Gujarat High Court
Neha Shamatbhai Parmar & Ors vs State Of Gujarat & Ors on 21 April, 2017
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/8203/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8203 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6057 of 2011
With
SPECIAL CIVIL APPLICATION NO. 5007 of 2012
With
SPECIAL CIVIL APPLICATION NO. 5758 of 2011
With
SPECIAL CIVIL APPLICATION NO. 5923 of 2011
With
SPECIAL CIVIL APPLICATION NO. 5961 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6106 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6107 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6108 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6110 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6453 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6486 of 2011
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With
SPECIAL CIVIL APPLICATION NO. 7246 of 2011
With
SPECIAL CIVIL APPLICATION NO. 7584 of 2011
With
SPECIAL CIVIL APPLICATION NO. 8252 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6965 of 2011
TO
SPECIAL CIVIL APPLICATION NO. 6973 of 2011
With
CIVIL APPLICATION NO. 6358 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6057 of 2011
With
SPECIAL CIVIL APPLICATION NO. 11163 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
==========================================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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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NEHA SHAMATBHAI PARMAR & ORS ....Petitioners
Versus
STATE OF GUJARAT & ORS ....Respondents
===========================================================
Appearance:
FOR PETITIONERS
MR K. B. PUJARA, ADVOCATE
MR S. I. NANAVATI, SENIOR ADVOCATE with
MR TULSI R SAVANI, & PANKAJ S. CHAUDHARY, ADVOCATES
MR NIKHIL S. KARIEL, ADVOCATE
MR S. P. MAJMUDAR, ADVOCATE
MR RAHUL SHARMA, ADVOCATE
MR APURVA A. DAVE, ADVOCATE
MS VARSHA BRAHMBHATT, ADVOCATE
MR SHAKIL S SHAIKH, ADVOCATE
MR P. S. GOGIA, ADVOATE
FOR RESPONDENTS
MR KAMAL B. TRIVEDI, ADVOCATE GENERAL with
MR RASHESH RINDANI, AGP, for the State
MR DEEPAK G. SHUKLA, ADVOCATE for GPSC
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FOR PRIVATE RESPONDENTS
MR BHASKAR TANNA, SENIOR ADVOCATE for TANNA ASSOCIATES,
MR SHALIN MEHTA, SENIOR ADVOCATE with
MS VIDHI J. BHATT, ADVOCATE
MR. SANAT B. PANDYA, ADVOCATE
MR UMANG A. VAGHELA, ADVOCATE
================================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 21/04/2017
CAV JUDGMENT
1. Challenge in this group of petitions is made by number of petitioners to the actions of the State of Gujarat ('the State' for short) and the Gujarat Public Service Commission ('the GPSC' for short), pertaining to the recruitment process and the appointments / non-appointments in different posts in the Gujarat Civil Services Class-I and Class-II, pursuant to the Advertisement No.87/2006-07 published by the GPSC.
2. Relevant facts giving rise to this batch of petitions, are as under.
2.1 The Gujarat Public Service Commission issued an Advertisement No.87/2006-07 on 26.06.2006 and invited applications for recruitment on different posts in the Gujarat Civil Services Class-I and Class-II. It was for recruitment for total 283 posts. Thereafter, it was amended vide Public Notice Page 4 of 95 HC-NIC Page 4 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT dated 10.11.2006 to increase the total number of posts to be filled in, from 283 to 317. The details of the said advertisement, with required break up, are noted in the later part of this judgment. (Para:35.2).
2.2 Pursuant to the said advertisement, combined competitive examination was conducted by the GPSC. Since there is no controversy regarding conducting the examination, the details with regard to the different stages of the said examination are not elaborated here. Finally, the merit list was published by the GPSC on 13.05.2010. It was for 316 candidates. (The result of one candidate was kept in sealed cover at the relevant time for some reason, which is not the subject matter of this group of petitions, and therefore the figure is 316, as against 317 posts advertised. This difference of one, is not changing the complexion of the matters and therefore even that aspect is not deliberated further.) 2.3 The names of those 316 candidates were recommended by the GPSC to the Government for appointment on the advertised posts. Each candidate was informed about this, individually by the GPSC, vide its letters dated 03.08.2010.
2.4 The candidates were waiting for medical examination call / appointment orders, however the same was not done by the State for more than nine months.
2.5 On 26.04.2011, the GPSC cancelled the earlier merit list dated 13.05.2010 ab initio, and published a fresh merit list of 317 candidates. The names of number of candidates, who were earlier included in the merit list dated 13.05.2010, were Page 5 of 95 HC-NIC Page 5 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT excluded from the merit list dated 26.04.2011.
2.6 It is this batch of candidates (except the petitioner of Special Civil Application No.11163 of 2012), who have approached this Court, principally challenging the revised merit list dated 26.04.2011 and the consequential actions of the respondent State.
2.7 The grievance of the petitioner of Special Civil Application No.11163 of 2012, who is a Male - SEBC candidate, is to the effect that, though his name figures in both the merit lists, and he is entitled to the post of Deputy Superintendent of Police, and the post (from that very advertisement) is vacant, then also, the State has refused to offer the said post to the petitioner.
2.8 In Special Civil Application No.8203 of 2012, serious grievance is voiced and allegations are made against the State, of favouritism and manipulation of record, to appoint the respondent No.4 therein on the post of Deputy Superintendent of Police and continue her on the said post, though she is ineligible to hold that post. The petitioner has prayed for writ of quo warranto against respondent No.4.
3. At the outset, it needs to be noted that, this Court has, on this group of petitions, passed interim orders at different stages, which need to be taken into consideration at this stage. One of such orders needs to be noted at this stage. This Court (Coram: Hon'ble Smt. Justice Abhilasha Kumari) had, on 06.05.2011 recorded the following order on the lead matter being Special Civil Application No.6057 of 2011.
Page 6 of 95HC-NIC Page 6 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT " The learned counsel for the petitioners submits that he may be permitted to file one page petitions for petitioners Nos.2 to 10. Permission to do so, is granted. The said petitions be listed along with the main matter on the next date of hearing. The learned counsel for respondent No.2 may provide the addresses of respondents Nos.3 to 30 to the learned counsel for the petitioners, today.
Heard Mr.K.B.Pujara, learned counsel for the petitioners and Mr.D.G.Shukla, learned counsel for respondent No.2 - Caveator.
At the behest of Mr.Maulik G. Nanavati, learned Assistant Government Pleader, the matter was kept in the second session, in order to enable him to take instructions. When the matter is taken up in the second session, Mr.Maulik G. Nanavati, learned Assistant Government Pleader states, upon instructions from Mr.Harsh Brahmbhatt, Joint Secretary, General Administration Department, that the allotment letter has been issued by the General Administration Department and pursuant thereto, appointment letters have been issued by the concerned Departments.
Notice returnable on 12.5.2011.
It is clarified that any action taken by Page 7 of 95 HC-NIC Page 7 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the respondents shall be subject to the final decision of the petition.
In addition to the normal mode of
service, Direct Service today, is also
permitted."
4.1 Learned advocates for the respective parties are heard at length on different dates. Submissions are noted in para : 5 to
15. Findings of the Court are from para : 16 onwards. The final directions are in para : 40 to 44.
4.2 At this stage, it is noted that this group of petitions was listed for hearing before this Bench from November, 2016. Time and again, adjournments were asked for by one or the other side and therefore the matters could not be taken up for hearing till the month of March, 2017. At one stage, it was inquired by the Court, as to whether any learned advocate or the litigant has any reservation about this Bench taking up the matters. The answer was unanimously 'no objection'. At one stage, learned advocate for the GPSC had requested that some identical matters were listed before the co-ordinate Bench and all the matters were required to be heard together. Time was granted to the learned advocate for the GPSC to do needful. It was stated by him that he had given note to the Registry for that purpose. It was made clear that this Bench was not to call for any other matter, which is not listed before this Bench. Learned advocate for the GPSC subsequently stated that the note filed by him was not entertained by the Registry. It is under these circumstances, the hearing of this group of petitions started in the month of March, 2017 and got Page 8 of 95 HC-NIC Page 8 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT concluded on 06.04.2017 and the Court has proceeded to record this judgment.
5. On behalf of the petitioners, the lead arguments are made by learned advocate Mr. K.B. Pujara. Most of the learned advocates for the petitioners have adopted the arguments made by Mr.Pujara, which are principally on the question of law. Mr. S.I. Nanavati, learned senior advocate has made further submissions on behalf of the petitioners of Special Civil Applications No.5007 of 2012, 5758 of 2011 and 5923 of 2011, by referring to the decision of the Rajasthan High Court. Mr.Rahul Sharma, learned advocate has addressed the Court on behalf of the petitioner of Special Civil Application No.8203 of 2012, wherein writ of quo warranto is prayed against the respondent No.4 therein. It is more on facts. On behalf of the respondent Authorities, the lead arguments are made by Mr.Kamal Trivedi, learned Advocate General. Mr.D.G.Shukla, learned advocate for the Gujarat Public Service Commission has also addressed the Court. For some of the private respondents, Mr.Bhaskar Tanna and Mr.Shalin Mehta, learned senior advocates have made the submissions. For the respondent No.4 in Special Civil Application No.8203 of 2012, in which writ of quo warranto is prayed, Mr.Sanat B. Pandya, learned advocate has made the submissions.
6.1 Mr.K.B.Pujara, learned advocate for the petitioners has firstly taken this Court through the preface of the impugned merit list dated 26.04.2011. It is submitted that the following two decisions of the Supreme Court of India are shown to be the basis by the GPSC, for canceling the earlier merit list dated 13.05.2010.
Page 9 of 95 HC-NIC Page 9 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT (i) Union of India vs Ramesh Ram & Others
reported in (2010) 7 Supreme Court Cases 234, and
(ii) Public Service Commission, Uttranchal Vs. Mamta Bisht and Others reported in AIR 2010 Supreme Court 2613, 6.2 It is submitted that there is no rule in the State of Gujarat, like the one which was the subject matter before the Supreme Court of India in the case of Ramesh Ram (supra) and therefore the said decision is not applicable in the recruitment in question. It is further submitted by him that, the said decision was considered by this Court while deciding the group of petitions being Special Civil Application No.12266 of 2011 and cognate matters vide judgment dated 31.08.2012 and the said decision is confirmed by the Division Bench of this Court in Letters Patent Appeal No.60 of 2013 (order dated 18.04.2013). It is submitted that it is this decision of this Court which will be applicable in the recruitment in question. Attention of this Court is invited to the various paragraphs of the said decision wherein there is specific reference of the decision of the Supreme Court of India in the case of Ramesh Ram. It is submitted that the non-applicability of Ramesh Ram in the services of the State of Gujarat is the concluded issue and therefore the very foundation of the impugned merit list dated 26.04.2011 would go and therefore the same needs to be set aside.
6.3 It is submitted that so far the decision in the case of Mamta Bisht (supra) is concerned, firstly it is not the law at all.
Page 10 of 95HC-NIC Page 10 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT For this purpose, he has taken this Court through the decision of the Supreme Court of India in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others reported in (2007) 8 SCC 758. It is submitted that in Mamta Bisht only reference was made to the decision of Rajesh Kumar Daria and it can not be said that Mamta Bisht is the law on that point. He has specifically referred to the dates of both the decisions. It is submitted that the same is not applicable in the recruitment in question, nor it is followed by the GPSC itself in other recruitments. Attention of this Court is invited to the subject matter of Special Civil Application No.4453 of 2012 which was being heard with this group of petitions. Mr.Pujara, learned advocate has also taken this Court through the facts regarding the recruitment of Assistant Conservator of Forest and the Range Forest Officers which was conducted by the GPSC and the result of which was published by it years after the impugned merit list. It is submitted that the selective implementation of some decisions need to be scrutinised by this Court. For this purpose, he has referred to the facts regarding the recruitment of the Assistant Conservator of Forest / Range Forest Officers, as noted in the decision of this Court in Special Civil Application No.13857 of 2014 (order dated 11.06.2015) and Letters Patent Appeal No.1103 of 2015.
6.4 It is submitted by him that, the action of the Gujarat Public Service Commission and the State to take recourse to Ramesh Ram and Mamta Bisht is not well founded and therefore the impugned merit list dated 26.04.2011 needs to be set aside and the earlier merit list dated 13.05.2010 needs to be restored. It is submitted that the petitioners were already included in the select list of dated 13.05.2010 and had the said Page 11 of 95 HC-NIC Page 11 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT list not been reshuffled, as was done on 26.04.2011, all the petitioners would have got appointments as Class I and / or Class II Officers.
6.5 Reliance is also placed on the decision of the Division Bench of this Court in the case of Dr.Komal Katara Vs. GPSC (Letters Patent Appeal No.1412 of 2009 dated 10.09.2009). It is submitted that the said decision was taken into consideration by GPSC while preparing the select list dated 13.05.2010.
6.6 Without prejudice to the above contentions, it is further submitted that there are many posts which have remained vacant because of non-joining of the candidates appointed from the impugned merit list dated 26.04.2011 and thus, the grievance of the petitioners can be redressed keeping in view that factual aspect also.
6.7 It is submitted that the petitioners who are next meritorious candidates can claim the appointment against the unfilled notified vacancies, as a matter of right. For this purpose, he has relied on the following decisions of the Supreme Court of India.
(1) (2013) 12 SCC 171 - Manoj Manu Vs. Union of India.
(2) (2013) 11 SCC 737 - State of Jammu and Kashmir Vs. Sat Pal (3) 1994 Supp (2) SCC 591 - Gujarat State Dy.
Executive Engineers' Association Vs. State of Gujarat.
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7. Mr.S.I.Nanavati, learned senior advocate for some of the petitioners has submitted that Mamta Bisht will not have any applicability in the present case, however according to him, the present case should be governed by the decision of the Rajasthan High Court in the case of Soniya Sharma Vs. State (Panchyati Raj Department) (S.B.Civil Writ Petition No.11119 of 2012 and cognate matters dated 15.03.2013). It is submitted that a reserved category candidate can not be migrated. It is submitted that the impugned notification dated 26.04.2011 be quashed and set aside. Learned Senior Advocate has further contended that, without prejudice to the principal contention about the non-applicability of Ramesh Ram and Mamta Bisht, even on facts also, the petitioners are entitled to relief. It is submitted that exclusion of the petitioners from the select list, is only because of the mischief played by some of the Officers of the State. Learned senior advocate has taken this Court through the material on record and has pointed out as to how, at each stage, mischief is committed.
