Gujarat High Court
State Of Gujarat vs Tabiyad Dilipkumar Vechatbhai on 6 October, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/690/2021 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 690 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3953 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 690 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
TABIYAD DILIPKUMAR VECHATBHAI
==========================================================
Appearance:
MS. MANISHA LUVKUMAR SHAH, LD. GOVERNMENT PLEADER with MS.
AISHWARYA GUPTA, LD AGP for the Appellant(s) No. 1,2,3
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 1,2,3,4,5
MR SHIRISH H GOHIL(3253) for the Respondent(s) No.
10,11,13,17,19,20,21,25,27,7,9
NOTICE SERVED(4) for the Respondent(s) No. 12,15,16,18,22,23,24,26,6,8
NOTICE UNSERVED(8) for the Respondent(s) No. 14
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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C/LPA/690/2021 JUDGMENT DATED: 06/10/2021
Date : 06/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at the instance of the State of Gujarat and is directed against the oral order dated 22.01.2020 (as modified by the order dated 30.01.2020) passed by a learned Single Judge of this Court in the Special Civil Application No.3953 of 2018, whereby the learned Single Judge was pleased to allow the writ application so far as the respondents Nos.1 to 7, 14 and 19 respectively are concerned by declaring them to be eligible and qualified to be promoted to the post of Police Sub-Inspectors under Rule 2(2) of the Police Sub-Inspector (Unarmed) Class-III, Recruitment Rules, 2008 in the category of Scheduled Tribes with all the consequential benefits.
2. The facts, giving rise to this appeal, may be summarized as under;
2.1 The Special Civil Application No.3953 of 2018 came to be filed by, in all, 27 writ applicants with the following prayers;
"a) to admit this petition and to issue Notice for final disposal on returnable date;
b) to quash and set aside the impugned Selection Page 2 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 List dated 06.10.2017 as per Annexure-C in so far as and to the extent that It does not include the petitioners' names though they have obtained more than the cut-off marks of 173.50 obtained by the last selected Scheduled Tribe Category candidate; and be further pleased to direct the respondents to prepare and publish the fresh Selection List including the present petitioners therein, and to give promotion to the petitioners on that basis as PSI by Mode-2 with all the consequential benefits;
c) to hold and declare and direct that the impugned action of the respondents in selecting only 30 candidate of Scheduled Tribes Category though there are 57 notified vacancies for Scheduled Tribes in the Advertisement at Annexure-A, is liable to be quashed, and the respondents are duty bound to include 57 Scheduled Tribes candidates in the Advertisement at Annexure-A
d) to direct the respondents to include the petitioners' names in the Selection List and to give them promotions as PSIs by Mode-2 as Scheduled Tribes candidates with all consequential benefits;
e) to quash and set aside the impugned list of 'Not Qualified' candidates as published by the respondents on 06.10.2017 as per Annexure-D in so far as and to the extent that it wrongfully includes the present petitioners' name therein though the petitioners are fully qualified and eligible to be promoted as PSI by Mode-2;
f) Pending the hearing and final disposal of this petition, be pleased to stay the operation of the impugned selection list dated. 06.10.2017 published by the respondent no.3 as per Annexure-C;
g) Pending the hearing and final disposal of this petition, be pleased to direct the respondents, their agents and servants to send the petitioners for training and to them appointments and postings are Page 3 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 PSI by Mode-2 as if their names are included in the Selection List dated 06.10.2017 published by the respondent no.3 as per Annexure-C"
2.2 For the purpose of appointment of the Police Sub- Inspectors, the Appellant-State has framed the Police Sub-Inspector (Unarmed) Class III, Recruitment Rules, 2008 (hereinafter referred to as "the Rules of 2008"). Under such Rules of 2008, three modes of appointment have been provided.
i. By direct selection (Mode-1);
ii. By promotion on the basis of the merit rank obtained in the Special Competitive Examination conducted in accordance with the rules prescribed in that behalf by the Government; (Mode-2) and iii. By promotion by way of seniority (subject to conditions mentioned in the said Rules of 2008) [Mode-3] 2.3 The relevant rule, being Rule 2 of the Rules of 2008, is reproduced hereunder;
"Manner of Appointment- Appointment to the post of Police Sub-Inspector (Unarmed) Class III, in the Gujarat State Police Service shall be made either -(1) by promotion of a person of proved merit and efficiency from amongst the persons who -(a) have wor~ed for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed), Class III, in the Page 4 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 Gujarat State Police Service: Provided that where the appointing authority is satisfied that· a person having the experience as specified above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less t~an two-thirds of the period specified above; (b) have passed the departmental examination as prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part I);
(c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Ser-Vices Computer Competency Training and Examination Rules, 2006; and
d) have fulfilled the minimum-requisite standards of physical efficiency test, as may be prescribed by the Government from time to time in this behalf;
Or (2) by promotion of a person on the basis of merit rank obtained In the· Special Competitive Examination conducted in accordance with the rules prescribed by Government in that behalf and who-
(a) have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III, In the Gujarat State Police Service:
(b) have passed the prescribed departmental examinaion as prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part I);
(c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006;Page 5 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022
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(d) have fulfilled the minimum requisite standards of physical fitness, as may be prescribed by Government from time to time in this behalf; and
(e) have passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) or Secondary School Certificate Examination (Standard XI old pattern) conducted by the state's Secondary and Higher Secondary Examination Board or possess an equivalent qualification recognized as such by the Government;
Or
3) by direct selection."
