Gujarat High Court
Kiran Dipakbhai Raj vs Gujarat Public Service Commission & on 28 December, 2017
Author: M.R. Shah
Bench: M.R. Shah, Biren Vaishnav
C/SCA/18303/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18303 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 18306 of 2017
With
SPECIAL CIVIL APPLICATION NO. 21549 of 2017
TO
SPECIAL CIVIL APPLICATION NO. 21555 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH SD/-
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV SD/-
======================================
1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
KIRAN DIPAKBHAI RAJ....Petitioner(s)
Versus
GUJARAT PUBLIC SERVICE COMMISSION & 1....Respondent(s)
======================================
Appearance:
MR AMIT M PANCHAL, ADVOCATE with MR ANGESH A
PANCHAL, ADVOCATE for the Petitioner(s) No. 1
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with MR
ROHAN YAGNIK, ASSITANT GOVERNMENT PLEADER for the
Respondent(s) No. 2
MS MANISHA LAVKUMAR, SENIOR ADVOCATE with MR PREMAL
R JOSHI, ADVOCATE for the Respondent(s) No. 1
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C/SCA/18303/2017 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/12/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in these group of petitions, all these petitions are disposed of by this common order.
[1.1] Special Civil Application Nos.18303/2017 to 18306/2017 have been preferred by the respective petitioners to quash and set aside the advertised interview programme dated 18/09/2017 at Annexure A and to permit to stay the said interview programme and not to proceed further with the interview call letter at Annexure B with respect to the post of Lecturer Selection Scale (Professor) in respective subjects in Gujarat Ayurved Service.
[1.2] By way of Special Civil Application Nos.21549/2017 to 21555/2017, respective petitioners have challenged the vires of proviso to Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 by which it provides that in exceptional circumstances, the selection of the candidates will be made on the basis of the marks obtained in the interview alone, being contrary to the law laid down by the Hon'ble Supreme Court in catena of decisions by which the recruitment /appointment solely on the basis of oral interview has been deprecated and held to be not permissible.
[2.0] At this stage, it is required to be noted that in
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exercise of powers laid down under Article 320 of the Constitution of India, Gujarat Public Service Commission ('GPSC' for short) has framed the Rules regulating its procedure and functions called Gujarat Public Service Commission Procedure Rules, 1962. Part II of the said Rules is with respect to the recruitment, recruitment by examination and recruitment by selection. Rule 4 is with respect to recruitment by selection and Rule 4(2), which is required to be considered for the purpose of the present Special Civil Applications, reads as under;
"4(2) On the receipt of a Requisition from Government for selecting candidates for nomination, the Commission will -
(i) publish advertisement in the Gazette and suitable newspapers and invite applications from prospective candidates mentioned in the conditions of service, nature of compensation, numbers of vacancies, manner of submission of applications and other relevant material;
(ii) consider all applications received and interview such candidates as it considers most suitable for appointment; and
(iii) forward to the Government particulars regarding candidates arranged in order of preference not exceeding number of vacancies, who, in the opinion of the Commission, are most suitable for appointment.
[2.1] In the year 2016 and with effect from 01/08/2016 Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Jan 30 22:56:42 IST 2018 C/SCA/18303/2017 JUDGMENT GPSC in exercise of powers laid down under Article 320 of the Constitution of India and with a view to achieve the objectives of fair, impartial, independent and reliable selection process, amended the Gujarat Public Service Commission Procedure Rules, 1962, namely, Gujarat Public Service Commission Procedure (Amendment) Rules, 2016. By the aforesaid amendment, Clause (ii) of Sub Rule (2) of Rule 4 of the Gujarat Public Service Commission Procedure, 1962 came to be substituted as under;
"(ii) Considering all applications received, the Commission will generally conduct a preliminary test (objective type) consisting of two parts i.e. Part I General Knowledge - 100 marks and Part II respective subject - 200 marks and the second stage followed by the result of preliminary test, the qualified candidates, in all respect, will be called for the interview. The interview will carry 100 marks;
a) The final list will be prepared on the basis of the aggregate marks, obtained in Preliminary Test and interview in proportionate of 50 marks of each; subject to qualifying marks fixed by the commission, from time to time.
Provided that in exceptional circumstances, the selection of the candidates will be made on the basis of the marks obtained in the interview alone;
Provided further that this amendment shall be made applicable to all the advertisement published on or after 01/08/2016."
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[2.2] Pursuant to the Gujarat Public Service Commission
Procedure (Amendment) Rules, 2016 and more particularly considering the proviso to Rule 4(2)(ii)(a) when the recruitment process in question had begun, GPSC had proceeded further to fill up the post of Lecturer Selection Scale (Professor) in Gujarat Ayurved Service, only by oral interview and accordingly the interview programme was fixed and interview calls are issued, which are subject matter of Special Civil Application Nos.18303/2017 to 18306/2017. Thereafter, the respective petitioners have challenged the vires of proviso to Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016.
