictly in accordance with the recommendations made by the Commission and issue appointment orders in accordance with the revised allotments.

8. An affidavit-in-reply dated 15th Feb. 1990 was filed on behalf of the respondents nos. 6 to 15 and an affidavit-in-reply dated 22nd July 1991 was filed by the Under Secretary to the Govt. of Gujarat in General Administration Department seeking to traverse the claim of the petitioners. In the reply, strong reliance has been placed upon Rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980 and it has been pleaded that :

(i) A candidate who desires to compete for any or all of the Categories of posts is required to tick the box in the application form against the post for which he wishes to be considered and inside the box state the order of preference of figures 1, 2 and 3 and so on.

(ii) No addition or change in the order of preference is allowed by the Commission at any time once the application is submitted.

(iii) Having regard to his writing in the order of merit and the number of vacancies available, the consideration is given as far as feasible to his preference when the appointment is made by the Government.

(iv) If any candidate refuses to join the appointment on the post offered to him, his name is deleted from the names of the qualified candidates.

(v) No request for change in the allotment of posts is considered by the Government at any time after the allotment.

9. In para 17 of the affidavit-in-reply dated 22nd July 1991 filed on behalf of the respondent no. 1, while replying to para 14 of the Special Civil Application, while denying the averments of the petitioner, it has been stated that the Government has followed the provisions laid down under GCSR (Exam) Rules, 1980 in the matter of appointment and there is no provision under Rule 9 regarding re-allotment of the candidates whenever their first, second etc. preference post falls vacant. Rule 9 is sought to be defended by saying that it provides for freedom for expressing preference at the time of applying for the post and the Rules for not laying such change afterwards is a part of reasonable restriction necessary for viable administration of Rules.

10. On behalf of the petitioners, an affidavit-in-rejoinder dated 20th August 1991 was filed by one of the petitioners, namely, Shri P.L.Panchal (in Special Civil Application No. 478 of 1990 which was filed by Shri D.G.Pirzada). A further affidavit-in-reply dated 1st March 1994 is also on record as was filed by the Deputy Secretary to the Govt. of Gujarat, General Administration Department and an affidavit-in-reply dated 4th April 1990 on behalf of the respondent no. 3 and a further affidavit-in-rejoinder dated 2nd March 1994 were filed in Special Civil Application No. 478 of 1990.

11. From the pleadings, so far as the factual aspects of the matter is concerned, it is clearly established that the vacancies which became available on account of any candidate's not joining have been made use of for the candidates of lower merit having their rank in the waiting list and the question which we are called upon to consider is as to whether it is permissible in accordance with Rules as they exist and as to whether it is justified or does not offend any provisions of the constitution, validity and in that context, we are first required to consider the validity of Rule 9. Rule 9, as it stood under the State Civil Services Recruitment (Examination) Rules, 1969 is concerned, the same is as under:-

"A candidate who desires to compete for more than one of the scheduled posts may submit a single application for all such posts indicating clearly in the application , in order of preference, the posts for which he wishes to be considered. A single application fee shall be payable with the applicant and, on admission to the examination also a single examination fee shall be payable."

The Government of Gujarat in exercise of powers conferred by the proviso to Article 309 of the Constitution of India read with the order of the President and in super session of all orders on the subject that may be in force, made Rules known as Gujarat Civil Services Recruitment (Examination) Rules, 1980 vide Notification dated 1.4.80 issued by General Administration Department. Rule 9 in these Rules of 1980 is as under:-

"9. A candidate who desires to compete for any or all the categories of posts shall be required to tick the box in the application-form against the posts for which he wishes to be considered and inside the box state the order of preference for that post by figures viz. 1,2,3 and so on. If he does not desire to be considered for any of the categories of posts he shall be required to write 'X' in box against the name of that post, but no box shall be left blank. He will not be considered for the post if the box against such post is left blank. No addition or change in the order of preference shall be allowed by the Commission, at any time, once application is submitted. Having regard to his rank in the order of merit and the number of vacancies available, consideration may be given as far as feasible to his preference when making appointment by Government. The appointment to various posts shall also be governed by the recruitment rules in force as applicable to the respective posts at the time of appointment. "If a candidate refuses to join the appointment in the post offered to him, his name shall be deleted from the list of qualified candidates. Similarly, no request for change in the allotment of post shall be considered by Government at any time after the allotment"."

12. It is the validity of this rule 9 which has been challenged in these petitions. The last part of the Rule

"If a candidate refuses to join the appointment in the post offered to him, his name shall be deleted from the list of qualified candidates. Similarly, no request for change in the allotment of post shall be considered by Government at any time after the allotment"

is challenged. The result is that when a selected candidate refuses to join the appointment on the post offered to him, his name is deleted from the list of qualified candidates and similarly the request for change in the allotment of post is not considered by the Government at any time after the allotment. The validity of this part of the Rule is challenged on the ground that when no request for change of allotment of post is entertained, the Government utilises the vacancy, which has become available on account of non joining for giving appointment to less meritorious candidate than those who had already been given allotment earlier and thereby persons of higher merit, who are not able to get the appointment on the post of their first preference stands denied and the candidate with lower merit, who could not be given any allotment earlier, gets the post which becomes available on account of non availability of selected candidate and that post may be a post of first preference of those who have been meritorious candidates and those candidates with higher merit are deprived of their chance and candidates of lower merit gets the benefit of their first preference. There is no dispute that this is how the Government has been operating these Rules and the interpretation of these Rules, which has been taken by the Government, has also been sought to be defended by stating that in such cases if the allotments are changed with the availability of vacancies, it will cause great administrative inconvenience. However, we find that this interpretation, as has been taken, does not advance the object sought to be achieved by the Scheme of the Rules so as to make available first preference to the candidate with lower merit and deny the first preference to the higher merit. According to us this interpretation of Rule 9, as has been taken and followed by the Government, is not the correct interpretation of the Rule. The intention of the Rule is that the request for change in allotment of post is not to be considered. that does not mean and does not absolve the Government from following the order of merit as and when vacancy becomes available on account of any selected candidate not joining the appointment on the post offered to him. Strictly speaking, it will not be a case of change of preference. The Government may or may not entertain such request. The question is that the Government itself is under an obligation to make use of such vacancy in a reasonable manner so that the merit is protected. If the rule is interpreted in such a manner that it deprives higher merit, such interpretation of Rule cannot be countenanced. According to the principles of interpretation of Statute any Rule is to be interpreted so as to save its validity and that is the principle of harmonious construction, which must apply with full force while considering the validity of any rule. The question is as to whether the Government is under any duty under these rules to follow merit when such vacancy becomes available or not, notwithstanding the fact as to whether any request for change in the allotment of post is entertained or not. Government may not entertain any such request but it is the duty of the Government itself as to make use of such a vacancy by following the merit and in doing so if there is any change in the allotment of the post in favour of a more meritorious candidate or a candidate with higher merit, such change in the allotment is not found to be forbidden under the Scheme of Rule 9 itself. No rule can be struck down merely because it has been wrongly interpreted by the Government so as to defeat the object of advancing the cause of higher merit. Therefore, while we do not approve of the interpretation of this Rule, as has been done by the Government and we reject this interpretation, we find that on correct interpretation of Rule, there is no question of holding this Rule to be invalid merely because it has been wrongly applied by Government. Rule 9 is in conformity with the provisions of Articles 14 and 16 of the Constitution of India and the challenge to the validity of Rule, in our opinion, must fail and we hereby declare that Rule 9 is valid but the interpretation of the Rule, as has been applied by the Government in the matter of filling the vacancies, which become available on account of selected candidates not joining the post is wrong and the vacancies are to be utilised in accordance with merit list and whether a request for change of allotment of post by itself is entertained or not, the Government of its own is under an obligation to utilise these vacancies keeping in view the merit list. In any case, the merit should not be made a casualty. Therefore, we uphold the validity of Rule 9.

