Gujarat High Court
Digviyajsinh Mahendrasinh Chavda & vs State Of Gujarat & 5 on 11 June, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13857/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13857 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15057 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14331 of 2014
With
CIVIL APPLICATION NO. 193 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION NO. 196 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1100 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1141 of 2015
With
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of NO 1 C/SCA/13857/2014 CAV JUDGMENT the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== DIGVIYAJSINH MAHENDRASINH CHAVDA & 10....Petitioner(s) Versus STATE OF GUJARAT & 5....Respondent(s) ========================================================== Appearance:
MR MAJMUDAR, ADVOCATE WITH MR H.J. KARATHIYA, ADVOCATE IN SCA No.13857/2014 for the Petitioner(s) MR NIRAV R. MISHRA, ADVOCATE IN SCA No.15057/2014 for the Petitioner(s) MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HARSH K. THAKAR IN SCA No.14849/2014 for the Petitioner(s) MR YATIN N. OZA, SENIOR COUNSEL WITH MS SHRUSHTI A. THULA, ADVOCATE IN SCA No.14330/2014 for the Petitioner(s) MS SHRUTI THULA, ADVOCATE IN SCA No.14331/2014 AND SCA No.16620/2015 for the Petitioner(s) MR RIDDHESH TRIVEDI, ADVOCATE IN CA No.193/2015 IN SCA No.14849/2014 for the Applicant(s) MR KRUNAL K. MODI, ADVOCATE IN CA No.196/2015 IN SCA No.14330/2014 for the Applicant(s) MR PRABHAKAR UPADYAY, ADVOCATE IN SCA No.1100/2015 for the Petitioner(s) MR G.M. JOSHI, ADVOCATE IN SCA No.1141/2015 for the Petitioner(s) MR K.B. PUJARA, ADVOCATE IN SCA No.2125/2015 for the Petitioner(s) MR ANAND YAJNIK, ADVOCATE for the Applicant(s)/Respondent(s) MR P.K. JANI, ADDITIONAL ADVOCATE GENERAL WITH MR SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1 MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 RAJESH N DESAI, ADVOCATE for the Respondent(s) No. 3 - 6 ========================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/06/2015 2 C/SCA/13857/2014 CAV JUDGMENT COMMON CAV JUDGMENT
1. This group of petitions is filed by the candidates who are treated "unsuccessful" by the respondent Gujarat Public Service Commission (hereinafter referred to as "respondent commission" or "GPSC") in the selection process for the posts of Assistant Conservator of Forest (ACF) and Range Forest Officer (RFO) conducted by it, pursuant to an Advertisement - Notice dated 1.3.2010 (Advertisement No.209/2009-10) and in two cases the petitioners are successful candidates but aspire for allocation of service to higher post.
2. Before proceeding further, it is necessary and appropriate to clarify certain factual aspects connected with and related to the proceedings.
(a) In almost all cases, the petitioners had not joined, as party respondents, the candidates whose names are mentioned by GPSC in the impugned list of "successful candidates" though they may be affected if any relief is granted;
(b) However many candidates - out of such 3 C/SCA/13857/2014 CAV JUDGMENT candidates - preferred applications seeking permission to join the proceedings and such applications - requests have been granted and such candidates have been impleaded as party respondents;
(c) Moreover, it is stipulated by and on behalf of the candidates whose name are mentioned in the list of selected candidates (hereinafter referred to as "successful candidates") and also by the learned advocate for the respondent GPSC and the respondent State that the successful candidates are before the the Court and they are duly represented and any objection on ground of 'non-impleadment of necessary or proper or affected party', does not survive. In view of such submission, the matters have been heard in light of the consensus that necessary and/or proper and/or affected parties have joined the proceedings and they are duly represented;
(d) In some of the petitions, the Court had, at initial stage, granted ex-parte relief against which the subsequently impleaded candidates i.e. the successful 4 C/SCA/13857/2014 CAV JUDGMENT candidates preferred applications requesting the Court to vacate ad-interim relief. In view of the said applications, the Court passed order dated 13.1.2015 (in Civil Application No. 193 of 2015) that the petitions may be heard finally at admission stage and any order with regard to the application praying for vacation of ad-interim order would not be necessary. Therefore, the petitions have been finally heard with consent of all concerned and contesting parties;
(e) During the pendency of the petitions and while hearing of the petitions was in progress, the respondent GPSC preferred application claiming that it may be permitted to declare and notify the revised result. In light of such application, a conditional order dated 21.1.2015 came to be passed with consent of all concerned and contesting parties whereby the Court granted conditional permission to the respondent GPSC. Thereafter, the respondent GPSC declared and notified the revised result vide notification dated 23.1.2014.
3. A common thread of objection which passes 5 C/SCA/13857/2014 CAV JUDGMENT through this group of petitions is woven by string of similar contentions and challenge raised by the petitioners against the selection list notified by the respondent GPSC, viz. (a) that the process undertaken by the respondent GPSC, pursuant to the Preliminary Test, Main Written Test and Interview, is faulty and defective; and (b) against exclusion of female candidates who are entitled for 30% horizontal and compartmentalized reservation; and (c) inclusion of male candidates (instead of completing the quota reserved for female candidates) in the selection list; and (d) against the action of introducing and applying so- called 10% relaxation by adopting the marks obtained by last "male candidate" in respective category as "qualifying marks/criterion" and not following the well recognized principles; and (e) against the action of transferring positions/vacancies reserved for female candidates to male candidates and the positions/vacancies reserved for candidates with special qualifications to the candidates not possessing special qualification though sufficient number of female candidates as well as the candidates possessing special 6 C/SCA/13857/2014 CAV JUDGMENT qualification are available; (f) and on the ground that the principle of migration is applied in wrongful manner which has resulted into reduction in number of vacancies for reserved category candidates and also in reduction of vacancies reserved for female candidates.
4. In order to consider and decide diverse contentions, it is necessary and appropriate to take into account the factual backdrop which can be summarized thus:-
4.1 The dispute raised in this group of petitions is related to and arises from the selection and recruitment process for appointment of Assistant Conservator of Forest ("ACF" for short) and Range Forest Officer ("RFO" for short).
4.2 The respondent No.1 State forwarded requisition to the respondent GPSC to initiate and complete the process of selection for filling up 47 vacancies for post of ACF and 120 vacancies for the post of RFO. In pursuance of the said requisition, the respondent GPSC initiated the said process by publishing an advertisement dated 7 C/SCA/13857/2014 CAV JUDGMENT 1.3.2010 (followed by a corrigendum), the respondent GPSC invited applications for appointment of 47 ACFs (Class-II) and 120 RFOs (Class-II).
4.3 The selection and recruitment to the post of ACF and RFO is, inter alia, governed by (a) the Assistant Conservator of Forest in Gujarat Forest Service, Class-II Recruitment Rules, 2007 ("ACF Recruitment Rules" for short); (b) the Assistant Conservator of Forest in Gujarat Forest Service, Class-II Recruitment (Amendment) Rules, 2007; (c) the Range Forest Officer, Class-II Recruitment Rules, 2008 ("RFO Recruitment Rules of 2008" for short); (d) the Range Forest Officer, Class-II Recruitment (Amendment) Rules, 2008; (e) the Range Forest Officer, Class-II Recruitment (Second Amendment) Rules, 2009;
(f) the Range Forest Officer, Class-II Recruitment (Third Amendment) Rules, 2009; and (g) ACF and RFO Competitive Examination Rules, 2008 ("Examination of Rules" for short). The said Rules are framed in exercise of power under Article 309 of the Constitution of India. 4.4 The Gujarat Civil Services (Reservation of Posts 8 C/SCA/13857/2014 CAV JUDGMENT for Women) Rules, 1997 (hereinafter referred to as "Reservation Rules of 1997") prescribe 30% reservation for women candidates. According to the said Rules, the reservation prescribed in favour of women candidates is "horizontal and compartmentalized". Therefore, out of total 167 posts, distributed amongst four categories (viz. General Category, SC, ST and SEBC), 51 posts are reserved for female candidates. 4.5 The distribution of said 167 posts (47 ACFs and 120 RFOs) is summarized, in the advertisement, in below quoted manner:
Adv. Name of Total Category wise posts. Category wise reserved posts No. Post. posts for women.
.
Open S.C. S.T. SEBC Open S.C. S.T. SEBC
category. category.
[209] Assistant 47 24 3 7 13 8 1 2 4
Conserva
-tor of
Forest,
Class-II.
Range 120 60 6 19 35 18 1 6 11
Forest
Officer,
Class-II
Total 167 84 9 26 48 26 2 8 15
posts.
4.6 Besides the above-mentioned horizontal
reservation for female candidates further special
9
C/SCA/13857/2014 CAV JUDGMENT
reservation is provided for - by virtue of ACF Recruitment (Amendment) Rules, 2007 and RFO Recruitment (Second Amendment) Rules, 2009 for the candidates possessing special qualification viz. B.Sc. Degree with Forestry as special subject. The said special reservation is to the extent of 25% of notified vacancies.
4.7 After inviting applications for selection and recruitment to the posts of ACF and RFO, the respondent GPSC initiated and conducted combined competitive examination in accordance with the said Examination Rules, 2008.
4.8 It is given out by the petitioners and the respondent GPSC that in response to the said advertisement, about 50,000 applications were received.
In that view of the matter, the respondent GPSC, at initial stage, followed elimination procedure by conducting OMR test. Thereafter, the examination as contemplated under Rule 4 of Examination Rules, 2008 was conducted. 4.9 It is given out by the respondent GPSC that finally 505 candidates were selected for written test and 10 C/SCA/13857/2014 CAV JUDGMENT interview. Out of the said 505 candidates, 36 candidates were disqualified since they did not fulfill prescribed requirement as regards physical standards and 5 candidates did not appear after conclusion of the said preliminary examination and main examination (written test and interview). Therefore, a general / first merit list of 464 candidates was prepared.
4.10 Initially, the respondent GPSC prepared a merit list of all candidates who appeared in the written test and were called for interview and thereafter, the respondent Commission introduced and applied qualification standard / marks and on that basis prepared and notified the selection list on 25.9.2014. The petitioners are aggrieved by the said final selection list. 4.11 From the said notification dated 25.9.2014, it has emerged that for fixing qualifying standard, GPSC picked-up the marks secured by the "last male candidate"
in respective category and on that basis decided the qualifying marks for female candidates in respective category. As an outcome of such process GPSC 11 C/SCA/13857/2014 CAV JUDGMENT determined below mentioned marks as cut-off marks (i.e. qualifying standard/marks):-
1.General (Female) 387 Marks 2. General 429 Marks
3. SEBC (Female) 338 Marks 4. SEBC 375 Marks
5. S.T. 316 Marks 6. S.C. 387 Marks
7. S.T. (Female) 286 Mark 4.12 During pendency of these petitions, respondent GPSC unilaterally and on its own motion made substantial changes in the said selection list notified on 25.9.2014 and prepared a revised select list and after making changes and after revising the list informed the Court and the petitioners, that it has, on its own, undertaken such procedure and has revised the select list - result which was notified on 25.9.2014. In view of the said declaration and submission by respondent GPSC, it was expressed by all concerned parties that the revised select list / result may be looked at and if the grievance are addressed, then appropriate orders be passed without further deliberation. Therefore, with consent of the petitioners and other respondents, a conditional order dated 13.1.2015 came to be passed whereby conditional permission was granted and subsequently in view of the request by respondent 12 C/SCA/13857/2014 CAV JUDGMENT GPSC, order dated 21.1.2015 came to be passed with consent of the petitioners and thereafter GPSC declared and notified the said revised select list vide notification dated 23.1.2015.
4.13 At this stage, it is necessary to mention that in first paragraph of the said notification dated 23.1.2015, respondent GPSC mentioned certain inaccurate and incorrect facts and that, therefore, respondent GPSC was directed to issue appropriate corrigendum. By virtue of corrigendum dated 7.2.2015 GPDC modified and corrected the details mentioned in said paragraph No.1 vide corrigendum dated 7.2.2015.
5. I have heard learned advocates for the petitioners and respondents as well as the learned advocate for successful candidates. I have heard Mr. Y.N. Oza, learned senior counsel with Ms. Thula, learned advocate for the petitioner, Mr. Shalin Mehta, learned senior counsel with Mr. H.K. Thkkar, learned advocate for the petitioners, Mr. K.B. Pujara, learned counsel for the petitioners, Mr. Nirav Mishra, learned advocate, Mr. 13 C/SCA/13857/2014 CAV JUDGMENT Majmudar, learned advocate with Mr. H.J. Karuthiya, learned advocate, Mr.G.M. Joshi, learned advocate and Mr. Prabhakar Upadhyay, learned advocate for the petitioners. I have also heard Mr. P.K. Jani, learned Additional Advocate General with Mr. Swapneshwar Goutam learned AGP, for respondent No.1 State and Mr.D.G. Shukla, learned advocate for respondent No.2 GPSC, Mr. Anand Yagnik, learned advocate for Mr. K.K. Modi and Mr. Riddhesh Trivedi, learned advocates (for the candidates whose names are included in the selection list) after they joined the proceedings by preferring Civil Application seeking permission to join the proceedings related to the said petitions as well as in Civil Application No.196 of 2015 and Civil Application No.193 of 2015 filed with a request to vacate the ex-parte ad-interim relief. I have also considered relevant Rules and the material placed on record and the decisions relied on by the learned counsel for contesting parties.
6. In Special Civil Application No.14849 of 2014, the petitioners have prayed, inter alia, that:
"13(B)Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ order or direction to quash and 14 C/SCA/13857/2014 CAV JUDGMENT set aside the select list dated 25.9.2014 of successful candidates/the name of the candidates to be recommended to the Government for the post of Assistant Conservator of Forest (ACF), Class II & Range Forest Officer (RFO) Class II as per, Advertisement no.209/2009-10 and further direct the respondent authorities after applying 30% category women's reservation revise the final select list dated 25.9.2014 wise as per the Government notification dated 14/6/2012 (Amended Rules) reservation of posts for women for the recruitment of Assistant Conservator of Forest (ACF) Class II & Range Forest Officer (RFO) Class II pursuant to Advertisement no.209/2009-
10."
6.1 The learned senior counsel for the petitioners in Special Civil Application No.14849 of 2014 submitted that the said petition is filed on principal contention that as against 51 positions reserved for female candidates in respect of said two posts, GPSC selected only 30 candidates and illegally transferred 21 positions to male candidates and that such action, without declaring that even the vacancies reserved by way of horizontal and compartmentalized reservation in favour of female candidates will be filled up by taking into account marks of the last "male candidate" in respective category is not permissible in view of the relevant Rules. Learned counsel for the said petitioners also submitted that in present case, sufficient qualified female candidates are available and that therefore, there is no justification in including names of male candidates in respect of the vacancies 15 C/SCA/13857/2014 CAV JUDGMENT reserved, by way of horizontal reservation, for female candidates. Learned counsel for the said petitioners further submitted that the said rules prescribe 30% reservation for female candidates by way of "compartmentalized" horizontal reservation for female candidates in each category and that, therefore, 30% female candidates of respective reserved category should be selected separately for each category for the purpose of achieving prescribed percentage of horizontal reservation for each category. Learned counsel for the said petitioners submitted that the female candidates belonging to reserved categories, who secured place in open category on account of merits should have been considered in their respective reserved category and if such procedure had been followed, then, the petitioners would have secured place amongst the successful candidates, however, the respondent - GPSC has not followed and implemented horizontal compartmentalized reservation in proper manner.
7. In Special Civil Application No.13857 of 2014, the petitioners have prayed, inter alia, that: 16 C/SCA/13857/2014 CAV JUDGMENT
"17(A)YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities to include the petitioners in the list of successful candidates to the posts of Assistant Conservator of Forest (Class- II) and Range Forest Officer (Class-II) and further be pleased to quash and set aside the selection list prepared by respondent No.2 (at ANNEXURE-G hereto) to the above extent;"
7.1 Learned counsel for said 11 petitioners submitted that (a) though sufficient number of candidates with the said qualification are available, the respondent GPSC illegally, arbitrarily and artificially restricted selection of candidates with the said qualification and has not completed the quota of 25% reserved for candidates possessing the said qualification and the select list is not prepared in consonance with the said rule and in accordance with the advertisement; (b) in view of the said provision prescribing 25% reservation, 41 posts are required to be filled up by appointing candidates with the said qualification, however, the respondent - GPSC has appointed only 10 candidates though sufficient number of candidates possessing the said qualification are available;
(c) GPSC has arbitrarily and unauthorisedly restricted the number of selected candidates by determining the so- called qualifying standard and adding 7% marks in the 17 C/SCA/13857/2014 CAV JUDGMENT marks obtained by the candidates (with special subject) in written examination and in the marks obtained during viva-voce; and that (d) the procedure followed by GPSC amounts to changing rules in midstream; and that (e) since any qualifying standard or bench mark was not prescribed at any stage, the petitioners could not have been treated as unsuccessful candidates. Learned counsel for the said petitioners submitted that appointment on the said posts of ACF and RFO is only source of appointment for persons holding the said specialized qualification.
8. The petitioners in Special Civil Application Nos.1140/2015 and 1141/2015 have prayed for similar relief on similar grounds of challenge and that, therefore, the relief prayed for in Special Civil Application No.1141 of 2015 is taken into account. The petitioners have prayed that:
"6(a) This Honourable Court may be pleased to issue a writ of mandamus or in the nature of mandamus or any appropriate, writ, order or direction, quashing and setting aside the notification dated 25.9.2014 issued by Gujarat Public Service Commission, whereby, the result of the competitive examination for the post of Asst. Conservator of Forest (Class- II) and Range Forest Officer (Class-II) holding that the same is not prepared as per the judgment of the Honourable Supreme Court in the case of Jitendrakumar Singh and another V/s.
