Gujarat High Court
Nirav Bharatbhai Gohel S/O Bharatbhai ... vs State Of Gujarat on 28 October, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/12882/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12882 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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NIRAV BHARATBHAI GOHEL S/O BHARATBHAI GOHEL
Versus
STATE OF GUJARAT
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Appearance:
MR ANAND L SHARMA(1714) for the Petitioner(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 2
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 28/10/2020
ORAL JUDGMENT
Rule. Mr.Hardik Mehta, learned AGP, waives service of notice of Rule on behalf of respondents.
1. This petition under Article 226 of the Constitution of India is preferred by some six petitioners for seeking the following reliefs:-
Page 1 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021C/SCA/12882/2020 JUDGMENT "(A) Your Lordships may be pleased issue writ of mandamus or any other writ, order, direction declaring the action on the part of the respondents in considering ineligible candidates belonging to the Mechanical Stream for selection to the post of Supervisor Instructor (Automobile Group) in the Labour and Employment Department of the State Government, as illegal, arbitrary, unconstitutional, violative of Articles 14 and 16 of the Constitution of India, null and void.
(B) Be pleased to direct the respondent to prepare a fresh list of the candidates to re-conduct the Computer proficiency Test, from amongst the candiates of the Automobile stream of the Engineering while excluding the ineligible candidates belonging to the Mechanical Stream of Engineering (having no specialization in Automobile), against the vacancies for the post of Supervisor Instructor (Automobile Group and complete the further procewss of selection accordingly.
(C) ........................ (D) ......................."
2. The case of the petitioners is that an advertisement came to be issued by Gujarat Subordinate Service Selection Board for the purpose of filling up various cadres of Labour & Employment Department of the State of Gujarat, inviting applications from eligible candidates and the said advertisement came to be issued on 7.3.2019. it is the case of the petitioners that the petitioners being eligible candidates had applied for the post of Supervisor Instructor (Automobile Group) in Labour & Employment Department. By referring to eligibility criteria mentioned in the advertisement for this relevant post, it has been projected that the petitioners possessed either Diploma or Bachelor of Engineering in Automobile Branch. Written test was conducted with respect to this post on 14.7.2019, wherein all these petitioners have appeared. Next step in the selection was Computer Proficiency Test which was also conducted on 31.1.2020 and result for the same is yet not declared.
2.1. It is the case of the petitioners that consequent to this step, merit list would be prepared based upon the marks obtained by the candidates in the written test as well as Computer Proficiency Test Page 2 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT and based upon the requirement of posts, sufficient number of candidates would be called for documents verification and ultimately, appointments will be issued. Apprehending that, as soon as the candidates possessing the qualification of Diploma or Degree in Engineering from Mechanical Branch, when considered to be eligible to appear in this recruitment process, the petitioners being of Automobile Branch have agitated by making representations dated 22.7.2019 and 24.9.2019 to various authorities, but no response. The petitioners are apprehending that several candidates from Mechanical branch have appeared in this recruitment process who are not having any specialization in automobile and if allowed to be considered eligible, the prospects of the petitioners would be marred. According to the petitioners, since several representations have not attained any fruitful result, the particulars were demanded by submitting application under Right to Information Act but of no avail and as such, by referring to the aforesaid grievance, present petition is brought before the Court, essentially to exclude ineligible candidates belonging to Mechanical stream of Engineering and by way of this petition, have prayed for the reliefs which are mentioned herein-before.
3. This petition was initially came up for consideration on 15.10.2010. But, upon request having been made for time, same was adjourned on 22.10.2020 and later on, upon advanced copy being served upon the Government Pleader's office, the matter is placed today for hearing, in which learned advocate Mr. Anand L. Sharma for the petitioners is heard by the Court and learned Assistant Government Pleader Mr. Hardik Mehta has represented the State authority.
