Gujarat High Court
Kandarpakumar Krishnakumar Dholakia ... vs Gujarat Public Service Commission And ... on 7 March, 1990
Equivalent citations: (1990)2GLR1058
JUDGMENT B.S. Kapadia, J.
1. In the aforesaid petitions the petitioners are members of the staff working in the subordinate Courts and this Court as also practising Advocates. The petitioners have prayed for quashing and setting aside the results at the Elimination Test held on 30-9-1984 by the Gujarat Public Service Commission, respondent No. 1 for the purpose of recruitment to the post of Civil Judge (Junior Division) and Judicial Magistrate First Class, in Gujarat Judicial Service Class-II (Junior Branch) and for a further direction that the petitioners be called for interviews to be held for appointment to the said post and also for other incidental and ancillary orders. They have also sought for prayer directing the first respondent to permit rechecking the papers of the petitioners in the Elimination Test held on 30-9-1984 for the post of Civil Judge (J.D.) and Judicial Magistrate First Class, in the Gujarat Judicial Service Class-II (Junior Branch) for the purpose of ascertaining as to whether there is any mistake arithmetically or otherwise and also for the purpose of assessing whether the marks given to the petitioners are from the papers belonging to the petitioners and to pass all other incidental orders in this regard.
2. The Gujarat Public Service Commission published an advertisement in the Times of India on 30-6-1984 inviting separate applications for 65 post of Civil Judge. Junior Division and Judicial Magistrate First Class in the Judicial Service Class-II (Junior Branch) with a specific mention that said applications should reach the Commission's Office on or before 30-7-1984. Various essential qualifications as mentioned in the advertisement were prescribed. It was also inter alia mentioned in the note of the said advertisement that if necessary, the Commission may arrange elimination test to decide who should be called for personal interview and in that case medium of examination would be in Gujarati unless otherwise decided by the Commission. In response to the said advertisement the petitioners have applied for the said post. Thereafter the petitioners were informed that the elimination test for recruitment to the said post shall be held on 30-9-1984. It was mentioned in the letter dated 17-9-1984 written by the first respondent that if the candidates secure the number of marks to be fixed by the first respondent in the elimination test then only would be called for personal interview. The test consisted of two parts namely, Part-I General Knowledge consisting of 50 marks and Part-II consisting of Criminal Procedure Code, elements of Indian Penal Code and Court Procedures of 100 marks. The said question paper was to be objective in nature. It was clearly mentioned that the Commission will not entertain any correspondence with regard to checking of answer papers of the said examination. The petitioners have appeared at the said elimination test. There were about 1000 candidates (861 candidates to be exact) in the said elimination test.
3. The petitioners thereafter received letter dated 21-9-1985 on or around 8-10-1985 whereby they were informed that they had not obtained requisite qualifying marks in the said elimination test and they were not to be called for oral interview. Hence the present petitions are filed on various grounds mentioned therein.
4. One of the main grounds raised in the petitions is that holding of elimination test by the first respondent is ultra vires the Recruitment Rules and on that ground the entire elimination test is vitiated and the result of the said test is required to be quashed and set aside. It is also contended that under the Rules there is no provision for elimination test and the petitioners were denied their right to find out whether there has been any arithmetic error in computing the marks obtained by the petitioners in the elimination test. They are also not permitted to find out whether inadvertently or otherwise any question/answer has remained unanswered and further as to whether markings of all the answers given by the petitioners are included in the total marks obtained by the petitioners and therefore, denial to the petitioners of the aforesaid right is arbitrary, capricious and violative of Articles 14 and 16 of the Constitution of India and therefore requested that direction be given to permit rechecking at least to the extent mentioned above.
5. It may be mentioned that there are Gujarat Judicial Service Recruitment Rules, 1961 which are framed in exercise of the powers conferred by Article 234 and proviso to Article 309 of the Constitution of India. They are amended and from 1-1-1979 they are known as the Gujarat Judicial Service Recruitment (Amendment) Rules, 1979. Rule 1 gives the name of the Rules. Rule 2 speaks about definitions of "Governor", "Government", "High Court" etc., Rule 3 speaks about constitution of services consisting of two branches, (1) Junior and (2) Senior Branch. Junior Branch shall consist of two classes namely, Class-I comprising of the cadre of Civil Judge (Senior Division) and the Judges of the Small Causes Courts and Class-II comprising of Civil Judges (Junior Division) and Judicial Magistrate First Class.