[3.0] All these petitions were heard at length by this Court, more particularly, on the vires of proviso to Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 and the method and procedure adopted by GPSC for filling up the post in question solely on the basis of the oral interview in exercise of powers conferred under the proviso to Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016. Number of submissions were made by the learned advocate appearing on behalf of the respective petitioners in support of the submission that proviso to Rule 4(2)(ii) of Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 permits GPSC to select the candidates solely on the basis of the marks obtained in the oral interview alone and the same is unconstitutional and contrary to the law laid down by the Hon'ble Supreme Court in catena of decisions. Even Ms. Manisha Lavkumar, learned Senior Advocate appearing on behalf of GPSC has also made elaborate submissions and Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Jan 30 22:56:42 IST 2018 C/SCA/18303/2017 JUDGMENT relying upon some judgments by which according to her in exceptional circumstances, the selection of the candidates will be made solely on the basis of the marks obtained in the interview alone is held to be permissible. However, it is required to be noted that in the decisions, which are relied upon by the learned Senior Advocate appearing on behalf of GPSC there was a provision for preliminary test /qualifying test.
[3.1] After elaborate submissions were made by the learned Advocates appearing on behalf of the respective parties, today when all these petitions are taken up for further hearing, Ms. Manisha Lavkumar, learned Senior Advocate appearing on behalf of GPSC has stated at the Bar that now a decision has been taken by the GPSC to amend the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016, which shall be substituted by Gujarat Public Service Commission Procedure (Amendment) Rules, 2017 by which in Rule 4(2)(ii) of Gujarat Public Service Commission Procedure (Amendment) Rules, 2016, in place of words "the Commission which generally conduct a preliminary test" shall be substituted by the words "the Commission shall conduct a preliminary test" and it has been decided to delete first proviso to Rule 4(2)(ii) in Gujarat Public Service Commission Procedure (Amendment) Rules, 2016. She has placed on record the Gujarat Public Service Commission Procedure (Amendment) Rules, 2017 dated 27/12/2017 by which in exercise of powers conferred under Article 320 of the Constitution of India and in order to achieve the objective of fair, impartial, independent and reliable selection procedure, Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 has been amended. The same is directed to be taken on record. The Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Jan 30 22:56:42 IST 2018 C/SCA/18303/2017 JUDGMENT notification / Gujarat Public Service Commission Procedure (Amendment) Rules, 2017 reads as under;
Order No.GPR/2015/E GPSC Bhavan Gandhinagar Dated 27/12/2017 In exercise of the powers conferred by Article 320 of the Constitution of India and in order to achieve the objectives of fair, impartial, independent and reliable selection process, the Gujarat Public Service Commission has made the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 to amend the Gujarat Public Service Commission Procedure Rules, 1962. Hereinafter referred to as the said Rules.
Now, the Gujarat Public Service Commission, in exercise of powers conferred by Article 320 of the Constitution of India and in order to further amend the said Rules to make them intelligible, hereby makes the following Rules, namely:-
1. These Rules may be called the Gujarat Public Service Commission Procedure (Amendment) Rules, 2017.
2. In para 3 of the Rules of 2016, in Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure Rules for the words "the Commission will generally conduct a preliminary test" the words "the Commission shall conduct a preliminary test" shall be substituted.
3. In the said Rules of 2016, the first proviso to Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Jan 30 22:56:42 IST 2018 C/SCA/18303/2017 JUDGMENT Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure Rules stands deleted.
(H.K. Thakar) Joint Secretary Gujarat Public Service Commission [4.0] Ms. Manisha Lavkumar, learned Senior Advocate appearing on behalf of GPSC has stated at the Bar that the amended Rules as above shall be applicable to all the advertisements published on or after 01/08/2016.
[5.0] In view of the subsequent development, which has taken place recorded hereinabove and in view of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2017 coming into force with effect from 01/08/2016 by which the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 are amended as above and more particularly first proviso to Rule 4(2)(ii) stands deleted, as such, no further order is required to be passed in the present petitions except disposing of the present Special Civil Applications and by directing the GPSC to fill up all the post /posts in question by following the Gujarat Public Service Commission Procedure (Amendment) Rules, 2017, which shall come into effect from 01/08/2016. At this stage, it is required to be noted that as such after hearing the learned Advocates appearing on behalf of the respective parties, we were inclined to strike down the proviso to Rule 4(2)(ii) of the Gujarat Public Service Commission Procedure (Amendment) Rules, 2016 by which it permits the GPSC in exceptional cases to make appointment /selection of the candidates on the basis of the Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Jan 30 22:56:42 IST 2018 C/SCA/18303/2017 JUDGMENT marks obtained in the oral interview alone, which had come into effect from 01/08/2016. However, in view of the stand taken by GPSC and the GPSC itself has now come out with the Gujarat Public Service Commission Procedure (Amendment) Rules, 2017 by which the earlier Gujarat Public Service Commission (Amendment) Rules, 2016 are amended to the extent above, GPSC is directed now to fill up all the posts by selection after 01/08/2016 by following the substituted /amended Rules, more particularly, as per Gujarat Public Service Commission Procedure (Amendment) Rules, 2017.
[6.0] All these petitions are accordingly disposed of with the above directions and observations. No order as to costs.
Sd/-
(M.R. SHAH, J.) Sd/-
(BIREN VAISHNAV, J.) Siji Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Jan 30 22:56:42 IST 2018