4. Learned advocate Mr. Anand L. Sharma appearing on behalf of the petitioners has submitted that in fact, there is no Degree like Page 3 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT Mechanical Engineering with special subject of Automobile. Basically, the degree which has been offered of this branch is of Mechanical Engineering and as such, considering the candidates belonging to Mechanical Branch, even if with the subject of Automobile, is basically outside the purview of eligibility. It has been contended that these petitioners have obtained their respective degrees strictly in Automobile Engineering and as such, the post which is published is of Supervisor Instructor (Automobile Group) and therefore, the petitioners being perfectly eligible for the post, their prospect may not be allowed to be marred by allowing the candidates belonging to Mechanical Engineering. It has been contended that having realized their position, they have specifically made a written representation to various authorities but instead of considering the representation, they went on proceeding ahead with the recruitment process. Mr. Sharma has further submitted that normal trend in this kind of recruitment of public post is that normally, out of all candidates, who are applying, 5 to 10% are found ineligible and therefore, approximately, 90 to 95% eligible candidates are getting chance of actual participation. Now, here, according to Mr. Sharma, 70 to 75% candidates who applied from Mechanical Branch/ Stream are ineligible having no specialization in Automobile and as such, the ultimate outcome would be that most eligible persons would be deprived of employment. Keeping this factor in mind, a representation was made by the petitioners and their Association to call for this time more candidates of total number of seats so that better chance can be made available to the petitioners and alike persons.
4.1. According to learned advocate Mr. Sharma, it was specifically agitated that large number of candidates who are not having specialization in Automobile did apply to the post, appeared in the written examination and this ineligibility would be found at a stage Page 4 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT where the documents verification will be undertaken by the respondent authority and therefore, keeping this representation in mind, even the authority had at one point of time solicited an opinion whether to consider for this recruitment the candidates who belonged to Mechanical Engineering Stream. But, it appears that yet, according to Mr. Sharma, no decision is taken which has kept the apprehension of the petitioner alive and that being the position, Mr. Sharma has requested that entire process of recruitment deserves to be de novo undertaken and after preparation of the fresh list of candidates, re-conduct the Computer Proficiency Test from amongst the candidates belonging to Automobile Stream of Engineering by excluding ineligible candidates of Mechanical Stream of Engineering, having no specialization in Automobile and therefore, Mr. Sharma has submitted that not only the relief contained in this petition deserves to be granted but entire process will have to be halted on account of this issue and after referring to the eligibility criteria mentioned in the advertisement, a request is reiterated to grant the relief as prayed for in this petition. No other submissions have been made.
5. As against the aforesaid submissions, learned Assistant Government Pleader Mr. Hardik Mehta has taken some instructions and submitted that pursuant to the advertisement in question, there are total as many as 2700 candidates have participated in the written test as well as further process. It has been contended that this petition has been brought with a malafide intent to frustrate the very recruitment process at the instance of the candidates of Automobile Engineering. In fact, these petitioners who participated in the process of recruitment pursuant to the advertisement have no locus to challenge. It has been contended that out of these six petitioners, three petitioners namely, petitioner Nos.2,4 and 5 after clearing the written test have been called for Proficiency Test and Page 5 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT they did appear, whereas petitioner Nos.1,3 and 6 having not been found eligible have not been called for proficiency test and as such, once having participated in the process of selection, these petitioners are not entitled to seek invocation of equitable jurisdiction of this Court, which is extraordinary in nature. It has been submitted that in the midst of selection process, these petitioners are not entitled to agitate the issue which tantamount to frustrate not only the process of recruitment but even changing the very substratum of the advertisement, which is impermissible. Way back in July 2019, all these petitioners with open eyes having clearly understood the terms of advertisement and eligibility clause, have applied, appeared and continued to participate in the selection process and therefore, this six handful persons cannot put the recruitment process on hold by invoking the extraordinary jurisdiction, more particularly, when out of six, three even have cleared the Proficiency Test. If this grievance was to be voiced out at the initial stage itself, these petitioners could have objected instead of participating in the process and therefore, in view of the law laid down on this issue, few decisions have been cited by Mr. Mehta, which are as under:-
(1) In the case of K.H. Siraj Vs. High Court of Kerala and others reported in (2006)6 SCC 395, (2) In the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttrakhand and others reported in (2011)1 SCC 150.