6. So far as the present petitioners are concerned, Rule 5 of the said Rules is applicable which speaks about method of recruitment to Class-II of the Junior Branch. It provides that appointments to the post of Civil Judges (Junior Division) and Judicial Magistrate First Class shall be made by direct selection from amongst (i) members of the Bar; (ii) members of the staff of the High Court or any Court subordinate to it; (iii) members of the staff working as Assistants in the Legal Section of the Legal Department in Sachivalaya; (iv) members of the staff of the office of the Government Pleader, High Court, Ahmedabad, and members of the staff of the office of the Government Pleader, City Civil Court, Ahmedabad. Sub-rule (2) of Rule 5 provides that appointments shall be made by the Governor in consultation with the Commission. Proviso to said sub-rule provides that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberations of the Commission but shall not be entitled to vote. Sub-rule (3) of Rule 5 provides that the appointment shall be made from amongst candidates who being members of the Bar. Sub-rule (3)(a) of Rule 5 provides for certain criteria for the members of the staff. Sub-rule (3)(b) thereof provides for further criteria for eligibility of the members of the Bar. Sub-rule (3B) of Rule 5 provides that notwithstanding anything contained in the earlier sub-rules, the Governor may if in his opinion the public interest of special circumstances render it necessary to do so at any time, make appointment in consultation with the Commission and the High Court, to the posts referred in Sub-rule (1) from amongst candidates who are enrolled as advocates and who satisfy the condition for recruitment mentioned in Clause (a) of Sub-rule (3). Sub-rule (4) of Rule 5 provides that unless otherwise expressly provided, every person appointed under the preceding sub-rules shall be on probation for a period of two years and on the expiry of such period he may be confirmed if there is a vacancy and his work is found to be satisfactory. Rule 6 provides for the method of recruitment to the Senior Branch.
7. The petitioners have placed reliance on Sub-rule (2) of Rule 5 of the said Rule and submitted that as no elimination test was provided in the Recruitment Rules the action of the respondents taking elimination test is contrary to the said Rules and therefore, the said test is. bad and illegal.
8. In these case affidavit in reply is already filed by the Deputy Secretary of the Gujarat Public Service Commission giving sufficient explanation with regard to the delay in giving the result in view of the peculiar circumstances prevailing in the State on account of the State wide disturbances and strike by the Government employees. It is also contended that it is not open to the petitioners to challenge the mode and manner in which the elimination test are conducted. It is also pointed out that similar issue was raised before this Court in the Special Civil Application No. 3695 of 1980 and this Court while deciding the said issue in L.P.A. No. 230 of 1980 was pleased to hold that there was no illegality committed in holding the eliminations test to which all applicants were subjected. It was contended in the affidavit-in-reply that the petitioners having taken the chance to appear at the elimination test should not now be permitted to challenge the legality of the selection made merely because they have failed to achieve the qualifying marks.
9. On the point of rechecking it is submitted in the affidavit-in-reply that before final results are declared the results were checked to ascertain (a) that all the answer sheets submitted by the examinees are checked; (b) that all the answers tried by the examinees are assessed; (c) that marks allotted to all the answers are included while totalling the marks; and (d) that no arithmetical error has crept in while computing the total marks obtained by the candidates. It is also pointed out that the Commission while conducting the elimination test is always cautious so that no injustice is done to any of the examinees appearing in the examination. However, it is pointed out that it is not the practice with the Commission to allow any of the candidates to check his answer-sheet himself, and submitted that no direction is required to be issued to recheck the answer-sheet of the candidates at the elimination test.
10. On the point of justifying the action of conducting elimination test it is submitted in the instant case for 65 vacant posts the Commission had received 861 applications and it was physically impossible to verify all the applications for the eligibility of the applicant concerned; that conducting of the elimination test has been held valid and legal by this Court and therefore, the petitioners' contention challenging the elimination test requires to be rejected. It is further pointed out that by elimination test all the applicants are screened and only those who are called for interview who are eligible and found possessing better merits. It is further pointed out that it is the general practice of the Commission not to inform the examinees about the marks obtained by them in the Elimination Test; that the qualifying marks are settled depending upon the number of posts vacant and the performance of the candidates at the elimination test; that in the Government Departments many posts are filled in by the persons selected by the Commission and the Commission always receive many-fold applications pursuant to its advertisement and it always results into hundreds of persons being not selected and such disgruntled persons would always try to interfere in the functioning of the Commission by raising doubts regarding the mode and manner of its working. However, it was fairly pointed out in the affidavit-in-reply that mark-sheets of all the petitioners will be produced for the perusal of this Court at the time of hearing of the petition, if so directed. It is further pointed out in the last paragraph of the affidavit-in-reply that the Recruitment Rules do not provide that the Commission should consult the High Court in the matter of holding and conducting the elimination test. It was therefore, submitted that omission to consult the High Court as aforesaid does not vitiate the elimination test. It is therefore, pointed out that it is not mandatory for the Commission to consult the High Court before the elimination test regarding the manner and method of the same. With the aforesaid submissions it is further submitted in the affidavit-in-reply that petitioners' grievances are imaginary, unreal and unwarranted and the petitions should be dismissed with costs.