State of Uttarpradesh and others, reported in 2010 (3) SCC, page 119 and be pleased to direct the respondent authorities to prepare the select list as per the ratio of the said judgment 18 C/SCA/13857/2014 CAV JUDGMENT reflecting the categories of the candidates in the last column accordingly and thereafter, implement the same as per the judgment of the Honourable Supreme Court in the case of Union of India V/s. Ramesh Ram and others, reported in 2010 (7) SCC, page 234;"
8.1 Learned counsel for the petitioners in Special Civil Application No.1141 of 2015 and 1100 of 2015 put forward common submissions. The learned counsel for the petitioners in the said two petitions submitted, inter alia, that while preparing the merit list as and when a candidate actually belonging to Schedule Tribe/Schedule Caste/Socially and Economically Backward Class secures his place in Open Merit Category, for determining as to whether the candidate is to be treated as a general category or reserved candidate, the test to be applied i.e. (1) whether a candidate participated in the examination by competing with others on the basis of concessions (i.e. age relaxation or waiver of examination fee or (2) he acquired the berth in the merit list by getting relaxation in the standard fixed for determination of merit and in case of former such candidate cannot be treated to have been selected as Reserved Category Candidate but in case of later he will be treated as candidate belonging to Reserved Category. According to learned counsel for the 19 C/SCA/13857/2014 CAV JUDGMENT petitioners in the present case the respondents have committed error in considering and treating the candidates who availed benefit of exemption / reduction in fees and/or age relaxation as the candidates who availed benefit of relaxation in qualifying standard and in shifting them to their respective reserved category though they had secured position in open merit on account of their performance. According to the petitioners, GPSC's said action is contrary to the legal position explained in case of Jitendra Kumar Singh [(2010) 3 SCC 119].
9. In Special Civil Application No.15057 of 2014, the petitioners have prayed, inter alia, that:
"14(B)Your Lordships may be pleased to hold and declare that the respondent authorities are obliged to appoint 15 candidates, which have to be filled in from the reserved posts of female candidates from SEBC category and further be pleased to hold and declare that shifting of 9 posts out of 15 posts to the Male mix category is illegal, arbitrary, unconstitutional, therefore, null and void.
(C) Your Lordships may be pleased to hold and declare that the action of the respondent authorities of not preparing the wait list is illegal, arbitrary and it will lead to fill in the post by a candidate not hailing from reserved category class if such selected candidate does not respondent and report back to joint the duty, accordingly Your Lordships may be pleased to direct the respondent authorities to prepare a wait list of minimum five candidates and to operate the same in the event of selected candidates of SEBC female class does not report back to join the duty, order or appointment may be issued to such candidates and to fill in the posts numbering 15 days by operating the wait list."20 C/SCA/13857/2014 CAV JUDGMENT
9.1 The petitioner in Special Civil Application No.15057 of 2014, who is a successful candidate, has raised, inter alia, an objection against actions of respondent GPSC of not preparing waiting list. Instead of urging any other submission with regard to the relief prayed for in para 14(B) learned counsel for the petitioners concern treated on the relief prayed for in para 14(c) and submitted that the petitioner is a candidate belonging to General / Unreserved Category and his name is included in the selection list. However, the cause for grievance has arisen on account of allotment of the posts i.e. the posts to which the said petitioner - candidate is assigned inasmuch as, the said petitioner - candidate is assigned to post of RFO. It is the case of the petitioner that a probability cannot be ruled out that the candidates whose names are included in the selection list, including the selected candidates who are assigned post of ACF, may, for one reason or other, not join the post/service and the said posts may remain vacant and in such circumstances, if waiting list is prepared then the candidates in the waiting list can be accommodated after 21 C/SCA/13857/2014 CAV JUDGMENT reshuffling amongst the selected candidates is done. For para 14(B) the learned advocate adopted other submissions by other learned advocates.
10. In Special Civil Application No.2125 of 2015, the petitioner has prayed that:
"17(a) to hold and declare and direct that the petitioner is duly selected for the post of Assistant Conservator of Forest (Class- II)/Range Forest Officer (Class-II) pursuant to the Advertisement dtd. 1.3.2010 as per the Final Result declared by the Gujarat Public Service Commission in the Gujarat Government Gazette vide Notification dtd. 25th September, 2014 at Merit No.156 as Woman candidate of SEBC Category as per Annexure-F, and the petitioner is entitled to the appointment as such with all consequential benefits;
(c) to hold and declare and direct that the respondents are duty bound to fill up at least 15 vacancies by SEBC Women candidates and all other vacancies reserved for women in each of the categories as notified in the Advertisement dated 1.3.2010 for total 167 posts of Assistant Conservator of Forest (Class-II) / Range Forest Officer (Class-II) as per the statutory policy of Women's reservation laid down the Rules framed under proviso to Article 309 of the Constitution of India, namely, the Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997;"
10.1 The learned counsel for the petitioner in Special Civil Application No.2125 of 2015 submitted, inter alia, that respondent GPSC has committed illegalities and irregularities in preparing the selection list and the result by (i) wrongly considering meritorious reserved category candidates, who on their own merits found place in open merits, as candidates in reserved categories merely 22 C/SCA/13857/2014 CAV JUDGMENT because they availed concession (and not relaxation) in matter of upper age limit and / or for waiver of fees and by
(ii) not implementing State Government's policy of reservation for women to the extent of 30% of vacancies in respect of both posts (iii) preparing the selection list and the result on wrong premise of applying irrational and illogical formula of fixing qualifying marks on the basis of the marks obtained by the last male candidate of the respective category and then granting 10% relaxation for selecting female candidates on reserved quota; (iv) transferring part of reserved quota for women to male candidates though sufficient number of female candidate are available; (v) when qualifying standard or benchmark are not prescribed either under recruitment rules the qualifying standards could not have been applied, more so when it was not informed to the candidates; (vi) GPSC committed error in implementing the guidelines from the decision in case of Union of India v. Ramesh Ram [(2010) 7 SCC 234] and that the GPSC has no jurisdiction, no power and no authority in law to revise the Final Selection List which was published in the Official Gazette dtd. 25-9- 23 C/SCA/13857/2014 CAV JUDGMENT 2014. He further submitted that even if meritorious reserved category candidates are given better preference in the matter of posting by giving benefit of their reserved category, such candidates cannot deprive other candidates of reserved categories of their right and that, therefore, such candidates cannot be considered in respective reserved quota. The learned advocates for the petitioners requested that the petitions may be accepted and granted.
11. So far as the petitioners in Special Civil Application No.14330 of 2014 and Special Civil Application No.16220 of 2014 are concerned, it is given out by learned counsel for the said petitioners the relief prayed for is similar and the action of the respondent GPSC is challenged on similar contentions as in Special Civil Application No.14331/2014. So far as Special Civil Application No.14331 of 2014 is concerned, it is given out by learned counsel that the said petition is almost similar to the other two petitions except the difference that the petitioner in Special Civil Application No.14331 of 2014 is also aggrieved by the decision of respondent commission 24 C/SCA/13857/2014 CAV JUDGMENT of allocating her to the post of RFO instead of allotting her the post of ACF. In the said Special Civil Applications, the petitioners have prayed for almost similar reliefs:
"10[B] YOUR LORDSHIPS/The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ order or direction to quash and set aside the List of Successful Candidates/the names of the candidates be recommended to the Government for the post of Assistant Conservator of Forest (ACF), Class II & Range Forest Officer (RFO), Class II, Advt no.209/1009-10 as published in Gujarat Government Gazette Ex. 25.09.2014 and further direct the respondent authorities to apply 30% reservation of posts for women for the recruitment of Assistant Conservator of Forest (ACF), Class II & Range Forest Officer (RFO), Class II pursuant to Advertisement no.209/09-10."
11.1 So far as Special Civil Application No.14330 of 2014 is concerned, two petitioners therein belong to SEBC category, one petitioner belongs to ST category, whereas the fourth petitioner belongs to General/Unreserved category. The petitioner in Special Civil Application No.14331 of 2014 is from general/unreserved category. Likewise, the petitioner in Special Civil Application No.16220 of 2014 also belongs to unreserved/general category. Learned counsel has clarified that so far as the petitioners in Special Civil Application No.14330 of 2014 and Special Civil Application No.16220/2014 are concerned, they are unsuccessful candidates, whereas the petitioner in Special Civil Application No.14331 of 2014 is 25 C/SCA/13857/2014 CAV JUDGMENT a successful/selected candidate who is aggrieved by the decision of assigning her to the post of RFO. While challenging the actions of respondent GPSC, the learned senior counsel Mr.Oza with Ms.Thula, learned advocate for the said petitioners submitted, inter alia, that as against 51 reserved posts for female candidates only 30 female candidates have been appointed which is contrary to the rules prescribing 30% compartmentalized reservation for female candidates. Learned Senior Counsel further submitted that the respondent commission had never mentioned and declared that only those female candidates who come within the purview of 10% relaxation in the qualifying standard prescribed for male candidates in respective category will be selected. Learned Senior Counsel submitted that prescribing such bench mark for female candidates is against the right conferred in favour of female candidates by virtue of the said rules. Learned Senior Counsel further submitted that the respondent commission is only recommendatory body who is authorized to conduct examination and complete the selection process but it has no right to make any 26 C/SCA/13857/2014 CAV JUDGMENT policy decision and the respondent commission must select and recommend candidates in accordance with rules without applying any policy framed by it which does not have any sanction and approval by the respondent State. According to learned Senior Counsel, respondent GPSC has no authority to prescribe additional requirement either as regards eligibility or as to the suitability. He further submitted that, the Public Service Commission cannot prescribe Minimum qualifying marks in absence of a provision in the Statutory rules and that taking into account marks of only male candidates as the cut-off marks or benchmark and then allowing 10% relaxation for filling-up reserved quota for women is a procedure which is not only arbitrary but strikes at the core of basic fundamental rights of the female candidates. Learned Senior Counsel for the petitioners in Special Civil Application No.14330 of 2014 submitted that any female candidate who fulfills the eligibility criteria prescribed by the rules and declared in the advertisement can not be turned down so long as the vacancy is available i.e. so long as all vacancies declared in the advertisement are 27 C/SCA/13857/2014 CAV JUDGMENT not filled up.
12. Per contra, learned Additional Advocate General appearing for the respondent No.1 - State submitted inter alia that, the respondent GPSC has not committed any illegality or arbitrariness or irregularity in preparing the selection list. Learned Additional Advocate General submitted that for the purpose of granting or allowing preference of post to the candidates who otherwise belong to SC category or ST category or SEBC category but found place in open merit category on account of their own merits and without availing benefit of relaxation / reservation, GPSC has granted benefit of migration and that therefore, grievance against the said procedure is unjustified. Learned Additional Advocate General submitted that horizontal reservation is compartmentalised and to ensure that the quota fixed by way of horizontal reservation is fulfilled the respondent GPSC allowed 10% relaxation in qualifying marks which is proper and permissible. Learned Additional Advocate General also submitted that the action of the respondent GPSC viz. transferring the position/vacancies earmarked 28 C/SCA/13857/2014 CAV JUDGMENT for female candidates by way of horizontal reservation to male candidates on the ground that sufficient number of female candidates possessing qualification standards are not available, is in accordance with the clarification by the State. With reference to the claim of the petitioners who have challenged the selection list on the ground that the selection list prepared by the respondent GPSC violates the rules which prescribe 25% reservation for candidates possessing qualification of B.Sc. degree with Forestry as special subject, learned Additional Advocate General defended the decision of the respondent GPSC of adding 7% marks in the marks obtained by such candidates in written examination and 7% marks obtained by them in viva voce on the ground that it is within the powers of the commission to follow such procedure as may be necessary for selecting candidates as per rules. Mr.Jani, learned Additional Advocate General relied on the details mentioned in resply affidavit filed by the respondent State.
12.1 On behalf of respondent - GPSC, Mr.Shukla, learned advocate, submitted that after receiving 29 C/SCA/13857/2014 CAV JUDGMENT requisition from the respondent - State, the procedure for selection and recruitment on the post of ACF and RFO was initiated. He submitted that the advertisement inviting applications from the applicants / candidates holding prescribed qualification and fulfilling the conditions as prescribed under the Rules were called for. Mr.Shukla, learned advocate for the respondent - GPSC, submitted that since large number of applications as against 167 posts were received, initially, elimination process was conducted by holding OMR test. Mr.Shukla, learned advocate for the respondent - GPSC, also submitted that having regard to the examination rules, combined tests for the said two posts were conducted.
12.2 At this stage, it is relevant to mention that in response to the query by the Court (which arose in view of the contentions by the petitioner) as to whether any minimum marks as qualifying marks or any benchmark was fixed at the stage when written test and/or interview were conducted and whether candidates were informed about such minimum marks or qualifying standard or not, Mr. Shukla, learned advocate for the respondent - GPSC, 30 C/SCA/13857/2014 CAV JUDGMENT submitted that at any stage, until the stage of oral test (interview) got concluded, such qualification standard was not fixed and was never declared and was not informed to the candidates. He also clarified that the qualification standard was determined by respondent - GPSC only after initial/first merit list on the basis of aggregate marks of all candidates who appeared in the written test and oral test was prepared. Mr. Shukla, learned advocate for the respondent - GPSC, also submitted that initially, the respondent - GPSC had declared and notified the selection list by notification dated 25.9.2014 which was subsequently corrected (so as to rectify certain inadvertent mistakes) vide notification dated 16.10.2014 and then GPSC noticed that while preparing the select list / result dated 25.9.2014 (corrected on 16.10.2014), the guidelines and procedure laid down by Hon'ble Apex Court in case of Ramesh Ram (supra) was not followed and that therefore, the respondent - GPSC, on its own, started the process of revising the select list (which was already declared and notified on 25.10.2014) and prepared another, (i.e. the revised) selection list by 31 C/SCA/13857/2014 CAV JUDGMENT following the guidelines and observations by Hon'ble Apex Court in case of Ramesh Ram (supra). With reference to the contention against applying 10% relaxation for filling up 30% reserved posts / vacancies for female candidates, Mr.Shukla, learned advocate for the respondent - GPSC, submitted that the respondent - GPSC is following the said method since about 2001. He submitted that the respondent - GPSC is following the said method so as to maintain minimum standard of efficiency among the female candidates in the matter of selection of female candidates so as to maintain minimum efficiency level. According to learned counsel for the respondent - GPSC it first considered vertical reservation starting from open merit category and combined vacancies for the said two posts in respect of the said category were taken into account and thereafter in descending order, the marks obtained by "male candidates" in open / general category were taken into account. According to Mr. Shukla, learned advocate, the respondent GPSC descended up to the last male candidate and took into account the marks obtained by the said last male candidate of general / unreserved 32 C/SCA/13857/2014 CAV JUDGMENT candidate category and adopted the marks obtained by said male candidate as qualifying standard and applied the said standard for filling up the posts in horizontal reservation for female candidates in general / unreserved category as well as other three categories. Learned counsel further submitted that after thus fixing the qualifying standard, GPSC allowed 10% relaxation in the said standard so as to accommodate female candidates on reserved quota. With regard to the contention in light of the decision in case of Jitendra Kumar Singh learned counsel submitted that the said decision deals with the situation in light of the provision referred to in the said case which is not available and applicable in present case. He also submitted that the decision and actions are in consonance with the judgments in case of Ramesh Ram and Rajesh Kumar Dariya. With regard to reservation for female candidates and for candidates with special subjects learned counsel reiterated the details mentioned in GPSC's affidavits. Thus, even according to the respondent GPSC, the marks obtained by "male candidates" in respective category, i.e. general (unreserved) category, 33 C/SCA/13857/2014 CAV JUDGMENT SC category, ST category and SEBC category have been picked up and adopted as qualification marks for the respective category and then for operating and complying horizontal reservation, the respondent GPSC determined the qualification standard / benchmark for female candidates in respective category by relaxing the marks obtained by male candidate (who would occupy the last post in his respective category). The learned counsel for GPSC also relied on the affidavit filed in response to SCA No.14894/2014, wherein it is averred, inter alia, that:
"4.7 I say that as per the Notification GAD No.GS/97-13- CRR/1096/2213/G-2, dated 9th April, 1997 issued by the General Administration Department, Government of Gujarat, the Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997 are brought into force. As per the said Rules, 30% of the posts shall be reserved in favour of women belonging to the Scheduled Castes, Scheduled Tribes, SEBC and Unreserved category. As per the GAD Circular No. CRR/1096/2213/G-2, dated 22nd May, 1997, issued by General Administration Department pursuant to the Notification dated 09.04.1997, if the women candidates are not available, then, the posts can be filled in by the Male candidates. The Respondent Commission had taken policy decision in 2001 to select Women candidates are relaxing 10% of the minimum qualifying standard prescribed for the Male candidates of their respective categories and since then in all the selection process the Respondent Commission has uniformly applied the said relaxation of 10% of the minimum qualifying standard prescribed for the Male candidates of their respective categories while selecting the Women category candidates."
12.3 Learned advocate for the GPSC relied on the details mentioned in the affidavit filed in Special Civil Application No.13857 of 2014, wherein GPSC has stated 34 C/SCA/13857/2014 CAV JUDGMENT that:
"4.5 I say and submit that the Recruitment for the said posts is as per the Assistant Conservator of Forests in the Gujarat Forest Service, Class--II Recruitment Rules, 2007 and the Range Forest Officer, Class-II, Recruitment Rules, 2008 amended from time to time. I say that as per the Rule 3 of Recruitment Rules for the post of Assistant Conservator of Forests in the Gujarat Forest Service, Class-II, dated 16.04.2007 and amendment dated 18th May, 2009, 25% of vacancies shall, as far as practicable, be filled up by appointing candidates who possesses a B.Sc. Degree with Forestry as a principal subject. With regard to this, the Commission by its decision dated 15.04.2013, has decided to add 7% marks of the marks obtained by the candidates to their obtained marks (i.e. obtained marks in written exam + 7% of obtained marks in written exam, and Marks obtained in Viva Voce+7% of marks obtained in Viva-Voce). So for example if a candidate has obtained 200 marks in written exam and 30 marks in Vice Voce, then his marks will be (200+14 (7% of 200) and 3o+2. 1 (7% of 30) = 246."
