Gujarat High Court
Tabiyad Dilipkumar Vechatbhai vs State Of Gujarat on 22 January, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3953/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3953 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== TABIYAD DILIPKUMAR VECHATBHAI & 26 other(s) Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9 MS AISHVARYA GUPTA, ASST GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3 ========================================================== CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 22/01/2020 CAV ORDER
1. This petition under Article 226 of the Constitution of India is filed by the petitioners, 27 in number, who belong to the Scheduled Tribe. It is their case that they are eligible and qualified to be promoted as Police Sub-Inspectors under Rule Page 1 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER 2(2) of the Police Sub-Inspector (Unarmed) Class-III, Recruitment Rules, 2008 popularly known as Mode-2. They have challenged the selection list dated 06.10.2017 insofar as and to the extent that it does not include the petitioners' names.
2. The petitioners had joined the Gujarat Police Force as unarmed police constables. Some of them have been promoted as Head Constables and some have been further promoted as Assistant Sub-Inspectors. A selection process for the promotion of PSI Mode-2 was initiated by Circular/Advt No. 61/2015-16 issued by the Gujarat Subordinate Services Selection Board for 403 vacancies and for which 57 vacancies were reserved for ST category. The petitioners applied, passed the physical test and they appeared in the written test consisting of two parts mainly Part-I - Objective Type written test and Part-II- Subjective Type written test. It is the case of the petitioners that a select list of 276 candidates was published which included only 30 candidates of these ST category. The cut-off marks of the ST category was 173.50.
All the petitioners had obtained more than the said cut-off marks and yet they did not figure on the select list. These 27 petitioners have therefore approached this Court.
3. Mr. K.B. Pujara, learned advocate for the petitioner invited my attention to the advertisement in question and submitted that the examinations were to be held in accordance with the Home Department notification dated 10.09.2014. As per the said notification, the petitioners had to pass a written test - Objective Type and Subjective Type Part - I and Part - II respectively, each consisting of 200 Page 2 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER marks. Rule 8 of the Gujarat Police Sub-Inspector (Unarmed Branch) Special Competitive Examination Amendment Rules, 2014 provided that the minimum qualifying standard that may be determined by the Board shall not in any case be less than 40% of marks in each test, i.e. Objective Type and Subjective Type written tests.
3.1 Mr. Pujara contended that as far as petitioners no. 1 to 7 are concerned, from the particulars of marks obtained in the two set of papers at Annexure-E, he would submit that the petitioners no. 1 to 7 have obtained more than 40% marks in each test because the total marks in the two papers are 80 or more. Reading Rule 8 would therefore make it clear that what is specified in the Rule is that the qualifying standard was 40% in each test and not each paper.
3.2 As far as petitioners no. 8 to 27 are concerned, Mr. Pujara would submit that if Rule 8 is considered in light of Rule 9 of the Rules, the respondents are to prepare the result of the successful candidates in order of merit on the basis of aggregate marks finally awarded to each candidate in the objective type and subjective type written tests and therefore the candidates should have obtained not less than 160 out of 400 marks and therefore since the petitioners no. 8 to 27 had obtained more than 173.50 cut-off marks, they are entitled to be selected.
3.3 Mr. Pujara also pressed into service provisions of Articles 14, 16, 46 and 335 in order to submit that the petitioners are entitled to selection. In support of his submission that the minimum qualifying standard was 40% in Page 3 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER each test and not each paper as interpreted by the respondents, Mr. Pujara would draw my attention to the circular dated 06.12.2016 at page 97 to submit that even therein in Mode-3 recruitment what was required was a total of 40% marks and not 40% in each paper.
3.4 Mr. Pujara further submitted that in accordance with Rule 9 the Board is required to prepare results in order of merit on the basis of aggregate marks and the result has not been prepared on the basis of such aggregate marks finally awarded. Whether a candidate has secured less than 40 marks in the subject of English is wholly irrelevant if in the aggregate in each test i.e. Objective and Subjective he has secured 40%.
4. Ms. Aishwarya Gupta, learned Assistant Government Pleader appearing for the respondent State would contend that the Board has ample power under Rule 8 to lay down qualifying standards for selection. Inviting my attention to the affidavit-in-reply filed on behalf of the State, she would contend that what is evident from the result at Annexure-E in case of the petitioners, the petitioners have in the paper of English secured less than 40% of marks. Rule 8 clearly provides that a candidate in order to be qualified should have atleast 40% of the marks in each paper. The petitioners having failed to obtain such qualifying standard of 40% in each subject/paper are not rightly selected. She would further submit that Rule 9 of the Rules viz-a-viz petitioners no. 8 to 27 cannot be read in isolation but must be read in harmony with Rule 8. She would submit that as far as petitioners no. 8 to 27 are concerned, perusal of Annexure E Page 4 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER would suggest that even if Mr. Pujara's submission is accepted, in the written tests petitioners no. 8 to 27 have not in the aggregate of the written tests secured 40% of the marks and therefore are also not rightly included in the selection list.