11. At the time of hearing Mr. J. F. Shah, learned Advocate for the petitioners with a view to bring home his submission on the point that elimination test is contrary to the Recruitment Rules, has strongly relied on the judgment of the Bombay High Court in Writ Petition No. 57 of 1986 in the case of Arunkumar Ganeshrao Mukhadkar v. State of Maharashtra and Ors. delivered by the Division Bench consisting of R. R. Jahagirdar and V.P. Salve, JJ. on 25-4-1986. On the other hand Miss Rekha Doshit appearing for the respondents for the purpose of justifying the legality of the elimination test has relied on the judgment of this Court delivered in L.P.A No. 230 of 1980 by the Chief Justice M. P. Thakkar and A. M. Ahmadi, J. on 24-8-1981. Similar contention as to the one raised in these petitions was raised in the said L.P.A. It would be profitable to quote the relevant paragraph of the said judgment:
The first ground of challenge is that the Public Service Commission could not have held a written test. Now the recruitment rules do not provide for either written test or an oral interview. There is, however, nothing in the rules which prohibits the taking of a suitable test in order to assess the suitability of the candidates appearing for interview. If it were otherwise, even oral interview could not have been taken. Now would the Public Service Commission then assess the relative merits of the candidates ? Written test in a way would be a more objective test. In any view of the matter, there is no illegality committed in holding a written test to which all candidates were subjected. Petitioners having taken the chance to appear at the test cannot now be permitted to challenge the legality of the selections made merely because they have failed at the interview. There is no substance in the first contention.
Other points which were raised in the said L.P.A., are not relevant for the purpose of these petitions. Ultimately the Division Bench of this Court held that the learned single Judge was perfectly justified in rejecting the petition in limine and the appeal was accordingly dismissed.
12. It may be mentioned that the aforesaid judgment of this Court is directly on the point and it is binding to single Judge when it is a Division Bench judgment. It may however be pointed out that a feeble attempt was made on the part of Mr. K. J. Kakkad, learned Advocate for the petitioners to point out that the proviso to Rule 5(2) of the said Rules provides that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberations of the Commission but shall not be entitled to vote. It may be mentioned that once when the Rules do not provide for any specific and express prohibition for holding elimination test by the Public Service Commission it cannot be said that there is any illegality in conducting the elimination test. Similar question arose before the Supreme Court in the case of Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. wherein it is observed in para 20 as under:
....But whilst disagreeing with the conclusion we must admit that the Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secured 45% or more marks in the written examination. The respondents sought to justify the action of the Haryana Public Service Commission by relying on Regulation 3 of the Regulations contained in Appendix-I of the Punjab Civil Service (Executive Branch) Rules, 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that Regulation, the Haryana Public Service Commission was bound to call for interview all the candidates who secured a minimum of 45% marks in the aggregate at the written examination. We do not think this contention is well founded. A plain reading of Regulation 5 will show that it is wholly unjustified. We have already referred to Regulation 5 in as earlier part of the judgment and we need not reproduce it again. It is clear on a plain and natural construction of Regulation that what it prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. Every candidate to be eligible for appearing at the viva voce must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum 45 per cent marks does not by itself entitled a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana Public Service Commission to call for the viva voce test all candidates who satisfy the minimum eligibility requirement. It is open to the Haryana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview. And this has necessarily to be done because otherwise the viva voce test would be reduced to a farce....
It has been further observed in the said judgment after considering the Kothari Committee's Report as under:
Otherwise the written examination which in definitely more objective in its assessment than the viva voce test will lose all meaning and credibility and the viva voce test which is to some extent subjective and discretionary in its evaluation will become the decisive factor in the process of selection. We are therefore, of the view that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled....