5.2. Learned Assistant Government Pleader Mr. Metha after referring to the aforesaid decisions, has strongly opposed the petition since the proposition is abundantly clear by the aforesaid pronouncements and has requested the Court to dismiss the petition. It has further been contended that how many candidates are required to be called for and what criteria to be fixed is Page 6 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT exclusively the domain of the recruitment agency which is prescribing after some minute analysis related to the posts and therefore, Mr. Mehta has requested that this is not a fit case in which the petitioners are entitled to invoke the extraordinary jurisdiction of this Court.
5.3. Learned Assistant Government Pleader Mr. Mehta has submitted that in any case, the advertisement which is of March 2019, processed till October 2020, cannot be called in question by the petitioners at the fag-end of this recruitment process. There is neither any irregularity nor any illegality in fixing the eligibility criteria and has further submitted that basically, the advertisement is not challenged by the petitioners and that being the position, in absence of any locus to the petitioners, at the instance of the petitioners, no equitable jurisdiction can be requested to be exercised. That being the position, the petition, being merit-less, deserves to be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material placed on record and the submissions made before this Court by the respective sides, before dealing with the rival submissions, few proposition set up by catena of decisions deserves to be kept in mind and as such relevant observations contained in such decisions, the Court deems it proper to reproduce hereunder:-
(1) Herein, in the instant case, pursuant to the publication of the advertisement, these petitioners have participated in the process of recruitment, never objected at a particular stage, have appeared in the written examination along with several other candidates, cleared the written examination and they have also taken chance to clear the proficiency test, as a next step of the process of Page 7 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT recruitment and in that stage, out of six petitioners, three petitioners, i.e. petitioner Nos.2,4 and 5, have been called for proficiency test on account of their eligibility, whereas petitioner Nos.1,3 and 6 have not been called for such and it is thereafter, having visualized that the petitioners may have a bleak chance of clearing, have approached this Court to challenge the process. Now, in light of these basic undisputed facts, the law laid down by the Apex Court deserves to be quoted hereunder since here also, the petitioners have participated in the process of selection without any demur upto a particular stage and then thought it fit to turn around and challenged this process on multiple reasons.
(2) The Apex Court in such a situation in the case of Vajendra Kumar Verma (supra) has categorically dealt with the issue and has observed like this, which this Court would like to reproduce:-
24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation.
Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.
25. In this connection, we may refer to the decision of the Supreme Court in Dr. G. Sarana Vs. University of Lucknow & Ors. reported in (1976) 3 SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who Page 8 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15.... He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
26. In P.S. Gopinathan Vs. State of Kerala and Others reported in (2008) 7 SCC 70, this Court relying on the above principle held thus;
"44. .....Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow......."
27. In Union of India and Others vs. S. Vinodh Kumar and Others reported in (2007) 8 SCC 100 at paragraph 18 it was held that "18..... It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
(3) Similar is the case with respect to K.H. Siraj (supra), in which also, the Apex Court while dealing with such issue has observed in terms, which deserves to be quoted hereunder:-
73. The appellants/petitioners having participated in the interview in this background, it is not open to the appellants/ petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in paragraph 9 of Madan Lal & Ors. Vs. State of J & K & Ors. , (1995) 3 SCC 486 as under:Page 9 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021
C/SCA/12882/2020 JUDGMENT "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitions as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition.
It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, 1986 suppl SCC 283, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protect and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
(4) Same almost is the situation in the case of Rajan Kumar and others Vs. State of Bihar and others reported in (2014)16 SCC 187, the Hon while dealing with the issue whether the candidate who without any demur participated at a particular stage in selection process and then turned around to assail the same, the Apex Court has observed like this, which deserves to be reproduced hereunder:-
14. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla and others[13], in the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without Page 10 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court.