2.4 It is pertinent to note that for the purpose of promotion as the Police Sub-Inspector (Mode-2), the Special Competitive Examination is required to be conducted in accordance with the Gujarat Police Sub- Inspector Special Competitive Examination Rules, 2004 (hereinafter referred to as "the Rules of 2004"). The Examination consists of a physical test, written test and interview test for selection of Police Sub Inspector (Unarmed Branch). The said Rules of 2004 were amended by the Gujarat Police Sub-Inspector Special Competitive Examination (Amendment) Rules, 2014 (hereinafter referred to as "the Amended Rules").
2.5 As per the Rules of 2004, the written test was to consist of four papers (Rule 7). In 2014, vide the Rules of 2014, the specification for the written test were amended and now the same consists of two parts;
Page 6 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 I) Objective Type Written Test ii) Subjective Type Written Test
2.6 The amendment in 2014 also substituted Rules 8 and 9 whereby the power to determine the qualifying standard for the objective type written test and subjective type written test was given to Appellant No.3, i.e, the Gujarat Subordinate Services Selection Board. Rule 8 was also amended to the effect that the minimum qualifying standard that may be determined by the Appellant Board shall not in any case be less than 40% of marks in each test. As per the amended Rules of 2014, each test is to consist of two papers;
i) Objective Type Written Test (200 marks): General Studies and Psychological Test (100 marks each)
ii) Subjective Type Written Test (200 marks); Gujarati Language and English Language (100 marks each) 2.7 The Appellant Board initiated the selection process for promotion as the Police Sub-Inspector (PSI) by Mode-2 through Advertisement dated 03.12.2015 bearing No.61/2015-2016 for 260 vacancies. Subsequently, the Appellant Board published the amended advertisement on 03.06.2016 for 403 vacancies, out of which, 57 seats were reserved for candidates belonging to the Scheduled Tribes Page 7 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 category. After the completion of the physical test through online advertisement dated 06.03.2017, the Appellant Board uploaded the schedule of the written examination on its website gssb.gujarat.gov.in. In such online advertisement, the process of examination was explained for all the candidates who had cleared the physical test. Furthermore, it was clearly mentioned in such advertisement that the minimum qualifying standard for candidates of all categories would be 40% marks in each paper of each test, i.e, each paper of the objective type written test and subjective type written test.
2.8 The respondents applied for the same and cleared the physical test. The respondents, thereafter, appeared for the written test consisting of the four papers (each test consisting of two papers), as stated hereinabove.
2.9 The results were declared on 06.10.2017 and the Select List so published, consisting of the names of 376 candidates, did not contain the names of the respondents. The respondents obtained the requisite marks for the Objective Type Written Test. However, in respect of the Subjective Written Test, the respondent Nos.1 to 7, 14 and 19 could not obtain 40% marks in each paper but secured overall 40% marks in the Subjective Test. The remaining respondents, i.e, the respondents Nos.8 to 13, 15 to 18 and 20 to 27 could not even secure 40% marks in the Subjective Written Test.
Page 8 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 2.10 The respondents were declared unsuccessful owing to the non-attainment of 40% marks in each paper of the Subjective Type Written Test, wherein there were two papers of Gujarati and English for which exam was conducted separately in different slots.
2.11 The respondents herein (original writ applicants) being aggrieved by the aforesaid, came before this Court by filing the Special Civil Application No.3953 of 2018. They prayed that the selection list dated 06.10.2017 be quashed and set aside in so far as the same does not include their names and for directions to the State to prepare and publish a fresh selection list including the names of the writ applicants.
2.12 The learned Single Judge adjudicated the writ application and was pleased to allow the writ application qua the respondents Nos.1 to 7 herein by holding that their non-selection on the ground that they had failed to secure 40% marks in each paper is on the basis of wrong interpretation of Rule 8 of the Rules of 2004 (as amended by the Rules of 2014). The learned Single Judge rejected the writ application qua the writ applicant Nos. 8 to 27 as they had not obtained the minimum qualifying marks of 40% in the subjective type written test.
2.13 It appears that later a Miscellaneous Civil Application for modification of the order was preferred by the Page 9 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 respondent Nos.14 to 19 herein whereby it was brought to the notice of the learned Single Judge that even the respondent Nos.14 to 19 were entitled to the same relief as the respondent Nos.1 to 7. The learned Single Judge, vide order dated 30.01.2020, was pleased to modify the order dated 22.01.2020 to that effect.
2.14 The learned Single Judge, while allowing the writ application, held as under;
"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 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 Page 10 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 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."
2.15 It was argued before the learned Single Judge by the State that the writ applicants, having participated in the examination without any objection, were not entitled to challenge their result. Such contention raised on behalf of the State came to be negatived by the learned Single Judge by relying on a decision of the Supreme Court in the case of Dr. (Major) Meeta Sahai vs. State of Bihar, reported in (2019) JX SC 1436.
2.16 The learned Single, relying on the aforesaid decision, proceeded to observe further as under;
"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 Page 11 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 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 nonselected 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.
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 Page 12 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 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."