13. On behalf of the successful candidates, who, as mentioned earlier, joined the proceedings by preferring application seeking permission to join the proceedings of this group of petitions and are represented by Mr. Yagnik, learned advocate, it is submitted that the said selection list dated 25.9.2014 do not warrant interference and may not be set aside as prayed for by the petitioners. Mr. Yagnik, learned advocate for successful candidates submitted that there is no factual or arithmetical error in the selection list and that even the petitioners have not raised any allegation about any factual or arithmetical error. He further submitted that there are no allegations of mala fide. Mr.Yagnik, learned advocate submitted that any 35 C/SCA/13857/2014 CAV JUDGMENT person amongst the petitioners who has not secured equal marks or more marks than the selected candidates in respective category or less marks than the petitioners (candidates of respective category) is not selected and that is not even the allegation or claim by the petitioners. It is also claimed that there is no factual or arithmetical error and none of the petitioners has secured marks more than the marks of selected candidates and that, therefore, there is no justification to grant the relief prayed for by the petitioner and to disturb the selection list. Learned advocate for the successful candidates also opposed the contention raised by the petitioners in Special Civil Application No.14849 of 2014 and submitted that the meritorious reserved category female candidates who, on their own merits and without availing benefit of reservation secured place in open merit category will, for implementation of horizontal compartmentalized reservation for female candidates, continue in the open merit category and are not required to be shifted or migrated to respective reserved category and that and they should not be migrated or their category should not 36 C/SCA/13857/2014 CAV JUDGMENT be changed to respective reserved category for calculating compliance of horizontal reservation. Otherwise it would amount to drawing distinction between male and female meritorious reserved category candidates and it would amount to gender discrimination against meritorious reserved category female candidates. He also submitted that the horizontal reservation should not be implemented by frustrating vertical reservation. Learned advocate for successful candidates submitted that the application of 10% relaxation by the respondent GPSC for implementation of horizontal reservation cannot be considered as change of rules / criteria in the midstream. He also submitted that by virtue of Rule 9 of the ACF and RFO Competitive Examination Rules, 2008, power to relax qualification standard of aggregate marks is conferred on the GPSC and that, therefore, its said action is not without authority or contrary to the rules. According to learned advocate for the respondent GPSC, the decision as regards the extent of relaxation for making up deficiency in respect of social or special reservation, is GPSC's prerogative. Mr. Yagnkik, learned advocate for the 37 C/SCA/13857/2014 CAV JUDGMENT successful candidates relied on the same provision with regard to the GPSC's impugned action of adding 7% marks in marks obtained by the candidates possessing special qualification viz. degree of Bachelor of Science with Forestry as special subject in written test and interview respectively and submitted that the said decision and actions by the respondent GPSC are not arbitrary or without authority of law. The learned advocates for GPSC for the successful candidates and learned advocate for GPSC submitted that the petitions may be rejected.
14. Learned counsel for the contesting parties have relied on the below mentioned decisions:-
(a) Durgacharan Misra vs. State of Orrisa and Ors. [(1987) 4 SCC 646].
(b) State of Punjab & Ors. Vs. Manjitsingh & Ors. [(2013) 11 SCC 559]
(c) Chadrakala Trivedi Vs. State of Rajasthan & Ors. [(2011) 3 SCC 129]
(d) Shiv Prasad Vs. Government of India & Ors. [2008(2) GLH 692].
(e) Anurag Patel Vs. U.P.Public Service Commission and Ors.
[(2005) 9 SCC 742].
(f) Bedanga Talukdar Vs. Saifudaullah Khan [2011 (0) GLHEL-
SC 50430].
(g) Mohd. Sohrab Khan Vs. Aligarh Muslim University [2009 (0) GLHEL- SC 43013].
(h) Gulf Goans Hotels Company Ltd. & Anr. Vs. Union of India &
38
C/SCA/13857/2014 CAV JUDGMENT
Ors. [(2014) 10 SCC 673].
(i) N.K.Chauhan Vs. State of Punjab [1976 (0) GLHEL-SC 18719].
(j) Madan Mohan Sharma Vs. State of Rajasthan [2008 (0) GLHEL-SC 40581].
(k) P.V.Indresan & Ors. Vs. Union of India & Ors. [(2011) 8 SCC 441].
(l) D.M.Solanki Vs. Chief Secretary to Government of Gujarat [1997 (0) GLHEL-HC 216466].
(m) Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. [(2007) 8 SCC 785.
(n) Public Service Commission, Uttaranchal Vs. Mamta Bisht &
Ors. [(2010) 12 SCC 204].
(o) Swati Gupta (Ms.) Vs. State of U.P & Ors. [(1995) 2 SCC 560].
(p) P.K.Makwana Vs. State of Gujarat rendered in Special Civil Application No.6230 of 1995 dated 01.10.1999.
(q) Leela Dhar Sahal & Ors. Vs. R P S C Ajmer & Ors. dated 20.09.2011 (in the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur).
(r) Yogesh Yadav Vs. Union of India & Ors. [2013 (10) SCALE
333.
(s) Jitendra Kumar Singh & Anr. Vs. State of Uttar Pradesh & Ors. [(2010) 3 SCC 119].
(t) Nagori Ruksana Ahmedkhan Vs. State of Gujarat & Anr. [letters Patent Appeal No.2474 of 2010 in Special Civil Application No.10060 of 2000].
(u) Hemlat R. Joshi Vs. GPSC [Special Civil Application No.5733 of 2004 dated 11.03.2005].
(v) Prajapati Ishwarbhai Joitaram & Ors. Vs. State of Gujarat & Ors. [Letters Patent Appeal No.1350 of 2012. (w) Dr. Mehta Rakshaben Kantilal Vs. Gujarat Public Service Commission & Anr. [Special Civil Application No.25773 of 2007 and allied matters dated 13.12.2007].
(x) Asha M. Barasara Vs. Gujarat Public Service Commission [2008 (0) GLHEL-HC 220033].
39 C/SCA/13857/2014 CAV JUDGMENT
(y) T.N.Computer SC Bed. Govt. Welfare Society (1) Vs. Higher Secondary School Computer Teachers Association [(2009) 14 SCC 517].
(z) Naresh Kumar Sharma vs. State of Rajasthan (SB Civil Petition No.3414 of 2009 and connected matters) (aa) Anil Kumar Gupta vs. State of U.P. [(1995) 5 SCC 173] (ab) Swati Gupta (Ms) vs. State of U.P. [(1995) 2 SCC 560] (ac) The decision dated 20.3.2013 by Division Bench in Letters Patent Appeal No.1350 of 2012 (ad) Tamil Nadu Computer Science B.Ed Graduate Teachers Welfare Society vs. Higher Secondary School Computer Teachers Association [(2009) 14 SCC 517 (ae) Smt. Megha Shetty vs. State of Raj. & Ors. [D.B. Civil Special Appeal (Writ) No.170/2013] (af) Union of India vs. Ramesh Ram [(2010) 7 SCC 234] (ag) Amlan Jyoti Borooah vs. State of Assam & Ors. [(2009) 3 SCC 227 (ah) Sadananda Halo & Ors. vs. Momtaz Ali Sheikh & Ors. [(2008) 4 SCC 619] (ai) Andhra Pradesh Public Service Commission vs. Baloji Badhavath & Ors. [(2009) 5 SCC 1] (aj) Union of India vs. S. Vinodh Kumar [(2007) 8 SCC 100] (ak) Ranjan Kumar etc. vs. State of Bihar & Ors. [2014 AIR SCW 2968]
15. Before taking into account other objections against the decisions and actions by respondent GPSC, it would be appropriate to address a contention which is in nature of stand alone contention inasmuch as the objection by the petitioner in Special Civil Application No.15057 of 2015 is not related to or connected with any other objection raised by other petitioners and it has no 40 C/SCA/13857/2014 CAV JUDGMENT bearing on other objections or other factual aspects do not have any relevance or bearing on this contention. 15.1 Against the earlier noted contention of the petitioner in Special Civil Application No.15057 of 2014, respondent GPSC has explained that neither the examination rules nor the recruitment rules provide for or contemplate preparation of waiting list. It is claimed that the applicable rules, more particularly the recruitment rules and the examination rules require GPSC to prepare two lists viz. a list with the names and marks of successful candidates and another list with the names and marks of unsuccessful candidates. Thus, when the applicable rules do not provide for preparation of any waiting list, then, any fault cannot be found with the respondent GPSC in not preparing the waiting list. Moreover, respondent No.3 has, in the affidavit-in-reply dated 20.11.2014, clarified that:
"8. I say that there is no provision of Waiting List in the Range Forest officer, Class-I Recruitment Rules, 2008 and Assistant Conservator of Forests in the Gujarat Forest Service, Class-II Recruitment Rules, 2007 and the Examination Rules as well as there is no stipulation about preparation of Waiting List, hence Waiting List has not been prepared by the Respondent Commission for the said posts."
15.2 Respondent No.2 has, in the affidavit-in-reply 41 C/SCA/13857/2014 CAV JUDGMENT dated 4.12.2014, clarified that:
"8. I respectfully say and submit that as per the provision contained in the competitive examination rules for the post of Assistant Conservator of Forest and Environment Department notification dated 18.09.2008 the examination there are only requirement for two lists to be prepared by the respondent commission 1) The list of successful candidates, 2) The List of unsuccessful candidates. Thus, it is crystal clear that no provision for preparing waiting list is mandatory. Meaning thereby, if some of the candidates who are selected in the list do not take appointment offered to them then these posts will remain unfilled and will be considered for next recruitment. A copy of the aforementioned rules are annexed herewith and marked as ANNEXURE R-I. Therefore, the contention of the petitioner in preparing the waiting list is not justified as per Rule 21 of notification of Forest and Environment Department."
15.3 Having regard to the provisions under the applicable rules and the explanation by respondent GPSC, the grievance raised by the said successful candidate / petitioner (in Special Civil Application No.15057 of 2014) on the ground that the notification dated 25.9.2014 is bad in law because waiting list is not prepared and not notified, is not sustainable.
16. As mentioned earlier, the selection, recruitment and appointment to both the posts are governed by the above-mentioned rules which are framed in exercise of powers under Article 309 of the Constitution. The respondent GPSC commenced the selection process after receiving requisition from the respondent State. After 42 C/SCA/13857/2014 CAV JUDGMENT completing the process, the respondent GPSC prepared final selection list and notified the same by virtue of notification dated 25.9.2014 which is challenged on diverse grounds. For sake of convenience, the grounds of challenge raised by the petitioners can be broadly classified under four heads, as follows:-
(A) The method, procedure and basis followed and adopted by GPSC for determining the qualifying standard (described by GPSC as cut-off marks). (B) Transferring the quota reserved for female candidates to male candidates and also transferring the quota reserved for candidates possessing special qualification to the candidates not possessing such special qualification.
(C) Migrating the candidates.
(D) Adopting and applying criteria/policy which was
not declared and informed to the candidates (and thereby changing the criteria in the midstream).
16.1 (A) Method, procedure and basis followed and adopted by GPSC for determining the qualifying standard:-
This issue envelopes two aspects viz. (i) determining qualifying standard and (ii) granting relaxation and 43 C/SCA/13857/2014 CAV JUDGMENT simultaneously restricting the extent of relaxation in said qualifying standard.
16.2 (i) Determining qualifying standard:-
So far as the method, procedure and basis for determining the qualifying marks (described by GPSC as 'cut-off marks') adopted by GPSC is concerned, it has emerged from the material on record and submissions by the learned advocates, that until the stage when interview got concluded (i.e. neither in the advertisement nor at the stage of preliminary test nor at the stage of written test and / or at the stage of interview) the respondent GPSC had determined and settled the "qualifying standard"
(which is described as "cut-off marks" by GPSC) and it was only after the common merit list was prepared and when GPSC started preparing the selection list that for the first time in entire selection process, GPSC determined the qualifying marks/standard.
16.3 The concept and requirement of determining qualifying standard comes out from (i.e. is provided for and governed by) the provisions under above-mentioned 44 C/SCA/13857/2014 CAV JUDGMENT Examination Rules. The relevant provisions under said Examination Rules read thus:-
"9. Order of Preference.- (1) the names of the candidates shall be arranged by the Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the Main Examination (Written an Interview Test) and in that order, the commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in:
Provided that where the vacancies reserved for the candidates belonging to Scheduled Castes or Scheduled Tribes or Socially and Educationally Backward Classes cannot be filled up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up for the deficiency in the reserved post: (Emphasis supplied)
19. Appearance to Main Examination.- (a) The candidates who have obtained minimum qualifying marks as may be fixed by the Commission in the Preliminary Examination, shall be allowed to appear in the Main Examination subject to satisfying the eligibility criteria.
(b) The candidates who have obtained minimum qualifying marks as may be fixed by the Commission in the Main Examination (Written) shall be called for interview test.
Provided that candidates belonging to the Scheduled Castes, Scheduled Tribes or Socially and Educationally Backward Class may be, allowed to appear in the Main Examination (Written test) or, as the case may be called for interview test by relaxing the standard in the Preliminary Examination or, as the case may be, in the Main Examination (Written) if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be available for the Main Examination (Written) or, as the case may be, for interview test on the basis of the qualifying standard fixed for general category in order to fill up the vacancies reserved for such categories." (Emphasis supplied) 16.4 A conjoint reading of the above-quoted Rule 9 and Rule 19 of the Examination Rules clarifies that the said provisions contemplate determination and prescription of qualifying marks/standard at the stage of preliminary examination (so as to identify the candidates 45 C/SCA/13857/2014 CAV JUDGMENT who shall be allowed entry in written test) and then at the stage of interview (i.e. after conclusion of the written test) so as to identify the candidates who shall be allowed entry for interview.
16.5 Under the said Examination Rules or under the Recruitment Rules, there is no provision (other than above-quoted two Rules 9 and 19 in the Examination Rules), which empower determination of qualifying marks/standard at any stage, other than the said two stages mentioned in Rule 9 and Rule 19 of the Examination Rules. The Examination Rules and/or Recruitment Rules also do not contain any provision (other than said two Rules) which empower the commission to determine and prescribe minimum qualifying marks/standard at any stage other than the two stages mentioned in Rule 9 and Rule 19 of the Examination Rules. The Examination Rules and/or the Recruitment Rules do not contain any provision in light of which or on the strength of which minimum qualifying marks/standard can be introduced and enforced by the commission and that too at the stage which is not contemplated and provided 46 C/SCA/13857/2014 CAV JUDGMENT for in the Rules.
16.6 Despite this position the commission determined, for the first time and introduced qualifying marks/standard (described by the commission as cut-off marks), after conclusion of stage of preliminary examination and the stage of written test and the stage of interview and after general / common merit list was prepared on the basis of aggregate marks secured by the candidates during the written test and interview.
17. The Examination Rules prescribe the procedure for conducting examinations for selection of candidates for the said two posts. Rule 3 of the said Examination Rules, 2008 prescribes, inter alia, that upon receiving requisition from the Government the Commission shall hold combined competitive examination for selection of candidates. Rule 4 of the said Examination Rules provides that examination shall be held in two successive stages whereby preliminary examination for selection of candidates and then main examination (written test and interview) will be conducted. The said preliminary examination will comprise 47 C/SCA/13857/2014 CAV JUDGMENT objective type test. At the second stage, main examination for final selection of candidates has to be conducted. The said main examination comprises written test and interview. Part-I of the Schedule to the said Examination Rules, 2008 prescribes, inter alia, that the preliminary examination shall consist one paper of objective type and shall carry 150 marks. It also provides that the number of candidates to be allowed to appear in the main examination shall be about 15 times the approximate number of vacancies advertised. With reference to the main examination, the said Part I of the schedule provides that the written examination shall consist five papers of conventional type. Part III further provides that paper one, paper two and paper three will be compulsory papers and each paper will carry 100 marks and paper four and paper five will be optional papers and each paper will carry 200 marks. Rule 9 of Examination Rules, prescribes the procedure to be followed by the Commission and provides, inter alia, that the Commission shall arrange names of the candidates in order of merit on the basis of aggregate marks finally 48 C/SCA/13857/2014 CAV JUDGMENT awarded to each candidate in the main examination (i.e. written and interview test) and in that order, the Commission shall recommend the candidates for appointment. The said provision under Rule 9 is subject to the proviso which prescribes that where the vacancies reserved for the candidates belonging to SC or ST or SEBC category cannot be filled - up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up for the deficiency in the reserved posts. Thus, the said rule also confers power to relax the qualifying standard in the event vacancies reserved for candidates belonging to SC, ST or SEBC category cannot be filled-up. Rule 19 obliges the commission to fix qualifying marks and it further provides that the candidates who obtain minimum qualifying marks, as may be fixed by the Commission in the preliminary examination shall be allowed to appear in the main examination subject to their satisfying the eligibility criteria and that the candidates who obtain minimum qualifying marks as may be fixed by the Commission in the main examination (written) shall be 49 C/SCA/13857/2014 CAV JUDGMENT called for interview. The expression "the candidates who have obtained minimum qualifying marks as may be fixed by the commission... ..." signifies and clarifies that the said provisions oblige the GPSC to fix "minimum qualifying marks" at the stage of preliminary examination stage (for allowing entry to appear for written test) and at the stage of main examination / written test (for allowing entry to appear in interview). The said expression indicates that the candidates who obtain marks fixed by GPSC as minimum qualification can enter into next level. The said Rule 19 also empowers the Commission to relax the said qualifying standard at the stage of examination i.e. in preliminary examination or in the main examination (written), if the Commission is of the opinion that sufficient number of candidates from SC or ST or SEBC category are not likely to be available for main examination (written) or for interview which is clarified by the expression "... ... ... may be allowed to appear........by relaxing the standard .....".
17.1 In light of said provision it comes out that (a) the Rules do not prescribe any particular percentage or 50 C/SCA/13857/2014 CAV JUDGMENT marks as "qualifying standard"; (b) however the Rules prescribe the stage/s when the qualifying standard should be fixed viz. at the stage of preliminary examination (for allowing entry to appear in written test) and at the stage of written test (for allowing entry to appear in interview);
(c) once the candidates cross the stage of main examination (i.e. the written test and interview), then further requirement in form of qualifying standard for entry in selection list (i.e. list containing names and marks of successful candidates in the written test and interview) is not prescribed by the Rules; (d) Rules 9 and 19 indicate that actually the said Rules aim at informing the qualifying standard to the students so that they know the minimum marks/standard they must achieve to reach next level.