13. While considering the validity of Rule 9, as aforesaid, we have kept in view the principles laid down in the cases decided by the Supreme Court which were cited before us as under:-

(a) AIR 1963 SC 591 (Khandige Sham Bhat v. Agricultural Income-tax Officer).

(b) AIR 1993 SC 1947 (Venkateshwara Theatre v. State of Andhra Pradesh)

(d) AIR 1986 SC 1205( Municipal Corporation, Ahmedabad v. Jan Mohammed) relying upon AIR 1980 SC 2056 Paras 38,58,67.

(e) AIR 1981 SC 1922 (K.P. Varghese v. Income Tax Officer, Ernakulam) Para 11 at Page 1932

(f) AIR 1984 SC 1543 (Maharashtra S.B.O.S. & H.S.Education v. Paritosh) Para 16,21,22 at page 1551.

(g) JT 1996 (3) SC 679 (State of Andhra Pradesh v. Mc Dowell and Co.),Para 45, Page 702

(h) AIR 1993 SC 978 (R.L. Bansal v. Union of India)

(i) AIR 1993 Delhi 40 (Sandhya Kabra v. University of Delhi) Para 43 at Page 49 (Full Bench) (AIR 1971 SC 1439 had been referred )

(j) AIR 1994 Delhi 108 (Dr.Veena Gupta v. University of Delhi) FB Para 11

(k) AIR 2000 Allahabad 191 (Dr.Naveen Jamval v. Dr.Arvind Kumar Kenkane ) Division Bench Para 13.

(l) AIR 1998 SC 680 (Rajiv Mittal v. Maharshi Dayanand University)

(m) AIR 1989 SC 711 (Union Of India v. M.V.V.S Murthy. 5

(n) AIR 1997 SC 2643 at page 2644 - 2645 ( State of Bihar v. Kaushal Kishore Singh) Justice M.B.Shah's order dated 24.11.98 in Special Civil Application No.388/97 Special Civil Application No.34286 decided on 5.2.86 by Justice Gheewala. Dt:3.9.2001

14. In Special Civil Application No.6162 of 1989 on behalf of the petitioners, Mr. Girish Patel has submitted that in response to the notice inviting applications through the advertisement dated 1.10.1985 published in the newspapers by the Commission, the petitioners had applied for Class-I as well as Class-II posts. They were required to give their options and preferences for Class-I as well as Class-II posts. Under Class-I, there are three types of posts;

1) Gujarat Administrative Service; 2) Deputy Superintendent of Police; 3) District Registrar of Co-operative Societies Both the petitioners gave first preference to the post of Administrative Service and second preference to the District Registrar of Co-operative Societies. Under Class-II, there were 7 posts as under:

1) Section Officer,

2) Sales Tax Officer, 3) Mamlatdar, 4) Taluka Development Officer, 5) Govt. Labour Officer, 6) Asst. Registrar of Co-operative Societies, 7) District Inspector of Land Record.

Both the petitioners in this Special Civil Application No.6162 of 1989 had given first preference to the post of Section Officer, 2nd preference to the post of Sales Tax Officer, 3rd preference to the post of Mamlatdar, 4th preference to the post of Assistant Registrar of Co-operative Societies, 5th preference to the post of Government Labour Officer, 6th preference to the post of Taluka Development Officer and 7th preference to the post of District Inspector of Land Records.

15. For the purpose of selections, there were two written tests, Part-I test and Part-2 test. Part-I test was held in 1976, whereas Part-II test from amongst the successful candidates of Part-I was conducted in September 1987. Both these petitioners appeared in Part-I test and succeeded in the said test and thereafter they appeared in Part-II test in September 1987 and there also both of them succeeded. In April 1988 both were called for the oral interview by respondent No. 2 and both of them succeeded there also. After completion of process of interview of all the candidates, a select list was prepared and published on 30th of November 1988. In the said list, so far as Class-I post is concerned, petitioner No. 1 namely, Shri Kalpesh B. Shah was at Serial No. 66 in the waiting list at Page No. 7, whereas the petitioner No. 2, namely Deepak B. Shah was at Serial No. 5 in the waiting list at Page No. 5. So far as select list of Class-II post is concerned, both of them were shown in the merit list, petitioner No. 1 at No. 66 and petitioner No. 2 at No. 5. They were in fact shown in the waiting list for class-I post and for class-II post they have been shown in the merit list.