4.1 Ms. Gupta would further submit that the petitioners having once participated in the selection process cannot assail the process of selection and therefore they are estopped from doing so. The decision of the Government in declaring the petitioners as unsuccessful is correct. She would also submit that 22 Scheduled Tribe candidates who have also secured more than the cut-off marks of 173.50 have not approached this Court and if the standard was to be lowered, that would open floodgates. She placed on record call letters issued to the petitioners in support of his contention that the qualifying marks of 40% was for each paper and not each test. She would also rely on the following decisions to support her contention that it is not open for an unsuccessful candidate to challenge the selection after having participated in the process of selection. She relied on the decision in the case of D. Sarojakumari vs. R.Helenthilakom and Others [(2017) 9 SCC 4728]. She pressed into service paras 6 to 8 thereof. She has also relied on the decision of the Apex Court in the case of Mukul Kumar Tyagi [2019 SCC OnLine 1646]. Para 72 was pressed into service to submit that once having participated in the selection without objection and having found oneself unsuccessful, such a selection cannot be challenged by an unsuccessful candidate.
4.2 In rejoinder, Mr. Pujara invited my attention to reiterate Page 5 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER that there is no requirement for obtaining 40% marks in each paper but the requirement is only for obtaining 40% marks in each test. Reliance was placed on a decision of the Apex Court in the case of Raj Bahadur vs. State of U.P [(2019) 7 SCC 291]. He submitted that in the said judgement the Rule was providing for the written examination of 300 marks in four different subjects consisting of three papers of 100 marks each. There was a requirement of minimum 50% marks in each subject. As the petitioner therein had obtained more than 50% marks in each of the three papers but he had failed to obtain minimum 50% marks in each subject, the Apex Court held that the petitioner was not entitled to any relief.
5. Having considered the submissions of the learned advocates appearing for the respective parties, at the outset, we need to reproduce Rules 8 & 9 of the Special Competitive Examination Rules, 2014 which read as under:
"8(1) The qualifying standard for objective type written test and subjective type written test shall be determined by the Board from time to time. If necessary, the Board may determine qualifying standard separately for Scheduled Castes and Scheduled Tribes and Non-reserved categories of candidates. However, the minimum qualifying standard that may be determined by the Board shall not in any case be less than 40% of marks in each test i.e. objective type written test and subjective type written test. The candidate who is found qualified in the objective type written test according to the qualifying standard determined by the Board shall only called for subjective type written test.
(2) The candidate who is qualified in the objective type written test and called for subjective type written test but fails to attend the subjective type Page 6 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER written test on the specified date and time shall not be eligible for selection."
9. - The Board shall declare the result of the examination in two parts as under, namely :-
Part I : The Board shall cause to prepare the result of the successful candidates in the order of merit on the basis of aggregate marks finally awarded to each candidate in the objective type written test and subjective type written test to the extent of the number of vacancies requisitioned and the same shall be caused to be published on the notice board and/or on the official web-site of the Board and the copy of the result so published shall be sent to the Government in Home Department and Director General and Inspector General of Police's office at Gandhinagar to display the same on the notice Board.
Part II : The Board shall cause to prepare a list of the unsuccessful candidates who are not included in the result prepared in Part I, specifying their names, seat numbers and total marks obtained by them in the objectives\ type written test and subjective type written test and the same shall be caused to be published on the notice board and/or on official web-site of the board and the copy of the result so published shall be sent to the Government in Home Department and Director General and Inspector General of Police's office at Gandhinagar to display the same on the notice Board."
5.1 Reading of the Rules as above would therefore clearly indicate that the minimum qualifying standard in any case shall not be less than 40% of marks in each test i.e. Objective type and Subjective type written test.
5.2 Reliance placed on the reply and the contention based thereon by Ms. Gupta that the minimum qualifying standard has to be reckoned for each paper by drawing support at Page 7 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER page 166 thereof cannot be said to be in consonance with the true spirit of the Rules. Perusal of the result of the petitioners, especially, petitioners no. 1 to 7 which are reproduced as under Annexure E- page 91 of the petition would indicate that such petitioners had obtained more than 40% marks in each test i.e. Objective type written test and Subjective type written test. In the Objective and Subjective type written tests each of the 7 petitioners had obtained more than 80 marks out of 200 and therefore satisfied the criteria of Rule 8 in having secured more than 40% in each test. The contention of the government that since they had secured less than 40% marks in the paper of English cannot be sustained in view of the clear reading of Rule 8.
5.3 Coming to the case of the petitioners no. 8 to 27, what is evident from perusal of their result at pages 92 & 93 of the paper book, is that even if the aggregate marks as canvassed by Mr. Pujara in consonance with Rule 9 is accepted, and keeping in view the interpretation of Rule 8 for benefit of petitioners no. 1 to 7 above, it is clear that petitioners no. 8 to 27 have not secured an aggregate of 40% minimum qualifying standard in the subjective type written test of both papers English and Gujarati and therefore the submission of the learned Assistant Government Pleader that Rule 9 cannot be read in isolation of Rule 8 needs to be accepted and even on accepting the interpretation of the petitioners in consonance with Rule 8 petitioners no. 8 to 27 having failed to secure minimum 40% of the qualifying marks in the written test do not qualify for being selected.