18. Since the Commission had not fixed the qualifying standard at any stage contemplated by the Rules (and until the stage of interview test got concluded) the candidates were not aware about the qualifying standard. Actually, the candidates were not even aware as to whether any qualifying standard is fixed or not. It is pertinent to mention at this stage that respondent GPSC 51 C/SCA/13857/2014 CAV JUDGMENT determined, settled, adopted and applied different qualifying standard with regard to each of the four categories mentioned in the advertisement. 18.1 In present cases controversy and dispute have arisen on account of the basis adopted and the procedure and method followed by respondent GPSC for determining and settling the qualifying standard (cut-off marks) and the said method, procedure and basis have given birth to the objection that GPSC is neither justified nor authorized to determine qualifying standard for female candidates (for filling up the vacancies in reserved quota) on the basis of and by taking into account the marks secured by last male candidate i.e. the male candidate, who, depending on the number of vacancies available of particular category, is the "last candidate" required (depending on number of notified vacancy) for complying the quota in that category and at such belated stage.
18.2 On this count, it is pertinent that for the purpose of determining the qualifying standard the respondent GPSC first picked-up the General / Unreserved Category 52 C/SCA/13857/2014 CAV JUDGMENT and took into account total number of vacancies in that category. Thereafter the respondent GPSC started from the candidate at the top in the common merit list (i.e. the candidate with highest marks) and, while descending, it started identifying only male candidates belonging to the said / particular category and proceeded in descending order by taking into account marks of only male candidates in that particular category (i.e. excluding all female candidates/marks obtained by female candidates in that category) and continued to descend in similar manner until it reached the male candidate who, depending on the number of notified vacancies in the particular category, would be the last male candidate required to fill-up the vacancies in that particular category. The marks secured by such "last male candidate" of that particular category are treated and adopted and applied by GPSC as the qualifying marks/standard (what is described by GPSC as "cut-off marks") for the respective category. The procedure and method followed by GPSC is explained by it in paragraphs No.6.2 to 6.4 of its affidavit dated 23.2.2015 filed in SCA 53 C/SCA/13857/2014 CAV JUDGMENT No.14849 of 2014 and it is further explained in para No.2 of its additional affidavit dated 24.2.2015. 18.3 Besides this even in the notification dated 25.9.2014 GPSC itself has admitted and stated that: "The candidates at Rank No...... ST being female candidates have been selected after relaxing the minimum qualifying standard prescribed for male candidates of their respective categories." (Emphasis supplied) 18.4 From the details mentioned in said affidavits it has emerged that for combined (i.e. ACF + RFO) 84 position of unreserved / general category, 26 position are reserved (@ 30% of total number of notified vacancy for the said category) for female candidates and for selecting female candidates for said position, the marks secured by the male candidate in general category whose name is listed at Sr.No.78 in the general / common merit list is treated as the marks of last candidate in general / unreserved category (though only 58 position / vacancies are to filled-up) and the marks secured by the said male candidate at Sr.No.78 is recognized as minimum qualifying 54 C/SCA/13857/2014 CAV JUDGMENT marks/standard for the female candidates in general / unreserved category on the premise that the said candidate at Sr.No.78 is last male candidate to enter the selection list in genera/unreserved category and the said marks are then adopted and applied as benchmark for selection of female candidates and for complying the reserved quota. In response to the query, the learned counsel for GPSC submitted and clarified that the standard/basis which came to be fixed, settled and adopted in above mentioned manner (as "qualifying marks/standard") is treated as yardstick and benchmark for all purposes including the process and purpose of filling-up the reserved quota for women in other three categories as well and for the candidates seeking selection in the quota reserved for persons holding special qualification.
18.5 It is relevant to mention that the stage of finalizing selection list and declaring successful candidates was reached after crossing three stages of screening. It is also relevant to note that the respondent GPSC also did not adopt the marks secured by a candidate in particular 55 C/SCA/13857/2014 CAV JUDGMENT category regardless or irrespective of the fact that such last candidate is "male candidate" or "female candidate"
but the respondent GPSC consciously started the process by picking up the marks secured only by "male candidates" in respective categories and proceeded going downwards while taking into account the marks secured by only male candidates and it consciously opted for and adopted marks secured by such last "male candidate" as the qualifying standard.
18.6 It is pertinent that neither the Recruitment Rules nor the Reservation Rules nor the Examination Rules provide for or contemplate or permit such procedure and method and/or authorize GPSC to follow such procedure. Such method, basis and procedure is, therefore, not permissible under the Rules. Actually, such procedure militates against and frustrates diligent, honest and genuine and complete implementation of quota reserved for female candidates of all four categories.
19. The basis/standard adopted and the procedure and method followed by GPSC for determining and settling 56 C/SCA/13857/2014 CAV JUDGMENT the qualifying marks/standard is not only contrary to and beyond the purview of the Rules or de hors the Rules but there is no rationale for the decision / action of adopting marks secured by only male candidate as the base / benchmark and the GPSC has not offered any explanation or justification for such decision and the procedure, basis and method followed and adopted by GPSC are irrational, unjustified and do not find support from the applicable Rules and are not sustainable.
20. The Court would hasten to clarify that the aforesaid view and finding is not to say or to suggest and it does not mean that the Court finds fault with "the principle and/or practice of applying the "qualifying standard" and/or with the practice of not relaxing the qualifying standard below certain extent. Nay. Not the least. What, in the opinion of the Court, is objectionable and untenable, is the manner in which GPSC determined the "qualifying marks/standard" and the procedure it followed and the basis which it adopted (wherein it took into account marks secured by only male candidates) for the said purpose and not the decision to determine and 57 C/SCA/13857/2014 CAV JUDGMENT apply qualifying marks/standard. In this background and in this view of the matter, the Court is convinced to hold that the impugned method, basis and procedure are incapable of approval and acceptance. The very basis adopted by GPSC is fundamentally erroneous and irrational and untenable.
21. On this count most relevant aspect is that the GPSC adopted such method despite the fact that all candidates - male candidates as well as the female candidates - have been subjected to (and all of them have passed through) same and identical examinations (i.e. without any changes or relaxations for female candidates in the matter of examination at all 3 stages) during 3 stages of screening, GPSC has adopted the impugned basis and followed impugned method. This is another reason due to which the method and procedure followed and the basis adopted by GPSC, is found unsustainable. 21.1 Moreover, it is pertinent that the Recruitment Rules or the Examination Rules contain positive mandate to and cast obligation on the commission to prescribe 58 C/SCA/13857/2014 CAV JUDGMENT minimum qualifying marks/standard for the two stages (viz. stage prior to written test and the stage prior to interview) mentioned under Rule 9 and Rule 19 of the Examination Rules. In light of the said provision which imposes such obligation the qualifying marks must be determined and prescribed/declared and notified at appropriate stage contemplated by the Rules and not at any other stage.
21.2 Differently put the Examination Rules and/or the Recruitment Rules or any other Rules do not confer any authority to the respondent GPSC to introduce minimum qualifying marks/standard at any stage other than the said two stages mentioned under the Examination Rules much less at the discretion or whims of the commission. 21.3 Thus, when there is positive mandate and direction by way of said provision, then the commission cannot usurp any authority/power to act contrary to the said provision or to act in manner different than the manner prescribed by the Rules and/or it cannot exercise discretion to act in any manner other than the manner and 59 C/SCA/13857/2014 CAV JUDGMENT stage prescribed by the Rules and thereby it cannot introduce and apply qualifying marks/standard at any other stage at its own discretion and/or contrary to the positive direction and obligation prescribed and imposed by the Rules. Such action would be contrary to Rules. Therefore, the petitioners are justified and contending that the said action of the respondent GPSC is without authority.
21.4 Besides this, the respondent GPSC introduced the said requirement despite (and after) the candidates, as mentioned hereinabove, passed through screening at three stages. When the candidates had passed screening at three stages and when the said candidates undisputedly possessed prescribed qualification and fulled the prescribed eligibility criterion and only on fulfillment of the said requirement (i.e. eligibility criterion), the candidates were allowed entry in OMR test and after filtering the candidates at that stage, other candidates were subjected to the prescribed screening process of preliminary examination and main examination, then (even otherwise) there was no basis or justification for 60 C/SCA/13857/2014 CAV JUDGMENT introducing the requirement of minimum qualifying marks/standard after conclusion of the two stages prescribed by the Rules.
21.5 There is an additional reason which also supports and justifies the allegation and contention against the commissioner's action of introducing and applying qualifying marks/standard determined and prescribed by the respondent GPSC. The minimum qualifying marks/standard must be clear and definite and cannot be uncertain and oscillating. However, on comparative reading of the notification dated 25.9.2014 and the notification dated 23.1.2015, it has emerged that in the subsequent notification (i.e. revised selection list notified on 23.1.2015) GPSC has taken into account different marks/standard (as compared to the marks/standard taken as qualifying marks/cut-off marks by GPSC at the time when the selection list / notification dated 25.9.2014 was issued) as qualifying marks/standard. This aspect becomes clear from the following comparative table:
61 C/SCA/13857/2014 CAV JUDGMENT
Sr. No. Category Qualifying Qualifying
Standards Standards
mentioned in the mentioned in
Notification dated the revised
25.9.2014 selection list /
Notification
dated
23.1.2015
1 General (Male) 492 marks 426 marks
2 General (Female) 387 marks 386 marks
3 SEBC (Male) 375 marks 379 marks
4 SEBC (Female) 338 marks 344 marks
5 SC (Male) 387 marks 387 marks
6 SC (Female) -- 483 marks
7 ST (Male) 316 marks 316 marks
8 ST (Female) 286 marks 286 marks
21.6 On reading of said two notifications in
juxtaposition, it comes out that the respondent GPSC has not only introduced the said requirement at a stage which is not permitted or contemplated under the Rules but GPSC has further transgressed its boundary and authority by changing or altering or modifying the basis/marks which the GPSC itself had determined and applied while preparing the select list and declaring the result vide notification dated 25.9.2014 and adopted new/different set of marks as minimum qualifying marks/standard while issuing notification dated 23.1.2015.
22. The said details not only bring out that the respondent GPSC has acted arbitrarily in the matter of 62 C/SCA/13857/2014 CAV JUDGMENT introducing, determining and applying qualifying marks/standard but on that count it has acted without any clarity and in a manner which would suit its convenience and interest. These are further reasons in light of which the decision and action of respondent GPSC deserves to be set aside.
23. In this context, at this stage, it is also relevant to mention that on account of the procedure adopted by GPSC intake of female candidates got restricted and reduced - even in respect of reserved quota for female candidates - and several position (in the quota reserved for female candidates) have been treated as "vacant" by GPSC which have been transferred to male candidates.
24. So as to support the decision and action and the method and the basis adopted by it, the respondent GPSC relied on the observations in the decision dated 13.12.2007 in case of Dr. Mehta Rakshaben Kantilal v. Gujarat Public Service Commission [Special Civil Application No.25773 of 2007 and connected matters]. I have considered the said decision and observation by the 63 C/SCA/13857/2014 CAV JUDGMENT Court. The observations relied on by GPSC have been made in different context and in different factual background and not while testing the method and procedure similar to the method and procedure followed by GPSC and/or the basis adopted by GPSC in the matters on hand (i.e. by adopting marks secured by only male candidates). Thus, neither the said observation nor the decision renders any assistance to GPSC to support the decision and action. Moreover, in the cited decision the relaxation did not result into restricting or reducing the intake of female candidates, as has happened in present case. The respondent GPSC also relied on the decision in case between IJ Prajapati v. State of Gujarat. So far as the said decision is concerned, it is relevant to note that in view of material difference between facts in the said case and the facts involved in cases on hand, the decision does not help the GPSC in supporting its impugned action. Besides this, GPSC relied on the said decision to support the submission that merely because qualifying marks were prescribed at later stage, it cannot be said to be illegal. In the cases on hand, it is the method, procedure 64 C/SCA/13857/2014 CAV JUDGMENT and basis adopted by GPSC for determining the qualifying standard which is found unsustainable. Differently put, in the cases on hand the "qualifying standard" determined by GPSC is found unsustainable on merits (and in light of applicable Rule) and not on technical ground that qualifying standard were determined at later stage. In view of the provision under Rule 9 and Rule 10 of the Examination Rules and in vie of the Rules prescribing reservation @ 30% for female candidates and @ 25% for candidates with special qualification, the said decision does not render any assistance to GPSC in justifying its impugned action. In the above referred cases the commission did not restrict its search for marks to be adopted as qualifying standard / benchmark, to the marks secured by only male candidates (as GPSC has done in present case) and that, therefore, the said decisions do not render any assistance to GPSC in justifying its actions in present case. Further, in present case the stage for determining qualifying standard is prescribed by the Rules (i.e. Rule 9 and Rule 19) therefore in present case the GPSC's action has to be viewed from the perspective of 65 C/SCA/13857/2014 CAV JUDGMENT said provision.
25. For the foregoing reasons and in light of the facts, the impugned method and procedure followed by GPSC and the basis adopted by GPSC for fixing / determining the "qualifying standard" as well as the qualifying marks/standard determined and settled and adopted by GPSC are not sustainable and deserve to be set aside and are consequently set aside and as corollary all subsequent and consequential decisions and actions by GPSC which are taken in pursuance of and on the basis of "such qualifying standard" (decided in impugned method) fall and stand vitiated. At this stage, it is necessary to further clarify that the action of determining qualifying marks / standard and/or the action of allowing relaxation therein are, essentially, not sustained on account of the manner in which the said process is carried out and the basis which GPSC adopted and not for want of power. The action of allowing relaxation is not sustained also because it is tainted with vice of discrimination and the error of not applying relevant factors and not for want of power. 66 C/SCA/13857/2014 CAV JUDGMENT
(ii) Relaxing qualifying standard:
26. So far as regards the said second aspect is concerned, it is relevant to mention that the respondent GPSC's action of applying qualifying standard (determined by it in above discussed manner) to the process of selection of female candidates seeking selection in reserved quota caused substantial shortfall in number of female candidates though sufficient number of female candidates in each category - who meet with and fulfill the eligibility criteria prescribed by Rules and notified in the advertisement - are available. The respondent GPSC, therefore, took further step and granted relaxation in the qualifying standard (so as to fill-up reserved quota).
However, GPSC, simultaneously, also decided to limit the extent of relaxation in qualifying standard to 10% and to select only those female candidates who came within the range of 10% relaxation. The said action is also under challenge.
27. On this count it is relevant to note at the outset that in absence of power to relax the qualifying standard, the commission, on its own, cannot relax the qualifying 67 C/SCA/13857/2014 CAV JUDGMENT standard. If the rules do not confer such power to the commission then the commission on its own cannot relax the qualifying standard. However, as mentioned earlier, in the matters on hand applicable Rules provide, inter alia, that if the vacancies reserved for candidates belonging to reserved category cannot be filled up, then the qualifying standard can be relaxed. In this view of the matter, the petitioners' objection on the ground of absence of power to relax the qualifying standard, cannot be sustained.
28. It is relevant to note that Rule 9 and Rule 19 prescribe the stage (during the selection process) at which and the circumstances in which, and the purpose for which, the commission can exercise the power to relax the qualifying standard. Thus, the said power is conferred with a rider / condition viz. that the power should be exercised for accommodating sufficient number of candidates from SC, ST and SEBC category. It is, however, relevant to note that the said Rules do not prescribe any guidelines for exercising the said power. 28.1 Thus, when the commission exercises such 68 C/SCA/13857/2014 CAV JUDGMENT power for the purpose contemplated under said provision and that too in absence of any guideline the criterion which may be adopted and applied must have nexus with the post in question and the purpose as well as the standard of minimum efficiency required for such posts. Besides this, relevant factors should also be kept in focus and must be applied and the commission cannot decide the extent of relaxation arbitrarily and without application of mind and/or without considering relevant factors or as per its whims and fancy or on any ipse dixit. In this view of the matter it is necessary to examine whether the impugned decision as to the extent/limit of relaxing the qualifying standard is based on reasonable and valid factors or on irrelevant considerations. 28.2 It is pertinent that in present case any material to demonstrate the basis in light of which the extent of relaxation came to be determined, is neither placed on record nor has GPSC disclosed and clarified this aspect in any other manner. The commission has failed to place any material or details on record and/or mention and clarify the basis in light of which it determined the extent / 69 C/SCA/13857/2014 CAV JUDGMENT percentage of relaxation in both cases (i.e. in case of reservation for female candidates and the candidates possessing special qualification). However, after the petitioners placed on record copy of GPSC's minutes, the respondent GPSC acknowledged and accepted that the GPSC determined the extent of relaxation (i.e. @ 10%) in qualifying standard in one out of the said two categories (i.e. with reference to the quota reserved for female candidates) by taking note of opinion by the learned Advocate General.
28.3 It is pertinent that the said opinion was not sought for and was not given specifically for this selection process. Actually, the said opinion was requested for few years before the advertisement in this case came to be issued. Despite such fact and without considering the effect of said fact the said opinion is relied on and applied in these cases.
29. So far as the issue on hand is concerned, what is relevant is the fact (which is not disputed, rather admitted by GPSC) that GPSC adopted and applied the 70 C/SCA/13857/2014 CAV JUDGMENT said criterion only by taking note of the view expressed in the opinion by learned Advocate General and not by taking into account, and after examining the matter in light of, relevant and acknowledged factors. Actually in light of the facts of the cases on hand - more particularly in light of applicable Rules - it was necessary for GPSC to consider and decide two issues viz. (a) whether for the purpose of completing the reserved quota it should descend in the merit list to the extent required for filling - up entire quota reserved for SC, ST and SEBC candidates or the extent of relaxation should be restricted and (b) if the extent of relaxation is to be restricted then where should the boundary be drawn.
29.1 However, from the material on record, it has emerged that GPSC did not take into account relevant factors and did not determine the limit/extent of relaxation after examining the issue in light of relevant factors. The respondent GPSC also did not pause to think and decide whether complete relaxation (i.e. to the extent required to complete the reserved quota) should be granted or partial. 71 C/SCA/13857/2014 CAV JUDGMENT 29.2 It is not even the case of GPSC that before applying said decision it had considered the issue in light of relevant factors and/or from the above mentioned perspective. Even according to GPSC it adopted said criterion by taking into account only opinion by learned Advocate General. The said criterion (i.e. 10%) is fixed mechanically and without even considering the above mentioned perspective and/or the scope and requirement of Rule 9 and Rule 19 of Examination Rules and/or without considering whether in light of the fact of the cases on hand the criterion should be less or more than 10%. 29.3 The respondent GPSC ignored the scope of Rules 9 and 19 of Examination Rules and it also ignored the requirement prescribed by and under said Rules, more particularly the requirement to relax the minimum qualifying standard so as to accommodate candidates from reserved category.
