Gujarat High Court
Amitbhai Ajmalbhai Desai vs State Of Gujarat on 9 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10933/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10933 of 2015
AMITBHAI AJMALBHAI DESAI
Versus
STATE OF GUJARAT
Appearance:
MR ADITYA R GUNDECHA for MR NARENDRA L JAIN(5647) for the
PETITIONER(s) No. 1,2,3
MR DEVNANI AGP for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/04/2018
ORAL ORDER
1. In this petition the petitioners have prayed, inter alia, that:-
"8 (A) The Honourable Court may be pleased to issue a writ of mandamus or certiorari or any other writ, order or direction, in the nature of mandamus or certiorari, directing the respondents to quash and set aside the communication at Annexure-C and to call the petitioners for verification of documents.
(B) Pending admission, hearing and final disposal of the present petition, the Hon'ble Court may be pleased to issue a writ of mandamus or certiorari or any other writ, order or direction, in the nature of mandamus or certiorari, directing the respondents to stay the process of recruitment.
(C)To pass such other further order as deemed fit in the facts and circumstances of the case."
2. From the relief prayed for by the petitioners it becomes clear that except demanding that the intimation / notice issued by the respondent No.2 (whereby respondent No.2 informed the candidates to remain present at the time and place mentioned in the notice for purpose of verification of Page 1 C/SCA/10933/2015 ORDER documents) should be quashed any other relief is not prayed for.
2.1 More particular aspect of this petition is that the selection process is not challenged in present petition.
3. Without challenging, on any ground, selection process (test and interview) the petitioners preferred present petition at a stage when the respondent board merely called the candidates for verification of the documents and even select list was not prepared.
4. So as to decide maintainability of the petition and the relief which is prayed for by the petitioners it is necessary to take into account factual backdrop.
4.1 Somewhere in August 2014 the respondent No.2, so as to fill up vacancies for the post of Class-III (Non-Secretariat) Clerks, had issued advertisement No. 38/2014-15 whereby the respondent No. 2 invited applications for the post in Class-III (Non-Secretariat) Clerks in 30 different departments and 33 Collectorate Offices across the State. 4.2 About 5,42,351 applications were received by the Page 2 C/SCA/10933/2015 ORDER respondent board.
4.3 Subsequently, as part of selection process, written test and computer examination were conducted. 4.4 During the said process, about 4.30 lakhs candidates appeared in the written examination.
4.5 In February 2015 results of the written examination were declared. About 12371 candidness cleared written examination.
4.6 As part of the second stage of the test computer proficiency test was conducted in April 2015. 4.7 Out of said 12371 candidates who cleared written examination 10347 candidates appeared for the computer proficiency test.
4.8 It appears that upon completion of the said process a list of 3060 candidates was published and they were called for verification of the documents.
4.9 At the time when the candidates were called for verification of the documents, the petitioners preferred this Page 3 C/SCA/10933/2015 ORDER petition with above quoted relief.
4.10 It is not in dispute that the petitioners participated in above mentioned selection process.
4.11 According to the petitioners' allegation, their names appeared at serial Nos. 2026, 2034 and 2051 in the list of 3060 candidates.
4.12 According to the petitioners, after respondent board published list with names of 3060 candidates and while process of verification of documents was in progress, the board issued another two lists of candidates who were also invited for verification of documents. According to the petitioners, the said two lists contain names of 97 candidates and 42 candidates respectively. 4.13 On the ground that the respondent board published said additional lists of 139 candidates with malafide intention, the petitioners have taken out this petition.
5. The respondent No.2 board has opposed the petition. Reply affidavit is filed by respondent no. 2 wherein it is stated that:-
Page 4 C/SCA/10933/2015 ORDER "7. I say and submit that, the issue involved in the present petition is with respect to the recruitment of Class-III Clerk (Non-Secretariat) for thirty different Departments of State of Gujarat and thirty three Collectorate Offices under the control of Revenue Department. I say and submit that, an advertisement with respect to inviting applications for the posts of class-III (Non-Secretariat) Clerks for 2447 vacancies was published on the website of the Gujarat Subordinate Services Selection Board namely www.gsssb.gujarat.gov.in. I say and submit that the applications were invited between 17.09.2014 to 08.10.2014. In all total 5,42,351 applications were received by the respondent authorities for the said posts.
8. I say and submit that the selection procedure comprised of two stages. First stage was that of written examination having weightage of 200 marks which included objective type questions. I say and submit that second stage of examination was that of computer proficiency test having weightage of 100 marks. I say and submit that written examination was taken by the Gujarat Subordinate Service Selection Board on 21.12.2014, which was the first part of examination. I say and submit that, in all, 4,30,143 candidates were appeared in the written examination. The results of written examination was declared on 23.02.2015. As per the result of the written examination, 12371 candidates cleared the written examination. Thereafter, second stage of the examination which included computer proficiency test was taken by the Gujarat Subordinate Services Selection Board between 17.04.2015 to 25.04.2015. I say and submit that, out of 12371 candidates, 10347 candidates remained present and appeared in the Computer Proficiency Test.