Submissions on behalf of the State:-
3. Ms. Manisha Luvkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned AGP appearing for the State vehemently submitted that the learned Single Judge committed a serious error in passing the impugned order. Ms. Shah would submit that the learned Single Judge failed to appreciate the true import of the amendment of 2014, i.e, Rule 8 of the Rules of 2004 that came to be amended in 2014. It is argued that the learned Single Judge erroneously held that by virtue of obtaining 40% marks in each test, i.e, objective and subjective, the respondent Nos.1 to 7, 14 and 19 respectively stood qualified.
4. Ms. Shah submitted that the learned Single Judge failed to take into consideration that the amended Rule 8 clearly confers the power to the appellant-Board for Page 13 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 determining the minimum qualifying criteria of the objective type written test and subjective type written test.
5. Ms. Shah submits that the learned Single Judge could be said to have incorrectly interpreted the amended Rule 8 of the Rules of 2004 inasmuch as the said rule only specifies the minimum criteria for passing the examination and does not preclude the appellant-Board from specifying the minimum criteria in each test.
6. Ms. Shah submitted that the learned Single Judge failed to consider that by virtue of amended Rule 8 of the Rules of 2004, it was well within the powers of the appellant-Board to specify a higher qualifying criteria which was done by specifying the requirement of obtaining 40% marks in each paper of each test in the Advertisement No.61-2015-2016.
7. Ms. Shah would submit that the learned Single Judge failed to appreciate that the power conferred upon the appellant-Board by the amended Rule 8 of the Rules is not restricted by the later portion of the said rule which states that the minimum qualifying criteria shall not be less than 40% marks in each test.
8. Ms. Shah would submit that the ratio enunciated in the decision of the Supreme Court in the case of Dr. Page 14 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 (Major) Meeta Sahai (supra) is not at all applicable in the case on hand.
9. Ms. Shah invited the attention of this Court to few subsequent developments that took place in respect of the selection list dated 06.10.2017 (challenged by the respondents before the learned Single Judge). According to Ms. Shah, the subsequent developments will have a substantial bearing on the outcome of the present appeal and in particular on the computation of marks by the respondents. Ms. Shah invited the attention of this Court to the averments made in Paras-6.1 to 6.7;
"6.1 It is submitted that certain candidates who had appeared in the examination pursuant to publication of Advertisement No.61/2015-16, along with the Respondents herein, had approached the Hon'ble Court by preferring Special Civil Application Nos.4944 of 2018 and other allied matters, challenging the method of computation of marks of the candidates on the ground that the questions had not been marked by strictly following the instructions in the question paper, in respect of the subjective written test.
6.2 These matters were dismissed vide order dated 12.09.2019 passed by the Hon'ble Court. Aggrieved by the said decision, the petitioners therein, approached the Hon'ble Division Bench by preferring Letters Patent Appeal No.5 of 2020 and other allied matters. It is submitted that vide order dated 23.01.2020 passed by the Hon'ble Court in Letters Patent Appeal No.5 of 2020 and other allied matters, the Appellant Board was directed to carry out the reevaluation of the answer-sheets of all the candidates who had appeared in the examination Page 15 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 (including the present respondents) pursuant to Advertisement No.61/2015-16, of English and Gujarat Paper only, i.e.,. of the subjective written test, with respect to questions giving choice strictly as per the instructions mentioned in the question paper and was further directed to submit a report of the outcome of the said reevaluation to the Hon'ble Court. A copy of the order dated 23.01.2020 passed in Letters Patent Appeal No.5 of 2020 and other allied matters is annexed hereto and marked as Annexure-C. 6.3 Such reevaluation was carried out by the Appellant Board and was submitted to the Hon'ble Court on 26.08.2020 and a new list consisting of the reevaluated marks was prepared. It is pertinent to note that pursuant to such reevaluation, the Appellant-Board also specified a new qualifying cut- off, in view of the reevaluated marks of all the candidates. Pursuant to the reevaluation, the selected candidates which were 376 as per the result dated 06.10.2017, has been reduced to 356 candidates.
6.4 It is submitted that this Hon'ble Court has been pleased to dispose of Letters Patent Appeal No.5 of 2020 and other allied matters, vide order dated 20.10.2020 whereby the Hon'ble Court has directed the Appellant authorities to give effect to the new list containing the reevaluated marks. It is submitted that the said order dated 21.10.2020 has not yet been uploaded on the website of the Hon'ble Court and is not available with the Appellant. The Appellants crave leave of the Hon'ble Court to produce the same, as and when it is available.
6.5 it is pertinent to note that as per the reevaluation carried out by the Appellant Board pursuant to the order dated 23.01.2020 of the Hon'ble Court Letters Patent Appeal No.5 of 2020 and other allied matters, the marks of the Respondents herein also stand modified. A copy of Page 16 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 a mark-sheet containing the old and reevaluated marks of all the Respondents herein, is annexed hereto and marked as Annexure-D. 6.6 A bare perusal of the said mark sheet would indicate that out of Respondent Nos.1 to 7, 14 and 19, respondents No.1 to 5 have secured 40% marks in subjective type test. However, the said Respondents have not been able to secure 40% in each paper of subjective type test, as they have not been able to obtain the requisite marks in English Language paper of subjective type test. And it is pertinent to note that, there were two papers Gujarati and English for which exam was conducted separately in different slots.
6.7 In respect of Respondent Nos. 6 & 7, 14 and 19, it is submitted that they have not been able to secure 40% marks in each test. Thus, Respondents No.6 & 7, 14 and 19 would now fall in the category of Respondents No.8 to 13, 15 to 18 and 19 to 27, as they have not been able to secure 40% marks in each test."