29.4 The GPSC adopted said criterion only on the basis of the opinion by learned Advocate General which was not given either after considering relevant rules viz. 72 C/SCA/13857/2014 CAV JUDGMENT Examination Rules, Recruitment Rules applicable to selection / recruitment of ACF and RFO or the facts of the cases on hand or the purpose for relaxing the qualifying marks and also without having regard to the manner in which GPSC had determined the qualifying marks/standard (wherein GPSC granted the relaxation) and/or the fact that said opinion was given before almost 10-12 years, much less for this/specific purpose. This is one reason in light of which the action of respondent GPSC of determining and applying the said criterion (i.e. the extent/limit to which the qualifying standard should be relaxed) does not deserve to be and cannot be sustained. 29.5 Another question which stares in the face of the respondent GPSC is that why did GPSC not apply the same standard or criterion and the same limit (i.e. relaxation to the extent of 10%) in case of candidates seeking selection in the quota reserved for the candidates with special subject and instead it applied different criterion/yardstick (viz. adding 7% marks) in the marks obtained by the candidates possessing special subject / qualification in his written test and in interview (and the reasons therefore). 73 C/SCA/13857/2014 CAV JUDGMENT 29.6 The said issue is the grievance of the candidates possessing special qualification (Special Civil Application No.13587 of 2014). So far as the grievance by the candidates seeking admission in the quota reserved for candidates with special qualification is concerned, it is relevant to note that in reply to one of the allegations and contentions by said petitioners viz. the allegation that GPSC had not notified the decision and action of adding 7% marks in the marks obtained by concerned candidates in written test and so also in marks secured at the interview, the respondent GPSC referred to and relied on the intimation dated 22.4.2014 and claimed that by the said intimation dated 22.4.2014, it had notified and informed all candidates that for implementing the quota reserved for the students possessing special qualification, it has decided to add 7% marks in the marks obtained by the concerned candidates in the written test and at the interview.
29.7 On this count it is appropriate to mention that merely because the criterion is decided late in time the 74 C/SCA/13857/2014 CAV JUDGMENT criterion or final result will not stand invalidated when there is no allegation about mala fides and if there is justifiable reason. Therefore, in present case the contention that the said action vitiates the selection of candidates in the said reserved quota and entire selection on the said reserved quota should be set aside, cannot be sustained.
29.8 On this count, it is pertinent to note that the actions of respondent GPSC are challenged by the said candidates with special subject on almost similar grounds as in case of quota reserved for female candidates. The said candidates have claimed that despite the fact that they have also been subjected, along with all other candidates to the same screening and selection process and though they have also passed through same examination comprising written test and interview as other candidates, different standard and yardstick are applied in their case (i.e. in the matter of relaxing the qualifying standard for filling-up the quota reserved for them which is available to male as well as female candidates) inasmuch as in their case, criterion of 7% is 75 C/SCA/13857/2014 CAV JUDGMENT applied as against criterion of 10% granted in favour of women candidates and though different yardsticks are applied any explanation or justification for such action is not offered.
29.9 In this view of the matter and in light of the fact that these candidates/petitioners (in SCA No.13587/2014) have also raised same objections and contentions as raised by female candidates and that, therefore, all points and aspects discussed above (with regard to the objections by female candidates) will be relevant and applicable with regard to same/similar objection by the candidates holding special qualification. Therefore repetition of the discussion and deliberation can be avoided and there is no need to reiterate said discussion.
30. There is another relevant dimension or perspective to this issue viz. the discriminatory action by GPSC inasmuch as the commission adopted different criterion (i.e. of 7%) which it implemented by way of adding 7% marks in the secured by the candidates in written examination and in the marks obtained by the 76 C/SCA/13857/2014 CAV JUDGMENT candidates at the interview) rather than applying same criterion (i.e. 10%) which it applied in case of quota reserved for women. Though this is another form of granting relaxation, however, different criterion / yardstick are applied in the same selection process. 30.1 For justifying its action of adopting criterion of 10% as the limit for granting relaxation in case of quota reserved for women GPSC took shelter under the umbrella of the opinion by the learned Advocate General however, in the matter related to reservation for candidates with special subject even that umbrella is not available to GPSC inasmuch as for undisclosed reasons GPSC did not apply the same criterion / yardstick (viz 10%) and instead it applied another / different yardstick (i.e. 7%) in case of the quota reserved for the candidates with special subject, and that too without offering any explanation or justification (for applying different standards / yardstick in matter of implementing said reservation) inasmuch as any explanation, or reason or justification either for fixing the said limit / extent or for applying such different standard and criterion in respect of the candidates with special 77 C/SCA/13857/2014 CAV JUDGMENT subject and that too in respect of same selection process is not mentioned or offered by GPSC.
30.2 Moreover, when the respondent GPSC gave go- by to the said criterion of 10% and did not follow the same principles and the same criterion while complying the reserved quota for candidates with special subject, there must be reason and justification for adopting different treatment while complying reservation in respect of same selection process. Neither any reason nor any justification for not following the same criterion and principle comes out from the record or from the submission by learned counsel for the respondent GPSC. Any explanation is not offered for adopting or selecting limit of 7% for complying the quota reserved for candidates with special subject and/or about the factors, if any, which were taken into consideration for deviating from the criterion which it had adopted and applied while complying the quota reserved for women candidates.
30.3 Thus, GPSC has adopted discriminatory approach in respect of same selection process while 78 C/SCA/13857/2014 CAV JUDGMENT implementing reservation for women and reservation for candidates with special subject and it is also hit by vice of not taking into account and not applying relevant factors for complying reservation prescribed for candidates with special subject and the GPSC has not acted in judicious manner but has acted mechanically and on ipse dixit and without rationale.
31. In the result, the decision and action of the respondent GPSC, with regard to determining limit or extent of relaxation in qualifying standard for implementing reservation in respect of quota reserved for women as well as in case of quota reserved for candidates with special subject, are, for the foregoing reasons, not sustainable and they deserve to be set aside and are accordingly set aside.
32. The foregoing discussion deals with the major issue and principal ground of objection against the action of GPSC. The said contention is common issue and objection in all petitions which comprise this group of matters viz. the petitioners in writ petitions being Special Civil 79 C/SCA/13857/2014 CAV JUDGMENT Application Nos.14849/2014, 14340/2014, 14341/2014, 16620/2014, 13857/2014 and 2125/2015 and that, therefore, the above-discussion deals with and decides the said common contention raised by the petitioners in all petitions, hence it is not separately considered, discussed and decided in respect of each petitions.
(B) Transferring a part of the quota reserved for female candidates and for candidates with special subject:-
33. The petitioners have raised objections and dispute against the action of transferring part of the reserved quota, i.e. quota reserved for women to male candidates and part of the reserved quota for candidates with special subject to the candidates not possessing such special qualification / subject. So far as aforesaid first part of the challenge is concerned, it is relevant to mention that for the purpose of filling-up the vacancies in respect of the quota reserved for female candidates the respondent GPSC applied the qualifying standard fixed by it (in above discussed manner) and on that basis selected only those female candidates who secured marks more 80 C/SCA/13857/2014 CAV JUDGMENT than the qualifying standard or who secured marks equal to said qualifying standard. This method and action caused, and resulted into, artificial shortfall of candidates. Therefore, GPSC granted relaxation in said qualifying standard but GPSC also restricted the relaxation to the extent of 10% (with regard to the reserved quota for women) in the qualifying standard and selected only those female candidates whose marks would come within range of qualifying standard and 10% relaxation. 33.1 As a result of this process intake of female candidates in each of the said four categories got restricted and reduced inasmuch as out of total 51 vacancies (distributed amongst four categories) available for reserved quota for female candidates, GPSC selected only 30 female candidates which left behind 21 vacancies. The respondent GPSC treated said 21 position (out of reserved quota for female candidates) as vacant on the perceived and presumed premise of want of sufficient female candidates coming within range of qualifying standard (including 10% relaxation). Thereafter the respondent GPSC transferred entire 21 position to male 81 C/SCA/13857/2014 CAV JUDGMENT candidates and selected male candidates in respect of said 21 position.
33.2 In this context, it is pertinent that the Examination Rules and/or the Recruitment Rules and/or the Reservation Rules do not contain any provision, enabling or permitting the commission to transfer any position, on any ground, from the reserved quota to any one (much less to transfer the quota reserved for women to male candidates). Actually, plain construction and conjoint reading of the Rules viz. the Recruitment Rules and Examination Rules and the Reservation Rules provide and clearly indicate, inter alia, that if sufficient candidates belonging to SC, ST or SEBC categories do not become available at the stage of examination and/or at the stage of filling-up the vacancies, then the commission may relax the qualifying standard so as to accommodate required number of candidates of reserved category (depending on the notified number of vacancies) and the commission must strive to fill up the quota reserved for female candidates belonging to reserved category viz. SC or ST or SEBC even by relaxing qualifying standard fixed by it 82 C/SCA/13857/2014 CAV JUDGMENT instead of transferring the position to male candidates by treating the position vacant on presumed or perceived ground of non-availability of candidates. The said provision puts the commission under obligation to ensure that the position reserved for women belonging to SC, ST and SEBC categories are filled-up and for that purpose - if facts so require - even qualifying standard should be relaxed. In light of such provision it is difficult - rather not possible - to assume that the Rules have clothed the commission with power to transfer part of notified vacancy from reserved quota to candidate not belonging to reserved quota e.g. from the quota reserved for female candidates to male candidates.
33.3 The relevant Rules do not provide for or contemplate such situation and/or such power in the hands of GPSC. On one hand the Rules contain provisions which impose obligation on GPSC to fill-up the quota reserved for female candidates even by relaxing qualifying standard which is coupled with the fact that there is absence of any provision in the Rules conferring such power to GPSC to transfer vacancies.
83 C/SCA/13857/2014 CAV JUDGMENT 33.4 This position leads to the conclusion that the action (viz. transferring part of reserved quota to persons outside such quota) is taken without any authority or power conferred under the Rules. Any action taken without authority cannot survive and cannot be sustained. 33.5 In present case, it is pertinent to note that on account of the method and procedure adopted and followed by the respondent GPSC sufficient number of female candidates (and likewise candidates with special subject) have not been selected despite availability of female candidates (as well as candidates with special subject) who possess and fulfill the eligibility criteria prescribed under the Rules and notified in the advertisement and have also succeeded at three screening stages i.e. in OMR test and in the preliminary examination and written examination and interview, are available.
33.6 Despite this position, the respondent GPSC treated 21 position out of quota reserved for female candidates as vacant and then transferred the said 84 C/SCA/13857/2014 CAV JUDGMENT position to male candidates. The impugned decision and action are not only arbitrary but also contrary to the Rules and without authority. The procedure adopted by GPSC has artificially increased number of position for male candidates (and for candidates with special subject). 33.7 Moreover, the categorization of said 21 position (out of reserved quota for women) and categorization of balance position from the quota reserved for candidates with special subject as vacant is a direct outcome of GPSC's decision and action of applying the qualifying standard (determined by it in earlier discussed manner) to fill-up the reserved quota for female candidates and for candidates with special subject. However, when the said qualifying standard in itself is faulty and unsustainable, then the decisions and actions taken on the basis of such qualifying standard, including the decision to treat the said position (out of reserved quota for women and balance position under reserved quota for candidates with special subject) as vacant, is hit on account of application of said qualifying standard and stand vitiated. 85 C/SCA/13857/2014 CAV JUDGMENT 33.8 Consequently, the action of transferring such position to male candidates (out of reserved quota for women) and/or to the candidates not possessing special qualification and selection of male candidates out of the quota reserved for candidates with special subject cannot survive.
33.9 On this count it is necessary to mention that so as to justify its action, the respondent GPSC relied on circular dated 22.5.1997 (read with circular dated 9.4.1997), wherein the GAD of the respondent State has clarified that "in the event, requisite number of female candidates are not available" then the vacancies may be filled up by male candidates of the respective categories. The said circular itself, inherently, provides that such procedure of transferring the vacancies to male candidates can be undertaken "if women candidates are not available". Actually, the said circular is mere clarification (i.e. it is in nature of clarificatory instructions) with reference to the procedure required to be followed for implementing and complying all forms of special reservation, i.e. for women candidates or physically 86 C/SCA/13857/2014 CAV JUDGMENT handicapped candidates or ex-service men, etc. Even the said circular dated 22.5.1997 merely clarifies that the procedure mentioned therein is to be followed only when sufficient number of female candidates as required are not available. Therefore, recourse to the said circular cannot be taken in the cases where sufficient number of female candidates to fill up prescribed quota reserved for female candidates are available.
33.10 Besides this, the said circular is supplementary to the Rules and even if it is assumed that it hands over such authority to the commission then also the said circular and the instructions therein cannot override the provision under Rules 9 and 19 and they would be subject to Rules which oblige the commission to fill-up the notified vacancies for reserved quota by relaxing the qualifying standard and thereby accommodate the candidates in SC, ST and SEBC categories.
34. Now so far as the candidates with special subject are concerned, it is not in dispute that the 87 C/SCA/13857/2014 CAV JUDGMENT respondent state has prescribed 25% reservation for the candidates who possess said special qualification and it is also not in dispute that the facts in their cases are almost similar to the reservation (@ 30%) for female candidates inasmuch as it is undisputed that the said candidates (the petitioners in Special Civil Application No.13587 of 2014) also possess and fulfill eligibility criteria prescribed by Rules and notified in the advertisement and they were also have been subjected to same screening process and they have also passed through same examination. 34.1 Similar objections and contentions are raised with regard to GPSC's action of transferring, similar grounds, the position from the quota reserved for the candidates possessing special qualification to the candidates not possessing such qualification and by applying the qualifying standard fixed by it (in the manner discussed earlier), GPSC has selected only 10 candidates and treated balance position as vacant on the same ground and that, therefore, the said decision and action of treating balance notified position as vacant as well as the action of transferring said balance position to other 88 C/SCA/13857/2014 CAV JUDGMENT candidates not possessing such qualification also fail for the same reasons as in the case of position in the quota reserved for women and likewise the impugned action qua the candidates with special subject / qualification deserve to and is hereby set aside.
35. Further with a view to justifying its decision and action of transferring the vacancies to the male candidates and selecting male candidates in the respective category, respondent GPSC relied on the observations in the decision in case between Nagori Ruksana Ahmedkhad and claimed that power to transfer / convert the vacancies of reserved quota is available to GPSC. In the said case the provision which is applicable in these cases (and/or a provision similar to the said provision) was not under consideration and the said case is not decided in light of similar provision. In the cases on hand rules oblige the commission to relax the qualifying standard so as to accommodate female candidates from reserved category and that, therefore, the said decision does not help the respondent GPSC.
89 C/SCA/13857/2014 CAV JUDGMENT 35.1 Moreover there is vast difference in having requisite authority or power to do something and the manner in which (and the purpose for which) the power is exercised. If the manner of exercising the power and/or the purpose for which power is exercised are unjust or impermissible under the Rules or is hit by vice of arbitrariness or if the foundation and basis on which the action is rested is defective or infected by any error then the final action will not survive and will fall along with the foundation. In this view of the matter the said decision does not render assistance to the petitioner inasmuch as even if it is assumed that the commission does possess such power and even if power to transfer/convert the position/vacancies (even those positions which are reserved for women) is yielded in favour of GPSC then also the ultimate action by GPSC remains unsustainable due to the above discussed error and defect and that, therefore, the action of transferring position from quota reserved for women candidates and for candidates holding special qualification are not sustainable and deserve to be and are hereby set aside.
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36. When applicable Rules prescribe particular steps and requirements as part of the selection process / procedure then GPSC is obliged to act in consonance with and in compliance of such steps and procedure prescribed by the Rules. However, so as to circumvent the requirement prescribed by virtue of rules framed in exercise under Article 309, the commission cannot adopt procedure in garb and in style of prescribing qualifying standard and thereby it cannot artificially reduce intake of the female candidates and keep open the vacancies in the quota reserved for female candidates in each of the four categories and then transfer such vacancies to male candidates. Even the decisions relied on by GPSC do not speak of such omnipotent commission which will wield power higher than the State. It cannot exercise authority which vests with the State.
(C) Shifting / Migrating the candidates:
37. So far as the issue related to Migrating/Shifting the candidates is concerned, it involves three features (i) the candidates who, without availing the benefit of 91 C/SCA/13857/2014 CAV JUDGMENT relaxation in qualifying standard, secured place in open merit category (general / unreserved category) on account of their performance have been counted in their respective reserved category on the ground that at some stage they had availed benefit of concession in payment of fees or upper age limit; and (ii) the meritorious reserved category female candidates who have entered general/reserved category on account of their better performance are counted in that category for calculating compliance of 30% quota reserved for female candidates belonging to the general / unreserved category (which is opposed by the female candidates in general / unreserved category who seek selection in 30% quota reserved for female candidates in that category) and (iii) third dimension arises from shifting the meritorious reserved category candidates (who secured place in general / open category) to their respective reserved category while allotting them the "higher post".
38. Before proceeding further, it is relevant and necessary to take into account the details mentioned by GPSC with regard to the steps taken by it and the 92 C/SCA/13857/2014 CAV JUDGMENT procedure followed by it. The details mentioned by GPSC with reference to the earlier mentioned three situations or facets / dimension are thus:-
"(B) The Reserved Category Candidates (SC / ST / SEBC), who get either equal or more than minimum marks fixed as qualifying standard for general candidates, and have not availed of any relaxation in age, qualifying standard etc. are recommended against unreserved posts, as per the Government circular, G.A.D. No. PVS- 1099-MM-l3-G4 dated 29-01- 2000 and PVS-102003-900-
G4, dated 23-07-2004.
(C) The Reserved Category Candidates (SC / ST / SEBC) who had secured their place in the Merit List of General category, but had availed the benefit of relaxation for the respective reserved category at one point of the examination process or the other, had been selected as Reserved Category candidates for the respective category.