16. Both these petitioners wanted to change their preferences given by them in relation to type of posts so far as Class-II posts are concerned. Petitioner No. 1 wanted to delete the preference given by him to the post of Section Officer. In other words, his 2nd preference given to the post of Sales Tax Officer would become his 1st preference. So far as petitioner No. 2 is concerned, he wanted to delete his preference given to the post of Section Officer as 1st preference and Sales Tax Officer as 2nd preference. In other words, his preference to the post of Mamlatdar would become 1st preference. The preference they wanted to delete is not claimed and they want to forego their rights for those posts of preferences as stated in Para 7 of the petition. Barring this deletion everything as usual in tact in class-II post. So far as class-I posts are concerned, there was no change at all. Petitioner No. 1 also wrote to the Government by letter dated 26th May 1989 indicating his desire for deleting 1st preference. He also wrote to respondent No. 2 Commission on 23rd of January 1989. Petitioner No. 2 also requested for such change and indicated his desire to delete his preference by his application dated 15th of June 1989 and he had also sent the application which was sent to the name of DIG. Dalai on 23rd January 1989. On 29th of March 1989, a reminder was written in the name of DIG. Dalai. The respondents did not get any reply for quite some time but by letter dated 17th of June 1989 the petitioner No. 1 was sent a reply and the petitioner No. 2 was sent a reply on 29th of June 1989. The reply by GAD. was in negative and it was mentioned that the request of petitioner for change in the preference of her deleting the preference could not be accepted. On the basis of these pleadings and relying upon Rule 7 and challenging the validity of Rule 9 it was prayed that the petitioners be permitted to delete their preferences and that the refusal to change such preferences as per the letters dated 17th of June 1989 and 29th of June 1989 was arbitrary, unconstitutional and volatile of Article 14 of the Constitution and both these orders be quashed and set aside and Rule 9 be declared ultra vires.

17. Similar averments have been made in Special Civil Application No. 720 of 1990 by the petitioner, Manahan U. Path an, represented through Mr. Girish Patel with regard to the selections held for class-1 and Class-II posts in June 1986 and September 1987 and a prayer has been made that the respondents be restrained from offering the post of Section Officer to the candidates in the waiting list and they may also be directed to offer the post of Section Officer to the petitioner and to appoint him as such as per their first preferences and Rule 9 be declared ultra vires of Articles 14 and 16 of the Constitution of India.

18. In the case of Special Civil Application No. 5705 of 1996 filed by petitioner, Ubadiyabhai Katarbhai Vasava, represented through Mr. G.M. Joshi, it has been stated that the petitioner had appeared in the combined competitive examination in September 1986. The list of successful candidates was published wherein his name was at Sl. No. 101. He claims that he is qualified for appointment to the class-1 post. After the publication of the result the petitioner realised his mistake that though the post of Dy. Superintendent of Police, Class-I was advertised the petitioner had applied inadvertantly for the next post, i.e., Superintendent of Prohibition and Excise, Class-I and he made a representation on 3rd of October 1989 to treat his 2nd preference to that of Dy.Superintendent of Police. His request was turned down by the respondent No. 1 on 25th January 1990. The petitioner addressed another representation on 24th April 1990 that he had made a request even for allotment of the post. That the petitioner belongs to S.T. category and though the post of Dy. S.P. class-I is lying vacant the petitioner is not being offerred such post. He raised the grievance that Mr. Galahad Meithei Parch at Serial No. 82 was selected for the post of GAS. Class-1 but after performing his duties as such for a period of 2 1/2 years he was permitted to come back to the office of Superintendent of Prohibition & Excise with original-seniority and continuity in service and likewise Mr. Jayprakash G. Vyas who was selected to class-1 and Class-II in 1981 was asked for his consent by letters dated 27th June 1984 by the respondent No. 2 Commission and subsequently on 10th of August 1984 and 17th November 1984 as to whether he was willing to accept other post as the post preferred by him has already been filled-up. Similarly, Mr. Chandresh S. Rajpal was offerred Dy. Superintendent of Police post though he had never opted for it. Similarly, K.G. Vanjara and Mr. Katara though opted for the post which had been filled up they were still accommodated. The petitioners therefore preferred another representation dated 26th June 1982 quoting all the above acts of the Commission and to give justice to him. Yet another representation was preferred on 9th February 1986 while the select list was still in force. He has submitted that the post of G.A.S. class-1 was still vacant and the post of Dy.S.P. was also vacant and yet the petitioner was denied the same. On the face of these pleadings he has sought a direction against the respondents to appoint him on G.A.S. class-1 post, i.e., of Dy. Superintendent of Police as per the order of 1st and 2nd preference forthwith.

In the other Special Civil Application No. 3597 of 1990 the petitioner Bipinchandra M. Parmar representing through Mr. G.M. Joshi has come with the case that he belongs to the scheduled caste; that he was working as a Government Labour Officer, which is a Class-II post; that for filling in 101 posts of class-i and 188 posts of Class-II with different designations the G.P.S.C. issued a common advertisement of 1st October 1985. The petitioner also applied in response to this advertisement and the preference given by him were as under; 1. G.A.S. Class-I 2. Dist. Registrar of Co-op Societies, 3. Mamlatdar, 4. Govt. Labour Officer, 5. Taluka Development Officer, 6. Sales Tax Officer, Class-II, 7. Assistant Registrar of Co-operative Societies, 8. Section Officer, 9. Deputy Superintendent of Police. The petitioner who passed the tests held in June 1986 and September 1987 was called for oral interview between March and June 1988. Thereafter a merit list of general seats and reserved seats for class-1 and Class-II were prepared and a separate waiting list for class-1 and Class-II posts was also prepared. The petitioner's name was at Serial No. 87 in the merit list of class-1 posts. According to him, as per the merit list prepared by the Commission and recommended to the State Government the following 6 S.C. candidates were recommended by Commission for appointment to the Class-I post; Sr. No. Merit No. Name Marks 1. 81 Gunvantrai C. Vaghela 387 2. 83 Rajendrabhai K. Parmar 382 3. 84 Jagdishbhai H. Sarvakar 381 4. 85 Amrutbhai B. Parmar 380 5. 86 Manojkumar L. Makwana 376 6. 87 Bipinchandra M. Parmar 376 Thus, the petitioner was one of those candidates who were recommended by Commission to class-1 post. Even before the decision was taken to make the allotment of posts by the State, the candidate at Serial No. 84 Mr. Sarwarkar had already shown his unwillingness in class-1 service. The petitioner was therefore entitled to get the posting of class-1 officer. The petitioner's claim is that because he was selected at serial No. 87 he was next to the serial No. 84 for appointment to class-1 post because the candidate at Sr. No. 84 had shown his unwillingness for class-1 service. His grievance is that out of the abovenamed 6 names belonging to scheduled caste who were selected for class-1 post, except the petitioner, 5 others were higher in merit and whereas the candidate at Sr. No. 84 had declined and shown his unwillingness he ought to have been offered the class-1 post. Despite this, the classs-1 post was offerred to Mr. Sarwarkar in the first instance and the post which was not availed by Mr. Sarwarkar instead of being offerred to him, the same is being made use for appointment of the candidates from the waiting list maintained by the respondents and these candidates in the waiting list are those who are ranking lower than the petitioner. It has also been submitted that there was no vacancy in the District Registrar of Co-op Societies' office in the reserved category and vacancies were available only in general category. Therefore the first respondent went to the 3rd option given by the petitioner, i.e., Mamlatdar which is a Class-II post, whereas the vacancies were available in the second post only against general category. The vacancies in reserved category were already allotted to the candidates recommended in the reserved category. Yet the 1st respondent decided to give appointment to the petitioner in the vacancy of general category and the petitioner was offered the post of Mamlatdar. The action of the 1st respondent in allotting the petitioner to Class-II post in general category shows the non-application of mind and in the facts of the case the petitioner could very well have the class-1 post. On the basis of these pleadings it has been prayed that the action of non-appointment of petitioner on the basis of G.A.S. Class-I be declared to be illegal and be set aside, and in the alternative to that of District Registrar of Co-op. Societies and that the respondents be directed to appoint the petitioner to G.A.S. Class-1 post or that of District Registrar of Co-operative Societies.