The aforesaid observations were made by the Supreme Court in respect of Regulation No. 3 which was to the effect that no candidate shall be eligible to appear at the viva voce test unless he obtain 45% marks, in aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi (in Devnagri Script) and Hindi Essay provided that if at any examination a sufficient number of candidates do not obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining 'unchanged'. The said regulation was considered to be relevant for deciding the eligibility and not the suitability while recommendations are to be made after considering the suitability and suitability can be decided by taking oral as well as written tests. For the purpose of taking viva voce test it is necessary to take the elimination test. Therefore, the aforesaid judgment of the Supreme Court also supports the action of the respondents.
13. In that view of the matter when there is no specific prohibition in the Recruitment Rules it cannot be said that the elimination test was in any way illegal and contrary to the Recruitment Rules. In above view of the matter it is necessary to further consider the Division Bench judgment of the Bombay High Court which is contrary to the view taken by the Division Bench of this Court in the aforesaid L.P.A. The entire approach of the Division Bench of the Bombay High Court is on the basis that there is no power or authority with the Public Service Commission to hold written examination since the Recruitment Rules do not contain any provision for the same. So, there is basic difference in approach by this Court and the Bombay High Court. When that is so, I follow the binding judgment of this Court and hold that elimination test held by the respondents is not in any way illegal or contrary to the Recruitment Rules.
14. Mr. J.F. Shah, learned Advocate for the petitioners contends that even otherwise the elimination test held is arbitrary inasmuch as the petitioners were not told in advance as to what would be the qualifying marks for the purpose of passing out the elimination test; that it was not certain as to whether all persons who pass out the elimination test would be called for interview in viva voce test and that it was not certain that elimination test would be held.
15. I do not find any substance in any of these contentions inasmuch as it is clearly stated in the advertisement, which is annexed to the petition that if necessary, the Commission may arrange elimination test to decide who should be called for personal interview. In that view of the matter it cannot be said that the Commission did not mention with certainly about holding of elimination test because the Commission cannot have any idea in advance as to how many candidates would be applying for the advertised posts. When there about 861 candidates for 65 posts it was impossible for the Commission to hold the personal interview without holding the elimination test and therefore, the said elimination test was taken on 30-9-1984. It is not permissible to the petitioners to raise this point particularly when they have appeared at the said elimination test. It may also be mentioned that what would be the qualifying marks would depend upon the number of candidates applying for the post. It is rightly observed in the case of Ashok Kumar (supra) by the Supreme Court that it is not always necessary that all those who are passing out the written test by obtaining 45% of qualifying marks should be called for personal interview. Therefore, there is no substance in the points raised by Mr. Shah.
16. Mr. Kakkad, learned Advocate for the petitioners raised a point that before holding the elimination test concurrence of the High Court was necessary. This point is noted only for the purpose of rejection because nowhere it is provided in the Rules for obtaining such concurrence of the High Court. Only what is provided in the proviso to Sub-rule (2) of Rule 5 is that the representative of the High Court should be present at the time of interview held by the Commission. It is not desirable to read something more than what is stated in the Rules to find out defect in the procedure followed by the Commission. Hence I do not find any substance in this point raised by Mr. Kakkad.
17. In order to satisfy myself on the point as to whether any of the answers of the petitioners have remained unchecked and/or whether there is any mistake in allotting the marks and making the total thereof I called for the original answer sheets of all the petitioners in the aforesaid three petitions. Excepting one paper out of two papers of one or two petitioners all the answer sheets have produced before me by Miss Rekha Doshit, learned A.G.P. I have personally verified the answer sheets of the petitioners in open Court and found that all the answers have been checked/examinated and that there is no mistake in allotting the marks and making total thereof. Accordingly, I do not find any merit in the contention raised by the petitioners on this point.
18. All the points raised before me on behalf of the petitioners are therefore rejected. In result all the petitions fail and stand dismissed. Rule discharged with no order as to costs.
19. Mr. J.F. Shah, learned Advocate for the petitioners requested that the interim relief which was granted on 17-2-1987 should be continued for a period of 15 days from today. Request of Mr. Shah is objected to by Miss Doshit, A.G.R on the ground that persons against whom the relief is to be continued are not parties to the proceedings. Miss Doshit is right in taking the said objection. Hence the request of Mr. Shah for continuing the interim relief cannot be accepted. Accordingly interim relief in all the petitions stands vacated.