8. Mr.Rahul Sharma, learned advocate for the petitioner of Special Civil Application No.8203 of 2012 has adopted the arguments of Mr.Pujara, so far the question of law is concerned. He has however made further submissions on facts which are peculiar in the said petition. It is submitted by him that, the respondent No.4 in the said petition, is ineligible to hold the post of Dy.S.P. since she is not meeting with the eligibility criteria prescribed under the recruitment rules for the post in question. He has specifically referred to the requirements qua the chest measurement. Attention of the Court is invited to the averments made in the petition, more Page 13 of 95 HC-NIC Page 13 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT particularly from para:4.1 onwards along with the material annexed with the petition, which the petitioner has got under the Right to Information Act, from the State Authorities. On behalf of the petitioner, very courteously it is indicated that, respondent No.4 is the daughter of very senior IAS Officer. It is further submitted that the Officers of the Government have gone to the extent of manipulation of record to favour the said candidate. By referring to the medical certificates, which are on record, he has submitted that there has been tampering of record. It is submitted that, the said candidate be directed to vacate the public office which she has usurped. It is further submitted that the petitioner is the next meritorious candidate, who also belongs to Scheduled Caste Female Category, to which the said respondent belongs to and thus it is the petitioner herself who should be appointed on the said post. Learned advocate has submitted that the height and chest measurement as prescribed in the Recruitment Rules for the post of Deputy Superintendent of Police can not be equated with the medical fitness. It is submitted that the respondent No.4 is not only medically unfit, she is ineligible to hold the post. Learned advocate has also taken this Court to the various provisions regarding appeal against the decision of the Medical Board. It is submitted that, the appointment of the Respondent No.4 be quashed. He has relied on the following decisions in support of his submissions.
(1) Gujarat State Dy. Executive Engineers' Assocation Vs. State of Gujarat and Others - 1994 Supp.(2) SCC 591.
(2) Rakesh Kumar Sharma Vs. State (NCT of Delhi) Page 14 of 95 HC-NIC Page 14 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT and Others reported in (2013) 11 SCC 58.
9. Mr.K.B.Pujara, learned advocate for the petitioner in Special Civil Application No.11163 of 2012 has submitted that the said candidate belongs to SEBC category and he should have been appointed as Dy.S.P. It is further submitted that the post reserved for SEBC have even otherwise remained unfilled and the same should have been offered to the petitioner. It is further submitted that since it is a reserved post, it could not have been carried forward. It is submitted that the petitioner be granted appropriate relief.
10. On the other hand, Mr.Kamal Trivedi, learned Advocate General appearing on behalf of the Respondent State has submitted that, the action of the State of requesting the GPSC to take into consideration the decisions of the Supreme Court of India in the case of Ramesh Ram and Mamta Bisht can not be said to be illegal and / or arbitrary in any manner. It is submitted that the decision of Ramesh Ram is by the constitution bench of the Supreme Court of India and the reference was made to the constitution bench by the three judges' bench of the Supreme Court. He has taken this Court through both the decisions of the Supreme Court in the said case i.e. the decision by the Bench of three Hon'ble Judges of the Supreme Court of India reported in (2009) 6 SCC 619 (Decision dated 14.05.2009), and the final judgment by the Constitution Bench (of Five Hon'ble Judges) of the Supreme Court of India reported in (2010) 7 SCC 234. It is submitted by him that, only because the State of Gujarat does not have any rule which was before the Supreme Court in the said case, that itself is no ground not to follow the mandate of the Supreme Page 15 of 95 HC-NIC Page 15 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Court of India. He has further submitted that, the State is under legal obligation to protect the interests of the citizen and while doing so, there can not be any conservative approach. It is further submitted by him that, the action of the State can not be tested merely by looking at the language of the Rule, or even as to whether there is any such rule or not. It is submitted that the Ramesh Ram is rightly applied in the recruitment in question. It is submitted that the decision of this Court recorded on Special Civil Application 12266 of 2011 and cognate matters was dealing with the posting of Vidya Sahayaks and therefore Ramesh Ram was not applicable in that case. Thus, the non-applicability of Ramesh Ram as held by this Court in the said decision has to be seen in that background.
11. Learned Advocate General has also submitted that, even Mamta Bisht is rightly applied in the recruitment in question. It is submitted by him that the decision of the Division Bench of this Court in the case of Komal Katara (supra) was in the peculiar facts and the same could not have been applied in the recruitment in question. It is further submitted that, the decision of the Rajasthan High Court in the case of Soniya Sharma Vs. State (Panchyati Raj Department) (S.B.Civil Writ Petition No.11119 of 2012 and cognate matters dated 15.03.2013) as relied by Mr.S.I.Nanavati, learned senior advocate for some of the petitioners, will also not have any applicability in the recruitment in question.
12.1 Replying to the contentions of the petitioner in Special Civil Application No.8203 of 2012, it is submitted by learned advocate general that no manipulation is made by any Officer Page 16 of 95 HC-NIC Page 16 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT as alleged by the petitioner. He has taken this Court through the contents of the Affidavit in Reply filed on behalf of the State through Under Secretary of the General Administration Department which is at page 106 onwards. Since in this petition, writ of quo warranto is prayed against the respondent No.4 and the appointing Authority is the Home Department and since there is no reply from the Appointing Authority, it was requested by him that, this petition may be permitted to be contested by referring to the file of the Home Department and the General Administration Department of the Government of Gujarat, which is accepted by this Court. It is noted that this is how the record of the State has come on record of this group of petitions. Based on the said record, learned advocate general has submitted that no illegality is committed by the State Authorities, at any stage in the recruitment in question. It is submitted that all the petitions including Special Civil Application No.8203 of 2012 be dismissed.
12.2 Replying to the case the petitioners of Special Civil Application No.11163 of 2012, learned advocate general has submitted that the said petitioner could not have been offered the post of Dy.S.P. since he was not within the zone of merit, at the time of allotment. It is submitted that if the candidate appointed does not join, the said post is not made available to any other candidate and the same is carried to the next advertisement. It is further submitted that the said post even otherwise, can not go to this petitioner, since there are many more persons above him in the merit list. It is submitted that this petition also be dismissed.
13.1 Learned advocate general has taken this Court through Page 17 of 95 HC-NIC Page 17 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the various provisions of the Examination Rules, General Conditions of Service Rules etc., to contend that the State has acted strictly in accordance with Rules and no interference be made by this Court. He has specifically referred to the Notification of the State dated 17.01.2009 which according to him, prohibits preparation of the waiting list. Since the said Notification was not on record, a copy thereof was made available to this Court. On the request of the Court, even the copy of the relevant pages of the file, on which the said Notification was issued, are made available to this Court. It is submitted by him that the posts which have remained vacant, because of non-joining of the candidates, can not be offered to the next meritorious candidates. Learned Advocate General has also drawn the attention of this Court to the decision of the Division Bench of this Court in the case of D.G.Dalal Vs. State of Gujarat reported in 2002 (2) G.L.R. 1011, a copy of which his annexed with the affidavit in reply in Special Civil Application No.11163 of 2012. The said decision was finally implemented by the Government by Office Orders dated 04.08.2008, a copy of which is also made available to this Court. It is submitted by him that, all the petitions be dismissed.
13.2 At this stage, it is noted that, during the course of hearing, the standing instructions / orders of the State about the 'channel of submission' were required, which the learned Assistant Government Pleader has made available to this Court. He has given the copy of the Government Resolution dated 23.12.2005, which even otherwise is in the public domain. He further states that the said Government Resolution holds the field, even now.
Page 18 of 95HC-NIC Page 18 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT 13.3 Mr. Kamal Trivedi, learned Advocate General has, in support of his submissions, relied on the following decisions :
(1) (1991) 3 SCC 47 - Shankarsan Dash versus Union of India.
(2) (2004) 2 SCC 681 - Bihar Electricity Board versus Suresh Prasad.
(3) (1994) 6 SCC 151 - State of M.P. Vs. Raguveer
Singh Yadav
(4) (1993) 1 SCC 154 - Union Territory of
Chandigarh Vs. Dilbagh Singh.
(5) (2014) 16 SCC 187 - Ranjan Kumar Vs. State of
Bihar
(6) 1995 Supp (1) SCC 179 - Ishwar Singh Ajay
Kumar Vs. Kuldip Singh
(7) 1995 Supp (2) SCC 663 - Bhagwanti Vs.
Subordinate Services Selection Board Haryana. (8) (2007) 8 SCC 785 - Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others (9) (2010) 7 SCC 234 - Union of India Vs. Ramesh Ram (10) (2013) 4 SCC 540 - Tej Prakash Pathak Vs. Rajasthan High Court.
(11) (2003) 11 SCC 584 - Ashwani Kumar Singh Vs. U.P. Public Service Commission (12) (1996) 3 SCC 253 - Ritesh R. Sah Vs. Dr.Y.L. Yamul (13) (2005) 9 SCC 742 - Anurag Patel Vs. U.P. Public Service Commission (14) (2006) 4 SCC 550 - Union of India Vs. Satya Page 19 of 95 HC-NIC Page 19 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Prakash
14. Mr.D.G.Shukla, learned advocate for the Gujarat Public Service Commission has adopted the arguments of learned Advocate General and has submitted that no illegality is committed by the GPSC at any stage. It is submitted by him that, no interference be made by this Court. It is submitted that all these petitions be dismissed.
15.1 Mr.Bhaskar Tanna, learned senior advocate for some of the private respondents has submitted that, no interference be made by this Court in the appointments already made. It is further submitted by him that even if this Court is to give any direction about offering appointments to the next meritorious candidates against the posts which have remained vacant, it should not result in heart burning of meritorious candidates by continuing them in the post of lower preference.
15.2 Mr.Shalin Mehta, learned senior advocate for one of the private respondents (Ms.Neeta Desai respondent No.8 in Special Civil Application No.5007 of 2012) has submitted that, the said respondent does meet with all the criteria and even the State has accepted the case of the said respondent and no interference be made by this Court. It is further submitted by him that there is no prayer for issuance of writ of quo warranto. It is submitted that this petition be dismissed.
15.3 Mr.Sanat B. Pandya, learned advocate for respondent No.4 in Special Civil Application No.8203 of 2012 has submitted that, there is no illegality in the appointment of the said candidate or continuance of her service by the State. It is Page 20 of 95 HC-NIC Page 20 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT submitted that the said candidate does meet with the required physical standard and no interference be made by this Court. It is submitted that this petition be dismissed.
16. Having heard learned advocates for the respective parties and having considered the material on record, the following five issues have arisen in this group of petitions, which need to be answered by this Court.
16.1 The first is :- whether the decisions of the Supreme Court of India in the case of Ramesh Ram and Mamta Bisht will have any application in the recruitment in question.
16.2 The second is :- while following the above principles of law in the recruitment in question, whether the actions of the State and the GPSC are otherwise erroneous and / or mischievous, as alleged by the petitioners.
16.3 The third is :- whether any illegality is committed by the State while giving appointments to the candidates from the impugned revised merit list dated 26.04.2011, prepared and published by the GPSC.
16.4 The fourth is :- whether any ineligible person is appointed from the impugned list and if yes, whether he / she is illegally continued by the State in service, and for that purpose, whether any manipulation / tampering is made with the record by any officer, as alleged by the petitioners.
16.5 The fifth is :- after giving such appointments from the impugned merit list dated 26.04.2011, at least 41 candidates Page 21 of 95 HC-NIC Page 21 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT have not joined the service, which the State is refusing to make available to the candidates who are next in merit, on the basis of the very same examination, though the claim of those next meritorious candidates is within the notified and vacant posts. Whether this action of the State is sustainable and / or whether the claim of the petitioners should be accepted to the extent of notified vacant posts.
17.1 The findings qua the first issue are in para : 18 and 19. The conclusion is in para:19.6.
17.2 The findings qua issue No.2 should be noted immediately thereafter, however this Court has thought it proper to address the issues No.3 and 4 before that. The issue No.2 is discussed thereafter, which has some relevance. The issues No.3 and 4 are interconnected and therefore are dealt with together and findings in that regard are recorded in para : 21 to 27. The conclusion on these points is noted at para: 27.1.
17.3 The findings qua issue No.2 are recorded in para : 28 to 30 and para: 31 to 34. The conclusion is noted in para: 30, 32.8, 33 and 34.
17.4 The findings qua issue No.5 are in para : 35 to 39. The conclusion is noted in para:39.
17.5 The final directions are recorded in para : 40 to 44.
18. The findings of this Court, qua the first issue, need to be noted under two heads. The first is qua Ramesh Ram and the second is qua Mamta Bisht. It needs to be first seen as to Page 22 of 95 HC-NIC Page 22 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT whether there is any declaration of law by the Supreme Court in those two decisions, and if yes, what is the proposition of law and whether the same would have any applicability in the recruitment in question (Advertisement No.87/2006-07).
18.1 So far Ramesh Ram is concerned, two decisions need to be taken note of. The first was by the Bench of three Hon'ble Judges of the Supreme Court of India reported in (2009) 6 SCC 619 (Decision dated 14.05.2009), by which the matter was referred to the Constitution Bench. And the second is the final judgment by the Constitution Bench (of Five Hon'ble Judges) of the Supreme Court of India reported in (2010) 7 SCC 234.
18.2 The subject matter before the Supreme Court of India in the said case was the validity of Rule 16(2) to 16(5) of the Civil Services Examination Rules (for the Central Government Services). The Constitution Bench framed three issues for its consideration. They are referred in para : 20 of the said decision. It reads as under.
"20. In the light of the submissions made by the learned counsel appearing for different appellants, the following questions arise for consideration:
I. Whether the Reserved Category candidates who were selected on merit (i.e. MRCs) and placed in the list of General Category candidates could be considered as Reserved Category candidates at the time of "service allocation"?Page 23 of 95
HC-NIC Page 23 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT II. Whether Rules 16 (2), (3), (4) and (5) of the CSE Rules are inconsistent with Rule 16 (1) and violative of Articles 14, 16 (4) and 335 of the Constitution of India?
