Gujarat High Court
Ira Harshadkumar Bhavsar vs State Of Gujarat & on 18 April, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/8857/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8857 of 2013
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IRA HARSHADKUMAR BHAVSAR....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. MAHESH BHARGAV, ADVOCATE FOR MR DEEPAK P SANCHELA,
ADVOCATE for the Petitioner(s) No. 1
MS. VRUNDA SHAH, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 18/04/2017
ORAL ORDER
1. The petitioner, by way of present petition has prayed to set aside the final result dated 09.05.2013 declared by the respondent No.2 (Annexure 'A') and to direct the respondent No.1 and 2 to consider the case of the petitioner for giving appointment in accordance with law. The petitioner has also prayed for setting aside the circular dated 22.05.1997 issued by the respondent No.1 and further prayed to direct the respondent No.1 not to give appointment to the male candidates in place of female candidates on the post of Assistant Inspector of Motor Vehicle, Class-III.
2. The short facts giving rise to the present petition are that the petitioner pursuant to the advertisement dated 13.07.2012 issued by the respondent Commission had applied for the post Page 1 of 4 HC-NIC Page 1 of 4 Created On Tue Aug 15 21:00:51 IST 2017 C/SCA/8857/2013 ORDER Assistant Inspector of Motor Vehicle, Class-III. According to the petitioner, as per the said advertisement, 44 posts were reserved for women/female, out of which 22 posts were in General category and 22 were in reserved category. The petitioner was called for the interview after the physical measurement test by the respondent authority. However, as per the result declared by the respondent Commission, only three women candidates came to be appointed as per the notification dated 09.05.2013 (Annexure 'A'). According to the petitioner, the other post reserved for women were filled up with the male candidates in view of the circular dated 22.05.1997 issued by the General Administrative Department. The petitioner, therefore, has challenged the said action of the respondent by way of present petition.
3. It is sought to be submitted by the learned advocate for the petitioner that condition No. 2 of the Government Resolution dated 22.05.1997 permitting the post of female to be filled up by male in the same category, if the female was not available, was arbitrary and discriminatory. According to him, the post reserved for women, could not be permitted to be converted into the post for males. He further submitted that the respondent Commission was required to grant relaxation of 10% cut off marks for filling up the post reserved for women candidates. However, the learned advocate Mr. Premal Joshi for the respondent No. 2 placing reliance on the reply filed Page 2 of 4 HC-NIC Page 2 of 4 Created On Tue Aug 15 21:00:51 IST 2017 C/SCA/8857/2013 ORDER by the respondent Commission submitted that though the posts were reserved for women, they have to achieve the minimum qualifying marks prescribed by the Commission, and the petitioner, even after the relaxation in cut off marks to the extent of 10%, was not entitled to be included in the select list. Mr. Joshi, relied upon the decision of this Court rendered in the case of Lekhabahen Kanaiyalal Modi and another versus State of Gujarat and others in Special Civil Application No. 8894 of 2015 and allied matters, decided on 24.08.2015, submitted that the reservation for women being horizontal, the Commission could not have granted relaxation for more than 10% in the cut off marks fixed by the Commission.
4. Having regard to the submissions made by learned advocates for the parties, and to the position of law settled by the Supreme Court in catena of decisions, it appears that the present petition deserves to be dismissed. As held by the Supreme Court in the case of Professor A. Marx versus Government of Tamilnadu reported in (2014) 13 SCC 329, the question as to whether cut off marks stipulated for the reserved category candidates should be reduced or not, is entirely the matter for the State Government to decide. The Court exercising writ jurisdiction, cannot grant such relaxation/concessional marks as the same is the decision to be taken by the recruiting agency. It is further required to be noted that while dealing with similar issue, the Division Bench of this Court in the case of Nagori Ruksana Ahmedkhan versus State Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Aug 15 21:00:51 IST 2017 C/SCA/8857/2013 ORDER of Gujarat, Letters Patent Appeal No. 2474 of 2010, decided on 25th January, 2011, had observed as under :
"7. In our view, it is by now well settled that the reservation for women is horizontal and not vertical. Therefore, in respect of the seats for women, the merit will be at par with the male candidates. Under these circumstances, if the requisite merit is not available, the conversion of posts, reserved for women, in the respective category cannot be said to be arbitrary. Hence, the said contention cannot be accepted."
5. The aforestated ratio has been followed in the case of Lekhabahen Kanaiyalal Modi (supra) also. In view of the above legal position, the issue raised by the learned counsel for the petitioner that the respondent Commission should have granted relaxation in cut off marks to the female candidates and should not have filled up the posts reserved for female candidates by male candidates, is no more res integra. It is required to be noted that as per the Government Resolution dated 22.05.1997, the Commission has power to convert the posts reserved for females into the posts for male, if the female candidates are not available.
6. In view of the above, there being no substance in the petition, the same deserves to be dismissed and is accordingly dismissed. Notice is discharged.
(BELA M. TRIVEDI, J.) Amar Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Aug 15 21:00:51 IST 2017