10. Ms. Shah, the learned Government Pleader appearing for the Board laid much stress on the fact that the writ application ought to have been rejected only on the ground that if a candidate takes a calculated chance and appears at the written test, then only because the result of the written test is not palatable to him, he cannot turn round and subsequently contend that the process of examination was contrary to the rules, or the procedure adopted by the Board was contrary to the rules. Ms. Shah would submit that in the case on hand, the respondents herein appeared in the written test without any demur, their estoppel from complaining that the selection process Page 17 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 was not in accordance with the rules. She would submit that if the respondents think that the advertisement and selection process were not in accordance with the rules, they could have challenged the advertisement and selection process without participating in the selection process.
11. Ms. Shah laid much emphasis on the fact that the respondents could not be said to have been taken by surprise when the results were declared because the advertisement made it very clear that they have to appear, in all, in four papers of 100 marks each and they have to secure minimum 40% marks in each of the four papers.
12. In such circumstances, referred to above, Ms. Shah prays that there being merit in her appeal, the same be allowed and the impugned order passed by the learned Single Judge be set aside.
13. She prays that the writ application filed by the original writ applicants may be rejected.
Submissions on behalf of the respondents (original writ applicants)
14. Mr. Mehul Sharad Shah, the learned counsel appearing for the respondents has vehemently opposed Page 18 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 this appeal submitting that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned order.
15. The learned Single Judge, by adopting the rule of literal construction, rightly took the view that the Board could not have divided the two tests, i.e., objective and subjective into four papers, i.e, two papers of the objective type and two papers of the subjective type. According to Mr. Shah, the rule permits only two papers; one objective type and one subjective type. According to the rules, the candidate is obliged to secure minimum 40% marks in two papers. Mr. Shah would submit that the rule does not permit or there is no scope to read into the rule the power of the Board to divide the objective type and subjective type tests into four papers of 100 marks each with a minimum qualifying criteria of 40% marks in each of the four papers.
16. According to Mr. Shah, although his clients appeared in the examination without any objection or demur, yet that by itself, is not sufficient to non-suit them because his clients, by agreeing to participate in the examination process, could be said to have only accepted the prescribed procedure and not the illegality in it. In other words, according to Mr. Shah, if a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be Page 19 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 condoned merely because a candidate has participated in the examination without any demur. According to Mr. Shah, the ratio enunciated in the decision of the Supreme Court in Dr. (Major) Meeta Sahai (supra) has been rightly applied by the learned Single Judge. Mr. Shah would submit that the only power Rule 8 has conferred to the Board is to determine the higher qualifying standard. When Rule 8 empowers the Board to determine the minimum qualifying standard which shall not be less than 40% of marks, it necessarily implies that the Board has the power to fix higher qualifying standard, i.e, something above the minimum. However, the written test cannot be of more than two papers. One paper of the objective type and one paper of the subjective type. According to Mr. Shah, there is no discretion with the Board to have two papers of objective type and two papers of the subjective type and written in all four papers of 100 marks each with minimum qualifying standard of 40% of marks in each of the four papers. In such circumstances, referred to above, Mr. Shah prays that there being no merit in the present appeal, the same be dismissed.
ANALYSIS
17. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in Page 20 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 passing the impugned order.
18. A perusal of the aforementioned Rule would indicate that the said Rule empowers the Respondent Board to determine the qualifying standard and the same shall not be less than 40% of marks in each test. Whilst the provision sets a bar and states that the threshold of 40% in each test should not be crossed, the provision also bestows upon the Respondent Board the power to determine the minimum qualifying criteria for each test and thus, the Respondent Board was well within its powers to specify a higher qualifying criteria, which was done by specifying the requirement of obtaining 40% marks in each paper of each test in the Advertisement No. 61/2015- 2016.
19. The advertisement, referred to above, reads thus;
"Gujarat Subordinate Services Selection Board, Gandhinagar.
Advertisement No. 61/2015-16 The Physical Efficiency Test under mode-2 of the Special Competitive Exam for selection of Unarmed Police Sub-Inspector, Class-3 has been conducted by the Gujarat Subordinate Services Selection Board from 13/02/2017 to 18/02/2017 at Sharirik Shikshan Ane Ramat Vigyan Vidhyashakha (Mahadev Desai) Gujarat Vidyapith, At - Sadra, Ta & Dist. Gandhinagar. The list of all the candidates who are Page 21 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 declared qualified in the Physical Efficiency Test is published on the website of the Board.
The written exam part-1, having O.M.R. method and objective questions, will be conducted on 23/04/2017 for all the candidates who have qualified in the Physical Efficiency Test. In this O.M.R. method of objective questions, there will be one question paper of three hours and 200 marks. Wherein, the questions from Sr.No. 1 to 100 will be of Paper-1 for General Studies and Psychological Test and the questions from Sr.No. 101 to 200 will be of Paper-2 for Legal matters. Total time of 3 hours will be given. The minimum qualifying marks for candidates of all the categories is 40 percent in each paper separately that is Paper-1 and Paper-2. The syllabus thereof is as under.