15. In this context, we may quote a passage from Madan Lal v.
State of J & K[14] with profit: -
"9..... It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
16. In Chandra Prakash Tiwari and others v. Shakuntala Shukla and others[15], the Court observed as follows: -
"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
17. In Union of India & Ors. v. S. Vinod Kumar & Ors.[16], the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
7. In the next facet of the submissions, a grievance is tried to be ventilated that on account of the aforesaid process of selection, instead of calling the candidates three time more of the posts which are published, six time more candidates are to be called for, as has been even agitated in the representation which is reflecting on page 68-B. Now, in response to this submission, this Court is of the opinion that when the eligibility criteria is prescribed and when the norms are prescribed for recruitment, same are being on the basis Page 11 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT of critical analysis of the situation of several circumstances, this Court would not like to embark upon such norms which are prescribed for public recruitment. It is none of the functions of the High Court sitting in extraordinary jurisdiction to substitute the norms of recruitment which are spelt out from the beginning and that too, at the instance of this kind of candidates, who upto a substantial stage did appear and participated in the process of recruitment and then turned around having realized their insecurity in seeking employment. This Court would not like to encourage such attempt at this stage of proceedings, particularly when totaling around 2700 candidates have participated in the process of recruitment, pursuant to this advertisement for various cadres and about 900 candidates for this branch and the posts of Supervisor Instructor for Automobile Group. On this issue also, in number of decisions, it has been propounded, which need not be quoted hereunder in view of the settled proposition that judicial review cannot be so lightly undertaken either to substitute the norms of recruitment or to change the criteria of eligibility or to sit over the executive machinery as an appeal in absence of any malafide. In the present case, the moto of the petitioners is that the persons belonging to the Mechanical Engineering Group having specialization in Automobile Subjects may not be allowed to participate and in the middle of the recruitment process, this petition is brought with such an aim and as such, the Court is not inclined to exercise the extraordinary jurisdiction in this peculiar background of facts.
8. In the case of Rajan Purohit and others Vs. Rajasthan University of Health Science and others reported in (2012)10 SCC 770 as well as in the case of Sai Bhaskar Iron Limited Vs. A.P. Electricity Regulatory Commission and others reported in (2016)9 SCC 134, the aforesaid issues have been dealt with. But, since thee issues are settled, the Court would not like to overburden Page 12 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT the present judgment. Hence, in the considered opinion of this Court, no case is made out by the petitioners for interference.
9. Additionally, the Court is also of the opinion that to call for three time more candidates or six time more candidates is exclusively the domain of the authority to be looked into. Further, whether the eligibility is to be prescribed amongst the candidates of Automobile Engineering or Mechanical Engineering group having specialization of Automation is also a subject matter of prescription by the authority. Hence, in absence of any irregularity, illegality or malafide, this Court is not inclined to exercise the discretion and to unsettle the entire process of recruitment, in which these petitioners have actually participated and after scraping the entire process to re-conduct the exercise by preparing fresh list is an unreasonable attempt made by the petitioners which this court is not inclined to encourage.
10. Further, in the present scenario, when the youth is facing great hardship on account of unemployment and when large number of candidates are participating in the process of recruitment, to put their future in dark, at the instance of these few petitioners, who have partially unsuccessfully participated without any objection in the process of selection, the petition does not deserve to be entertained. Further more, it is not that this advertisement for recruitment is issued just in recent past and the petitioners were aware about the norms of recruitment or eligibility criteria or the strength of the candidates and at what extent to be called for and therefore, having specific knowledge about all the aforesaid circumstances right from the day one the petitioners have actually participated, this kind of attempt to put the future of several candidates at the stake would be paying great injustice to most eligible candidates who have participated in the process. The Page 13 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021 C/SCA/12882/2020 JUDGMENT manner in which the petitioners have participated and the manner in which at convenient point of time, they have invoked the extraordinary jurisdiction, this Court would have otherwise deprecated the attempt. But, with a view to see that these candidates are also participants of employment, the Court is desisting from commenting any further on such attempt of the petitioners but, certainly would not like to encourage this attempt any more.
11. In the aforesaid background of peculiar set of circumstance, the petition, being devoid of merit, stands DISMISSED with no order as to costs. Rule is discharged.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V. Page 14 of 14 Downloaded on : Tue Mar 02 21:28:25 IST 2021