12. The following reserved category candidates, who have got either equal or more than the minimum marks fixed as qualifying standard for General category candidates and have not availed of any relaxation in age, qualifying standard e.t.c. are to be recommended against unreserved post as per Government circular, GAD No. PVS-1099-MM-13-G4 dated 29-1-2000 and PVS- 2010-03-900-G4, dated 23/07/2004.
(1) The SEBC Male candidates at Merit Nos. ............. = (total 17) (2) The SEBC Female candidates at Merit Nos. ............ (total 01)
13. Though the following reserved category candidates have secured their place in the merit of general category, they are selected against the post of their respective category as they have availed the benefit of relaxation in age, qualifying standard e.t.c.
(1) The SEBC candidates at Merit Nos. ............. = (total 02) (3) The S.T. candidate at Merit No. ............. = (total 01)
14. The Candidates at Merit Nos. 22, 32, 37, 40, 43, 107 and 132 (total 07), though have secured their place in the merit of general category, due to better preference available to them, they are selected against the post of SEBC category in accordance with the Judgement of the Honourable Supreme Court in the case of Union of India versus Ramesh Ram and others (Civil Appeal No. 4310-4311 of 2010) [Arising out of SLP(C) Nos. 13571- 72 of 2008]. In place of above seven candidates as per Annexure-IV(B), five General Merit candidates have been included in the revised minutes and for the remaining two posts the SEBC candidates at serial No. 84 and serial No. 86 are considered as General category 93 C/SCA/13857/2014 CAV JUDGMENT candidates.
15. The candidates at Rank No. 97, 99, 101, 104, 105, 109, 111, 114, 118, 125, 126, 130 and 133 = (General-13), 144, 148, 151 and 153 = (SEBC-04), 166 and 167 = (02 S.T.) being female candidates, have been selected after relaxing the minimum qualifying standard prescribed for Male candidates of their respective Categories.
18. Against total 51 posts reserved for women candidates of General, SEBC, S.C. and S.T. categories, 18 women candidates of General, 07 women candidates of SEBC category, 01 woman of S.C. category and 04 women candidates of S.T. category have been selected. Hence, male candidates of their respective categories are selected against the posts reserved for women of respective categories, (item No. 2 of the G.A.D., Notification No. CRR/1096/2213/g-2, dated 22nd May, 1997)." 38.1 At this stage, it would relevant to take into account the explanation and details (about the steps taken by it while revising the list/result by giving effect to the principles in Ramesh Ram) mentioned by GPSC in the notification dated 25.9.2014:
"5. The following reserved category candidates, who have got either equal or more than the minimum marks fixed as qualifying standard for General category candidates and have not availed of any relaxation in age, qualifying standard etc. are to be recommended against unreserved post as per Government circular, GAD No.PVS-1099-MM-13-G4 dated 29.1.2000 and PVS- 2010-03-900-G4, dated 23.7.2004.
(1) .............. = (total 20) (2) The SEBC Female candidates at Merit Nos. .............. = (total 03)
6. The following reserved category candidates, who have though secured their place in the merit of general category, however, they are selected against the post of their respective category as they have availed the benefit of relaxation in age, qualifying standard etc. (1) The SEBC candidates at Merit Nos. .............. = (total 09) (2) The S.C. Candidates at Merit Nos.25-Female (E.No.445) and 35 (E.No.452) = (total 02) 94 C/SCA/13857/2014 CAV JUDGMENT
7. The candidates at Rank No. .............. being female candidates, have been selected after relaxing the minimum qualifying standard prescribed for Male candidates of their respective Categories.
8. With regard to women reservation as provided for in the Government Notification GAD No.GS/97-13-CRR/1096/2213/G-2, dated 9th April, 1997 and GAD Circular No.CRR/1096/2213/G-2, dated 22nd May, 1997, 51 women candidates (General-26, SEBC-
15, S.C.-02 and S.T.-08) are required to be selected. As against this, .............. total 30 women candidates have been selected.
9. The required No. of women candidates of SEBC, S.C., S.T. and General categories could not be selected even after relaxing 10% of the minimum qualifying standard prescribed for the candidates of their respective categories. .............." 38.2 It is not in dispute that the respondent GPSC has counted (shifted) certain candidates of meritorious reserved category (from general/open category - where they secured place on their merits) in their respective reserved category on the ground that the said candidates had, at some stage, availed relaxation in upper age limit or the benefit of waiver / relaxation in payment of fees. On this count, GPSC has asserted that the reserved category candidates (SC/ST/SEBC) who secured position in general/open category by virtue of their performance are counted against their respective reserved category as they availed benefit of relaxation in age, waiver of fees and that, therefore, they are recommended against unreserved posts.
95 C/SCA/13857/2014 CAV JUDGMENT 38.3 At this stage, it is pertinent to mention that in the case of Jitendra Kumar Singh v. State of Uttar Pradesh [(2010) 3 SCC 119], Hon'ble Apex Court has emphasized that there is distinction between "concession" and "relaxation". It is explained in the said decision that relaxation of standard for determination of merits is different from the concession by way of relaxation in criterion related to age and/or relaxation or waiver of examination fee and other similar concession. It is emphasized in the said decision that, while relaxation of "standard for determination of merits" would amount to benefit of relaxation / reservation, the relaxation in criterion related to age or examination fee would amount to "concession". Hon'ble Apex Court has observed that:-
"43. It is in this context, we have to examine the issue as to whether the relaxation in fee and upper age limit of five years in the category of OBC candidates would fall within the definition of "reservation" to exclude the candidates from open competition on the seats meant for the General Category Candidates.
48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the General Category Candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to 96 C/SCA/13857/2014 CAV JUDGMENT the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.
75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open competition."
38.4 The decision explains the principle in light of the distinction between "relaxation" and "concession". What emerges from the decision in case of Jitendra Kumar Singh (supra) is that relaxations could be in respect of selection criteria (e.g. qualifying standard) or in eligibility criteria (e.g. by relaxing age limit or by granting waiver in examination fee). Thus, when a meritorious reserved category candidate, upon availing benefit of "concession" participates in competitive examination without availing any benefit of reservation and then he secures place in general/open category on account of his merits and 97 C/SCA/13857/2014 CAV JUDGMENT performance, then merely because he had availed the concession he cannot be considered as a candidate who availed benefit of reservation and on that basis such candidate cannot be counted in the quota for respective reserved category because such action would result into reducing number of vacancies available to the respective reserved category candidates.
38.5 In the matters on hand in view of the distinction explained by Hon'ble Apex Court in the case of Jitendra Kumar Singh, the action by respondent GPSC, to that extent,is not sustainable. The respondent GPSC is not justified in claiming that the decision in case of Jitendra Sinh (supra) is in light of the provisions under U.P. Public Service (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994 and the Rules framed thereunder, whereas such rule is not available or applicable in present case and therefore the said decision is not relevant and is not applicable. The said submission is advanced on misreading of the judgment and does not deserve to be entertained and accepted.
98 C/SCA/13857/2014 CAV JUDGMENT 38.6 The distinction and the principle explained by Hon'ble Apex Court in the said decision are relevant and applicable irrespective of absence of provision / Rule similar to the Rule which came up for consideration by Apex Court in the cited decision and it also becomes clear that even in absence of similar provision if the benefit of "concession" by way of relaxation in upper age limit reduction / exemption in respect of fee - which does not amount to relaxation in qualifying standard - is availed by meritorious reserved candidate then it cannot act as impediment or it cannot work to the detriment of reserved category candidates and it should not result into reduction in number of vacancy available by way of reservation in favour of respective category.
38.7 On examination of the facts of the case, it becomes clear that while preparing and finalizing the selection list, the respondent GPSC has not followed the decision in case of Jitendra Kumar Singh (supra) and has not given effect to the principles and guidelines explained by Hon'ble Apex Court in the said decision and the respondents appear to have lost sight of the said 99 C/SCA/13857/2014 CAV JUDGMENT distinction between relaxation of qualifying standard i.e. in determination of merits and relaxation in eligibility criteria. Instead GPSC has treated the case of candidates who availed concession as if the candidates had availed "relaxation". The petitioners have claimed and asserted that:
"6. ... ... ... ... ... Sr.No.4 is a candidate who is shown as SEBC- M-1 i.e. Socially & Educationally backward Class-male, Sr.No.01 for the reason that the candidate was borne on 19.09.1978 and has claimed concession / relaxation for age by the candidate at Sr.No.06 though belonging to same Category i.e. SEBC, is considered as a general female at Sr.No.01 for the reason that she has not claimed any concession or relaxation as candidate belonging to SEBC. Accordingly, the list prepared by the respondent No.2, showing the candidates as either belonging to General Category as per the merit position or Reserved Category provided they have sought concession / relaxation available to the category."
38.8 The said assertions are not disputed and/or denied by GPSC. Actually, the respondent GPSC itself has mentioned in the Notification dated 23.1.2015 that:
"13. Though the following reserved category candidates have secured their place in the merit of general category, they are selected against the post of their respective category as they have availed the benefit of relaxation in age, qualifying standard e.t.c." (Emphasis supplied) 38.9 The above mentioned details bring out that the selection list which is prepared without taking into account and without giving effect to the judgment in case of Jitendra Kumar Singh is vitiated and is not sustainable and 100 C/SCA/13857/2014 CAV JUDGMENT that, therefore, it is set aside. The said list is required to be prepared afresh. The said decision and action of the respondent GPSC and the selection list are challenged in Special Civil Applications No.1100/2015 and 1141/2015. Thus, the foregoing discussion addresses and decides the contentions and objections by the said petitioners. Accordingly, the said two petitions stand decided by and in terms of the foregoing discussion.
39. So far as the aforesaid second aspect is concerned, the said dispute and controversy has arisen because those female candidates belonging to SC category, ST category and SEBC category who secured marks either equal to or more than the qualifying standard are placed in unreserved / general category (open merit) by treating them as meritorious reserved category female candidates and then for implementing 30% reservation for female candidates (i.e. horizontal reservation for female candidate) such meritorious reserved category candidates have been counted towards 30% quota reserved for unreserved/general female candidates.
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39.1 So far as the matters on hand is concerned, female candidates belonging to general / unreserved category have urged that in light of Reservation Rules they are entitled to reservation to the extent of 30% of the notified vacancies in general / unreserved category and that therefore clear 30% vacancies out of total notified vacancies should be kept open and made available exclusively for them i.e. the female candidates belonging to general / unreserved category and those female candidates who, on account of their performance, secure position in general / unreserved - open category - should not be counted in general / unreserved - open category - (for calculating fulfillment of said 30% quota) because on account of such method the 30% quota reserved for female candidates in general / unreserved category would, to that extent, decline and shrink.
39.2 The contention is opposed by GPSC and by Mr.Yagnik, learned Counsel representing the successful candidates. Mr.Yagnik, learned advocate, would contend that the meritorious reserved category female candidates, who, on their merits, secured place in the open / general 102 C/SCA/13857/2014 CAV JUDGMENT category are not required to be counted in their respective category but they would continue in the open category and for the purpose of implementing horizontal reservation, they would be counted in the open category otherwise vacancies available for candidates belonging to SC or ST or SEBC category will be reduced.
39.3 In the matters on hand, total 26 vacancies in respect of both posts (i.e. ACF and RFO) are available for the female candidates in general / unreserved category [8 vacancies for post of ACF (out of total 24 vacancies available in respect of post of ACF) and 18 vacancies in respect of post of RFO (out of total 60 vacancies)]. According to the female candidates in general / unreserved category the said total 26 vacancies should be kept completely open and available purely and exclusively for them i.e. only for those female candidates who belong to general / unreserved category and even if any female meritorious candidates belonging to any reserved category (SC category or ST category or SEBC category) secure position as meritorious reserved category candidate, in general / unreserved category then also for 103 C/SCA/13857/2014 CAV JUDGMENT the purpose of calculating compliance of reserved quota for female candidates belonging to general / unreserved category, such meritorious reserved category female candidates should be excluded (from the counting) and they should be considered in their respective reserved category.
40. In this view of the matter, it would be appropriate to take into account difference between vertical reservation and horizontal reservation or compartmentalized horizontal reservation. This difference is clarified and explained by Hon'ble Apex Court in the case of Indra Sawhney (supra), wherein Hon'ble Apex Court observed that:
"811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the 6 D.B. CIVIL SPECIAL APPEAL (W) NO.170/2013 Smt. Megha Shetty vs. State of Raj. & Ors. (Alongwith other 3 similar matters) sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Casts, Scheduled Tribes 104 C/SCA/13857/2014 CAV JUDGMENT and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure." (Emphasis supplied) 40.1 Thereafter, in the case of Anil Kumar Gupta, Hon'ble Apex Court explained the manner in which horizontal and vertical reservation should be treated and the vacancies should be filled up. In the said decision, Hon'ble Apex Court also considered the micro distinction in case of horizontal reservation, viz. overall horizontal reservation and compartmentalized horizontal reservation and Hon'ble Apex Court observed that:
"15. ................ We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter- transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten 105 C/SCA/13857/2014 CAV JUDGMENT special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of
112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered. "
40.2 After having explained the distinction between overall horizontal reservation and compartmentalized reservation, Hon'ble Apex Court further explained the proper and correct course to fill up vacancies in case of horizontal reservation and observed, inter alia, that:
"18. ............. The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the 106 C/SCA/13857/2014 CAV JUDGMENT process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota."
41. In the cases on hand it has emerged that if the claim and contention by female candidates belonging to general category (i.e. not belonging to SC category or ST category or SEBC category) were to be entertained and if in addition to the meritorious reserved category female candidates already placed (after they secured place in open merit by their performance) in general / unreserved category other 26 female candidates belonging to general / unreserved category (i.e. not belonging to SC category or ST category or SEBC category) were to be selected and placed (besides the female meritorious reserved category candidates who secured position in the category) then the total strength of the female candidates in general / unreserved category will be more than total number of vacancies reserved for female candidates in general category by way of 30% compartmentalized horizontal reservation. This aspect would become clear 107 C/SCA/13857/2014 CAV JUDGMENT from an illustration viz. in a given case where total number of vacancies reserved for female candidates belonging to general / unreserved category, is 26 and in such case if 5 meritorious reserved category female candidates on their own merits and without availing benefit of reservation secure and occupy position in general category and then other 26 female candidates belonging to general / unreserved category are selected (as claimed by the petitioners in SCA No.14849/2014) so as to satisfy reserved quota fixed for female candidates belonging to general / unreserved category, then total number of female candidates of general / unreserved category would reach to total of 31 female candidates which would be more than total number of vacancies reserved for female candidates in respect of general / unreserved category. If such position is allowed to occur it would adversely affect vertical reservation as well as prospects of the candidates (not belonging to SC or ST or SEBC category) not entitled for any reservation. However that is the claim put forward by the female candidates belonging to general / unreserved category who seek 108 C/SCA/13857/2014 CAV JUDGMENT selection in the reserved quota. This is contrary to the decision in case of Rajesh Dariya (supra) wherein Apex Court has observed that:
"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (supra), R.K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y.L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to 109 C/SCA/13857/2014 CAV JUDGMENT be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]
10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for 'General Category - Women'. There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for 'General Category-
Women'. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation."
42. In this view of the matter the said claim and contention by female candidates belonging to general / unreserved category and seeking selection in reserved quota for female candidates belonging to general category that the reserved quota of 30% for female candidates belonging to general / unreserved category should be exclusively made available to them and the meritorious reserved category candidates who occupy position in open merit category should not be counted for satisfying the 110 C/SCA/13857/2014 CAV JUDGMENT quota reserved for female candidates belonging to general / unreserved category, is not sustainable and cannot be accepted. Besides this, the said contention also overlooks that implementation of horizontal reservation is not to be effected at the cost of, or by taking away a slice from, vertical reservation. Consequently, the said contention is not accepted. The foregoing discussion deals with and addresses and decides the objection by the petitioners in Special Civil Application No.14849 of 2014. Consequently, the said petition stands decided by the foregoing discussion.
43. Third issue related to migration is raised in respect of "allocation of service" i.e. allotment of the candidates to "higher post", whereby the meritorious reserved category candidates (both male and female candidates) are alloted to the "higher post" (in present case the post of ACF). 43.1 It is claimed and alleged by the candidates who are opposing the action of GPSC with regard to allocation of service that in the advertisement GPSC had not described / declared that the post of ACF will be treated as 111 C/SCA/13857/2014 CAV JUDGMENT "higher post" and that allocation of service i.e. for allotment of candidate to said post of ACF will be considered as "benefit of reservation". The basis and effect of such allotment were also not informed to the candidates until the stage of interview got concluded and it was only thereafter, rather after crossing two more stages (i.e. after GPSC crossed the stage of preparing common/general merit list and after it determined the qualifying standard) that the respondent GPSC initiated the steps for allocation of service and allotted the MRC candidates to the said higher post and shifted them to reserved pool. On this count, respondent GPSC has mentioned following details in the notification:
"14. The candidates at Merit Nos. 22, 32, 37, 40, 43, 107 and 137 (total 07), though have secured their place in the merit of general category, due to better preference available to them, they are selected against the post of SEBC category in accordance with the Judgement of the Honourable Supreme Court in the case of Union of India versus Ramesh Ram and others (Civil Appeal No. 4310- 4311 of 2010) [Arising out of SLP (C) Nos. 13571-72 of 2008]. In place of above seven candidates as per Annexure-IV(B), five General Merit candidates have been included in the revised minutes and for the remaining two posts the SEBC candidates at Serial No. 84 and serial No. 86 are constituted as General category candidates."
43.2 Besides this, in its additional affidavit dated 9.2.2015, GPSC has explained as to how it has followed and implemented the decision in case of Ramesh Ram. 112 C/SCA/13857/2014 CAV JUDGMENT GPSC has mentioned that:
"... ... ... ... ... It can also be seen from the Annexures annexed to the revised result published on 23.01.2015 and corrigendum notified on 4.2.2015 and corrigendum notified on 7.2.2015 that as many as 7 MRC candidates have been offered more preferred posts which is strictly in conformity with the Apex Court's Judgment in the case of Union of India V/s. Ramesh Ram (supra). If the ratio laid down in the above mentioned judgments is strictly followed, as a natural consequence, the reserved candidates of lower merit vis-a-vis the MRC candidates will have to be removed from the merit list maintaining the quota made for the respective reserved category. As such the exercise cannot be construed as arbitrary, irrational or violative of Articles 14 and 16 of the Constitution."