III. Whether the order of the Central Administrative Tribunal was valid to the extent that it relied on Anurag Patel v. Uttar Pradesh Public Service Commission and others, (2005) 9 SCC 742 (which in turn had referred to the judgment in Ritesh R. Sah v. Dr. Y.L. Yamul and Others, (1996) 3 SCC 253, which dealt with reservations for the purpose of admission to post graduate medical courses); and whether the principles followed for reservations in admissions to educational institutions can be applied to examine the constitutionality of a policy that deals with reservation in civil services."
18.3 After considering all relevant aspects and the constitutional guarantees to the citizen, the Supreme Court finally concluded as under.
"72. We sum up our answers:
i) MRC candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC Page 24 of 95 HC-NIC Page 24 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT candidates in the General Pool will be offered to General category candidates.
ii) By operation of Rule 16 (2), the reserved status of an MRC candidate is protected so that his/ her better performance does not deny him of the chance to be allotted to a more preferred service.
iii) The amended Rule 16 (2) only seeks to recognize the inter se merit between two classes of candidates i.e. a) meritorious reserved category candidates b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various Civil Services with due regard for the preferences indicated by them.
iv) The reserved category candidates "belonging to OBC, SC/ ST categories" who are selected on merit and placed in the list of General / Unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles 14, 16(4) and 335 of the Constitution. "
18.4 The reason to refer the matter to the Constitution Bench is noted in the referring judgment (of three Hon'ble Judges) in para : 24 which reads as under.Page 25 of 95
HC-NIC Page 25 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT "24.In view of the fact that the issues raised and discussed relating to amended Rule 16 of CSE (is) applicable to all Central Civil Services, we are of the view that an authoritative pronouncement is needed, particularly, in the light of the various decisions referred above, hence, all these SLPs and Writ Petitions are referred to a Constitution Bench"
18.5 Thus the impact of the said decision even by the Constitution Bench was conceived to be applicable to all the Central Government Services. Though learned advocates for the petitioners are right in their contention that there is no such rule in the State of Gujarat like Rule 16 which was before the Supreme Court, the submission that therefore the decision in the case of Ramesh Ram would not be applicable in the present case, can not be straightway accepted and it may require further scrutiny by the Court. This Court has considered the said decision in totality, including the reasons recorded therein qua each issue framed by the Court and having done so, this Court finds that, it would be improper to ignore the mandate of the Supreme Court in the said decision. Further, the decision of the Constitution Bench of the Supreme Court of India can not be said to be 'in the facts of that case' and the same has to be accepted as the law of the land. There is substantial force in the submission of learned advocate general that the State was under legal obligation to follow the mandate of the said decision and the action of the State can not be tested merely by looking at the language of the Rule, or even as to whether there is any such rule or not. The Constitution has guaranteed certain rights in favour of the reserved Page 26 of 95 HC-NIC Page 26 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT category candidates and if any rule infringes upon such guarantee, the concerned rule has either to be struck down or ignored or be read down, to make the action in conformity with the Constitutional guarantee. Reliance by learned advocate general on para : 60 of the said decision is well founded. The answer by the Supreme Court in the said para was to the objections by one of the parties, which was noted in para : 59. Both those para read as under.
"59.On behalf of the respondents in the appeals, it was submitted (that) Rules 16(2), (3), (4) & (5) infringes Article 16(4). We do not accept this proposition since Rule 16 (2) and the subsequent sub-rules merely recognize and advance inter se merit among the Reserved Category candidates in the manner that has been demonstrated before us by Learned Solicitor General. Therefore, Rule 16 protects the interests of a Reserved Category candidate selected in the general (unreserved) category by giving him the option either to retain his position in the open merit category or to be considered for a vacancy in the Reserved Category, if it is more advantageous to him/her.
60. The need for incorporating such a provision is to arrest arbitrariness and to protect the interests of the Meritorious Reserved Category candidates. If such rule is declared redundant and unconstitutional vis-à-vis Article 14, 16 and 335 then the whole object of equality clause in Page 27 of 95 HC-NIC Page 27 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the Constitution would be frustrated and the MRC candidates selected as per the general qualifying standard would be disadvantaged since the candidate of his/her category who is below him/her in the merit list, may by availing the benefits of reservation attain a better service when allocation of services is made. Rule 16 in essence and spirit protects the pledge outlined in the Preamble of the Constitution which conceives of equality of status and opportunity."
18.6 In totality, this Court finds that the decision of the Constitution Bench of the Supreme Court of India is the declaration of law, which needs to be applied with full force and in totality even in the recruitment in question, though there may not be any rule like that in the State of Gujarat.
18.7 The decision of the co-ordinate Bench of this Court recorded on Special Civil Application No.12266 of 2011 will not take the case of the petitioners any further because of the reasons recorded in that very decision. It was a case of grievance against the posting of Vidya Sahayaks in particular Districts. While dealing with those facts, this Court held that Ramesh Ram would not be applicable in the said case.
18.8 Thus, on this principal contention, the case of the petitioners is rejected.
19.1 So far the decision of the Supreme Court of India in the case of Mamta Bisht is concerned, it needs to be first seen as to whether there is any declaration of law in that decision. The Page 28 of 95 HC-NIC Page 28 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT subject matter before the Supreme Court in the said case was, one decision of the High Court of Uttranchal. After referring to the facts of that case, the Supreme Court in para : 13 observed as under.
"13. The view taken by the High Court on application of horizontal reservation is contrary to the law laid down by this Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. AIR 2007 SC 3127, wherein dealing with a similar issue this Court held as under:
"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their Page 29 of 95 HC-NIC Page 29 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal versus State of Punjab, Union of India versus Virpal Singh Chauhan and Ritesh R. Sah versus Dr. Y.L. Yamul). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the Page 30 of 95 HC-NIC Page 30 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women." (Emphasis added)"
19.2 From the above it transpires that, there is no declaration of law in the decision of Mamta Bisht (supra), but the declaration of law can be traced in the decision of the Supreme Court of India in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission reported in (2007) 8 SCC 785.
19.3 The decision in the case of Mamta Bisht was only to the effect that the High Court of Uttranchal, fell in error in not following the ratio of Rajesh Daria in that case. The impugned revised merit list dated 26.04.2011 is claimed to have been based on the ratio in the case of Mamta Bisht. Only because the State and the GPSC have referred to the citation of Mamta Bisht and not of Rajesh Daria, that itself would not make the law inapplicable. The decision of the Supreme Court of India in the case of Rajesh Daria is the law and the same would apply to the recruitment in question as well. Thus the second limb of the argument, on behalf of the petitioners, on the question of law, also needs to be rejected.
19.4.1 At this stage, reference needs to be made to one of the decisions of the Division Bench of this Court in the case of Komal Katara, which is heavily relied by learned advocates for the petitioners. In this regard, it needs to be noted that the Page 31 of 95 HC-NIC Page 31 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT said decision was rendered by this Court in the peculiar facts where the Scheduled Tribe Female candidates had approached this Court with the grievance that though the posts reserved for Scheduled Tribe candidates were vacant, it was not offered to them only on the ground that they were Female candidates and the vacant posts were reserved for Scheduled Tribe Male candidates. It was the case of those female candidates that the posts reserved for Female can be said to be reserved for Female candidates, however other posts earmarked for Scheduled Tribe candidates can not be said to be reserved for Scheduled Tribe Male candidates. It is this case which the Division Bench of this Court had accepted in the said case. For this reason it is noted that, the decision of the Division Bench of this Court in the case of Komal Katara (supra) would not have any applicability in the recruitment in question.
19.4.2 Thus, the decision of the Division Bench of this Court in the case of Komal Katara, was the decision in the facts of that case and is not the law. Even otherwise, it is the decision of the Supreme Court of India, which would prevail over the decision of the High Court. Thus, the decision of the Devision Bench of this Court in the case of Komal Katara, could not be applied in the recruitment in question as the guiding law.
19.5 So far the Rajasthan High Court decision in the case of Soniya Sharma (supra) is concerned, that also will not have any applicability in the present recruitment, since the Rajasthan High Court was dealing with a case where many reserved category woman candidates, who availed relaxation / concession in selection were migrated to general category, Page 32 of 95 HC-NIC Page 32 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT which was held to be impermissible. Thus the said decision was in that factual background and the same can not be said to be a proposition of law which may have any bearing while deciding the question of law which have cropped in this group of petitions.
19.6 Considering the totality, it is held that the decisions of the Supreme Court of India in the case of Ramesh Ram and Rajesh Daria are the declarations of law, which are applicable to all the recruitments and the recruitment in question is no exception. The first issue is thus answered in favour of the respondent Authorities.
20. Having answered the issue No.1 in favour of the respondent Authorities as above, the issue No.2 should be considered next, however this Court has thought it proper to address the issues No.3 and 4 first. The issue No.2 is discussed thereafter. It has some relevance, which is noted in the later part of this judgment. (This relevance comes at para : 34.)
21. As noted above, the issues No.3 and 4 are interconnected and therefore need to be dealt with together. Those issues are :-
(A) Issue No.3 :- Whether any illegality is committed by the State while giving appointments to the candidates from the impugned revised merit list dated 26.04.2011, prepared and published by the GPSC.
(B) Issue No.4 :- Whether any ineligible person is appointed from the impugned list and if yes, whether he / she is illegally Page 33 of 95 HC-NIC Page 33 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT continued by the State in service, and for that purpose, whether any manipulation / tampering is made with the record by any officer, as alleged by the petitioners.
22. Though all the learned advocates for the petitioners have submitted that, number of illegalities are committed by the State Authorities while acting upon an illegal merit list, in Special Civil Application No.8203 of 2012 serious grievance is voiced and allegations are made against the State, of favouritism and manipulation of record, to appoint the respondent No.4 therein on the post of Deputy Superintendent of Police and continue her on the said post, though she is ineligible to hold that post. The petitioner has also prayed for writ of quo warranto against respondent No.4. This aspect needs to be addressed first. For that purpose, the relevant Rules need to be noted first and thereafter it may be examined as to whether respondent No.4 continues to hold a public office in breach of any statutory rule.
23.1 The recruitment to the post of Deputy Superintendent of Police (Unarmed) (which is the post in question in SCA No. 8203 of 2012) is regulated by the Statutory Rules framed by the Government (Home Department) in exercise of its powers under proviso to Article 309 of the Constitution of India. Notification in that regard was issued by the Home Department of the Government of Gujarat on 28.02.1990.The said set of Rules (to the extent necessary) are quoted hereunder.
" 1. These rules may be called the Deputy Superintendent of Police (Unarmed) in the districts and Superintendent of Police (Unarmed) Page 34 of 95 HC-NIC Page 34 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT in the Police Commissionerate Cities Class-I, Recruitment Rules, 1989.
2. Appointment to the post of Deputy Superintendent of Police (Unarmed) in the district and Superintendent of Police (Unarmed) in the Police Commissionerate cities shall be made either:-
(a) by promotion of a person of proved merit and efficiency from amongst the persons, who have worked for not less than eight years in the cadre of Police Inspector (Unarmed) Class-II in the Gujarat Police Service:
Provided that -------
OR
(b) by direct selection.
3. The appointments by direct selection and promotion shall be made in the ratio of 1:2,
-----
4. To be eligible for appointment by direct selection to the post mentioned in rule-2, a candidate shall-
(a) have attained the age of 21 years and must not have attained the age of 28 years.
(b) Possess a degree of any of the Universities Page 35 of 95 HC-NIC Page 35 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT incorporated by an Act of the Central of State Legislature in India or other educational Institute established by an Act of Parliament or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956 or possess an equivalent qualification.
(c) Must possess minimum :-
(a)height of 1.65 Meters and
(b) Chest measurement of not less than 0.84 meter deflated (minimum), with a minimum expansion of 0.05 Meters between deflated and inflated measurements:
Provided that the measurement of height shall be 1.60 meters in case of candidates belonging to Scheduled Tribes originally belonging to Gujarat State."
23.2 The above set of Rules came to be amended by the State vide Notification dated 10.06.1991 to the following effect.
"1. These rules may be called the Deputy Superintendent of Police (Unarmed) in the districts and Superintendent of Police (Unarmed) in the Police Commissionerate Cities Class-I, (First Amendment) Recruitment Rules, 1991.
2. In the Deputy Superintendent of Police Page 36 of 95 HC-NIC Page 36 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT (Unarmed) in the District and Superintendent of Police (Unarmed) in the Police Commissionerate Cities, Class-I, Recruitment Rules, 1989 (hereinafter referred as "the said rules") in rule 2(b), after the wards, "by direct selection" following shall be added, namely "on the basis of the result of combined competitive Examination for recruitment to Scheduled post held by the Gujarat Public Service Commission in accordance with Gujarat Civil Service Recruitment (Examination) Rules 1980"
3. In rule 4, in Clause (C) sub Clause (a) and
(b) shall be re-numbered as (i) and (ii) respectively."
23.3 The above set of Rules further came to be amended by the State vide Notification dated 18.01.1993 to the following effect.
"1. These rules may be called the Deputy Superintendent of Police (Unarmed) in the districts and Superintendent of Police (Unarmed) in the Police Commissionerate Cities Class-I, (2nd Amendment) Recruitment Rules, 1992.
2. In the Deputy Superintendent of Police (Unarmed) in the District and Superintendent of Police (Unarmed) in the Police Commissionerate Cities, Class-I, Recruitment Rules, 1991 after the Clause (c) of Rule-4, Page 37 of 95 HC-NIC Page 37 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT "(d) In case of female candidates;
(i) the measurement of height shall not be less than 1.58 meters (158 centimeters).
Provided that the measurement of
height shall not be less than 1.56
meters (156 centimeters) in case of
Scheduled Tribes female candidates
belonging to Gujarat State originally;
(ii) the chest measurement shall not be less than 0.79 meters (i.e. 79 centimeters) deflated (minimum with a minimum expansion of 0.05 meter between deflated and inflated measurements."