6. With regard to the contention of learned Assistant Page 8 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER Government Pleader that the petitioners are not entitled to challenge their non-selection, once having participated therein is not accepted in view of the decision of the Apex Court in case of Dr.(Major) Meeta Sahai vs. State of Bihar reported in (2019) JX SC 1436 wherein the Court considering the earlier decision of the Apex Court held as under:
"17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."5 The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the candidate by agreeing to Page 9 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020 C/SCA/3953/2018 CAV ORDER participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
19. The question of permissibility of giving weightage for 'work experience' in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such nonprivate hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not sorich states like Bihar have the requisite exposure to challenges faced in those regions.
20. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of 'work experience' as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not.Page 10 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020
C/SCA/3953/2018 CAV ORDER Statutory Interpretation
21. It is a settled cannon of statutory interpretation that as a first step, the Courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. 6 Nevertheless, in a situation where there is ambiguity in the meaning of the text, the Courts must also give due regard to the consequences of the interpretation taken.
22. It is the responsibility of the Courts to interpret the text in a manner which eliminates any element of hardship, inconvenience, injustice, absurdity or anomaly. This principle of statutory construction has been approved by this Court in Modern School v. Union of India, by reiterating that a legislation must further its objectives and not create any confusion or friction in the system. If the ordinary meaning of the text of such law is nonconducive for the objects sought to be achieved, it must be interpreted accordingly to remedy such deficiency.
23. There is no doubt that executive actions like advertisements can neither expand nor restrict the scope or object of laws. It is therefore necessary to consider the interpretation of the phrase 'Government hospital' as appearing in the Rules. Two interpretations have been put forth before us which can be summarized as follows:
a. Only hospitals run by the Government of Bihar.
b. Hospitals run by the Bihar Government or its instrumentalities, as well as any other nonprivate hospital within the territory of Bihar.
The former interpretation to the term, as accorded to it by the respondents, forms a narrower class whereas the latter interpretation used by the appellant is broader and more inclusive."Page 11 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020
C/SCA/3953/2018 CAV ORDER 6.1 The Apex Court in the above case had held that there must be a differentiation in the principle of estoppel insofar as a candidate agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it, the Court held that in a situation where a candidate alleges misconstruction of statutory rules, the same cannot be condoned, merely because the candidate has partaken it.
7. The contention of Ms. Gupta that there are other 22 Scheduled Tribe candidates who have secured more than the cut off marks and they have not approached this Court does not deserve consideration in view of the decision of the Apex Court in the case of Shri Ashok alias Somanna Gowda and Another vs. State of Karnataka and Others [AIR 1992 SC 80] wherein the Apex Court has held that if the others do not approach the Court for seeking redressal the other non- selected candidates who approached the Court cannot be denied such benefits.
8. Considering the above proposition, when the petitioners no. 1 to 7 are concerned, when they have secured a minimum of 40% marks in each test, their non-selection on the ground that they have failed to secure 40% of the marks in each paper is an interpretation not in consonance with Rule 8 and therefore petitioners no. 1 to 7 are entitled to be selected and appo8inted on the post of Police Sub-Inspectors (Unarmed) in the category of Scheduled Tribe on the basis of they having passed in the examination by Mode-2, with all consequential benefits. The petition as far as such petitioners are concerned deserve to be allowed.Page 12 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020
C/SCA/3953/2018 CAV ORDER 8.1 As far as petitioners no. 8 to 27 are concerned, since
they have not obtained the minimum qualifying marks of 40% in the subjective written test, merely by reading Rule 9 in isolation and contending that the merit list be prepared on the basis of aggregate marks will not help such petitioners as they failed to satisfy the minimum qualifying standard stipulated in Rule 8. The petition qua these petitioners therefore need to be dismissed.
9. For the foregoing reasons, the petition is allowed qua the petitioners no. 1 to 7 and they are declared to be eligible and qualified to be promoted as PSIs under Rule 2(2) of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008 in the category of Scheduled Tribe with all consequential benefits. Accordingly, the respondents shall prepare and publish the fresh selection list including the names of the petitioners no. 1 to 7 therein and give promotions to the petitioners no. 1 to 7 on that basis as PSI by Mode-2 with all consequential benefits. So far as the case of the petitioners no. 8 to 27 is concerned, no relief can be granted and the petition qua petitioners no. 8 to 27 stands dismissed. No costs.
(BIREN VAISHNAV, J) After pronouncement of the order, Ms. Aishvarya Gupta, learned Assistant Government Pleader has requested to stay the order. Request is rejected.
(BIREN VAISHNAV, J) DIVYA Page 13 of 13 Downloaded on : Thu Jan 23 04:14:49 IST 2020