Paper Subject and Contain Marks Duration 1 General Studies and 100 Psychological Test 3:00 hours 2 Legal matters 100 Total Marks 200 Note:(1) (i) The examination shall be based on Multiple Choice Question (MCQ) and Optical Mark Reader (OMR) system. (ii) Each question carries 01 (one) mark. (iii) Candidates have to attempt all the questions. (iv) Negative marking will be applicable and 0.25 marks shall be deducted for each wrong answer / multiple answers / altered answer from the obtained marks. (v) There shall be an option "E" "Not attempted" in answers of each question, if the candidate does not want to attempt the question, he will have to select this option and no negative marking shall apply in case of selecting the option "Not attempted". (vi) If no option is selected from the given options in any question, 0.25 marks shall be deducted (negative marking) from the obtained Page 22 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 marks.
The syllabus of paper-2 (Legal matters) is as under:-
No. Subject Marks 1. Constitution of India Part:- 3,4,5 05 2. Code of Criminal Procedure 10 1973 Chapters: 2,4,5,7,8,9,10,11 Remaining Chapters 05 3. Indian Penal Code, 1860 10 4. Indian Evidence Act, 1872 10 5. Gujarat Police Act, 1951 15 6. Gujarat Prohibition Act, 1949 05 7. Prevention of Corruption Act, 10 1988 8. Scheduled Castes and 10 Scheduled Tribes (Prevention of Atrocities) Act, 1989 9. Motor Vehicles Act, 1988 05 10. Gujarat Prevention of 05 Gambling Act, 1887 11. Questions on police function 10 related to investigation, crime control, law and order and working of a police station.
Total 100Note:The instructions for downloading a call letter for the O.M.R. based Objective Written Examination Part-1 and the detailed instructions for candidates shall be put on the website of the board in due course.
The number of candidates qualifying in the Written Examination Part-1 on the basis of merit as equal to Page 23 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 five times the number of vacancies shall be called for Descriptive Written Examination Part-2, the syllabus of which is as below.
(1) The subjective type written examination shall be of 200 marks consisting of two written papers, as below:-
Paper Subject and Contain Marks Duratio n
1. Gujarati Language. 100 3 hours (Descriptive) Gujarati Grammar, Verbal Aptitude, Vocabulary, Idioms, Comprehension
2. English Language. 100 3 hours (Descriptive) English Grammar, Verbal Aptitude, Vocabulary, Idioms, Comprehension.
(2) The standard and the course content of the syllabus for aforesaid Paper I and II shall be of 12 th standard of Gujarat Secondary and Higher Secondary Education Board.
(3) Minimum qualifying standard for all category candidates for each paper is 40 percent.
(4) The date of Written Examination Part-2 shall be declared in due course."
Literal Interpretation:
20. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the Page 24 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC.
21. In M/s. Hiralal Ratanlal vs. STO, AIR 1973 SC 1034, this Court observed:
"In construing a statutory provision the first and foremost rule of construction is the literal construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear."
(emphasis supplied) Page 25 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021
22. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.
23. As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') :
"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy- making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."
24. As observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405:
Page 26 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 "To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom."
25. In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn. pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
26. As the Privy Council observed (per Viscount Simonds, L.C.):
"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).
27. As observed by this Court in CIT vs. Keshab Chandra Mandal, AIR 1950 SC 265:
Page 27 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 "Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute"
28. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.
29. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed :
"The Court cannot legislate.....under the garb of Page 28 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 interpretation.......".
30. Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
31. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers, AIR 2003 SC 2434, the Supreme Court observed:
"It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
32. In Union of India and another vs. Hansoli Devi and others, 2002(7)SCC (vide para 9), the Supreme Court observed :
"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act."
33. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra, AIR 2001 SC 1980, the Supreme Court Page 29 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 observed :
"It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute"
34. The same view has been taken by the Supreme Court in S. Mehta vs. State of Maharashtra, 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121.
35. It is well-settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The interpretation of the Page 30 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 phrase "not less than", is thus, required to be done in the context of the powers bestowed upon the Respondent Board.
Defects of the literal rule of interpretation:-
36. There are certain defects of the literal rule of interpretation. The defects may be of two types Logical defect which constitutes of ambiguity, inconsistency and incompleteness and the second type is absurdity or irrationality. Ambiguity occurs where a term or an expression used in a statute has not one but various meanings, and it is not clear which one particular meaning it represents at which particular context or place. So here the court will have to go beyond the statute and yet stick to the same literal words of the statute to ascertain its meaning. Also the ambiguity sometimes is "syntactic" 84 which means the vagueness arises from words like "or","and", "all" and other such words.
37. To elaborate this further, we may refer to a decision of the Supreme Court in the case of Spentex Industries Ltd. vs. CCE, (2016) 1 SCC 780. In this decision, the Supreme Court has explained the rule maker's own perception whereby the literal meaning came to be discarded and a meaningful meaning was accepted. We quote the relevant paras;
Page 31 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 "24. As mentioned above, Rule 18 is enabling provision which authorises the Central Government to issue a notification for grant of these rebates. Exercising powers under this Rule, the Central Government has issued necessary notifications for rebate in respect of both the duties, i.e., on intermediate product as well as on the final product. Further, and which is more significant, these notifications providing detailed procedure for claiming such rebates contemplate a situation where excise duty may have been paid both on the excisable goods and on material used in the manufacture of those goods and enables the exporter to claim rebate on both the duties. This kind of procedure and format of prescribed Forms, already described above, becomes a clincher insofar as understanding of the Government of Rule 18 of the Rules is concerned.