23.4 The respondent No.4 in Special Civil Application No.8203 of 2012, whose appointment is under challenge and against whom writ of quo warranto is sought from this Court, is a Scheduled Caste female candidate, who is a direct recruit. The eligibility criteria as applicable to her, as prescribed in the Recruitment Rules (with amendments) read as under.
" 4. To be eligible for appointment by direct selection to the post mentioned in rule-2, a candidate shall-
(a) have attained the age of 21 years and must not have attained the age of 28 years.Page 38 of 95
HC-NIC Page 38 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT
(b) Possess a degree of any of the Universities incorporated by an Act of the Central of State Legislature in India or other educational Institute established by an Act of Parliament or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956 or possess an equivalent qualification.
(c) Must possess minimum :-
(i)height of 1.65 Meters and
(ii) Chest measurement of not less than 0.84 meter deflated (minimum), with a minimum expansion of 0.05 Meters between deflated and inflated measurements:
Provided that the measurement of height shall be 1.60 meters in case of candidates belonging to Scheduled Tribes originally belonging to Gujarat State."
(d) In case of female candidates;
(i) the measurement of height shall not
be less than 1.58 meters (158
centimeters).
Provided that the measurement of height shall not be less than 1.56 meters (156 Page 39 of 95 HC-NIC Page 39 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT centimeters) in case of Scheduled Tribes female candidates belonging to Gujarat State originally;
(ii) The chest measurement shall not be less than 0.79 meters (i.e. 79 centimeters) deflated (minimum) with a minimum expansion of 0.05 meter between deflated and inflated measurements."
23.5 Rule 4(a) pertains to age and Rule 4(b) pertains to educational qualification. No dispute is raised with regard to the age and educational qualification of the concerned respondent. This Court has verified from record that there is no breach so far these two aspects are concerned. No further scrutiny and / or discussion is required qua those two eligibility criteria. Rule 4(c) is qua male candidates and since the concerned respondent is a female, this sub-rule would not applicable in this case.
23.6 Sub-rule (d) of Rule 4 mandates that the concerned candidate (the present respondent No.4) must have possessed the following, to be considered eligible for the post in question.
(i) Height :
Not less than 1.58 meters (i.e. 158 centimeters)
(ii) Chest Measurement :
Not less than 0.79 meter (i.e. 79 centimeters) - deflated Page 40 of 95 HC-NIC Page 40 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT with Minimum expansion of 0.05 meter (i.e. 5 centimeters) between deflated and inflated measurements.
23.7 The medical examination of the said respondent is conducted by the Competent Authorities of the State, more than once. The medical certificates on record indicate that the height of the said respondent is not less than 158 centimeters.
The said respondent thus meets with the eligibility criteria, so far Rule 4(d)(i) is concerned.
23.8 Rule 4(d)(ii) prescribes two parameters. Firstly, that the minimum chest measurement (deflated) should not be less than 79 centimeters and secondly, that there must be minimum expansion of 5 centimeters between deflated and inflated chest measurement. There is material on record which confirms that none of the two eligibility criteria prescribed in Rule 4(d)(ii) are met with by the concerned respondent.
23.9 Though serious allegations are made by the petitioner against the State Authorities of manipulation of the record to favour the said respondent, that aspect is not gone into, for the time being, and the medical certificate, which is pressed into service by the State Authorities is taken into consideration by this Court. It is Annexure-VII with the affidavit in reply dated 13.12.2016 filed on behalf of the respondent State through the Under Secretary of the General Administration Department. The said reply is at page 106 to 116 and the Annexures thereto are from pages 117 to 213. The medical certificate which is relied by the State Authorities to defend the appointment of Page 41 of 95 HC-NIC Page 41 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the said respondent is dated 02.12.2011 and it is at page 183. It only certifies that the height of the said candidate was 163 centimeters. It does not speak of any other parameter. It was the second examination. Earlier medical examination was conducted on 01.06.2011 and she was declared medically unfit and ineligible since she was not meeting with the criteria prescribed in Rule 4(d). The said certificate is on record at page 85. This ineligibility is even noted on the file of the Appointing Authority i.e. the Home Department of the Government of Gujarat, the copy of which is on record at page
98. It is to the effect that as against the minimum chest measurement (deflated) of not less than 79 centimeters, the said candidate is having 77.5 centimeters. Additionally the chest expansion is 4.5 centimeters as against the minimum requirement of 5 centimeters. Thus as per the first medical examination conducted on 01.06.2011, the said candidate was meeting with the criteria of height but had failed on both the parameters of chest measurement. The second examination therefore was not required for height but it was for chest measurement. The second medical examination was conducted on 02.12.2011. As noted above, it only certifies that the height of the respondent was measured as 163 centimeters. On conjoint consideration of both the certificates, it is undisputed that the said candidate is ineligible to hold the post of Deputy Superintendent of Police since she does not meet with the statutory provision prescribed in Rule 4(d)(ii) of the Rules. The prayers made in Special Civil Application No.8203 of 2012 therefore needs to be considered accordingly.
24. While examining the issue of writ of quo warranto, the scrutiny by this Court should end with the above finding, Page 42 of 95 HC-NIC Page 42 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT however it has become necessary for this Court to further inquire into the matter, since serious allegations are made against the State Authorities about manipulation of record to favour the said candidate and further, two more issues, namely the second and the third issues noted above are yet to be considered by the Court. One of those two issues (being the third issue as noted above) is, as to whether any illegality is committed by the State, while giving appointments to the candidates from the impugned revised merits list dated 26.04.2011. For this purpose, the procedure and the relevant Statutory Rules need to be noted first.
25.1 After the result is published by the Gujarat Public Service Commission, the names of the selected candidates are recommended to the Government for appointment. Who should be appointed on which post has to be decided on the basis of the preference of the concerned candidate, depending on his standing in the merit list. This exercise is done by the General Administration Department. Based on this allocation, the names of the candidates would be sent to the concerned administrative department, which is the appointing authority. To explain this further, the names of the candidates who are alloted as Deputy Superintendent of Police, would go to the Home Department. Same way, in the case of Mamlatdar, it would go to the Revenue Department. For Taluka Development Officer, it would go to Panchayat Department. This way, names would be forwarded by the General Administration Department to the concerned departments for appointment.
25.2 After the names are received by the concerned Administrative Department, but before giving appointments, Page 43 of 95 HC-NIC Page 43 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT there are certain stages which need to be crossed by the concerned Department. Some of these stages are statutorily prescribed, which are noted hereunder.
25.3 At this stage, reference needs to be made to some of the provisions in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. The said set of Rules are framed by the Government in exercise of powers under proviso to Article 309 of the Constitution of India. Relevant Rules read as under.
"1. These rules may be called the Gujarat Civil Service Classification and Recruitment (General ) Rule, 1967.
GENERAL PROVISIONS REGARDING RECRUITMENT TO ANY SERVICE OR POST
5. Physical fitness:- Subject to the provisions of rule 10, 14 and 15 of the Bombay Civil Services Rule, 1959, no person shall be appointed to any service or post, if he has failed to pass such medical test of physical fitness as may be prescribed by the State Government.
Provided that where an appointment is made by promotion or transfer of a person already in service, no medical test shall ordinarily be required.
6. Evidence of good character : - An Page 44 of 95 HC-NIC Page 44 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT appointment to any service or post, otherwise than by promotion or transfer of person already in service, shall be subject to the production of such evidence of good character as may be required:-
(a) by the Commission, if the appointment is to be made after consulting the Commission, or
(b) by the appointing Authority, in any other cases.
16. Appointment by relaxation of Rules:-
Notwithstanding anything contained in these rules, the State Government may in the interest of Public service:-
(i) Fill up a post of appointment of an officer of Defense Service or All India service.
(ii) Make appointment to any service or post by a method other than that prescribed under these rules, or
(iii) relax any of the provisions of these rules;
Provided that where the appointment to any service or post is to be made in consultation with Commission, no such appointment or relaxation under clauses (ii) or (iii) above shall be made except in consultation with the Commission."
Page 45 of 95HC-NIC Page 45 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT 25.4 After the above stages of medical examination and verification of antecedents etc. are over and if there is no adversity, the concerned candidate would be appointed by the concerned Department. For this purpose, the file would be submitted to the concerned appointing Authority, which in each department would be different. Since the appointment is on the post of Class-I and II, the file needs to be submitted to, and needs to be approved by the concerned Minister / Secretary, as may be prescribed under the Rules of Business of the Government. This is not empty formality, because in some cases like Deputy Superintendent of Police, eligibility prescribed under the Rules, is to be ascertained. It is noted that being physically fit for appointment such as Mamlatdar, Taluka Development Officer etc., is different than meeting with the eligibility criteria prescribed under the Statutory Rules, like in case of Deputy Superintendent of Police. The Eligibility criteria for the post of Deputy Superintendent of Police is already quoted in para: 23.1 to 23.3 above.
25.5 It is a matter of record that the allocation letters are claimed to have been sent by the General Administration Department of the Government to the respective departments on 06.05.2011. The appointment orders are also claimed to have been issued on that very day by all the Departments. This aspect is reflected in the order of this Court dated 06.05.2011 quoted in para : 3 above. This is less the promptness, more the hush up. The reason for the State to do so, in no uncertain terms was to frustrate the proceedings before this Court. This aspect is noted on the File of the General Administration Department (note dated 07.05.2011). At this stage, it is noted that the Author of those notes is the Page 46 of 95 HC-NIC Page 46 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT same, who is referred to in the order of this Court dated 06.05.2011, quoted in para : 3 above. Not only it has undermined the proceedings before this Court, it has defied the orders of the then Chief Minister also dated 04.05.2011. This aspect is discussed in detail in the later part of this judgment (para : 43 and 44).
26.1 The matter does not end there. In the medical examination conducted for the Deputy Superintendent of Police by the Medical Board at Ahmedabad on 01.06.2011, many candidates were reported unfit. Some were not meeting with the eligibility criteria. The details in this regard, as obtained by some of the petitioners under the Right to Information Act and which are placed on record on more than one petitions in this group. In Special Civil Application No.5007 of 2012, it is from Page No.120 onwards. Such material is also on record of Special Civil Application No.8203 of 2012. Firstly, the appointments could not have been made without first ascertaining the eligibility criteria. The eligibility and fitness are two different parameters and it can not be permitted to be used as synonyms. An eligible candidate can still be medically unfit. There was no question of conducting medical fitness examination of any candidate when he / she is ineligible as per rules, which the State claims, it has done. At that stage, many candidates including respondent No.4 of Special Civil Application No.8203 of 2012 failed on 01.06.2011. It is also asserted on behalf of the petitioner, with the information under the Right to Information Act, that the respondent No.4 of Special Civil Application No.8203 of 2012 was sent to the Civil Hospital, Ahmedabad for Medical Examination on 01.06.2011, 08.06.2011 and 17.06.2011. Even thereafter (i.e. after failure Page 47 of 95 HC-NIC Page 47 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT in the medical examination) the remedy is prescribed in the Gujarat Civil Services (General Conditions of Service) Rules, 2002, relevant part of which reads as under.
"17. Candidates pronounced unfit except on grounds of visual test shall with the permission of the head of the office concerned, be entitled to appeal to the Director of Health, Medical Services and Medical Education (Medical) through the examining medical officer or the Medical Board, who in forwarding the appeal will state his, her or their reasons for the decision. Director will decide whether the candidate should be examined by another Medical Officer or by a Medical Board or by another Medical Board if the candidate was previously examined by a Medical Board."
26.2 On the candidates not meeting with the eligibility criteria and not passing the medical fitness test, the concerned department moved the note for discontinuing the service of those candidates, including the respondent No.4 of Special Civil Application No.8203 of 2012. This is so noted on the file of the Home Department (No.DYS/10/2011/1232/B) dated 22.06.2011. This proposal was sabotaged by the Officers in General Administration Department vide Note dated 26.07.2011, which is quoted in the later part of this judgment. Without any appeal and without any opinion of the first Medical Board, which is statutorily required, all the candidates were referred to the Medical Board at Jamnagar for the second opinion. The second opinion would be required, (even if Page 48 of 95 HC-NIC Page 48 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT permissible) on the point, where the first Medical Board has given negative opinion. In case of the respondent No.4 of Special Civil Application No.8203 of 2012, the ineligibility was not qua height, but was qua chest measurement as noted in paras : 23.8 and 23.9 above. The reference to the second Medical Board was however on the point of height, where there was no adversity against the said candidate. The second Medical Board therefore was certain to certify that there is no demerit so far height of the said candidate is concerned. This is done on 02.12.2011. This exercise is treated to be due compliance by the said candidate on the medical eligibility aspect. Under no circumstances this can be termed to be an error. It is certainly a mischief by the Officers. The allegations of favouritism and manipulation of record by the officers, thus stand substantiated. At this stage, reference also needs to be made to the averments in Special Civil Application No.8203 of 2012, more particularly in para : 4.1 of the petition, which not only speaks of manipulation of record but tampering with record. It is noted that this Court has taken into consideration the averments made in Special Civil Application No.8203 of 2012 more particularly from para : 4.1 onwards, which not only speaks of favouritism but manipulation and even tampering with the documents / record of the Government.
26.3 It is noted that though the said averments were required to be replied and contested by the concerned Appointing Authority, which in this case would be the Home Department of the Government of Gujarat and the said Authority is party respondent No.2 in Special Civil Application No.8203 of 2012, it has chosen not to file any affidavit in reply in the matter. The concerned candidate is also party respondent in her personal Page 49 of 95 HC-NIC Page 49 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT capacity. She is respondent No.4. She is represented by a learned advocate. There is no affidavit in reply on behalf of the said candidate also. Thus, the aspect of favouritism, mischief and manipulation of record have remained uncontroverted by the concerned Appointing Authority and the concerned candidate, both. At this stage, it is noted that during the course of hearing of this petition, learned advocate for the petitioner had stated that the said candidate (Respondent No.4) is the daughter of a very senior IAS Officer, who used to have his surname 'Parmar' and not 'Munshi'. Learned advocate for the respondent No.4 (the concerned candidate) has not only not disputed this factual aspect, but has confirmed the same. At this stage it is noted that, while examining the question of eligibility of the concerned candidate, this factual aspect will not have any relevance, however it may have some relevance in view of the allegation of favouritism by the officers of the General Administration Department. It is further noted that, the say of the petitioner is not accepted as it is by this Court, and on each point, detailed scrutiny is made by the Court and the above findings are recorded after taking into consideration the contents of the only affidavit in reply on record by the General Administration Department, which is dealt with in para : 23.9 above.