19. In Special Civil Application No. 931 of 1992, the petitioner, namely Sudhir B. Patel represented through Mr. Paresh Upadhyay has come out with the case that he was appointed as Mamlatdar vide order dated 21st December 1989 as at the time of his appointment he was at Serial No. 1 in the order of merit for Class-II posts in the list prepared by the Gujarat Public Service Commission based on combined competitive examination which was held in June 1986 and September 1987 followed by interviews. It has been further submitted that the petitioner was at Serial No.1 in the waiting list prepared for the cadre of class-1 officers. He came to know that the candidates at Serial Nos. 2 to 7 in the same list had been appointed in class-1 cadre on different posts such as Dy. Superintendent of Police and District Registrar of Co-op. Societies and thus the persons who stood in the waiting list of class-1 at Serial Nos. 8 to 13 were appointed as Deputy Collector in Gujarat Administrative Service, i.e., class-1 post, whereas at that time 12 vacancies had remained unfilled. His request for the post of Dy. Collector which was his 1st preference was declined and therefore he filed the present petition. Thus the petitioner's claim is based on the fact that while he was placed at Serial No.1 in the waiting list of class-1 cadre and at Serial No.1 on merit list of Class-II cadre, the G.P.S.C. on 30th November 1988 issued a list of candidates recommending appointment in class-1 and Class-II posts. The petitioner was offerred the post of Mamlatdar in Class-II. According to the petitioner, out of the 101 class-1 posts, there were 78 posts in the cadre of Gujarat Administrative Service, 17 posts in the cadre of Dy. Superintendent of Police and remaining 6 posts were in the cadre of District Registrar, Co-operative Societies. Whereas the picture with regard to the class-1 posts was not clear the petitioner was offerred the post of Mamlatdar in Class-II and he accepted the same because of the fact that if he did not accept that post and thereafter does not get the post of class-1 cadre his chance of service would have been affected. This is the reason given out by him for accepting the appointment in Class-II cadre, while he has claimed that he has given 1st preference to the Gujarat Administrative Service Class-1 post of Deputy Collector. In any case the situation as was obtaining at that time no person lower in merit had been appointed in GAS Class-1 and therefore he joined as Mamlatdar in pursuance to the order dated 21st December 1989. The petitioner says that later on he came to know that out of 78 candidates who were in the merit list of class-1 post, 8 candidates had not joined the service within the stipulated time and therefore their appointments were cancelled. Against these vacancies which became available on account of non-joining of 68 candidates it was the petitioner who could have been appointed in class-1 post but strangely enough the candidates who were far below him at Sr.No. 8 in the waiting list were offerred appointment in G.A.S. while the petitioner was at No.1 in the very same list and had given G.A.S. as his 1st preference being at Sr. No.1 in the waiting list for class-1 post was deprived of it. He legitimately expected that when 8 posts shall become available in class-1 he stands the first chance to be appointed against any of the vacancies becoming available on account of the candidates selected for class-1 unwilling to join and on their failure to join within the stipulated time. The petitioner therefore made a representation to the Chief Secretary, General Administrative Department on 3rd September 1990 requesting for appointment to class-1 post and it has been stated that even prior to it he had sent several communications from 23rd December 1989 to 18th April 1991. No reply was given except the letter dated 13th of May 1991 sent to him by the Section Officer of G.A.D. and aggrieved from the denial of appointment to class-1 post as above the present petition was filed. The petitioner's grievance was further coupled with the averments that the post of GAS, class-1 is a post at a higher pedestal than the cadre of Mamlatdar and a person who has been appointed in the GAS has a better prospects for nomination to IAS cadre as 70% of candidates are earmarked for the candidates working in GAS class-1 and in case the petitioner is not appointed in class-1, his chances for advancement to IAS would be adversely affected.

20. On these pleadings, the prayer was made that the respondents be directed to appoint the petitioner in G.A.S. class-1 cadre with effect from the date of his appointment as Mamlatdar and alternatively with effect from the date on which the vacancies became available on account of the non-joining or failure to join by the candidates who were in the main select-list for class-1 post. By this time the petitioner has already been promoted to class-1 post, vide order dated 3rd January 1998 and since then he has been working on this post. Mr. Paresh Upadhyaya has therefore submitted that if his case is accepted, it will only be the question of antedating his appointment on the post of class-1 without involving any other administrative difficulties as has been argued on behalf of the respondents.