25. It is to be borne in mind that it is the Central Government which has framed the Rules as well as issued the notifications. If the Central Government itself is of the opinion that the rebate is to be allowed on both the forms of excise duties the government is bound thereby and the rule in-question has to interpreted in accord with this understanding of the rule maker itself. Law in this respect is well settled ....."
28. The aforesaid discussion leads us to the only inevitable consequence which is this : the word 'OR' occurring in Rule 18 cannot be given literal interpretation as that leads to various disastrous results pointed out in the preceding discussion and, therefore, this word has to be read as 'and' as that is what was intended by the rule maker in the scheme of things and to carry out the objectives of the Rule 18 and also to bring it at par with Rule 19.
38. In the aforesaid context, it should also be borne in mind that the State is the author of the rule and its Page 32 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 interpretation should be given weightage. In this regard, we may refer to a decision of the Supreme Court in the case of Ajeet Singh Singhvi vs. State of Rajasthan, 1991 Supp (1) SCC 343, wherein the Supreme Court has observed as under;
"Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants. There is an inbuilt safety kept in the explanation added to sub-rule (8) of Rule 28-B which prescribes that if any doubt arises, amongst others, about the categorisation of the posts as the highest posts in the Service, the matter shall be referred to the government in the Department of Personnel and Administrative Reforms, whose decision there on shall be final. The appellants could easily have raked up and got referred the matter to the government to have a decision thereon. The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy. In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court or the Government to give the same interpretation or exposition to the rules requiring interpretation herein. Besides the government being the author of the rule, has kept to itself, as a matter of prudence; the right to remove any ambiguity about the identification of any post including the highest post/posts. The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court, its view nonetheless are entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all Page 33 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 means, has remained unfulfilled."
39. The aforesaid decision of the Supreme Court in the case of Ajeet Singh Singhvi (supra) has been referred to and relied upon by one of us J.B. Pardiwala, J. in the decision in the case of Rajeshbhai Chhaganbhai Chokhaliya & Ors. vs. Director General of Police Gujarat Police Department & Ors., (01.09.2016- GUJHC): MANU/GJ/179/2016, wherein the following has been observed in Para-56 as under;
"56. The another significant factor which leans towards the interpretation put forward by the State of the rules is the stance of the State, which militates against the views canvassed on behalf of the writ- applicants. The Government being the author of the rules, its view is entitled to great weight and the burden of the writ-applicants to lift that weight, an uphill task by all means, has remained unfulfilled [See: Ajeet Singh Singhvi vs. State of Rajasthan, (MANU/SC/0652/1991:1991) Suppl. (1) SCC 343]"
40. Thus, In case there is some lacuna or omission in the statute which prevents it from giving a complete idea, or it makes it logically incomplete, it is the duty of the court to make up the defect by adding or altering something, but the court is not allowed to do more than that. It is permissible only in cases where the statutes are inapplicable in their present form, which is incomplete. For the change, either alteration or addition the court looks into the matters which will probably help it in ascertaining Page 34 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 the intention of the legislature. It is not necessary that judges would always find some or the other means to help them in cases of defective texts. There will be some cases where they might find nothing of this kind. They may ascertain the intention of the legislature which presumably, would have had the defect come to notice.
41. One of the problems of literal rule is that it breeds absurdity. Sometimes the court might ascertain a certain meaning to the statute which was never the intention of the legislature. The traditional rule of literal interpretation forbids the court to attach any meaning other than the ordinary one. It closes the doors for any type of judicial innovation, thereby imposing a restriction on the Courts. Since the rule is to stick to the exact words of the statute few lawmen say that it is like imposing a rule even when you know that it is not right. If the court applies literal rule and feels that the interpretation is morally wrong then they cannot avoid giving the interpretation.
42. Some criticize this rule by saying that the rule emphasis on the erroneous assumption that words have a fixed meaning. In fact, words are imprecise, leading justices to impose their own prejudices to determine the meaning of a statute. According to the Black's law dictionary, "This type of construction treats statutory and contractual words with highly restrictive readings. As long as there is no ambiguity in the statutory language, resort Page 35 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 to any interpretative process to unfold the legislative intent becomes impermissible. About the principle of plain meaning, it has been observed more than often, that it may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. With a change in policies and legislation, the statutes cannot still be interpreted in accordance with the ordinary meaning of the words made long ago. Thus making it unsuitable for the present times.
43. It was also sought to be argued on behalf of the appellant-Board that Rule 8 of the Rules of 2004 is an enabling provision empowering the Board to fix a minimum qualifying standard. Accordingly and in accordance with the said empowerment, the Board specified a qualifying standard of 40% in each subject as the minimum qualifying standard.
44. What is an enabling provision has been very succinctly explained by the Supreme Court in the case of Bidi, Bidi Leaves & Tobacco Merchants Association, Gondia vs. State of Bombay, 1962 AIR (SC) 486 as under;
"One of the first principles of law with regal to the effect of an enabling act", observes Craies, "is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view(1)". The principle on which the doctrine is based is contained Page 36 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine quo res ibsa ease non potest'. This maxim has been thus translated by Broom thus: "whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect". Dealing with this doctrine Pollock, C.B., observed in Michaely Fenton and James Fraser v. John Stephen, Hempton "It becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bastow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be else done, then that something will be supplied by necessary intendment." This doctrine can be invoked in cases "where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means as are essentially necessary to its execution (3)." In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature as that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied. "
45. We are of the view that in the absence of any challenge to the rules and in view of Rule 7(b) (7) & (8) read in juxtaposition with the appendix A & B respectively to the rules, it is permissible to the State to divide the two Page 37 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 tests (objective and subjective) into four papers. In such circumstances, in view of Rule 8, it is permissible for the Board to separately lay down the minimum qualifying standard (not less than 40% marks) in each of the four papers.