26.4 It is also noted that, since the say of the appointing authority was not on record, permission was granted to the learned Advocate General to contest the matter by even referring to the file of the Appointing Authority (Home Department) and other relevant record of the Government, which is done and that is how the material from the Home Department and the General Administration Department have Page 50 of 95 HC-NIC Page 50 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT also come on record by way of the photocopies of the relevant pages of the relevant files. It is further noted that, with a view to see that the State Authorities get full opportunity to put their case before the Court, qua the issues which have cropped up before this Court, permission was granted to refer to the relevant files. In this judgment, at number of places, there is reference to the notings on the files of the Government with dates. It is based on the said material, which is made available to this Court by the State.
27.1 For the above reasons, this Court finds that, the issues No.3 and 4 quoted above, need to be answered by holding that number of illegalities, in procedure and in substance - both, are committed by the State while giving appointments to the candidates from the impugned revised merit list dated 26.04.2011 and further that ineligible person(s) is appointed from the impugned list and is illegally continued by the State and for that purpose, even manipulation and tampering is also made with the record, which could be by the some officer(s), which the State needs to find out and deal with.
27.2 At this stage, it is also noted that, in Special Civil Application No.8203 of 2012, writ of quo warranto is prayed against the respondent No.4 therein and the matter is examined accordingly. In Special Civil Application No.5007 of 2012, grievance is made against continuance of some appointees, who are alleged to be medically unfit.
27.3 At this stage, it is noted that in the said petition (Special Civil Application No.5007 of 2012), the copy of the file notings, as received by the said petitioner from the Government, under Page 51 of 95 HC-NIC Page 51 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the Right to Information Act, is also placed on record. It is at page 153 and 159 of the paper book. Both notes are dated 26.07.2011. Those notes reads as under.
27.4 The note at page 153 reads as under.
" GAD:AS(S)
1. The foregoing proceedings may please be seen.
2. This matter was discussed. The matter pertains to the medical fitness test of the direct recruit Deputy Superintendent of Police who have recently been appointed on the basis of result declared by the GPSC on 26.4.2011.
It can be seen that 5 candidates
have been declared unfit in the medical
examination. The failure in the medical
examination is either on account of lesser height, or inadequate chest in expiration, or inadequate chest expansion.
3. Home Department has mentioned that one of the 5 candidates who has failed in the medical test is Shri Sanjay Vyas. He was working in Education Service Class-II before joining as Deputy Superintendent of Police He proposes to go back to his previous service in Education Department. It may be mentioned that Page 52 of 95 HC-NIC Page 52 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT as per the GR GAD dated 4.5.2007, it is permissible to allow a direct recruit officer to go back to his parent cadre during the period probation. Therefore, Shri Sanjay Vyas could be allowed to go back to the Education Service Class-II. (It is understood that he has already gone back to his previous job).
The other 4 candidates may have to be
allowed to undergo the medical examination
once again.
There are two other candidates, Jyoti Patel and Dr. Kanan Desai who are fit as per the parameters of height and chest measurement. But the Standing Medical Board has recorded that they must be assessed for required functions as per their duty by respective authority. In Jyoti Patel's case it is recorded that : "Knee pain with healed stress fracture and reduced medical joint compartment." In Dr. Kanan Desai's case it is recorded that: "Congenital anomaly of both hand ; and toes". The Home Department has proposed that opinion of the DGP should be obtained in regard to the fitness of Jyoti Patel and Dr. Kanan Desai.
4. This medical examination appears to have been taken by the Standing Medical Board, Civil Hospital, Ahmedabad. With a view to Page 53 of 95 HC-NIC Page 53 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT having another medical opinion, we may send these candidates to the Medical Board at Rajkot. If they get through the medical examination to be conducted by Standing Medical Board, Rajkot, then the question of relieving them from the service would not arise. (Even in the event of their not getting though the medical test, the question of continuing them as a special case could be considered, depending on the facts of each case. It is understood that in the past also such special cases have been made). 'B' above may be approved.
Sd/-
(Harsh Brahmbhatt) A.S.(S), GAD 26.07.2011 ACS(P) ACS(HD)"
27.5 The note at page 159 reads as under.
" GAD : AS (S)
1. The foregoing note of Home Department may please be seen. The matter pertains to the medical fitness test of the 5 direct recruit Deputy Superintendents of Police who have recently been appointed on the basis of the result declared by the GPSC on 26.04.2011.
2. It can be seen that 11 candidates are Page 54 of 95 HC-NIC Page 54 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT yet to obtain the medical fitness certificate from the Medical Board. Out of these 11 candidates, the cases of the candidates at Sr.No.6,7,8,9, 10 and 11 have already been referred to GAD by the Home Department in its file No.DYS/10/2011/B. The opinion of GAD has already been given on that file in respect of these 6 candidates. The Home Department will take necessary action as per the advice given by the GAD on that file. In so far as the other 5 candidates are concerned, the position is as under.:-
(a) In the cases of Sr.No.1, 2, 3 and 4, the matter has been referred to the Board of Referee. It is therefore necessary that recommendation of the Board of Referee is awaited.
(B) In the case of the candidate at Sr.No.5, the candidate has been shown as temporary unfit due to Hernia. Therefore, this candidate may have to be given an opportunity to go through the medical test again after six weeks.
It is also appears that one candidate Shri Sanjay Vyas has already gone back to his parent cadre of Education Service Class-II. Therefore, no action is required to be taken in his case.
Page 55 of 95HC-NIC Page 55 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT
3. The papers may be returned to the Home Department with the above minutes.
(The HD may be advised to deal with the
cases on one file, instead of creating
separate files on the same Subject.
Sd/-
(Harsh Brahmbhatt)
A.S.(S), GAD
26.07.2011
ACS(P)
ACS(HD)"
27.6 Though the material on record is to the above effect, in the said petition there is no prayer for issuance of writ of quo warranto and therefore the said matter is examined with different parameters. Further, there is assertion on behalf of the State that those candidates do meet with the physical standards prescribed under the Rules and there is no material on record contrary to it, (except the material qua respondent No.4 of Special Civil Application No.8203 of 2012, on the record of the said petition), and therefore further scrutiny is not undertaken by this Court in that regard on Special Civil Application No.5007 of 2012. However, it is noted that, while considering the directions of this Court in the later part of this judgment (as contained in para : 43 of this judgment), this aspect shall also be taken into consideration by the State Authorities.
27.7 Having observed as above, it is held that, the conclusion Page 56 of 95 HC-NIC Page 56 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT qua the issues No.3 and 4 is, as noted in para : 27.1 above.
28.1 Having answered the issues No.1, 3 and 4 as above, the next issue to be answered is issue No.2. The said issue is to the effect that :-
"While following the principles of law, in the case of Ramesh Ram and Mamta Bisht, whether the actions of the State and the GPSC are otherwise erroneous and / or mischievous, as alleged by the petitioners."
28.2 The findings qua issue No.2 need to be divided into two parts. The first is qua Ramesh Ram and the second is qua Mamta Bisht.
29.1 The judgment of the Supreme Court of India in the case of Ramesh Ram was dealing with a situation as contained in Rule 16 of the Rules referred in para : 9 of the said decision, which reads as under.
"9. Rule 16 lays down the manner of selection, preparation of merit list and selection of candidates. The said rule is extracted below:
"16.(1) After interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate in the Main Examination. Thereafter, the Commission shall, for the purpose of recommending candidates Page 57 of 95 HC-NIC Page 57 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT against unreserved vacancies, fix a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up on the basis of the Main Examination. For the purpose of recommending Reserved Category candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Main Examination:
Provided that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission shall not be recommended against the vacancies reserved for Scheduled Castes, Scheduled Tribes and the Other Backward Classes.
(2) While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Govt.Page 58 of 95
HC-NIC Page 58 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT if by this process they get a service of higher choice in the order of their preference.
(3) The Commission may further lower the qualifying standards to take care of any shortfall of candidates for appointment against unreserved vacancies and any surplus of candidates against reserved vacancies arising out of the provisions of this rule, the Commission may make the recommendations in the manner prescribed in sub-rules (4) and (5).
(4) While recommending the candidates, the Commission shall, in the first instance, take into account the total number of vacancies in all categories. This total number of recommended candidates shall be reduced by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes who acquire the merit at or above the fixed general qualifying standard without availing themselves of any concession or relaxation in the eligibility or selection criteria in terms of the proviso to sub-rule (1). Along with this list of recommended candidates, the Commission shall also declare a consolidated reserve list of candidates which will include candidates from general and reserved categories ranking in order of merit below the last recommended candidate under each category. The number of candidates in Page 59 of 95 HC-NIC Page 59 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT each of these categories will be equal to the number of Reserved Category candidates who were included in the first list without availing of any relaxation or concession in eligibility or selection criteria as per proviso to sub-rule (1). Amongst the reserved categories, the number of candidates from each of the Scheduled Caste, the Scheduled Tribe and Other Backward Class categories in the reserve list will be equal to the respective number of vacancies reduced initially in each category.
(5) The candidates recommended in terms of the provisions of sub-rule (4), shall be allocated by the Government to the services and where certain vacancies still remain to be filled up, the Government may forward a requisition to the Commission requiring it to recommend, in order of merit, from the reserve list, the same number of candidates as requisitioned for the purpose of filling up the unfilled vacancies in each category."
29.2 The above Rule 16(1) speaks of recommendation by the Public Service Commission to the Government for appointment. Once those recommendations are received by the Government, the next stage is of allocation of different cadres / posts to the concerned candidate, which would be on merit cum preference basis. At that stage, it may happen that a candidate belonging to the Scheduled Caste / Scheduled Page 60 of 95 HC-NIC Page 60 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Tribe / Other Backward Class, who has come on his own merit (without any concession) (who is called MRC - Meritorious Reserved Category Candidate) and who is not recommended against any reserved vacancy, may not get the service of his first preference. If this is seen qua the recruitment in question, an MRC may not get Deputy Superintendent of Police though that may be his first preference and may be required to go for his lower preferences and ultimately he may or he may not get any service at all. (there are specific instances in the recruitment in question and they are referred in the later part of this paragraph). But if he chooses to give up his status as MRC and opts to be treated as Reserved Category Candidate, he may get the post of his first preference or higher preferences. In this eventuality, he should be at liberty to do so. At that stage, the law of Ramesh Ram's case comes in play. If this is not permitted, a situation would be created where less meritorious reserved category candidate would get the post of his first choice (in the recruitment in question for example the post of Deputy Superintendent of Police) and more meritorious candidate from that very reserved category would have been denied the same, since he was treated to be a general category candidate. Thus, the merit would be a casualty within the reserved category candidates, which would be hit by Article 14 read with Article 16 of the Constitution of India, and an answer thereto was to be found, which led to Rule 16(2). While upholding the validity of the said rule, the consequences thereof are also envisaged and cure for it is also provided by the Supreme Court. The said judgment therefore has to be read harmoniously and applied in totality. (emphasis supplied) 29.3 As noted above, at the stage of allotment of the service Page 61 of 95 HC-NIC Page 61 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT by the State, the law in Ramesh Ram's case comes in play. In the words of the Supreme Court of India, 'that MRC is at liberty to chose between the general quota or the respective reserved category quota'. This cannot be even termed to be any benefit to the concerned MRC. It only arrests the discrimination within reserved category candidates interse i.e. more meritorious reserved category candidate should not be at disadvantage, only because he is more meritorious, vis-a-vis less meritorious reserved category candidates. This is the ratio of Ramesh Ram. The judgment does not end there. In the event of that MRC opting to reservation, the necessary consequences are also envisaged and cure thereof is also provided in that very judgment. For that purpose, the judgment has to be read in totality and no litigant - not even State can be permitted to read only selective and convenient paras from the said judgment. The law pronounced by the Supreme Court can not be permitted to be used as a tool, which the respondent authorities have attempted in this case.
29.4 So far the impugned revised merit list dated 26.04.2011 is concerned, there are manifold illegalities regarding application of Ramesh Ram. They are as under.
29.5 Though there cannot be any dispute that Ramesh Ram is the law of the land and recruitment in question is no exception to it, the application thereof could be by the State at the stage of allocation of the service, and not by the GPSC while preparing the merit list. In the present case, it is done by the GPSC and not by the State. This is not merely an error, it has resulted into serious consequences, without any cure thereof. Thus, it has resulted in illegality - in procedure and in Page 62 of 95 HC-NIC Page 62 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT substance, both. Breach in procedure is to the extent that it was to be applied by the State after the recommendations are received from GPSC, however it is applied by the GPSC before recommendations are made to the Government. Breach in substance is to the extent that there is exclusion of number of candidates from the select list on the ill-perceived application of Ramesh Ram, though in some cases the concerned MRC had not only not asked for it, he had specifically refused to do so. These two aspects are interwoven and can be explained from the following examples which are not hypothetical but based on the impugned merits list dated 26.04.2011.