43.3 Such migration and action of counting the meritorious reserved category candidates (who are allotted to the higher post) in their respective reserved category is opposed by the reserved category candidates [who (other than meritorious reserved category candidates) seek selection in their respective reserved category quota] on the ground that such migration would result into reducing total number of vacancies available for reserved category candidates.
43.4 In this context GPSC has further submitted and maintained that the meritorious reserved category candidates have been granted benefit of "higher post"
and that such allotment is treated as "benefit of reservation". Differently put, allotment of MRC candidates 113 C/SCA/13857/2014 CAV JUDGMENT to the higher post is granted in form of and by way of "reservation benefit". The candidates who are granted such benefit and have been allotted to the post of ACF have been shifted to, and have been counted in, their respective reserved category (though they secured position in open merit in general / unreserved category). The GPSC has also clarified that the candidates who availed said benefit, have been counted as part of the reserved pool for the purpose of computing the aggregate reservation quota and for that purpose, the reserved candidates in the bottom of the merit list have been proportionately reduced. It is claimed by the respondent GPSC that during allocation of service seven meritorious reserved category candidates who secured place in general / unreserved (open category) on account of their performance have been granted said benefit and thereafter they have been shifted to their own respective reserved category and they are considered in reserved pool.
43.5 The learned counsel for GPSC heavily relied on the decision in case of Ramesh Ram (supra) and 114 C/SCA/13857/2014 CAV JUDGMENT submitted that the allotment and migration / shifting is effected in light of the said decision and that the decision in case of Ramesh Ram is the basis and reason for the allotment of the meritorious reserved category candidates to the higher post and also for counting them as part of the reserved pool, i.e. shifting them to their respective reserved category.
43.6 According to GPSC, if it had not granted the benefit of higher post to the meritorious reserved category candidates, though they had performed better than other candidates belonging to respective reserved category, the said other candidates of the respective reserved category would have secured the said higher post on account of their continuing in reserved category and such consequence would result into anomaly, heart-burning and injustice to the reserved category candidates who performed better than the other candidates of their respective reserved category.
44. At this stage, it is pertinent to mention and note that even according to GPSC the selection list which was 115 C/SCA/13857/2014 CAV JUDGMENT notified on 25.9.2014 was not prepared as per the decision in case of Ramesh Ram and thereafter, suddenly the GPSC decided to prepare the selection list in light of the decision in case of Ramesh Ram (supra) and, consequently, the GPSC revised the selection list dated 25.9.2014 by applying the principles and guidelines in case of Ramesh Ram (supra).It is pertinent that GPSC has not offered any explanation as to the reason for not applying the principles mentioned in the decision of Ramesh Ram at original stage i.e. when list/result dated 25.9.2014 was notified and then by suddenly changing its stance, GPSC revised the selection list dated 25.9.2014.
44.1 The fact that the selection list which was notified on 25.9.2014 was prepared without taking into account the decision in the case of Ramesh Ram, is not only evident from the notification dated 23.1.2015 but it is also admitted by GPSC in paragraphs No.5 and 5.1 of the affidavit dated 9.2.2015 filed by GPSC in SCA No.14899/2014. In the said paragraphs No.5 and 5.1, GPSC has stated that:
"5. Need for revising result on 23.1.2015 ....; 116 C/SCA/13857/2014 CAV JUDGMENT 5.1. I say that since the previous result published by respondent commission on 15.9.2014 and corrected on 16.10.2014 was required to be revised in terms of the pronouncement made by Hon'ble Supreme Court of India in the case of Union of India vs. Ramesh Ram and others (supra), while revising earlier result and publishing the revised result on 23.1.2015 a specific notification was issued explaining the peculiar facts and circumstances leading to such revision...."
44.2 In the said affidavit, the respondent commission has further stated in paragraph No.5.2 that:
"I say that the respondent commission considered the principles laid down by Hon'ble Supreme Court in the above referred judgment whereby it was felt that the ratio laid down by Hon'ble Supreme Court in the above referred judgment will have to be followed even while making necessary modifications in the result already published by respondent commission on 25.9.2014 and corrected on 16.10.2014."
44.3 The respondent GPSC published the said revised list under notification dated 23.1.2015. In the said notification dated 23.1.2015, GPSC has mentioned that:
"8. It needs to be clarified that the result of the examination under reference given in the ANNEXURE-I has been prepared by strictly applying the ratio laid down by the Apex Court in the case of (i) Public Service Commission, Uttaranchal V/s. Mamta Bist and Others - Civil Appeal Nos.5987 of 2007, with Civil Appeal No.5982 of 2007 decided on 03.06.2010 and (ii) Union of India V/s. Ramesh Ram and Others - Civil Appeal Nos.4310, 4311 of 2010 (arising out of SLP (C) Nos.13571-72 of 2008) decided on 07.05.2010. In this case, the posts of Assistant Conservator of Forest (Class-II) have been considered as "More Preferred Posts" than the posts of Range Forest Officer, (Class-II) since Range Forest Officer is the feeder cadre for promotion to the cadre of Assistant Conservator of Forest.
What processes have been adopted while doing so, has been mentioned in the ANNEXURE-II to Annexures IV-B, annexed to this Notification.
With a view to ensure that the MRC candidates get the "More Preferred Posts", the Merit List has been recast in more than one steps i.e. Annexure-III-(A), III-(B), IV-A and IV-B, till all the MRC candidates are offered "More Preferred Posts" and the R.C. 117 C/SCA/13857/2014 CAV JUDGMENT Candidates (at the bottom of the list) are proportionately reduced to make way for the equal number of General Category Candidates."
44.4 Below the said Annexures-III(A), III(B), IV(A) and IV(B), the respondent GPSC has put below quoted note:
"1. The candidates bearing Merit Nos.22, 32, 37, 40 and 43 of SEBC Male have been considered as Reserved Category candidates. Hence, the names of the candidates bearing merit Nos.136, 137, 138, 139 and 140 are to be deleted from the respective category from Annexure-II.
2. the candidates bearing Merit Nos.103 and 128 of SEBC Female have been considered as Reserved Category candidates. Hence, the name of the candidate bearing merit Nos.152 and 156 is to be deleted from the respective category from Annexure-II.
3. When the names of candidates were taken for further consideration, 02 SEBC candidates at Merit No.84 and 86 are considered as General Category candidates and hence the candidate bearing merit No.136 and 152 in Annexure-II, have been considered as SEBC category candidates at Merit No.141 and 153 in Annexure-I."
44.5 So as to appreciate rival submissions it is appropriate to take into account relevant observations in the case of Ramesh Ram (supra), Hon'ble Apex Court has observed that:
"32. There is an obvious distinction between qualifying through an entrance test for securing admission in a medical college and qualifying in the UPSC examinations since the latter examination is conducted for filling up vacancies in the various civil services. In the former case, all the successful candidates receive the same benefit of securing ad- mission in an educational institution. However, in the latter case there are variations in the benefits that accrue to successful candidates because they are also competing amongst themselves to secure the service of their choice. For example, most candidates opt for at least one of the first three services [i.e. Indian Administrative Service (IAS), Indian Foreign Service (IFS) and Indian Police Service (IPS)] when they are asked for preferences. A majority of the candidates prefer IAS as the first option. In this respect, a Re- served Category candidate who has qualified as part of the general list should not be disadvantaged by being assigned to a lower service against the 118 C/SCA/13857/2014 CAV JUDGMENT vacancies in the General Cate- gory especially because if he had availed the benefit of his Reserved Category status, he would have got a service of a higher preference. With the obvious intention of preventing such an anomaly, Rule 16 (2) provides that an MRC candidate is at liberty to choose between the general quota or the respective Reserved Category quota.
42. Therefore, we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the Reserved Category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will therefore be offered to General Category candidates. This is the only viable solution since allotting these General Category seats (vacated by MRC candidates) to relatively lower ranked Reserved Category candidates would result in aggregate reservations exceeding 50% of the total number of available seats. Hence, we see no hurdle to the migration of MRC candidates to the Reserved Category.
69. The proviso to Rule 16 (1) and Rule 16 (2) operate in different dimensions and it is untenable to argue that these provisions are contradictory or inconsistent with each other. As mentioned earlier, in the examination for the year 2005, 32 reserved candidates (31 OBC candidates and 1 SC candidate) qualified as per the general qualifying standard [Rule 16 (1)]. These MRC candidates did not avail of any of the concessions and relaxations in the eligibility criteria at any stage of the examination, and further they secured enough marks to place them above the general qualifying standard. MRC candidates are entitled to one of the two posts - one depending on their performance in the General list and other depending on their position in the Reserved List. When MRC candidates are put in the General list on their own merit they do not automatically relinquish their reserved status. By the operation of Rule 16 (2), the reserved status of an MRC candidate is protected so that his/ her better performance does not deny such candidate the chance to be allotted to a more preferred service. Where, however, an MRC is able to obtain his preferred post by virtue of his /her ranking in the General List, he/ she is not counted as a Reserved Candidate and is certainly not counted amongst the respective reservation quota.
72. We sum up our answers-:
i) MRC candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the General Pool will be offered to General category candidates.
ii) By operation of Rule 16 (2), the reserved status of an MRC candidate is protected so that his/ her better performance does not deny him of the chance to be allotted to a more preferred service.
iii) The amended Rule 16 (2) only seeks to recognize the inter se 119 C/SCA/13857/2014 CAV JUDGMENT merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them.
iv) The reserved category candidates "belonging to OBC, SC/ ST categories" who are selected on merit and placed in the list of General/Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution."
44.6 The decision in case of Ramesh Ram is rendered in light of the provision under Rule 16(2) of CSE Rules. The observations in paragraphs No.2, 32, 36, 42, 69 and 72 clarify that the observations and decision in the said case and the principles and guidelines explained and laid down by Apex Court in the said decisions are made in light of and are essentially based on the provision under Rule 16 of CSE Rules. From the remarks / notes appended by GPSC in the notifications dated 25.9.2014 and 25.1.2015, it comes out that the respondent GPSC has considered the meritorious reserved category candidates in reserved pool and the position/s vacated by such meritorious reserved category candidates are offered to general category candidates and GPSC has justified its said action by claiming that it has acted in accordance with the decision in case of Ramesh Ram. However, GPSC appears to have 120 C/SCA/13857/2014 CAV JUDGMENT overlooked the observations in paragraph No.42 of the decision, which clarifies that the process of allotment and adjustment which is mentioned in the decision, is in light of and on account of specific provision under CSE Rules, i.e. Rule 16(2). This aspect becomes clear from the following observations:
"... ... ... ... ... we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will therefore be offered to general category candidates ... ..."
45. So far as the decision in case of Ramesh Ram (supra) is concerned, learned counsel for the petitioners, in SCA No.2125/2015, has claimed that the said decision is rendered in light of the provision under Rule 16 of CSE Rules and that, therefore, the guidelines and principles charted in the said decision are not applicable to present case. Learned counsel, instead, placed reliance on the decision in case of Satya Prakash [(2006) 4 SCC 550]. However, the said submission overlooks the fact that even in the decision in case of Satya Prakash, the case was considered in light of provision under Rule 16 of CSE Rules. The same ground i.e. the ground on which 121 C/SCA/13857/2014 CAV JUDGMENT petitioners oppose applicability of the decision in case of Ramesh Ram to these cases, stares in their face. There is, of course, difference in factual background in both the cases; the difference being the amendment in the said provision i.e. Rule 16, inasmuch as the case of Ramesh Ram, is decided post amendment in Rule 16(2), whereas the matter in case of Satya Prakash was decided before the amendment in the said Rule 16(2).
45.1 In this background, it is relevant to keep in focus that in present case any provision similar to said Rule 16(2) does not exist either under relevant Recruitment Rules or under relevant Reservation Rules or under relevant Examination Rules and said Rule 16(2) of CSE Rules is not applicable to the selection process in question.
45.2 So far as the said Rule 16(2) of CSE Rules is concerned, the said Rule 16(2) specifically authorises that the candidates belonging to reserved category "may be adjusted against reserved vacancies by the Government", if such candidates get service of higher choice in the 122 C/SCA/13857/2014 CAV JUDGMENT process of service of allocation.
45.3 Thus, such allotment and adjustment are authorised by specific provision. This aspect, as mentioned above, is clarified by the Apex Court in the decision in case of Ramesh Ram, more particularly in paragraph No.40 of the said decision. Whereas, in present case, it is an undisputed position that any provision conferring such power, i.e. power similar to the authority conferred by amended Rule 16(2) of CSE Rules (which authorise allotment and adjustment) is not available and does not exist in relevant Recruitment Rules and/or in relevant Reservation Rules, much less in relevant Examination Rules.
45.4 In view of the absence of any provision similar to Rule 16(2), the petitioners have claimed and contended that the decision and guidelines by Apex Court in case of Ramesh Ram would not be applicable in present cases. The petitioners have challenged the respondent Commission's action of revising / preparing the selection list in light of the principles and guidelines settled by 123 C/SCA/13857/2014 CAV JUDGMENT Hon'ble Apex Court in case of Ramesh Ram (supra). 45.5 In this background, the respondent GPSC has, therefore, placed reliance on the decision in case of D.M.Solanki (Special Civil Application No.5252 of 1995) and P.M.Makwana (Special Civil Application No.6230 of 1995).
45.6 When the said decisions are taken into consideration, it emerges that the said decisions are rendered in light of Rule 9 of Gujarat Civil Services Recruitment (Examination) Rules, 1980. It is also relevant to mention that Rule 9 of which reference is made in the decisions in cases of D.M. Solanki (supra) and P.M. Makwana (supra), is part of Gujarat Civil Services Examination Rules, 1980 which are not applicable in present cases in view of the fact that present process is governed by the provision under ACF and RFO Competitive Examination Rules, 2008 and that, therefore, GPSC is not justified in placing reliance on the said decisions which are rendered in light of the provision under Rule 9. It is also pertinent that any provision similar to even said Rule 9 is 124 C/SCA/13857/2014 CAV JUDGMENT not available under relevant and applicable Examination Rules or Reservation Rules or Recruitment Rules. It is also pertinent that Rule 9 of which reference is made on the decisions in cases of D.M. Solanki (supra) and P.M. Makwana (supra), does not confer such power and falls short in conferring power required for making such adjustment as contemplated under Rule 16(2). 45.7 In the decision in LPA No.82/1997 (against the above mentioned decision in case of LPA No.5252/1995), the said Rule 9 is quoted thus:
"a candidate who desires to compete for any or all 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." It further provides that: "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".
45.8 The said Rule 9 itself makes it clear that in cases where separate Examination / Recruitment Rules are applicable and in operation, then the appointment to various posts shall be governed by the said Rules. Thus, 125 C/SCA/13857/2014 CAV JUDGMENT in view of the fact that in present cases, there are separate Examination Rules (viz. ACF and RFO Combined Examination Rules, 2008), the said Rule 9 would not be applicable in the matter of appointment including the allotment of post.
45.9 In this context, it is relevant to recall that certain candidates from SC category, ST category and SEBC category have been considered and treated certain reserved category candidates (i.e. GPSC has classified certain reserved category candidates) as meritorious reserved category candidates by comparing evaluating the marks obtained by them (during written test and interview) vis-a-vis the marks fixed (in the earlier discussed manner) by the GPSC as qualifying marks / standard. Thus, the GPSC compared the marks of the reserved category candidates with the marks fixed by it as qualifying marks / standard and those reserved category candidates who secured more marks than the qualifying marks / standard have been treated as meritorious reserved category candidates and such meritorious reserved category candidates are placed in general / 126 C/SCA/13857/2014 CAV JUDGMENT unreserved (open) category.
45.10 The evaluation of performance of the candidates is influenced by said qualifying marks/standard fixed by GPSC in the manner discussed earlier. Thus, the said process of evaluation and comparison is done on the basis of the qualifying marks / standard and that therefore,the shadow of the said qualifying standard (which are found defective, irrational and unsustainable) falls on the said evaluation also i.e. the evaluation whereby certain candidates from reserved category have been considered and identified as meritorious reserved category candidates. Since the said qualifying standard is set aside by present decision, the decision of considering particular category belonging to reserved category as meritorious reserved category will not survive and existing ranking will also not survive and the process of evaluation of performance and ranking will have to be undertaken afresh.
45.11 It is only after the said process of identifying and classifying reserved category candidates 127 C/SCA/13857/2014 CAV JUDGMENT as meritorious reserved category candidates is completed, that the GPSC, on the basis of such fresh list, can re- commence the process of allocation of service.
46. In view of the fact that the qualifying marks / standard (on the basis of which erstwhile classification of the candidates belonging to reserved categories was done as meritorious reserved category candidates), is set aside, consequently, the said classification also does not survive. Therefore, any other aspect or contention or objection with regard to the action of the GPSC also does not survive and further deliberation is not necessary. Suffice it to say that when the GPSC undertakes the process afresh and reaches the stage of allocation of service, then, it should keep in focus the fact that any provision similar to Rule 16(2) of CSE Rules and / or any Rule similar to Rule 9 of Gujarat Civil Services Recruitment (Examination) Rules, 1980 is not available and applicable in present cases and that the process will have to be undertaken in accordance with relevant Recruitment Rules and Examination Rules. (D) Adopting and applying undeclared policy:- 128 C/SCA/13857/2014 CAV JUDGMENT
47. So far as the challenge against GPSC's action of adopting and applying allegedly undeclared criteria and/or taking steps / actions which were not informed / declared by it, are concerned, the decisions/actions are challenged, inter alia, on the ground that (i) a criterion / decision which is not declared and informed to the concerned persons cannot be termed as policy and such criterion/decision cannot be applied; (ii) the candidates should be made aware about the criterion / policy which is going to affect his/her selection; (iii) it amounts to change in rules by adopting and applying criteria which was not declared and came to be adopted and applied after the process commenced. The actions by GPSC which are challenged, inter alia, on the aforesaid grounds are (a) introducing, determining and applying qualifying standard and the method/basis of said qualifying standard; (b) granting relaxation in said qualifying standard; and (c) simultaneously restricting / limiting the extent of relaxation to 10% for implementing reserved quota for women and to 7% (in respect of the marks obtained in written test and in interview) for implementing reserved 129 C/SCA/13857/2014 CAV JUDGMENT quota for candidates with special subject; and (d) transferring position / vacancies (i.e. part of reserved quota) for women, to male candidates and the quota reserved for candidates with special subject, to the candidates not possessing said subject. Though the aforesaid decisions are akin to or in nature of policy decisions, GPSC had not declared the same and it had not informed the candidates about the said decisions / criteria before it actually applied / implemented them. These actions of GPSC translates into the fact that the process conducted by GPSC lacks transparency.