46. In this regard, it is necessary to refer to the law as propounded by the Supreme Court in the State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC
220. In the said case, pursuant to publication of an advertisement for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch), only seven appointments were made by the Haryana State Government in the order of merit. Whilst the concerned Recruitment Rules provided that a minimum 45% marks should be obtained for selection, the State Government had fixed the qualifiying criteria at 55%. Considering the facts and circumstances, the Supreme Court was pleased to hold that there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for more eligibility. The Supreme Court was also pleased to hold that though the advertisement stated that there were 15 vacancies to be filled, the same does not give a right to any candidate to be appointed. We Page 38 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 quote the relevant paras;
"3. It is contended on behalf of the appellant that the above finding against the State was erroneous. The submission was that under the rules the minimum of 45 % was an element to be considered for the eligibility of a candidate for selection and that while making the actual appointment by selection the State Government, in the interest of main- taining high-standards of judicial competence, were not prevented from fixing a minimum standard of a score of 55% marks, especially, as that was the view of the High Court also previously intimated to them. In our view that submission is correct.
4. Elaborate rules were framed by the Punjab Government in 1951 for the purpose of recruitment of Subordinate Judges to the Punjab Civil Service (Judicial Branch). After the bifurcation of the Punjab State these rules applied to the State of Haryana and the same have been published by the Government of Haryana with appropriate amendments. Part A of these rules deals with general qualifications. Part B deals with the preparation and submission of rolls of those who are qualified under Part-A. Those who are on these rolls prepared by the District Judges become eligible for appearing in a written examination held by the Punjab Public Service Commission. The rules with regard to this examination are in Part C. Rule 4 thereof provides that "the examination papers shall be set and marks awarded by examiners who will be appointed by the Punjab Public Service Commission. Rule 8, which is important, is as follows : "No candidate shall be considered to have qualified unless he obtains 45 per cent marks in the aggregate of all the papers and at least 33 per cent marks in the language paper, that is, Hindi (in Devnagri script)". As we shall see immediately the final selection depends entirely on this examination. Apart from this examination there is no other hurdle except that of medical Page 39 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 examination to be passed by the candidate. No oral interview is prescribed. Rule 10 is as follows :
(i) The result of the examination will be published in the Punjab Government Gazette.
(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the Punjab Service Commission in the list of those who have qualified under rule 8 ;............
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College(") that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.
12. It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list Page 40 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 is equal in merit to the one who,, is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of' 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. that the Punjab Government later on fixed a lower score is no reason for the Haryana, Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55% have no right to claim that the selections be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking. that the State Government had somehow contravened rule 8 of Part C."
47. The judgment rendered by the Supreme Court in Subash Chander Marwaha (supra) received assent through another judgment rendered by a Constitution Bench of the Page 41 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 Apex Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, wherein it was held that a candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. We quote the relevant para;.
8. In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in Page 42 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant"
48. One another judgment of the Supreme Court that merits consideration in this regard is Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar & Anr., (1994) 6 SCC 293, wherein it was held that even if minimum eligibility criterion is fixed by Statute, the Selection Board can fix a higher criterion. We quote the relevant paras;
"3. An advertisement was issued inviting applications for appointment, to the post of Presiding Officers of the Labour Courts constituted under the Page 43 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 provisions of M.P Industrial Relations Act, 1960 (hereinafter referred to as 'the Act'). Nine posts of such Presiding Officers had to be filled up, out of which only four posts were available to the general category candidates. In pursuance of the advertisement, several applications were received. In view of Section 8(3)(c) of the Act in the advertisement it was prescribed that the applicant should have practised as an advocate or a pleader for a total period of not less than five years. It appears that in view of the large number of applications received from the general category candidates against 4 posts, a decision was taken by the Commission to call for interview only 71 applicants, although 188 applicants were eligible, as per requirement of the advertisement. Only those candidates were called for interview who had completed seven and half years of practice although in view of Section 8(3)(c), five years of practice as an advocate or a pleader in the Madhya Pradesh was the minimum requirement. According to the writ petitioners, as the statutory requirement under Section 8(3)(c) was only five years of practice as an advocate or a pleader, it was not open to the Commission to raise the said period up to seven and half years and to debar applicants who had applied for those posts and who fulfilled the statutory requirement prescribed under Section 8(3)(c) of the Act.
6. The question which is to be answered is as to whether in the process of short-listing, the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide Page 44 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interviews/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate.
8. The sole purpose of holding interview is to search and select the best among the applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies.
10. This Court in the case of State of Haryana v. Subash Chander Marwaha1 had to consider as to whether the appointments could have been offered only to those who had scored not less than 55% marks when Rule 8 which was under consideration, Page 45 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 in that case, made candidates who had obtained 45% or more in competitive examination eligible for appointment. This Court held that Rule 8 was a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. There was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed."