29.6 There are number of candidates, belonging to reserved category, who got the place in the select list on their own merits, without availing any concession and were thus Meritorious Reserved Category Candidate (MRC), however they were treated to be Reserved Category Candidate (RC) by GPSC itself by applying Ramesh Ram, on assumption that thereby they might get the posts of their higher preference. However, when the recommendations were made to the Government of those candidates, and when the appointments were given to them by the State, ultimately those candidates did not join the service at all. Ramesh Ram would not come in play qua those candidates at all. This has resulted into exclusion of few reserved category candidates from the select list. This is the damage which the GPSC and the State both have done to the reserved category candidates. To elaborate this point further, it is noted that, one candidate viz., Rohitkumar Rameshchandra Wadhwana, Merit Rank No.76, total Marks obtained - 638, had not availed any concession as SEBC candidate and therefore his name was included as general Page 63 of 95 HC-NIC Page 63 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT category candidate in the merit list of 2010 at Serial No.76. (This aspect is noted in the footnote of the 2010 list.) In the impugned list dated 26.04.2011 he is shown as SEBC candidate i.e. though he was an MRC, he is now treated to be a reserved category candidate. This is done by the GPSC on assumption that if he continues to be an unreserved category candidate i.e. MRC, he may not get Deputy Superintendent of Police, which is the post of his first preference. Therefore he is treated as SEBC candidate. His name therefore is included in Annexure- III-B with the impugned list dated 26.04.2011. The effect thereof is that resultantly, one SEBC candidate is pushed out of the list. It is noted that the said candidate ultimately did not join the service at all. Thus the ratio of Ramesh Ram which was to apply at the stage of allocation of service, that too at the option of the concerned MRC, is forcefully applied by the GPSC though that candidate was not to join the service at all, even if he was to get the post of his first choice. The damage of applying Ramesh Ram wrongly is already done and still the cure thereof is denied by the GPSC and the State, both. It is this situation which needs to be taken care of by this Court. It is also noted that this example is only illustrative and not exhaustive.
29.7 The illegality does not end there. There were many reserved category candidates, who got the place in the select list on their own merits without availing any concession and were thus Meritorious Reserved Category Candidates (MRCs), however they were treated to be Reserved Category Candidate (RC) by GPSC by applying Ramesh Ram, on assumption that thereby they might get the posts of their higher preference. However, when the recommendations were made to the Page 64 of 95 HC-NIC Page 64 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Government of those candidates, and when in turn the appointments were given to them by the State, actual benefit is not passed to the deserving candidates but is siphoned away by other candidates. For this purpose, one example is noted in the later part of this judgment (para : 43.7).
30. From the above, the conclusion is that, though the decision of the Supreme Court of India in the case of Ramesh Ram will have application in the recruitment in question also, it is unauthorisedly applied by the GPSC at a premature stage, since it was to be applied by the State, at the stage of allocation of service to the MRCs. The further conclusion is also that it is applied to even those candidates, where it was not required. The consequence of this illegality is that it has resulted in exclusion of many reserved category candidates from the revised merit list dated 26.04.2011 (the impugned one), who were already there in the first select list of the year 2010 which was qua this very recruitment.
31. Having answered the first part of issue No.2, as above, it next needs to be seen as to how Mamta Bisht is applied by the respondent Authorities.
32.1 Though both the respondent Authorities have taken the stand that the law as pronounced by the Supreme Court in the case of Mamta Bisht, is the law of the land and both the respondent Authorities were under legal obligation to follow that law, their action, on facts, is found, less to uphold the law, more to take advantage from it. This is for the following reasons.
Page 65 of 95HC-NIC Page 65 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT 32.2 Firstly Mamta Bisht is not the law, it is Rajesh Daria which is the law. This is already discussed in paras : 19.1 to 19.3. The question may crop up, then why both the Authorities are defending their action with the mask of Mamta Bisht and not Rajesh Daria. There is no secret about it.
32.3 The decision of Rajesh Daria, which is the law, is dated 18.07.2007. It is reported also in the year 2007 itself. The first merit list prepared by the GPSC was dated 13.05.2010. It would not lie in the mouth of the GPSC to contend that, they were not aware of the law which was holding the filed since the year 2007. The merit list prepared by the GPSC on 13.05.2010, in any case, was to be modified and sabotaged for the reasons which are already noted in above paragraphs. The timing of the decision of the Supreme Court of India in the case of Mamta Bisht came to their rescue. It is dated 03.06.2010, which is soon after publication of merit list dated 13.05.2010.
32.4 Though on 03.06.2010, the Supreme Court of India only said that the Uttranchal High Court was in error in not following the ratio of Rajesh Daria, while deciding the case of Mamta Bisht, the convenient argument is now found by the contesting respondents that only when the Supreme Court reiterated Rajesh Daria in Mamta Bisht, it became the law. This can not be accepted.
32.5 The non-application of the ratio of Rajesh Daria while preparing the first merit list dated 13.05.2010, is further sought to be defended by referring to the one decision of the Division Bench of this Court in the case of Komal Katara. The fact situation of Komal Katara's case is already discussed Page 66 of 95 HC-NIC Page 66 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT above. It was not applicable qua the recruitment in question. Even otherwise, if there is conflict in the decision of the High Court and the Supreme Court, it is the decision of the Supreme Court which would prevail and not the decision of the High Court. From the findings noted qua issue Nos. 3 and 4, it has already transpired that certain number of candidates from female category were required to be excluded from the first merit list dated 13.05.2010 and only then the candidate(s) of the choice of the vested interests would have been included at convenient slots. For that purpose, whatever was required, was to be done. For that, if Ramesh Ram was to be applied at the stage of the GPSC, let that illegality be committed. The effect thereof is already noted above. The judgment of Mamta Bisht is used only as an additional tool in furtherance of the ill- design qua the recruitment in question. This would be clear from the following additional factors.
32.6 The stand of the GPSC is that Mamta Bisht is the law and the same needs to be applied, and therefore it was applied in the recruitment in question, needs to be rejected, on the face of its stand in Special Civil Application No. 4453 of 2012, which pertains to the recruitment of Medical Officers (Ayurved) Class- II. The said petition was heard with this group of petitions. The result of the said recruitment was published by the GPSC on 26.05.2010. In the said recruitment, Mamta Bisht is not applied by the GPSC. It has neither revised it, nor the State has found it necessary to remind GPSC that why Mamta Bisht is not applied in that recruitment. It is in this background, the stand of the State and the GPSC, both are being tested by this Court. The said petition is filed before this Court before years and even now the said petition is being contested by the GPSC. The Page 67 of 95 HC-NIC Page 67 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT stand of GPSC even now is that no illegality was committed by the GPSC by not following the Mamta Bisht in the select list which is dated 26.05.2010. When confronted with this situation, learned Advocate General has conceded that it could be an error and the same needs to be dealt with appropriately by this Court. Learned Advocate General has given up that matter at that stage. It is noted that the judgment in the said petition is being delivered with this judgment itself, however it is separately written for the reason that, the facts qua that recruitment would be different and the question of application of Ramesh Ram is not involved in the said matter.
32.7 The arbitrariness on the part of the respondent authorities on this point still goes further. Not only in the recruitment of the Medical Officers as referred above, which was almost at the relevant point of time (along with the recruitment in question), the decision in the case of Mamta Bisht was not followed, but even in the subsequent recruitments made by the GPSC, even after years, the decision in the case of Mamta Bisht is not followed by the GPSC. Not only it is not followed when petitions are filed before this Court, those petitions are contested by the GPSC and State, both contending that, that is not the law and that is not applicable. Reference in this regard can be made to the recruitment on the post of Assistant Conservation of Forest and Range Forest Officers in the year 2014 which was the subject matter in Special Civil Application No.13857 of 2014 and Letters Patent Appeal No.1103 of 2015. It is noted that so far the present group of petitions is concerned, the concern of the GPSC was so high that caveat applications were filed before this Court and the GPSC was heard even before issuance of notice by this Page 68 of 95 HC-NIC Page 68 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Court. Even the affidavit in reply in each petition was filed by the GPSC in the year 2011 itself. In this factual background, it would not have escaped the attention of the constitutional body like the GPSC in the year 2014 that they were under legal obligation to apply the law in the case of Mamta Bisht in other recruitments also. As noted above, not only the said law is not followed, the said action is even contested in the separate batch of petitions before this Court. The State Authority also did not find anything wrong with the selective implementation of law by the GPSC. On one hand, the State claims that it reminded the GPSC in the year 2010-11 as to why Mamta Bisht is not followed in the recruitment in question, but once the respondent No.4 of Special Civil Application No.8203 of 2012 got appointment as Deputy Superintendent of Police in the year 2011, and even after her ineligibility having been noted on file, decision was not permitted to be taken to terminate her service, and the said jugglery remained pending for scrutiny before this Court, during all these years, in the perception of the State, there was no further necessity to apply the said law qua any other recruitment or qua any other citizen.
32.8 For the above reasons, it is held that, though the decision of the Supreme Court of India in the case of Rajesh Daria as followed in the case of Mamta Bisht will have application in the recruitment in question also, the action of the respondent Authorities, on facts, is found less to uphold the law, more to take advantage from it.
33. For the above reasons, it is held that, though the decisions of the Supreme Court of India in the case of Ramesh Ram and Rajesh Daria (as followed in Mamta Bisht) will have Page 69 of 95 HC-NIC Page 69 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT application in the recruitment in question, as answered vide issue No.1, while following the said principles of law, the actions of the State and the GPSC are not only erroneous but have been mischievous. The stand of the State and the GPSC that the impugned action was taken by them to uphold the law, is rejected and it is declared that it was more for their convenience and advantage, less for upholding the law.
34. The issue No.2 stands answered in above terms and the same needs to be read along with the findings qua issue Nos.3 and 4. At this stage, it is noted that, for the above reasons, Issue No.2 is dealt with after recording findings qua issues Nos.3 and 4. (refer para : 20 of this judgment) 35.1 Having held as above qua issues No.1 to 4 and having found that number of illegalities are committed by both the respondent Authorities at all stages, including from the stage of preparation of the impugned merit list dated 26.04.2011, it needs to be decided, what consequential order should be passed by this Court. Since the illegality has started from the preparation of the impugned merit list dated 26.04.2011, the correction should also start from that stage itself. The prayers in these petitions are also to that effect. These petitions therefore need to be allowed by setting aside the impugned select list dated 26.04.2011 prepared and published by the GPSC, claimed to have been recasted on the advice of the respondent State, which is found to be without any authorisation by the competent Authority of the Government (as noted in the later part of this judgment). There is hardly any other option available with the Court. The consequences of doing so would also be very far reaching and it may affect Page 70 of 95 HC-NIC Page 70 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT number of candidates who are already appointed and some of whom might have been even further promoted in the respective hierarchy, e.g. Mamlatdar from the recruitment in question would have been promoted as Deputy Collector, Section Officer would have been promoted as Under Secretary, etc. The order of this Court dated 06.05.2011 and the subsequent orders have specifically provided that, all these appointments shall be subject to further orders that may be passed in this group of petitions. Therefore, there should not be any grievance in that regard by anyone. Inspite of this, this Court has tried to explore other options, where the effect of illegalities committed by the respondent Authorities, in consultation / connivance with each other, can be removed or at least reduced to the possible extent and at the same time, it may create minimum difficulties for the administration and the candidates / appointees. Keeping this in view, one way can be thought of, which can salvage the situation to substantial extent. The total number of affected persons by the impugned action of the respondent Authorities, are about 40. It has come on record that atleast 41 candidates have not joined. The details with regard to:- (i) the original advertisement, (ii) addendum thereto, (iii) the consolidation of (i) and (ii) - advertisement, (iv) candidates who did not join, and (v) the posts which have remained vacant, are noted herebelow. It is noted that the details qua (i), (ii) & (iii) are based on the advertisement No.87/2006-2007, details qua (iv) and (v) are provided by the State. Those details are as under.
35.2.1 The original advertisement was as under.
"GUJARAT PUBLIC SERVICE COMMISSION Page 71 of 95 HC-NIC Page 71 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Advertisement No. 87/2006-2007 Public advertisement inviting applications for combined competitive examination for recruitment to Gujarat Civil Services Class-I and Class-II and Gujarat Police Service Class-I (Advertisement date 26.06.2006) Name of Post Total Category-wise Post reserved for Post break-up women within respective category Class-I UR SC ST SE PH UR SC ST SE PH BC BC Dy. Superintendent 68 51 03 - 14 - 15 01 - 04 - of Police District Registrar 06 03 - 01 02 - 01 - - 01 - Co.op. Soc.
Supt. Prohibition & 01 01 - - - - - - - - -
Excise
Total 75 55 03 01 16 - 16 01 - 05 -
Class-II
Mamlatdar 100 73 - - 27 - 23 - - 09 -
Section Officer 40 20 04 07 09 01 06 01 02 03 -
(Sachivalaya)
Section Officer 04 03 - 01 - - 01 - - - -
(Vidhansabha)
Section Officer 02 01 - - 01 - - - - - -
(G.P.S.C.)
Taluka Development 42 26 01 06 09 03 11 01 03 04 -
Officer
Govt. Labour 08 04 01 - 03 - 02 01 - 01 -
Officer
Asst.Dist.Registrar 06 06 - - - - 02 - - - -
Co.op. Soc
Dist. Inspector 06 05 - - 01 - 01 - - - -
Land Records
Total 208 138 06 14 50 04 46 03 05 17 -
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35.2.2 Addendum to the above advertisement was as
under.
"GUJARAT PUBLIC SERVICE COMMISSION
Advertisement No. 87/2006-2007
(ADDENDUM DATED 10.11.2006)
Addendum dated 10.11.2006 to the original
advertisement dated 26.06.2006, inviting applications for combined competitive examination for recruitment to Gujarat Civil Services Class-I and Class-II and Gujarat Police Service Class-I Name of Category-wise Post reserved Post No. of Post break-up for women within respective category Number of Addition Total UR SC ST SE PH UR SC ST SE PH posts al Posts Posts BC BC originally advertised Class-I District 06 05 11 08 - 01 02 - 03 - - 01 -
Registrar Co.op.
Soc.Total 05
Class-II Mamlatdar 100 15 115 83 - 05 27 01 25 - 01 09 -
Taluka 42 02 44 28 01 06 09 03 11 01 03 04 -
Dev.
Officer
Asst.Dist 06 06 12 12 - - - - 04 - - - -
.Reg
Co.op.
Soc
Dist. 06 06 12 09 - - 03 - 02 - - - -
Ins. Land
Records
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Total 29
35.2.3 The consolidation of the above two would make the
following position.