9. I say and submit that, the General Administrative Department has issued a notification dated 12.02.2014 prescribing minimum qualifying marks for No-
Secretariat Clerk Class-III cadre...... I say and submit that, as per the above Government Notification, criteria of 40% minimum qualifying standard is prescribed combining the result of both the examination i.e. written examination as well as Computer Proficiency Test. I say and submit that, out of 10347 candidates, 8300 candidates qualified as per the minimum qualifying standard. I say and submit that, subsequently list of total 3060 candidates was published for verification of documents out of 8300 candidates as per their merits. I say and submit that, the list of 3060 candidates was published taking into consideration of 25% more candidates than the actual vacancies in all the respective categories.
12. I say and submit that, the entire recruitment process for the posts of Class-III (Non-Secretariat) Clerk is for thirty different departments and thirty three Collectorate Offices across the State. I say and submit that, as per the recent decision in the case of Union of India v/s. Ramesh Ram and others reported in 2010 7 SCC 234, wherein the authorities are required to call the candidates from the reserved categories who are meritorious to exercise their option of concerned Department. I say and submit that, accordingly the candidates who were belonging to reserved category and were meritorious were called by the authorities to exercise their option.......
13. I say and submit that as per the decision of Union of India v/s. Ramesh Ram rendered by the Hon'ble Apex Court, the authorities were required to call the concerned candidates belonging to the reserved category i.e. SC, ST and SEBC to exercise their option and to choose their concerned department as per the vacancies available. Accordingly, 185 candidates (male) belonging to SEBC category and 30 candidates (male) belonging to SCA category out of total list of 1690 candidates exercised their option. Therefore, in all 215 candidates (185 + 30) exercised their option in their respective category i.e. the SC candidates exercised the options available for SC candidates and the SEBC candidates chose the options available of SEBC candidates. I say and submit that since these 215 candidates who belonged to SC and SEBC category who were meritorious and were included in the general merit list, exercised their option in their respective categories, there arose a shortfall of 215 candidates in the general category. Moreover, total 103 candidates out of 1690 remained absent. Hence, there was a shortfall of total 318 male candidates (215 +
103) in the general category."
6. The petitioners grievance has to be considered in this background.
Page 5 C/SCA/10933/2015 ORDER 6.1 Form above mentioned details and facts it has emerged that the petition is not maintainable.
6.2 At the outset it is necessary to mention that even according to the petitioners' own claim, the respondent had issued notice and invited 3060 candidates to appear for verification of documents.
6.3 The petitioners further alleged that subsequently the respondent issued another two lists whereby other 139 candidates were also called for verification of the documents.
6.4 In this context it is pertinent to note that the petitioners have not impleaded either said 3060 candidates or even said 139 candidates as party respondents. 6.5 Even if it is assumed that the petitioners do not have any grievance with regard to the candidates whose names appeared in the select list contained names of 3060 candidates published by respondent no. 2 and that their grievance is only with regard to the action of respondent No.2 of publishing other two lists which contained names of Page 6 C/SCA/10933/2015 ORDER 139 candidates, then also, in light of their grievance the said 139 candidates (97 + 42 candidates whose names were mentioned in the said two lits) would be interested and affected parties and therefore necessary party so far as present petition is concerned.
7. The outcome of present petition would affect atleast said 139 candidates and that therefore they would be concerned as well as necessary party.
7.1 However, without impleading said 139 candidates the petitioners have taken out present petition. 7.2 Since the petitioners have not implemented necessary and interested parties petition does not deserve to be entertained.
8. Secondly, learned AGP has, on instruction from the concerned and competent authority, submitted that the entire selection and recruitment procedure is completed and appointment orders to the selected candidates have already been issued.
8.1 Even such selected candidates (appointees) have also Page 7 C/SCA/10933/2015 ORDER not been impleaded in present petition.
8.2 Therefore, in view of the fact that entire selection process is completed and the appointments have already been made, the petition does not deserves to be entertained, more so when proper and necessary and affected parties are not impleaded.
8.3 Further, since even the selected candidates (appointees) have not been impleaded the petition does not deserve to be entertained and any relief as prayed for by the petitioners cannot be granted at this stage.
8.4 Besides this, as mentioned earlier, without challenging the selection process the petitioners have taken out this petition merely because the respondents invited the candidates to remain present for verification of documents. 8.5 In that view of the matter, a petition by the persons who participated in the selection process, does not deserve to be entertained.