21. With regard to Special Civil Application No. 478 of 1990 and other cognate petitions, on 29th of June 2001 on behalf of Government certain documents as mentioned in the covering Note dated 29th June 2001 were produced and these documents also include the list of candidates who are higher in merit than the petitioners of Special Civil Application No. 478 of 1990 and other cognate petitions, i.e., Special C.A. No. 6162 of 1989, Special C. As. Nos. 613 to 622 of 1990, Special C.A. No. 3597 of 1990 and Special C.A. No. 5705 of 1990 in the select list of Class-II and it has been said that they too have not got their 1st preference. The reference has been made to the advertisement No. 25/85. A statement has also been filed showing the details regarding the candidates who were allotted Class-II posts pursuant to the advertisement No. 25/85 who have been subsequently selected to class-1 post. In case of Special Civil Application No. 3597 of 1990 (represented by Shri G.M. Joshi), i.e., the petition filed by Bipinchandra M. Parmar, a Note dated 21st June 2001 has been filed. While admitting that this petitioner was at Serial No. 6 for class-1 post as S.C. candidate, it has been submitted that as per the merit list prepared by the Commission and recommended to the Government, 6 S.C. candidates were recommended for class-1. The petitioner was at Sr. No. 6. These posts of GAS Class-1 were reserved for SC candidates and before the petitioner's turn came, these posts were allotted to the candidates who were ranking higher than the petitioner. As there were only 5 posts the petitioner could not be given appointment as class-1, whereas the petitioner's 2nd preference was of District Registrar of Co-operative Societies and as there was no reserved post in this category he could not be appointed as District Registrar of Co-op. Societies, as his 3rd preference was Mamlatdar class-II post and whereas he had secured 376 marks on the basis of his merit he was entitled to the post of Mamlatdar in the general category and he was allotted to the unreserved post of Mamlatdar class-II. It has been submitted that the candidate at Sr. No. 84 who has been appointed as class-1 namely Shri Sarwarkar had sent a communication dated 19th August 1989 that he does not desire to be appointed to class-1 post and hence class-II post may be considered as his 1st preference. It has been then submitted in this context that in view of the provisions of Rule 9 of the Rules the request of Mr. Sarwarkar for being considered for class-II post as his 1st preference could not be entertained and therefore on 21st December 1989 he was appointed on class-1 post of GAS his original preference. Shri Sarwarkar did not accept class-1 post and the appointment of Mr. Sarwarkar was cancelled. Thereafter further names were called for from the list to fill-up the vacancies as well as further vacancies for allotment against vacancies of GAS Class-1 which occurred due to non-acceptance by Shri Sarwarkar. When the call letter Annexure C was issued to the petitioner on 29.11.1989, the appointment of Mr. Sarwarkar to the post of GAS class-1 had not yet been cancelled. One fails to understand as to when Mr. Sarwarkar had declined the appointment to the class-1 post and the vacancy had become available in class-1 post while this vacancy was not available to this petitioner in the reserved category, instead of taking him to the post of Mamlatdar, Class-II in the unreserved category merely because on 29th November 1989 the appointment of Shri Sarwarkar had not been cancelled and it was cancelled later on 3rd February 1990, how the right of the present petitioner could be defeated on that basis for class-1 post.

22. We have already held in earlier part of this order that Rule 9 cannot be declared to be invalid and the same is a valid piece of legislation. Even if the candidates cannot seek a change of preference after the allotment, apart from the fact that we find that the facts of the case are that even in some cases the request has been made even prior to the allotment, the question is as to what is the obligation of the Government itself for the purpose of filling up the vacancies which are available when a candidate of higher merit is appointed to the post of Class-I fails to join or declines to join but the question which is posed on the facts of this case is as to whether while filling up these posts the stand of the Government that the posts have to be filled in from the candidates who are in the waiting list can be said to be justified? While defending the action of the Government the learned Advocate General has first of all made a reference to Special Civil Application No.388 of 1997 (M.B. Shah, J.) decided on 24th November 1998 wherein the earlier decisions rendered on 5.2.1996 in Special Civil Application No. 246 of 1986 (Justice Gheewala) was also considered. In this regard it may be observed that the decision in the case of Special Civil Application No.388 of 1987 was made a subject matter of challenge by way of filing Letters Patent Appeal No. 460 of 1988 along with which these matters are referred and in that matter (LPA) it was given out that the vacancy which had become available in the particular selection had not been filled up from any candidates of that selection but the candidate who was in lower merit but was selected in the subsequent selection and on the merit of such subsequent selection and that LPA was dismissed as having become in fructuous in the facts of the case by this Court while hearing these matters. Therefore, that decision cannot be cited as an authority for the purpose of deciding the controversy at hand.

So far as the decision dated 5.2.1986 rendered in Special Civil Application No. 342 of 86 decided on 5.2.86 by Justice Gheewala is concerned, that on the contrary helps the case of the petitioner. The said judgment was distinguished even in Special Civil Application No.388 of 1997 on the ground that this was based on earlier set of rules and those rules had been subsequently repealed and new rules had come into force. Thus, in our opinion, these two decisions cannot be said to be of any assistance for the purpose of deciding the controversy in this case, which is based on the Rules of 1980.

23. The reliance was also placed on the following decisions by the learned Advocate General:-

(i) Full Bench decision of Delhi High Court in the case of Sandhya Kabra v. University of Delhi reported in AIR 1993 Delhi 40 relating to admission of the students in the PG Medical Course wherein the earlier decision of the Supreme Court reported in AIR 1971 SC 1439 was also considered.

(ii) Full Bench decision of Delhi High Court in the case of Dr Vina Gupta v. University of Delhi reported in AIR 1994 Delhi 108 relating to admission of the students in the PG Medical Course.

(iii) Naveen Jamval v. Arvind Kumar Kenkane reported in AIR 2000 All. 191 relating to admission of the students in the PG Medical Course.

(iv) Arvindkumar Kankane v. State of U.P. & Ors. reported in JT 2001 (6) SC 260. Note: This case decided by the Supreme Court was cited before us during the course of the dictation of the order on 27.8.2001. Therefore, the matter was posted for 30.8.2001 so that the learned advocates for the petitioners may put up their case and deal with this latest judgement of the Supreme Court decided very recently on 3.8.2001 i.e. after commencement of the dictation of the order in this case. On this question, the arguments were further heard on 31.8.2001.

(v) Rajiv Mittal v. Maharshi Dayanand University reported in AIR 1998 SC 680, which is relating to the case of the students for admission in the MBBS Course.

(vi) Union of India v. M.V.V.S. Murthy reported in AIR 1989 SC 711. Para 5. Case relating to Civil Service (Combined) Examination. It appears that in this case the candidate who gave preference for IAS only was offered IPS but did not join. The said candidate appeared in the next year examination but was not successful for IAS and IPS. He received offer for Central Information Service, Group A on the basis of the earlier examination and the Supreme Court found that he could not claim IPS since a candidate lower to him had been selected for IPS.