"Consolidated details of the advertisement
inviting applications for combined competitive examination for recruitment to Gujarat Civil Services Class-I and Class-II and Gujarat Police Service Class-I (Original Advertisement dated 26.06.2006 and Addendum dated 10.11.2006)"
Name of Category-wise Post reserved
Post No. of Post break-up for women
within
respective
category
Number of Addition Total UR SC ST SE PH UR SC ST SE PH
posts al Posts Posts BC BC
originally
advertised
Class-I
Dy.Supt. 68 - 68 51 03 - 14 - 15 01 - 04 -
of Police
Dist. 06 05 11 08 - 01 02 - 03 - - 01 -
Reg.
Co.op.
Soc.
Supt. 01 - 01 01 - - - - - - - - -
Proh. &
Excise
Total 75 05 80 60 03 01 16 - 18 01 - 05 -
Class-II
Mamlatdar 100 15 115 83 - 05 27 01 25 - 01 09 -
Sec. 40 - 40 20 04 07 09 01 06 01 02 03 -
Officer
(Sachival
aya)
Sec. 04 - 04 03 - 01 - - 01 - - - -
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Officer
(Vidhansa
ba)
Sec. 02 - 02 01 - - 01 - - - - - -
Officer
(G.P.S.C.
)
Taluka 42 02 44 28 01 06 09 03 11 01 03 04 -
Dev.
Officer
Govt. 08 - 08 04 01 - 03 - 02 01 - 01 -
Labour
Officer
Asst.Dist 06 06 12 12 - - - - 04 - - - -
.Reg
Co.op.
Soc
Dist. 06 06 12 09 - - 03 - 02 - - - -
Ins. Land
Records
Total 208 29 237 160 06 19 52 05 51 03 06 17 -
35.2.4 The details of the 41 candidates who did not join, are
provided by the State. It is as under.
Sr. Merit Name Total
No. No. Marks
1 23 MEGHANI DIPAKKUMAR VASUDEVBHAI 670
2 26 VALA INDRAJIT RAGHUVIRSINH 665
3 35 PANDYA DIPAKKUMAR MANUPRASAD 658
4 38 DESAI YOGENDRA ARVINDBHAI 656
5 52 KOTHARI VAIBHAV RAMESHCHANDRA 648
6 53 RAVAL JIGAR PRADIPKUMAR 647
7 62 ZALA SANJAY HARISHCHANDRASI 642
8 70 JHALA KULDIPSINH SURENDRASINH 640
9 71 BHANDARI TEJAS GANPATBHAI 640
10 76 VADHWANA ROHITKUMAR RAMESHCHANDRA 638
11 82 JOSHI RAKESHKUMAR RATILAL 635
12 88 SHAH PARAG VINODKUMAR 634
13 92 PATEL SAURABH DILIPBHAI 632
14 97 PATEL RAJESHKUMAR AMRUTLAL 631
15 103 NIMBALE DHARMENDRA HARSHADRAI 630
16 122 JANI DHAVAL RASHMIKANT 626
17 130 DESAI RUTURAJ SANKABHAI 624
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18 153 MAJMUDAR PRAKASH KESHAVLAL 618
19 165 KIKANI MEHULKUMAR VALJIBHAI 616
20 172 THAKER VIHAR BIPINCHANDRA 615
21 186 MAHIDA YASHPALSINH VIKRAMSINH 612
22 187 BOOTWALA ISMAIL ABBASIBHAI 612
23 188 PRAJAPATI KUSUM SUDHIRKUMAR 612
24 192 BHATT BRIJESH JAYANTKUMAR 611
25 201 DESAI JAGDISHBHAI BALDEVBHAI 610
26 202 CHAVDA KETAN LAKHABHAI 610
27 204 PATEL APURVA SHANKARBHAI 610
28 207 GADHAVI NAVALKISHOR SHANKARDAN 609
29 211 JOSHI PEENA SUDHIR 608
30 212 SUTARIYA LALITKUMAR KHEMCHANDBHAI 608
31 214 PANDYA CHINTAN ARUNKUMAR 608
32 216 RAO MOUSMSINGH BHAGWATSINGH 607
33 251 THAKKAR MALABEN SHIVRAMBHAI 597
34 252 OZA SUSHMA MARKANDBHAI 597
35 255 PATIL LEENA MADHAVRAO 597
36 271 DAVE PARUL CHANDRAKANT 591
37 277 MEMON ASHIYA MOHAMEDABIB 587
38 280 KHANAMA VISHAL BABUBHAI 577
39 286 CHAUDHARI HITENDRAKUMAR BABUBHAI 569
40 303 LAKHTARIA PRITI RAMESHBHAI 547
41 314 CHAUDHARI DINESHKUMAR AMARSINGBHAI 524
35.2.5 Because of non-joining of above 41 candidates, 41
posts have remained vacant, details of which are as under. (As provided by the State).
Name of Post Category-wise Post reserved for
No. of Post break-up women within
respective
category
UR SC ST SEBC UR SC ST SEBC
Total Posts
Class-I
Dy.Supt. of 68 (Advertised) 51 03 - 14 15 01 - 04
Police
Dy.Supt. of 05 (Vacant) 4(M) - - 1(M) - - - -
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Police
(Not Joined)
Dist. Reg. 11 (Advertised) 08 - 01 02 03 -
Co.op. Soc.
Dist. Reg. Nil (Vacant) - - - - - - - -
Co.op. Soc.
(Not Joined)
Supt. Proh. & 01 (Advertised) 01 - - - - - - -
Excise
Supt. Proh. & Nil (Vacant) - - - - - - - -
Excise
(Not Joined)
Total 80 (Advertised) 60 03 01 16 18 01 - 05
Total 05 (Vacant) 4(M) - - 1(M) - - - -
(Not Joined)
Class-II
Mamlatdar 115(Advertised) 83 - 05 27 25 - 01 09
Mamlatdar 08 (Vacant) 8 - - - 4 - - -
(Not joined)
Sec. Officer 40 (Advertised) 20 04 07 09 06 01 02 03
(Sachivalaya)
Sec. Officer 03 (Vacant) 1(M) 1(M) 1(M) - - - - -
(Sachivalaya)
(Not Joined)
Sec. Officer 04 (Advertised) 03 - 01 - 01 - - -
(Vidhansaba)
Sec. Officer 01 (Vacant) 1(M) - - - - - - -
(Vidhansaba)
(Not Joined)
Sec. Officer 02 (Advertised) 01 - - 01 - - - -
(G.P.S.C.)
Sec. Officer Nil (Vacant) - - - - - - - -
(G.P.S.C.)
(Not Joined)
Taluka Dev. 44 (Advertised) 28 01 06 09 11 01 03 04
Officer
Taluka Dev. 10 (Vacant) 6 1(M) 1(M) 2 1 - - 1
Officer
(Not Joined)
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Govt. Labour 08 (Advertised) 04 01 - 03 02 01 - 01
Officer
Govt. Labour 02 (Vacant) 1 - 1(M) - 1 - - -
Officer
(Not Joined)
Asst.Dist.Reg 12 (Advertised) 12 - - - 04 - - -
Co.op. Soc
Asst.Dist.Reg 05 (Vacant) 5(M) - - - - - - -
Co.op. Soc
(Not Joined)
Dist. Ins. 12 (Advertised) 09 - - 03 02 - - -
Land Records
Dist. Ins. 07 (Vacant) 5 - - 2(M) 1 - - -
Land Records
(Not Joined)
Total 237(Advertised) 160 06 19 52 51 03 06 17
Total 36 (Vacant) 27 02 03 04 07 - - 01
Not joined
Thus, 5 posts of Class-I and 36 posts of Class-II, total 41 posts, have remained vacant.
35.3 Thus, the figures of the persons affected by the impugned actions of the respondent Authorities and the number of vacancies remaining unfilled from that very advertisement (notified vacancies) are almost the same. At this stage, how many would join is also an issue. Thus relief can be granted to the affected candidates against the unfilled notified vacancies. Though this would approve the illegal action of the respondent Authorities to some extent, the equities between the two groups of the citizen need to be balanced by this Court. The stand of the State, even in this fact situation, is that, either it is my way or no way. This needs to Page 78 of 95 HC-NIC Page 78 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT be rejected, however while doing so, it should not result into injustice and / or avoidable hardship to other citizen. Keeping this balance in view, this Court finds that, instead of setting aside the impugned merit list dated 26.04.2011 and thereby, consequently setting aside all subsequent actions of the State, direction needs to be given to the GPSC and the State both, to offer appointments to the next meritorious candidates on the notified unfilled vacancies from the advertisement in question. This would meet with the ends of justice. At this stage, it also needs to be noted that, in the event of the impugned list dated 26.04.2011 being set aside and the respondent authorities being directed to undertake the exercise of preparing and operating the select list afresh, ultimately it would reach almost at that stage, which is indicated by this Court hereabove. The difference would be very minimal and for this reason, this course is being adopted by this Court.
35.4 At this stage, it also needs to be noted that, while offering appointments to the next meritorious candidates on the post remaining vacant, it should not happen that more meritorious candidate continues with his third or fourth preference and the post of his first choice at this stage, is offered to the candidate below in merit. Therefore, while undertaking this exercise, the decision of this Court in the case of D.G.Dalal (supra), as confirmed by the Supreme Court of India, shall also be kept in view. It is noted that the copy of this judgment is already placed on record by the State itself, along with its affidavit in Special Civil Application No.11163 of 2012.
36. Issue No.5 formulated by this Court is also on this line. The said issue, as noted in para : 16 above, is as under.Page 79 of 95
HC-NIC Page 79 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Issue No.5 :- 'After giving such appointments from the impugned merit list dated 26.04.2011, at least 41 candidates have not joined the service, which the State is refusing to make available to the candidates who are next in merit, on the basis of the very same examination, though the claim of those next meritorious candidates is within the notified and vacant posts. Whether this action of the State is sustainable and / or whether the claim of the petitioners should be accepted to the extent of notified vacant posts.' 37.1 The position of law qua the above issue can be traced in the decisions of the Supreme Court of India in the following cases.
(1) (2013) 12 SCC 171 - Manoj Manu Vs. Union of India. (2) (2013) 11 SCC 737 - State of Jammu and Kashmir Vs. Sat Pal.
(3) 1994 Supp (2) SCC 591 - Gujarat State Dy.
Executive Engineers' Association Vs. State of Gujarat.
37.2 As against the above decisions, reliance is placed on behalf of the the State, on the decisions which are noted in para 13.3 above, however in the peculiar facts as noted above, it would not take the case of the State any further. On the contrary, it would lead to disastrous situation for the respondents, like setting aside the entire selection, which this Court has attempted to salvage for the reasons recorded above. The Arguments of the respondent State and the GPSC Page 80 of 95 HC-NIC Page 80 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT on this issue, for these reasons, need to be rejected.
38. This issue is contested by the State and the GPSC, both. It is difficult to understand what purpose is served by not filling up the notified vacancies by the next meritorious candidates, within the ceiling of the notified vacancies. It is noted that there is no decision by the State not to fill up these vacancies. At this stage, the argument of learned Advocate General regarding the notification of the State dated 17.01.2009 needs to be seen. It is to the effect that, unfilled vacancies will go to the next recruitment. In this case, it is the Advertisement No.09/2014-15. On the request of this Court, learned Advocate General has made available to this Court, the reasoning adopted by the State, as reflected on the file on which the said notification is issued (File No.GAD/ BRT/10/ 2007/ 224605/K). The reading thereof makes it clear that, it was to overcome the effect of the decision of the Division Bench of this Court, in the case of D.G.Dalal (supra). The very foundation of the consideration by the State as reflected in the Note dated 13.04.2007 was to the effect that 'Stay is obtained by the State from the Supreme Court against the judgment of Gujarat High Court in the case of D.G.Dalal'. (page No.4/N of that file.). It is noted that the said stay order was subsequently vacated and the judgment of the Division Bench of this Court in the case of D.G.Dalal is upheld by the Supreme Court of India, not merely by rejecting SLP but by recording judgment on the Civil Appeal Nos.5643 to 5656 of 2002 dated 23.04.2008. This point is not deliberated further in this judgment, however only factual aspect is noted. To conclude this issue, it is noted that, on the gross illegalities committed by the respondent Authorities as noted above, when the only option was to set Page 81 of 95 HC-NIC Page 81 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT aside the entire merit list dated 26.04.2011, an attempt is made by this Court to salvage the situation, the petitioners can not be denied relief only because of the said notification, the foundation of which was also an attempt by the Authorities to over-reach the decision of this Court. Further, the law on the point is already noted above at para:37.1.
39. For the above reasons, issue No.5 is answered by holding that the notified vacancies in the Advertisement in question, which have remained unfilled because of non-joining of the candidates appointed, need to be filled up by the State, by offering the same to the next meritorious candidates whose details are already annexed with the merit list dated 26.04.2011 itself by the GPSC and which is already on record of these petitions. The respondent State and the GPSC both need to be directed to do needful in that regard.
40. Considering the totality and in view of the reasons and the findings recorded by this Court qua each issue as noted above, the following directions are given.
40.1 Special Civil Application No.8203 of 2012, wherein writ of quo warranto is prayed against respondent No.4, is allowed.
40.2 It is declared that respondent No.4 in Special Civil Application No.8203 of 2012 (Ms. Reema Mavjibhai Munshi) is ineligible to hold the office of the post of the Deputy Superintendent of Police in the Gujarat Police force, which is a public office.
40.3 Consequently, it is directed that, respondent No.4 in Page 82 of 95 HC-NIC Page 82 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT Special Civil Application No.8203 of 2012 (Ms. Reema Mavjibhai Munshi) shall vacate the public office of the post of the Deputy Superintendent of Police, forthwith.
40.4 It is clarified that, the declaration of this Court as contained in para : 40.2 would not affect any action which the State has taken through the said officer and/ or which the said officer has taken in her official capacity, holding the office of the post of the Deputy Superintendent of Police, till date. It is further clarified that no recovery shall be made from the said officer for the salary which is paid by the State to her, till date.
40.5 The said candidate i.e. the respondent No.4 in Special Civil Application No.8203 of 2012 is a Scheduled Caste Female candidate and she was appointed against the reserved post. Therefore, it is directed that the post vacated by respondent No.4 in Special Civil Application No.8203 of 2012 shall be offered to the next meritorious candidate of Scheduled Caste in Female category, who has opted for the post of the Deputy Superintendent of Police.