48. The learned counsel for respondent GPSC has claimed that its decision and actions are in accordance with the Rules and within the boundary of applicable Rules and in consonance with the legal position settled by the decision by Apex Court or the High Courts. Mr.Yagnik, learned counsel for the selected / successful candidates, has strongly opposed the contentions and allegations and he has supported and defended the actions of respondent GPSC and to support his submissions, he relied on the decision in case of Yogesh Yadav vs. Union of India [2013 130 C/SCA/13857/2014 CAV JUDGMENT (1) SCALE 333].
49. The objections raised by the petitioners deserve to be considered from the perspective of transparency in the matters related to selection and appointments in realm of public employment i.e. the obligation to keep the process transparent. From this perspective one fact which the Court cannot help but say with regard to the cases on hand is that starting from the stage of publication of the advertisement inviting applications, substantial part of the process remained, or were rather kept more under covers rather than known to all stake holders i.e. the candidates. The least that can be said about the method and procedure adopted by GPSC is that the process lacks transparency. In this context it would be relevant to refer to the observation by Hon'ble Apex Court in the decision in the case of Gulf Goans Hotels Company Ltd. (supra), wherein Hon'ble Apex Court has observed that:
"22. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [12] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed :-
"8. ... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know 131 C/SCA/13857/2014 CAV JUDGMENT what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man."
49.1 At this stage, a profitable reference is called for to the decision in case of Bedanga Talukdas (supra), Hon'ble Apex Court has observed, inter alia, that:
"28 ...........Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India." (Emphasis supplied) 49.2 The quoted observations emphasize that before any policy or any decision is implemented and any action in pursuance thereof is taken, such policy or the decision should be duly publicized, declared and should be put to the knowledge of concerned persons. The said observations also explain the need of informing to the candidates the policies/rules which would be applicable 132 C/SCA/13857/2014 CAV JUDGMENT and which would govern the process of selection.
50. On this count it is pertinent that the qualifying standard or benchmark for respective stages were not declared and notified by the respondent GPSC throughout entire selection process, however, the petitioners, despite such position, consciously and with the knowledge about the said position, participated at all stages during entire process and that too without raising any objection.
50.1 Besides this, it is also relevant to note that respondent GPSC had to filter out candidates in excess of the number of candidates required as per the rules for the stage of written test and interview.
50.2 It is pertinent that the candidates who came to be eliminated had also not raised any objections at any stage and they also did not challenge (and have not challenged) the actions by GPSC. It is equally true that until the notification dated 25.9.2014 was issued the candidates were not even aware about such actions. 50.3 In this view of the matter and having regard to 133 C/SCA/13857/2014 CAV JUDGMENT the fact that almost 4 years have passed since the advertisement inviting applications was issued and the applicants are eagerly waiting for finalization of the selection and also having regard to the fact that even at this stage any objection is not raised by any candidate against the selection process from inception to the stage of interview and that, therefore, the process upto the stage of interview is not required to be disturbed and the Court is not inclined to direct that the process should restart from first stage. There is no justification to disturb the process from the stage of advertisement to the stage of preparation of general/common merit list (on the basis of aggregate marks of all candidates).
50.4 However in view of the earlier recorded conclusions with regard to the issues under consideration, the process from and after the stage of common/general merit list shall have to be undertaken afresh.
51. This clarification leads the quest to the stage of selection process is which commenced after preparation of said common merit list inasmuch as one of the impugned 134 C/SCA/13857/2014 CAV JUDGMENT actions is related to the matters connected with determination and application of qualifying standard viz. determining qualifying standard, the decision to relax it and the decision to restrict the relaxation to the extent decided by GPSC.
51.1 So far as the decision prescribing / determining the qualifying standard is concerned and the decision to relax the qualifying standard and the matter related to the decision to restrict the extent of such relaxation to 10% and/or 7% are concerned, all other objections now pale into insignificance in view of the fact that this Court has held that the qualifying standard determined by GPSC and the method and procedure followed by it and the basis adopted by it for said purpose are faulty, irrational and unsustainable, and the decision to restrict the extent of relaxation in case of quota reserved for women and the quota reserved for candidates with special qualification is discriminatory and unjust. Thus, all other objections including the objections that these aspects were not declared by GPSC and informed to the petitioners, do not survive.
135 C/SCA/13857/2014 CAV JUDGMENT 51.2 Besides this, so far as the objection on the ground that GPSC had not declared and informed to the candidates that it will grant relaxation in minimum qualifying marks is concerned, it is relevant to mention that for the reasons discussed and recorded herein above earlier the decision and action of determining and applying the criterion/limit fixed by it is found to be unsustainable and that therefore the said objection also does not survive. Suffice it to say that GPSC must ensure complete transparency during entire process from very first step till the last stage and it should avoid adopting or applying or implementing any policy or any decision or taking any action, which was not declared and informed to the applicants/candidates.
52. Now, so far as the contention with regard to transferring certain position / vacancies (which, according to GPSC, occurred for want of sufficient number of candidates) from the quota reserved for women is concerned, the Court has held that the categorization of notified vacancies from the quota reserved for women 136 C/SCA/13857/2014 CAV JUDGMENT and/or for the candidates possessing special qualification as balance / vacant is erroneous and the said categorization is not sustainable and that, therefore, the objections on this count also pales into insignificance, rather it does not survive.
53. Actually, for appreciating and deciding the contention that the respondent GPSC has changed the rules and/or procedure in the mid-stream entire process must be examined as a whole and overall - view should be taken instead of taking into consideration different instances separately (i.e. as separate compartments).
54. When the procedure introduced and adopted by respondent GPSC comprising earlier mentioned different steps are examined in their entirety, it may, prima facie, appear that the impugned actions are independent and constitute different stages, however, actually the said actions constitute and are part of one process of selection (commenced pursuant to the earlier referred advertisement dated 1.3.2010) and when the said actions are examined in their entirety and overall view of the 137 C/SCA/13857/2014 CAV JUDGMENT actions at different stages of the process is taken, then the actual impact and effect of the actions become clear and it comes out that the procedure lacks transparency and it allows lot of room to GPSC to make adjustments. It also comes out that the respondent GPSC seems to have devised new method to circumvent the decisions by Hon'ble Apex Court which lay down that the rules or procedure cannot be changed in the mid-stream. With a view to skirting the said restriction, GPSC seems to have designed strategy to not prescribe and announce or notify (in the advertisement) any criteria and to keep every aspect unclear or vague or obscure so that at subsequent and appropriate stage any measure or any criteria can be introduced and adopted and applied and then it can be claimed that any change in existing or prescribed procedure or rules is not made.
55. Thus, what emerges from above discussion is that so far as the objections classified in category under forth head i.e. category (D) are concerned, it has emerged from the foregoing discussion that several decisions and actions, which are akin to policy decisions, were taken and 138 C/SCA/13857/2014 CAV JUDGMENT applied by GPSC, though they were not declared and informed to the applicants/candidates until the notification dated 25.9.2014 came to be issued and the applicants/candidates came to know about such decisions and actions only when the notification was issued. This situation translates into the fact that GPSC carried out and completed the process in manner which lacks transparency.
55.1 However, the claim of the petitioners that on such ground, the process undertaken by the GPSC should be set aside in its entirety does not deserve to be accepted, but, as mentioned earlier, the process from and after the stage of common/general merit list is not sustainable and that, therefore,it should be undertaken afresh. This discussion decides the petitioners' objections which are mentioned under said fourth category. 55.2 The objections and contentions raised by the petitioners in this group of petitions, which are categorized under four broad heads/categories, are decided accordingly.
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56. However, before concluding, certain other rival submissions may be mentioned.
56.1 Some of the petitioners have also raised contention that in light of the applicable Rules, particularly the Recruitment Rules read with the Examination Rules, the respondent GPSC does not have any power to revise the selection list once it is published. In view of the fact that in the cases on hand, the selection list notified on 25.9.2014 is found unsustainable for other reasons (i.e. the reasons recorded hereinabove earlier) further deliberation with reference to the said objection (on the ground of lake of power to revise the select list) is not necessary and as such the said objection does not survive. 56.2 Learned counsel for the petitioners also submitted that criteria for selection cannot be changed after process has commenced and the commission cannot introduce additional qualifications or any other basis for selection of candidates once the process has commenced. In support of the said contentions, learned advocate for the petitioners relied on the decision in case of Madan 140 C/SCA/13857/2014 CAV JUDGMENT Mohan (supra), Mohammad Soharabkhan (supra) and Tamilnadu Science B.Ed. Graduate Teachers Welfare Society and in case of P.V. Indiresen (supra), Durgacharan Mishra (supra) and State of Punjab vs. Manjitsingh (supra). While opposing the said submission, learned counsel for the successful candidates relied on the decision in case between Yogesh Yadav (supra) and learned Counsel for the GPSC relied on the decision in case of Dr. Raxaben Kantilal Mehta (supra).
56.3 So far as the said issue and rival submissions (with reference to the issue viz. once the process has commenced, criteria cannot be changed or any other basis for selection cannot be introduced, are concerned, the Court is not convinced and inclined to disturb the process in its entirety and to wash it out completely, i.e. the Court is not convinced and inclined to set aside even that part of the process which can be safely segregated and salvaged without causing harm to the interest of any candidate, successful or unsuccessful.
56.4 Learned counsel for the successful candidates 141 C/SCA/13857/2014 CAV JUDGMENT also submitted that when any person with less marks than the candidates who are not selected is not included in the selection list then there is no justification to interfere with the selection list. The contention conveniently overlooks the objection of the candidates who could have been selected if the GPSC had not (a) followed such procedure and the method and (b) if GPSC had not adopted such basis for determining qualification standard and (c) if GPSC had not, in absence of any provision under the Rules and without any authority transferred the (presumed and perceived) vacancies amongst the notified position in the reserved quota. Therefore, merely because any person with lesser marks than the candidates outside the selection list is not included in the selection list, does not validate the above mentioned irregularities by GPSC and its consequences which have fallen on the candidates who had legitimate expectation of being selected on account of their performance / marks and/or because they sought selection in their respective reserved quota. Therefore, the said contention cannot be accepted.
56.5 In its additional affidavit dated 9.2.2015, the 142 C/SCA/13857/2014 CAV JUDGMENT respondent GPSC has, while dealing with the objections against its action during process of allocation of service (i.e. its actions in the matter of allotting higher post) sought to place reliance on GAD's circular dated 29.1.2000. However, on examination of the said circular dated 29.1.2000, it emerges that the subject matter of the said circular is not applicable and is not relevant so far as the objection against allotment of higher post at the time of allocation of service is concerned and the said circular does not answer the objections raised by the petitioners on this count. On plain reading of the said circular, it cannot be said that the said circular fills the vacuum on account of absence of provision similar to Rule 16(2). Besides this, the learned counsel also relied on the decision in case of H.R. Joshi (SCA No.5733 of 2004 / LPA No. 649 of 2005). Having regard to the material difference between facts of cited decision and facts involved in the cases on hand, more particularly the method adopted by GPSC for determining the qualifying criteria (which is imposed in these cases) and in view of the decisions by Hon'ble Apex Court in case of Manjitsingh 143 C/SCA/13857/2014 CAV JUDGMENT (supra) and in case of Durgacharan Mishra (supra), the decision in case of H.R. Joshi, does not help GPSC in present cases.
57. In the result and as an upshot of foregoing discussions:
(a) the qualifying marks / standard (described as cut-off marks by GPSC) determined and applied by the respondent GPSC by following and adopting earlier discussed method, procedure and base are, for the recorded reasons, set aside.
(b) Consequently, all subsequent decisions and actions which are based on the said qualifying standard and/or which are taken pursuant to and/or on the basis of and by applying the said qualifying standard / cut-off marks do not survive and all such consequential decisions, steps and actions are set aside.
(c) In the result and for the recorded reasons, impugned selection list notified by GPSC on 25.9.2014 stands quashed. Thus, the list revised by GPSC vide notification dated 23.1.2015 automatically falls and does 144 C/SCA/13857/2014 CAV JUDGMENT not survive.
(d) The action of the respondent GPSC of categorizing part of the notified vacancies reserved for women candidates and also out of the vacancies reserved for candidates with special subject, as vacant and the further / subsequent action of transferring the position out of reserved quota for women candidates to male candidates and out of the quota reserved for candidates with special subject, to other candidates not holding said special qualification, also stand quashed.
(e) The action of considering the meritorious reserved category candidates (who secured their position in general/open category on account of their performance) in their respective reserved category only because they availed benefit of "concession" which cannot be considered as "relaxation in merits" also set aside since it is found to be contrary to the decision by Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra).
(f) So far as Special Civil Application No.14849/2014 is concerned, it stands partly allowed 145 C/SCA/13857/2014 CAV JUDGMENT inasmuch as petitioners' objection against the qualifying standard fixed by GPSC and the objection against adopting criterion of 10% for relaxing qualifying standard and the objection against considering the marks obtained by last male candidate as cut-off marks / qualifying standard are accepted and the selection list prepared on such basis is set aside. However, the contention that meritorious reserved category candidates who secured position in general/unreserved (open) category list should be, for the purpose of complying reserved quota, considered in their respective reserved category is not accepted. Horizontal reservation, even compartmentalized reservation, cannot be maintained by taking away a slice from the quota for vertical reservation.
(g) So far as Special Civil Applications No.14330/2014, 14331/2014 and 16620/2014 are
concerned, the said petitions are also partly allowed inasmuch as the objection against qualifying standard fixed by GPSC by considering marks of last candidate as the base is accepted and the qualifying standard determined by GPSC on such basis and the selection list 146 C/SCA/13857/2014 CAV JUDGMENT are set aside and the objection against adopting criterion of 10% for relaxing said qualifying standard is also accepted. However, so far as the further relief claimed by the petitioner in Special Civil Application no.16620 of 2014 that her case should be considered for the post of AFO is concerned, it is clarified that at this stage, the said request cannot be considered because now the process of preparing fresh selection list will have to be undertaken and it shall be finalized afresh.
(h) So far as Special Civil Application No.13857/2014 is concerned, the said petition is also partly allowed inasmuch as the decision of applying said qualifying standard and the decision to apply criterion of 7% for relaxing qualifying standard and the decision to consider part of the notified position from the quota reserved for candidates with special subject (i.e. the candidates holding specified special qualification) as vacant and the further decision to transfer such position to the candidates not holding qualification of special subject by treating such notified position as vacant, is set aside. 147 C/SCA/13857/2014 CAV JUDGMENT
(i) So far as Special Civil Application No.15057/2015 is concerned, having regard to the fact that at the relevant time, only one contention/objection was raised and pressed in service, viz. the impugned notification is bad and unsustainable because waiting list is not prepared and notified under the said notification, the said petition is, therefore, examined in light of the said singular contention and with regard to the said objection (of the petitioner in Special Civil Application No.15057/2015) it is found and held that in light of applicable Rules said objection is not sustainable. Though the said petitioner did not raise any other contention with regard to the notification and/or selection list, it is clarified that the decision with reference to the qualifying standard / cut-off marks and the selection list (with regard to the objections by other petitioners) will apply to and will govern the case of the petitioner in SCA No.15057/2015 also.
(j) So far as Special Civil Applications No.1100/2015 and 1141/2015 are concerned, the said petitions are also partly allowed and the decision of the 148 C/SCA/13857/2014 CAV JUDGMENT respondent GPSC of considering the candidates who availed benefit of relaxation / reservation though they have not availed benefit of relaxation in qualifying standard, is, it being contrary to the decision by Apex Court in case of Jitendra Kumar Singh (supra), set aside.
(k) So far as Special Civil Application No.2125/2015 is concerned, in view of the fact that the qualifying standard / cut-off marks decided by the GPSC is set aside, the decision with regard to allotment of any candidate to the post of ACF or RFO will have to be taken afresh by the respondent GPSC after preparing fresh selection list and that, therefore, at this stage, the declaration as prayed for by the petitioner (i.e. to allot the said petitioner to the post of ACF) cannot be granted. However, so far as other contentions which are similar and common as in other petitions, are concerned, they shall be governed by the conclusion with reference to other petitions. It is clarified that if the petitioner has any grievance with regard to her allotment after fresh selection list is prepared, then at that stage, it would be open and permissible to the petitioner to take appropriate action against the decision by GPSC. 149 C/SCA/13857/2014 CAV JUDGMENT
However, in view of the Court's decision with reference to the qualifying standard / cut-off marks, the consequential actions including allotment of the candidates to the higher post will not survive and that process also will have to be taken afresh.
57.1 For the foregoing reasons, the petitions are decided accordingly and they stand disposed of.
58. Since the above mentioned petitions stands decided and disposed of by present common judgment, the connection civil applications being CA No.193/2015 in SCA No.14849/2014 and CA No.196/2015 in SCA No.14330/2014 would not survive and any separate order in respect of the said applications is not required and the said civil applications stand disposed of accordingly.
59. Since the petitions are finally decided and disposed of, the applications preferred by successful candidates with a request to vacate the interim relief also do not survive and stand disposed of in light of the present common judgment.
Orders accordingly.
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Sd/-
(K.M.THAKER, J.)
At this stage, learned advocate for the
respondent GPSC prayed that operation of this judgment and order be stayed for a period of thirty days. Learned advocates for the petitioners opposed the said submission.
Having regard to the fact that the earlier interim relief was granted in favour of the petitioners and having regard to the fact that the said interim relief has remained in operation till today, the operation of this judgment is suspended for a period of Two Weeks.
Sd/-
(K.M.THAKER, J.) Bharat 151