(vii) State of Bihar v. Kaushal Kishore Singh reported in AIR 1997 SC 2643. In this case Class B posts were advertised by the State Selection Board. No merit list was prepared. The selections were made on the basis of the educational qualifications required for the job and on the basis of the pay scales available at that time. The learned Advocate General has relied upon certain observations made in para 5 of the judgement. It is of course true that in para 5 it has been observed that the appointment is not an indefeasible and absolute right of the candidate who had applied and opted for particular post and asking for option is only a discretionary matter and the Government is not bound to select the candidates on the basis of the option given by the candidates. But we find that this case cannot be used as an authority in support of the State Government for the simple reason that in that case no merit list was prepared and without preparing the merit list the selection was based on the basis of educational qualifications required for the job and the offer was made on the basis of the pay scale and ultimately in that case the Supreme Court held that the appointment by pick and choose method is an arbitrary exercise of the power. It has been decided that the Government should prescribe an objective and rational method or manner of allotment of the candidates selected to the Departments, depending upon their job necessity and requirement and since the objective and rational criteria was not followed, the Supreme Court declined to interfere with the order Passed by the High court and the appeal was disposed of accordingly.

(viii) Malaprabha Coop. Sugar Factory Limited v. Union of India reported in AIR 1994 SC 1311. It was also submitted by the learned Advocate General that even if it is accepted more meritorious candidates should have been given preference in comparison to the candidates in the waiting list, no relief should be granted. In support of this submission, he has placed reliance on observations made in para 110 of the judgement at page 1332. It was a case under the Essential Commodities Act. In para 110 of the said judgement a passage occurring at page 294 of Judicial Remedies in Public Law by Clive Lewis was quoted as under:-

"The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decisions, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts' remedial discretion and may prove decisive."

(ix) The learned Advocate General has also sought to distinguish the case of Balram Gupta v. Union of India reported in AIR 1987 SC 2354. It was a case relating to the withdrawal of notice of voluntary retirement given by the employee under the Rule well within the time prior to the expiry of the notice period. The order allowing to retire the employee prospectively on expiry of notice period without allowing withdrawal of such notice was held to be illegal. In para 12 of this judgement it has been observed as under:-

"In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant."

The distinction was sought to be made by saying that it was a case of voluntary retirement. This point of distinction is no distinction in the eye of law.

(x) A.N. Meman v. High Court of Gujarat reported in 1987 (2) GLH 429. It was a case in which there was a delay and laches, the promotions had been made in the year 1976 and the same had been challenged in the year 1984 and therefore it was held to be a case of gross delay. Such is not the fact situation in the case at hand.

(xi) Gujarat State Dy.Executive Engineers' Association v. The State of Gujarat & Ors. reported in JT 1994 (3) SC 559. It was a case in which the Court considered that a waiting list prepared in an examination conducted by the Commission does not furnish the source of recruitment. Its purpose is only for the contingency that if any of the selected candidates does not join for one or the other reason the person from the waiting list may be pushed up and appointed in the vacancy so caused or if there is extreme exigency the Government may as a matter of policy decision pick up persons in the order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice may result into depriving those candidates who are eligible for competing for the vacancies available in future. This judgement was sought to be distinguished by making reference to the observations made in para 11 of this judgement by saying that the Court had observed that entire appointment of direct recruits, therefore, from the waiting list was not proper and yet the Supreme Court observed that these persons had been appointed and are working at least for five years and therefore it is unjust and harsh to quash their selection. Therefore, while refraining from quashing the appointment made in pursuance of the direction issued by the High Court, it was opined that the waiting list for one year cannot furnish source of recruitment for future years, except in very exceptional cases. This decision cannot apply to the facts of the present case for the simple reason that here the candidates of the waiting list in the same year and same selection are being preferred over the candidates with higher merit in the same selection. In this context, the argument raised that the interim order dated 28.1.2001 vacated by the Division Bench and ultimately it was modified on 5.4.1990 and at that point of time clock stopped. We find that merely because the matter has been pending for a long time, it cannot be said that the clock stopped when the interim order was modified on 5.4.1990.

24. Mr Girish Patel has relied upon the following cases :-

(i) Dilip Kumar v. State of M.P. reported in AIR 1976 SC 133 on the question of interpretation and alternative construction. The observations made in para 22 that no case should be held to fall within which does not come within the reasonable interpretation of the statute.

(ii) Case of Kumari Shrilekha Vidyarthi v. State of U.P. reported in AIR 1991 SC 537 was also cited by Mr Patel in reference to paragraphs 22, 31, 33 and 36 in which it was laid down that whatever may be the motive of the public authority, it should meet the test of Article 14 of the Constitution of India.

(iii) Mr Patel also relied upon the case of Delhi Science Forum v. Union of India reported in AIR 1996 SC 1356 in support of his argument that when there is any legal or constitutional bar in adopting any government policy, it can certainly be examined by the Court.

(iv) The case of Tata Cellular v. Union Of India. reported in AIR 1996 SC 11 was also cited. The attention was invited to para 96 of the said judgement on the question of rationality of any government action and when breach of the principles was argued with regard to decision making process and it was submitted that the impact of the Rule is to be seen.

(v) The case of Rameshwar v. Jot Ram reported in AIR 1976 SC 49 is relied upon by Mr Patel to argue that the right of relief is to be seen as on the date of the institution of the prosecution and the Court's procedural delays cannot affect the rights crystalised in initial cause of action and the Court has power to take note of the subsequent events.

(vi) In B. Prabhakar Rao v. State of A.P. reported in AIR 1986 SC 210 in para 20 the Supreme Court observed that Judge's lyfriend and counsellor, `the common man', if asked, will unhesitatingly respond that it would be plainly unfair to make any such classification. The common sense response that may be expected from the comman man, untrammeled by legal lore and learning, should always help the judge in deciding questions of fairness, arbitrariness, etc. The observations made in the end of para 22 were also relied upon.

25. Whereas strong reliance has been placed by the learned Advocate General on the case of Arvindkumar Kankane v. State of U.P. (supra), on behalf of the petitioners it has been submitted with vehemence that the cases relating to the admission of the students including the case of Arvind Kumar v. State Of Uttar Pradesh . can't be applied to the service matter as it is. Such cases operate in an entirely different field of education and here is a case under service law. The government itself had taken a period of about four years in making the appointments after holding the selection and it has been submitted that even otherwise considerations in the education matters are entirely different than the service matters. It has also been submitted that in the case of Arvind Kankane it was held in relation to admission to PG Medical Courses that allotment of subject (speciality) and college of study made on the basis of the option exercised by a candidate is final and no candidate is permitted to change the subject or college. A candidate who does not exercise his choice at the time of counselling will be kept in the waiting list and if at any subsequent stage a seat falls vacant the same shall be allotted on the basis of the option exercised by those who are in the waiting list. The rule providing to this effect was challenged. The grievance was made that if a choice subject like surgery and medicine is given up by a candidate and that seat becomes vacant it may go to a candidate who is lower in rank in the merit list. This is only a fortuitous circumstance dependent on so many contingencies like the student who has been allotted a seat in medicine, giving up the said seat and that seat falling vacant and thereafter the same is allotted to a candidate who is lower in rank in the merit list. Such freak circumstances cannot be the test of reasonableness of the Rule.