41. So far other petitions are concerned, the following directions are issued.
41.1 Though the impugned merit list dated 26.04.2011 prepared and published by the Gujarat Public Service Commission is unsustainable on facts and in law, instead of setting aside the said merit list, (for the reasons noted in the body of the judgment, more particularly in para : 35.1 and 35.3), and consequently setting aside all the appointments of about three hundred candidates and their further promotions Page 83 of 95 HC-NIC Page 83 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT in the respective hierarchy, it is directed that, the posts, which have remained unfilled because of non-joining of the candidates appointed by the Government vide appointment orders, claimed to have been issued on 06.05.2011, based on the impugned select list dated 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question (Advertisement No.87/2006-07). It is further directed that, while giving such appointments, the ceiling of the notified vacancies (total 317 vacancies) shall also be kept in view by the Authorities.
41.2 While giving such appointments, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Supreme Court of India shall also be kept in view.
41.3 The appointments of these candidates shall be treated to be notional from 06.05.2011 and they shall be entitled to all consequential benefits, except arrears of pay. (vide the decision of the Supreme Court of India in the case of State of Jammu and Kashmir Vs. Sat Pal reported in (2013) 11 SCC
737). For this purpose, the State Authorities may even take guidance from the procedure which it had undertaken while giving effect to the directions of this Court, in the case of D.G.Dalal (supra), which culminated into office orders passed by the General Administration Department of the Government of Gujarat on 04.08.2008 and consequential orders, the copies of which are made available to this Court by the State.
41.4 The above exercise shall be completed within a period of three months from the date of receipt of this order.
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42. So far dealing with the glaring irregularities / mischiefs by the officer(s) of the respondent Government, which have come on record of this group of petitions are concerned, this Court could have gone into it, however this Court has restrained itself from entering into further inquiry in that regard for more than one reasons. Firstly, the mischiefs played by some individuals need not be seen as the policy of the State Government against the citizen of the State. There is presumption in favour of the State that its policy would always be to protect the fundamental rights of the citizen, more particularly the weaker sections of the society belonging to Scheduled Castes, Scheduled Tribes, SEBC and Women. Secondly, due care need to be taken that no impression is created that there is any trust deficit between the judiciary and the executive, which are two important pillars under the Constitution of India. There is no reason to assume for this Court that, if it is left to the Government of the day, the issues noted by this Court would not be examined by the Government with due seriousness or that it would not be taken to its logical end, with appropriate penal and / or corrective measures, if required. For this reason, the further inquiry in the matter is left to the Government with the following observations and directions.
43.1 The respondent State is directed to look into the illegalities / irregularities, some of which are noted in this judgment. These instances are only illustrative and not exhaustive. The specific areas where from the inquiry can, and need to start, are as under.
43.2 The Gujarat Public Service Commission prepared the merit list on 13.05.2010 of 316 candidates, who were found Page 85 of 95 HC-NIC Page 85 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT meritorious for appointment on different posts of Class-I and Class-II in the Government of Gujarat, pursuant to the Advertisement No.87/2006-07. The said merit list was duly notified on 28.07.2010 and consequently, recommendations were made by the GPSC to the Government under Article 320 of the Constitution of India, to give appointments to those candidates. It was open to the Government either to accept that advice or not to accept it, for valid reasons. The letter dated 20.01.2011 is written by the Joint Secretary of the General Administration Department of the Government of Gujarat, requesting the Gujarat Public Service Commission to recast the merit list. Along with the said letter, the original record of all the 316 candidates, which was sent to the Government by the GPSC along with its recommendation dated 29.07.2010, was also returned to the GPSC. Before the above letter was issued, the following note is recorded on the file of the General Administration Department. File No.SCS/ 122010/ 719418/R. "GAD : JS(S)
1. The above note refers.
2. This being an important matter having a direct bearing on the result already declared by the GPSC, it was discussed at length twice with the Commission. During the discussions, the Commission was apprised of the actual position regarding Women Reservation, scope of the Hon'ble High Court's Judgment in Komal Katara case, Hon'ble Supreme Court's Judgments in Rajesh Kumar Daria and Mamta Bisht cases. The Commission Page 86 of 95 HC-NIC Page 86 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT was apprised of the fact that the advertisement given for the Combined Competitive Examination for recruitment to Class-I and Class-II categories of the Government service mentioned total 101 vacancies for women. As against this, the Commission has recommended 127 women candidates, some of whom have been recommended even by relaxing the minimum standard for selection.
The GPSC appears to have followed the Hon'ble High Court's Judgment in Komal Katara case in the present case, although the facts of Komal Katara case were totally different from the facts of the present examination.
3. The Commission was also apprised of the Hon'ble Supreme Court's Judgment in Ramesh Ram v/s Union of India & Others case. This Judgment relates to the reserved category candidates recommended against unreserved category posts.
4. After detailed discussions, the Commission expressed the view that this whole issue needed to be discussed with the Advocate General who had already given an opinion on the point of implementation of High Court's Judgment in Komal Katara.
Time was taken from the Advocate General and a meeting was held with him, which was attended Page 87 of 95 HC-NIC Page 87 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT by the officers of the GPSC and GAD. After detailed discussion, the Learned Advocate General endorsed the views expressed by GAD and said that the ratio laid down by the Hon'ble Supreme Court about Women Reservation will apply in all the cases. (He also clarified that the facts of the Komal Katara case being unique and typical, the cases exactly identical to Komal Katara case will only be covered by the Hon'ble High Court's Judgment in Komal Katara case.) The Learned Advocate General also gave a clear opinion that the Apex Court's Judgment of 2010 in the case of Union of India v/s Ramesh Ram would apply in the present case also.
5. At the end of discussion, it became clear that the result already announced by the GPSC will have to be revised on the above mentioned two points. The GPSC also agreed to this suggestion and it was decided to revise the result along with a detailed self-speaking preface which would specifically refer to the relevant Judgments of the Supreme Court / High Court and clarify as to why it has become necessary to revise the result.
6. As decided in the meeting with the Advocate General, a formal letter may be sent to the GPSC so that they can initiate the process of revising the result. The draft letter is kept at P.185/Cs Page 88 of 95 HC-NIC Page 88 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT for approval.
Sd/-
(Harsh Brahmbhatt) JS(S), GAD 19.1.2011 ACS(P) C.S."
43.3 The above note and consequential letter dated 20.01.2011 led to cancellation of the earlier merit list dated 13.05.2010 ab-initio and publication of fresh merit list dated 26.04.2011. The said action on the part of the General Administration Department of the Government, may be on legal advice, was an action of the State of returning the advice of the State Public Service Commission, back to it, for its reconsideration. The Competent Authority, to take this decision in the Government, is the Chief Minister (vide Government Resolution dated 23.12.2005). The record makes it clear that the advice of the GPSC was returned to it, for its reconsideration, without any such authorisation by the Chief Minister. Thus the very basis of the reconsideration of the select list dated 13.05.2010 was an unauthorised request, claimed to have been made on behalf of the Government, which, as a matter of fact, was not the say of the Government. The consultation by and with the State Public Service Commission, as contemplated under Article 320 of the Constitution of India, has its own sanctity, which is seriously compromised while recasting the merit list for the recruitment in question.
43.4 The second area where the inquiry is needed is the Page 89 of 95 HC-NIC Page 89 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT conscious attempt on the part of the erring Officer of the General Administration Department to sabotage the orders of the Chief Minister dated 04.05.2011. The allocation of the posts to the selected candidates was put to the notice of the Chief Minister by the General Administration Department, on which, a question had cropped up about allocating different posts to the candidates who had given limited preferences. There was a specific order of the Chief Minster dated 04.05.2011 noted on File No. SCS-10/2011-309040-R at page 5/N (the allotment file). It had two facets. First, let there not be any conflict with the judicial proceedings, and for that purpose, if need be even legal opinion be taken. The second was, let there be consultation with the GPSC in that regard.
43.5 The above orders of the Chief Minister dated 04.05.2011 are 'dealt with', (not carried out) by the General Administration Department with the following note dated 07.05.2011 at Page No.7/N on the same file.
"GAD : JS(S)
1. The matter pertains to giving appointments to the selected candidates on the basis of the result of the Gujarat Civil Services Class-I and II Combined Competitive Examination conducted by the GPSC.
2. With the reference of the Hon. CM's orders at page-5/ante it may be stated that -
(a) Since there was acute shortage of time, Chairman, GPSC was apprised of the logic for Page 90 of 95 HC-NIC Page 90 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT offering particular posts to the 19 candidates who have given limited preferences and who did not get any of the posts for which they have given such limited preferences. The Chairman, GPSC agreed to the logic proposed by the GAD for giving appointments to such candidates.
(b) While a writ petition had already been filed in the Hon'ble Gujarat High Court challenging the revised result declared by the GPSC, 4 new writ petitions were filed before the High Court which came up for hearing on 6.5.2011. Since there was every likelihood of the High Court giving an interim stay or passing orders for observance of status quo, the Learned Advocate General was consulted personally (the AGP concerned Shri Maulik Nanavati was also consulted along with the AG). Both of them were of the view that the orders should be issued today itself, otherwise there was a possibility of High Court giving an interim stay or passing orders for maintenance of status quo. Therefore, the allotment letters were issued yesterday itself and the concerned administrative departments of the Sachivalaya, were requested to issue the appointment orders in respect of the candidates alloted to them. Accordingly, all the Departments issued appointment order yesterday itself i.e. on 6.5.2011.
3. Since the appointment orders were issued, Page 91 of 95 HC-NIC Page 91 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT the High Court did not grant any interim relief nor did it pass any order for maintenance of status quo. Now, all these matters are slated for hearing on 10th/12th instant.
4. The above position is submitted for information.
Sd/-
(Harsh Brahmbhatt) J.S.(S), GAD 7.05.2011 ACS (P) CS"
43.6 The above would show many fold manipulations. Firstly, the hush up on 06.05.2011 as noted in the order of this Court dated 06.05.2011, (quoted in para : 3 above), has relevance here. Inspite of the orders of the Chief Minister to respect the judicial proceedings appropriately, the attempt on the part of the officer(s) was to overreach the proceedings before this Court, for obvious reasons as noted in the findings qua issues No.2, 3 and 4. Secondly, whether telephonic / oral discussion by some officer of the Government with the Chairman of the GPSC can be said to be 'consultation by the Government with the State Public Service Commission' as envisaged under Article 320 of the Constitution of India' and further, whether the said act can be said to be due compliance of the orders of the Chief Minister. It is noted that there is no letter on the file in that regard, nor the said file is ever submitted to the Chief Minister thereafter.Page 92 of 95
HC-NIC Page 92 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT 43.7 The third aspect for which the inquiry is needed, and to some extent it is connected with the above noted aspect No.2, is the mysterious allocation of posts in some cases. The example noted here is only illustrative and the same need to be gone into, on entry to entry basis, which the State need to do. Take an example of the allocation of the post of Section Officers in Sachivalya. The details in that regard are as under.
(A) Total number of posts advertised for the said cadre were
40. Of this, 4 were reserved for SC, 7 for ST and 9 for SEBC category. Thus, total 20 posts were reserved and thus 20 posts remained as unreserved posts. Within these 20 unreserved posts, 6 posts were earmarked for female.
(B) The appointment order dated 06.05.2011 for the said cadre is on record. 40 candidates are appointed by the said order. Prima facie everything may appear to be in order. 40 posts advertised, 40 appointments given. But a little prob gives the following picture.
(C) As against 20 unreserved posts, 21 unreserved candidates are appointed by the said order. The reservation policy of the State is thus seriously compromised by the said order. The candidate appointed in excess of available vacancy in general category is one Ms. Manek Heena Jitendrabhai, whose name figures at serial No.27 in the said appointment order dated 06.05.2011. It is noted that the merit rank of the said candidate was 224 in the select list. Her total marks were
604. Page 93 of 95
HC-NIC Page 93 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT (D) Thus a candidate with 604 marks and merit rank No.224 is appointed as Section Officer in Sachivalya on 06.05.2011, leaving aside number of more meritorious candidates who had opted for Section Officer (Sachivalya) as the first / or higher preference. For example, candidates at merit rank No.210 and 211 were having more marks then the candidate at serial No.224. Their first preference was for Section Officer in Sachivalya. But they are appointed on the posts of their lower preference and not as Section Officer in Sachivalya. Whether any posts remained vacant for Ms.Manek or it was kept vacant for her, is an aspect which may be required to be gone into by the State Authorities. As noted above, this is only an illustrative reference. This example would assume further seriousness because of the fact that the said candidate at serial No.224 is one of those candidates who did not get any post, as per the say of the officers of GAD because of their limited preferences and qua whom there was specific note / order by the Chief Minister on 04.05.2011 to go for consultation with the GPSC, which is sabotaged by projecting the acute shortage of time. The matter is left at this stage by this Court to be further looked into by the State, with due seriousness.
44. It is noted that the officer who authored the above quoted notes and the one who is referred to in the order of this Court dated 06.05.2011, as quoted in para : 3 above, is the same. There is no reason to assume that, if it is left to the Government of the day, the issues noted by this Court, would not be examined by it with due seriousness or that it would not be taken to its logical end with appropriate penal and / or corrective measures, if required. It is further observed that Page 94 of 95 HC-NIC Page 94 of 95 Created On Mon Aug 14 09:50:21 IST 2017 C/SCA/8203/2012 CAV JUDGMENT what is being left to the Government by this Court, also includes dealing with the attempts by the officers of the Government to overreach the proceedings before this Court as noted above, which this Court itself could have done. The onus on the shoulders of the Government is thus much more to reciprocate appropriately. In this factual background and with these observations, the further inquiry in the matter is left to the Government. In the event, the State is of the opinion that no such inquiry is needed, an order to that effect shall be passed and a copy of the said order shall be sent to the petitioners herein, within a period of three months from the date of receipt of this order. It would be open to the aggrieved party to challenge the said decision, if so advised.
45. All the petitions and interim application stand disposed of in above terms.
(PARESH UPADHYAY, J.) M O Bhati/01 Page 95 of 95 HC-NIC Page 95 of 95 Created On Mon Aug 14 09:50:21 IST 2017