49. We are also of the view that the writ application should have been rejected only on the ground that the respondents, having understood the advertisement very clearly and having appeared in the examination without any protest or demur, could not have later questioned the entire examination process on the premise that the same was not in accordance with the rules. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Dhananjay Malik vs. State of Uttaranchal, reported in 2008 4 SCC 171, wherein the Supreme Court observed in paras-7,8,9 and 10 as under;
"7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement Page 46 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, (1995) 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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 writ petitions. This Court further pointed out 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 present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
9. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, (2007) 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
10. We are of the view that the Division Bench of the Page 47 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge."
50. We may also refer to and rely upon a decision of the Supreme Court in the case of K.H. Siraj vs. High Court of Kerala, reported in 2006 6 SCC 395, wherein the Supreme Court observed as under;
"62. The appellants/petitioners, in any event, are not entitled to any relief under Art. 226 of the Constitution of India for more reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Court's Notification that a minimum marks had to be secured both at the written test and in the oral test. They were also aware of the High Court decision on the judicial side reported in Remany vs. High Court of Kerala, 1996 (2) KLT 439. This case deals with prescription of minimum qualifying marks of 30% for viva voce test. C.S. Rajan, J., in the above judgment, observed as under:
"On the basis of the aggregate marks in both the tests, the selection has to be made. In I.C.A.R's case, AIR 1984 SC 541 also the relevant rules did not enable the selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. In the Delhi Judicial Service's case also (AIR 1985 SC 1351, the rules did not empower the committee to exclude candidates securing less than 600 marks in the aggregate. Therefore, in all these cases, the Supreme Court came to the conclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, no minimum qualifying marks were prescribed."Page 48 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022
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63. The High Court also relied on P.K. Ramachandra Iyer's case (supra) and Umesh Chandra's case (Supra). 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:
"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 Page 49 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
64. Therefore, the writ petition filed by the appellants/petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. The decision of the High Court holding to the contrary is in per curiam without reference to the aforesaid decisions."
51. We shall now look into the recent pronouncement of the Supreme Court in the case of Dr. (Major) Meeta Sahai (supra), upon which, the learned Single Judge has placed strong reliance. In Dr. (Major) Meeta Sahai (supra), the challenge was to the order passed by a Division Bench of the Patna High Court in an Intra-court Appeal whereby Dr. Meeta's work experience in an Army Hospital was not considered for grant of weightage and consequential selection and appointment as the General Medical Officer in the State of Bihar on the ground that Rule 6 (iii) of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 mandated that only the services rendered in employment of a hospital run by the Government of Bihar could count under the head of work experience. Thus, the pivotal issue before the Supreme Court was whether the services rendered by Dr. Meeta Sahai in the Army Hospital should have been taken into consideration while evaluating the work experience?. The Supreme Court was first called upon to address the preliminary issue as regards the very maintainability of the challenge by Dr. Page 50 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 Sahai on the ground that she, having participated in the selection process, could not have later challenged the same due to mere failure in selection.
52. The Supreme Court, while answering the preliminary issue, first looked into its earlier decision in the case of Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 and observed the following in Para-17 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 Bihar4, 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.
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 Page 51 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 selection, challenges it in the hope of getting a second chance."
53. In para-18, the Supreme Court proceeded to observe as under;
"18. However, we must differentiate from this principle insofar as the candidate by agreeing to 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."
54. It is the observations made in Para-18 which have been relied upon by the learned Single Judge. However, what is important are the observations made in Para-20. Para-20 reads thus;
"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 Page 52 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022 C/LPA/690/2021 JUDGMENT DATED: 06/10/2021 process. It is possible post what is held hereinafter that she be selected, or not."
55. It is apparent from the above that the challenge by Dr. Sahai was not to the selection procedure but was to the interpretation of the term "work experience" as part of merit determination. It is in this factual background the Supreme Court took the view that as the interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the challenge of Dr. Sahai could not have been turned down at the threshold. Thus, it cannot be said that the decision in the case of Dr. Sahai has diluted all earlier decisions of the Supreme Court including Manish Shahi (supra) and Madan Lal (supra), referred to above, that if a candidate takes a calculated chance and appears at the examination, then only because the result is not palatable to him, he cannot turn round and subsequently contend that the process of examination was unfair or not in accordance with the rules.
56. In the case on hand, the additional factor which should go against the respondents is the advertisement. The advertisement referred to above by us makes it abundantly clear that the candidates were made aware of the fact that they have to answer, in all, four papers; two of the objective type and two of the subjective type each of 100 marks and the minimum qualifying standard was 40% marks in each of the four papers.
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57. Besides the above, the language of Rule 7(b)(1) is important. It says that the written test shall consist of two parts. Nowhere it has been stated that the written test shall consist of two papers. In such circumstances, two parts can be divided into four papers of 40% marks each.
58. Thus, considering the law as discussed above, it is well within the powers of the Respondent Board to fix the criteria, higher than the one specified in the Rules, i.e., by specifying minimum 40% marks in each paper of each test. Moreover, the fact that the candidates were categorically informed about such criteria in the guidelines to the examination published in the month of March, 2017, before the examination took place, further estops them from laying a challenge to the same.
59. For all the foregoing reasons, this appeal succeeds and is hereby allowed. The impugned order passed by the learned Single Judge is hereby set aside. The Special Civil Application No.3953 of 2018 stands rejected.
60. In view of the above, the connected civil application also does not survive and is disposed of accordingly.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) Vahid Page 54 of 54 Downloaded on : Sun Jan 16 22:00:32 IST 2022