However, Mr Patel has submitted on behalf of the petitioners that the Supreme Court itself has observed in para 3 of this very judgement that prima facie though it appears to be some unfair, there is no alternative apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates. It was also observed that once the academic course commences the same will have to be completed within a period of three years and if the counselling goes on continuously for a long period then it may not be possible to fulfill that condition and thereby upset the course of study itself. The Supreme Court has expressed the view that the finding recorded by the Division Bench of Delhi High Court in Dr Veena Gupta's case and High Court of Punjab and Huryana in Anil Jain's case is in accordance with the reasons and stands the test of rationality. Once the option is exercised by the candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counselling when the seat becomes vacant, the process of counselling will be endless and, as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period. Mr Patel has submitted that in the case before the Supreme Court the time was essence of the matter whereas that factor is not available in the present case. The Government itself had taken long time even in making appointments and if we have reached the year 2001, it is not because of any fault on the part of the petitioners but because of the pendency of this matter before the Court and that should not come in the way of the candidates of higher merit for getting relief.

26. Mr Patel has also made reference to the case of Liladhar v. State of Rajasthan reported in AIR 1981 SC 1776, the case of Ashok Kumar Yadav v. State of Haryna reported in AIR 1987 SC 454, the case of D.V. Bakshi v. Union of India reported in AIR 1993 SC 2374 and Indian Airlines Corporation v. Capt. K.C. Shukla & Ors. reported in (1993) 1 SCC 17 and submitted that notwithstanding the case of Ajay Hasia reported in 1981 SC 487 the Supreme Court has itself found that standards which are applied in the education matters cannot be made applicable as it is to the service matters. He has submitted that areas of operation being different in service matters than those of education matters, they cannot be applied as it is. It is of course true that in these cases decided by the Supreme Court the question was as to what weightage should be given to the marks prescribed for viva voce test and the ratio laid down by the Supreme Court is that the marks prescribed for viva voce test should not be made decisive factor for the purpose of selection. Therefore, his submission is that the law must be developed area-wise. A purposive effort was also made to distinguish the case of Arvind Kumar Kankane (supra) by stating that so far as the admissions to PG Medical Colleges are concerned, the students get the opportunity to change the option after declaration of the merit list and second stage is at the time of actual allotment of the preference for the purpose of making choice of subject and college and the third stage is when vacancies become available subsequently after the allotment. It was also submitted that in service matters also the fortuitous circumstances or freak case may not be material but the intent of the working of the rule has to be seen. The availability of a vacancy on account of non-joining of any candidate has to be utilised by the Government on a proper criteria of merit. It was also submitted that in education matters the Supreme Court itself has stated that there is no alternative because the course had already commenced and if the preference is allowed to be changed subsequently it may disturb the whole academic functioning. In any view of the matter, the Supreme Court has held that the process was unfair but in absence of any other alternative, the allotment of the subjects, as has been made, had to be accepted. It has been submitted that such is not the fact situation in the present case. There is no question of commencement or completion of the course or disturbing the academic functioning and even if the preferences are not allowed to be changed after allotment on the request of the concerned candidate in terms of rule 9, the Government itself must discharge its obligation and the duty to adhere to the merit by utilising the subsequent vacancies on the basis of the merit alone, as it is not going to affect the working. It has further been submitted that the ground of the administrative exigency, as has been argued before this Court, is only a pretext to deny what is otherwise due to the petitioners. It is also pointed out that the Government itself has subsequently amended the rules during the pendency of these petitions for the same reasons as advanced by the petition and such rules have been placed on record by the Government itself and the said Rules made under the proviso to Article 309 of the Constitution of India called as Gujarat Civil Service (Class-I and Class-II) Competitive Examination Rules, 2000 have been notified on 19.10.2000 and the new Rule 9 thereunder with regard to order of preference lends a support to the arguments made on behalf of the petitioners. It was also submitted that the UPSC itself follows such a procedure and change of preference is permissible there also.

27. In case of Union of India v. Dhanwanti Devi and ors., reported in (1996) 6 SCC 44 in para 9 at page 51 the Supreme Court has considered as to how the law of precedent is to be applied. In this context, the objection which was raised that Hari Kishan Khosla's case was not a binding precedent nor does it operate as a ratio decidendi to be followed as a precedent and is per se per incuriam. The following observations may be quoted:-

"It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates [i] findings of material facts, is the inference which the Judge draws from the direct, or perceptible facts; [ii] statements of the principles of law applicable to the legal problems disclosed by the facts; and [iii] judgment based on the combined effect of the above."

The Supreme Court has thus categorically held that a decision is only an authority for what it actually decides. What is of the essence in decision is its ratio and not every observation found therein and not what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found . It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding between the parties to it, but it, is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of 'stare decisis'. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

28. The decision in the case of Deena v. Union of India reported in AIR 1983 SC 1155 has also been relied upon. In para 15 of the said decision it has been observed as under:-

"Any case, even a focus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent. Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations."

29. The last but not the least is the case of State Of Mysore v. S.R Jayaram reported in AIR 1968 SC 346 as was cited by Mr P.V. Hathi on behalf of the petitioners. In this case the Supreme Court was concerned about the validity of the last part of Rule 9(2) of Mysore Recruitment of Gazetted Probationers' Rules, 1959, which was in the following terms:-

"9. Appointment of Probationers.-- (1) Subject to the rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR 59, dated the 13th May 1959, and No. GAD 32 ORR 59, dated the 18th July 1959, and the provisions of sub rule (2), the candidates successful in the examination whose names are published under rule 8 shall be appointed as Probationers to Class I posts in the order of merit, and thereafter to Class It posts in the order of merit.

(2) While calling for applications, the candidates will be asked to indicate their preferences as to the cadres they wish to join. The Government, however, reserves the right of appointing to any particular cadre, any candidate whom it considers to be more suitable for such cadre."

