Judgment

R.M. SAHAI, J.-

Seniority and quota violation between promotees and direct recruits, that too amongst engineers, keeps on coming to this Court every now and then. But the dispute which has come by way of this appeal, directed against the judgment and order of the Gujarat High Court, is slightly different from the beaten path. Although the issue primarily relates to construction of a circular issued by the State Government on 4-4-1979 providing for that, "the waiting lists which are prepared on the basis of the result of the competitive examination by the Commission, such waiting lists shall remain in force till the date of result of the subsequent examinations are declared", the real issue that arises is if such waiting list could remain alive for 10 years and could furnish source of recruitment. Equally important, rather of far-reaching consequence, is the issue whether the High Court could issue a direction to appoint candidates from the waiting list to future vacancies as the quota of direct recruits had not been worked out by applying correct principles. To add to this is the claim of those selected after lapse of 10 years, that they too should be granted deemed date of appointment as was done by the High Court in earlier petition filed by some of the candidates who had appeared in the exams held in 1980 and 1982 but had failed and on having succeeded from the High Court in 1984 were given their placement from 1981 and 1983.

2. Service is the Engineering Service of State of Gujarat. In 1980, examinations were held for selection of Class I and Class II Engineers under Executive Engineers (Civil) Gujarat Service of Engineers Class I Recruitment Rules, 1979 (for short "the Recruitment Rules") framed under Article 309 of the Constitution of India. Rule 4 of the Recruitment Rules empowered the Gujarat Public Service Commission (for short "the Commission") to fix qualifying marks in any or all the subjects. In exercise of this power the Commission decided to hold an examination which consisted of 1100 marks (900 for written and 200 for viva voce). It appears that after the examinations were held the Commission for the first time fixed a minimum qualifying marks of 50 , (that is, 100 marks out of 200 of viva voce) for selection. The results were declared in December 1981. One of such candidates Shri Ashra who had appeared in the examinations, but had not been selected even though he had secured good marks in the written examination and on aggregate had secured higher marks than those who had been selected, approached the High Court by way of Writ Petition No. 3820 of 1981 claiming that the fixing of qualifying marks was arbitrary. Similar Writ Petition No. 5381 of 1983 was filed by one Shri Patel after the result of the next examination held in 1982 was declared in 1983. Both the writ petitions were decided by a common order on 5-11-1984. Their claim was upheld, the fixation of qualifying marks was struck down and the Commission was directed as under:

"... to consider the question of inclusion of the petitioners names in the merit lists on the basis of aggregate marks in the written as well as vivavoce tests ignoring the concept of minimum qualifying marks for viva voce test. If the petitioners are entitled to the inclusion of their names on merits on the basis of aggregate marks, the merit lists shall accordingly be revised and appropriate recommendations shall be made to the State Government. If the petitioners are entitled to appointments to the posts in question on the basis of inclusion of their names in the merit lists, such appointments shall be given to them by the State Government. In such an event, they shall also be given appropriate seniority in accordance with their ranking in the merit lists. In other words, the petitioners shall be placed above those who rank below them in the merit lists in the seniority list of the posts in question. If necessary, they may be given deemed date of appointment without any mo