9. When the petitioners have chosen to not challenge the selection process and when any irregularity is not alleged or Page 8 C/SCA/10933/2015 ORDER any allegation with regard to any other aspects related to selection process is not raised by the petitioners, a petition against simple intimation asking the candidates to remain present for verification of documents does not deserve to be entertained because such procedure does not adversely affect the right of the petitioners.
9.1 It is pertinent that it is not the case even of the petitioners that selected / appointed persons are from amongst the said two lists.
9.2 The petitioners have not placed any details on record to demonstrate that candidates from said two lists are appointed and that though said candidates did not clear the tests their names were included in the lists. 9.3 In any case in absence of said 139 candidates and appointees, this petition cannot be entertained.
10. Besides this, the details mentioned by respondent no.2 Board in Para-14 to 17 are also relevant. The said paragraph No. 14 to 17 of Reply Affidavit read thus:
"14. I say and submit that the authorities were required to call for the remaining candidates out of 5240 candidates (8300-3060) to meet with the shortfall in the general category for male candidates. I say and submit that on the first day i.e. Page 9 C/SCA/10933/2015 ORDER 29.06.2015 the next candidates from the remaining list of 5240 candidates were called by the authorities. I say and submit that for 943 vacancies for male candidates, 1179 candidates were called by the authorities. I say and submit that 236 candidates were called in excess as against vacancies (1179-943), 103 candidates remained absent and 215 candidates from SC & SEBC category exercised their option therefore, there arose a shortfall of 82 candidates (103 absent + 215 exercised their option) (318-236= 82). The authorities were hence required to call for more candidates for general category. A copy of the Statement showing bifurcation is annexed herewith and marked as ANNEXURE R-IV(A). I say and submit that 97 candidates available in the general category from amongst 5240 candidates were called by the authorities. I say and submit that a separate list of these 97 candidates was prepared by the authorities and the same was published. I say and submit that out of 97 candidates, 90 candidates belong to SC category who are meritorious and are included in general list.
15. I say and submit that the authorities were required to call for 97 more candidates and hence list of 97 more candidates was published by the authorities. I say and submit that the authorities therefore, called for 97 candidates as per their merits on day to day basis from 29.06.2015 to 01.07.2015. The entire exercise uptil this stage was done on the basis of the options available for male category candidates.
16. I say and submit that subsequently, when the authorities conducted procedure for calling female candidates for 409 vacancies available for female candidates 511 female candidates were called by the authorities. I say and submit that 102 candidates were called in excess to the vacancies (511-409), 54 candidates remained absent and 100 candidates from SC & SEBC category exercise their option therefore there arose a shortfall of 52 candidates (54 absent = 100 exercised their option) (154-102=52). The authorities were hence required to call for more candidates for general category. A copy of the Statement showing combined bifurcation for male and femal category is annexed herewith and marked as ANNEXURE R-IV (B). I say and submit that therefore, 42 female candidates available in the general category from amongst 5240 candidates were called by the authorities. I say and submit that a separate list of these 42 more female candidates in addition 97 candidates list for male category was prepared by the authorities and the same was published.
17. I say and submit that, it is on account of shortfall which arose for general category candidates for male as well as female, the respondent authorities were required to call for remaining candidates, who had qualified and cleared both the examinations. Since the choice of options were to be exercised on-line and the process was continuous, the authorities per their merits on day to day basis. A copy of the statement showing details of day to day vacancies filled up by the authorities from 22.06.2015 to 07.07.2015 is annexed herewith and marked as ANNEXURE-R-V."
11. The said details bring out the reason and consequence for which the respondent no.2 Board subsequently called other candidates also, for verification of documents. 11.1 When the said aspects are taken into account it becomes clear that even otherwise there is no illegality or irregularity in publishing list and inviting the candidates for verification of documents.
Page 10 C/SCA/10933/2015 ORDER
12. At this stage it is necessary to note that the petitioners preferred present petition at the stage when the respondent Board called the said 139 persons for verification of documents.
13. At that stage even selection list was not finalised.
14. Under the circumstances, the petitioners had no cause of action to prefer this petition, more particularly without impleading the said 139 persons.
15. A petition against mere intimation calling the candidates to remain present for verification of documents is not maintainable and does not deserve to be entertained.
16. In any case, having regard to the fact that the selection process is concluded and appointment orders have been passed and the selected candidates have been appointed, the petition is, in this present form, even otherwise, rendered infructuous after the respondent issued appointment orders and after the appointments became effective. Besides this, in absence of the selected candidates (appointees) even otherwise the petition does not deserve to Page 11 C/SCA/10933/2015 ORDER be entertained.
For reasons mentioned above, the petition fails and deserves to be rejected and is accordingly rejected. Notice discharged.
(K.M.THAKER, J) SURESH SOLANKI / SAJ Page 12