The rules made provisions for direct recruitment to several cadres in the State Government service on the basis of the result of the competitive examination. This examination was held annually. It was open to all eligible candidates. The result of the examination was announced and the list of the successful candidates in the order of merit was published subject to the reservation of Scheduled Castes, Scheduled Tribes and Backward Classes, the successful candidates are entitled to be appointed as probationers to Class I posts in the order of merit and thereafter to Class II posts in the order of merit. If there are vacancies in a number of Class I or Class II cadres, Rule 9(2) comes into play. The candidates are required to indicate in their applications their preferences for the cadres they wish to join. Had there been nothing more in Rule 9(2), the 'successful candidates would have the preferential claim in the order of merit to appointment in the cadres for 'which they indicated their preferences. Thus, if there are 20 vacancies in cadre 'A' and 7 vacancies in cadre 'B', a successful candidate ranking fourth in order of merit would be appointed as a matter of course to cadre 'A' for which he indicated his preference. In this context, the Supreme Court has categorically observed in para 6 that the principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. The last part of Rule 9(2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though Rule 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9(1) is subject to Rule 9(2), and under the cover of Rule 9(2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. It was held we hold that the latter part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices: under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down.

We have considered the submissions as above made by both the sides in the light of the principles which have been decided in the cases as aforesaid. In our opinion, the principles which have been laid down in the cases related to education matters are in entirely different arena, in different context and different fact situation. Such a situation, as it is, cannot be applied in service matters. In the case of Arvind Kumar Kankane (supra) the Court had to keep in view the question of careers of students within the prescribed time and therefore it was held that though the course adopted was unfair, there being no other alternative the preference as had been given in the matter of specialties and PG Medical College had to be accepted. Here, we find that the grievance as has been raised on behalf of the petitioners is fully covered by the observations made by the Supreme Court in the case of State Of Mysore v. S.R Jayaram (supra). The ratio decidendi which is applicable to the facts of the present case is that the merit must prevail. In our opinion, while applying Rule 9 in the present case at hand the Government has virtually usurped the same power as were given under Rule 9(2) in the case of State of Mysore v. Jayaram (supra). The moment subsequent vacancies were available, the same were made use of for the candidates from the waiting list who are certainly less meritorious than the petitioners. The facts of the case of Special Civil Application No. 931 of 1992 are illustrative of the arbitrary manner in which the power has been exercised. This petitioner was no. 1 in the waiting list and the persons lower to him in merit have been allotted the preference and yet when the subsequent vacancies became available, this petitioner was denied his first preference and such preference to Class-I post was given to the candidates who are lower in merit. It is a case of complete and total erosion of merit on grounds which cannot be said to be germane. In such matters the ground of administrative exigencies and that the change of preference would create administrative problems can not be accepted. After all, the select list is based on a combined competitive examination and how a person who is lower in a merit in a select list based on the same combined competitive examination can be chosen for a higher preference to the exclusion of the person with higher merit. It does not appeal to the reason and the basic tenets on which the selections are held. If such course of action is not declared to be illegal, it would simply give rise to the recurrence and repetition of such cases and merit would go on being ignored again and again causing heartburning amongst the persons who have obtained higher merit. As we have interpreted Rule 9 so as to save its validity on the principle of harmonious constructions, we find that whether the request of a candidate for change can be entertained or not, the Government itself is under an obligation to act in a fair manner on the concept of Art. 14 of the Constitution and in the facts of the present case there is an alternative and the alternative is to change the preference without causing any prejudice to any body's rights and there is no question of time constraints like academic courses and we have to allow the merit to prevail over so-called administrative inconvenience. Even if there is some administrative inconvenience, this price, a small price indeed, has to be paid if at all we mean the rule of law and merit to prevail. Such preferences may be changed either from class II to class I or within a class against respective posts and that in our opinion is not going to create any administrative complications. Such practice is also in vogue in the case of the selections which are held by UPSC for All India Services and Central Services and we may also take note of the fact that the Government itself has lately realised unfair results of past and the wisdom has dawn though lately to amend the Rules in October 2000 and therefore the new Rule 9 with regard to order of preference as has been now amended now takes care of it.

30. The upshot of the aforesaid discussion is that:-

(A) The respondents are directed to pass appropriate orders and allot appropriate preference against the subsequent vacancies which had become available on any post in Class-I or Class-II strictly according to merit and the petitioners having higher merit in comparison to the other candidates in the waiting list, have to be given priority for the respective post in each of the two classes according to higher merit from due date. Of course, it will not entail any financial burden on the State Government for the period in past and except the financial benefits the petitioners of these 14 Special Civil Applications shall be entitled to all consequential benefits as a result of the allotment of their due preference on the basis of their merit.

(B) If it is found in case of any petitioner that there is a change from class-II to class-I on the basis of his merit or for any post within the class and he has been subsequently promoted to Class-I post, the respondents shall revise it to relate back to the due date on which he would have got it on the basis of his merit at initial stage and in such cases the pay shall also be fixed notionally as if he had been appointed to Class-I from the very beginning and he shall also be entitled to the difference of arrears between the pay actually drawn by him on the higher post and the pay which he would have drawn on the basis of the pay notionally arrived at.

(C) Out of 16 Special Civil Applications 14 Special Civil Applications except Special Civil Application No. 478 of 1990 filed by Mr D.G. Dalal and Special Civil Application No. 614 of 1990 filed by Mr Haresh Darji are allowed. Rule is made absolute in each of these 14 petitions. No order as to costs.

(D) Since the matter has remained pending for number of years, it is expected that appropriate steps shall be taken as expeditiously as possible by the Government to carry out above directions at the earliest but in no case later than four months from the date the certified copy of this order is served on the concerned authorities through either of the parties or through the Court, whichever is earlier.

(E) Special Civil Application No. 478 of 1990 filed by Mr D.G. Dalal and Special Civil Application No. 614 of 1990 filed by Mr Haresh Darji are hereby rejected as not pressed as stated in para 3 of this judgement itself. Rule in each of these two Special Civil Applications is hereby discharged. No order as to costs.

Still, while we have decided all these 14 Special Civil Applications on merits, after hearing both the sides at length including the hearing during the course of the dictation of order when the matter was deferred because of the case cited on behalf of the respondents, Ms Harsha Devani, learned Asstt. Govt. Pleader has requested that the operation of this judgment be stayed. We do not find any case for staying the order. The request is declined.

478 of 1992

D.G. Dalal v. State Of Gujarat

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

D.G. Dalal v. State Of Gujarat

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