Gujarat High Court
Solanki Parvatikumari Rameshbhai vs State Of Gujarat on 27 December, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/22981/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22981 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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SOLANKI PARVATIKUMARI RAMESHBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SR. ADVOCATE WITH MR MANISH S SHAH(5859) for
the PETITIONER(s) No. 2,3
PETITION WITHDRAWN/DISMISSED(73) for the PETITIONER(s) No. 1
MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1
MR MANISH J PATEL(2131) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/12/2018
CAV JUDGMENT
It is known to the realm of law also that certain errors or omissions, by their very nature and Page 1 of 12 C/SCA/22981/2017 CAV JUDGMENT attendant circumstances, do not become prone to address consequences.
2. This petition was originally filed by three petitioners contending prayer for setting aside the action on part of respondent No.2 in declaring the th petitioners as ineligible as per result dated 20 November, 2017. The three petitioners then figured in the result at Serial Nos.556, 653 and 1124 respectively were treated as ineligible in the result.
2.1 It may be stated at the outset that by order
nd nd
dated 22 January, 2018 read with order dated 22
March, 2018, this Court granted ad-interim relief to the petitioners permitting them to appear in the interview and further directed the respondent No.2 - Gujarat Public Service Commission (GPSC) to keep the result of interview of the petitioners in sealed cover, to be produced before this Court. Thereafter st on 01 May, 2018, learned advocate for GPSC produced sealed cover. On the basis thereof, the Court noted that as per the result produced by opening of the sealed cover, petitioner No.1 - Parvatikumari Rameshbhai and petitioner No.2 - Viradiya Bhaveshkumar Govindbhai had not secured the requisite marks so as to position themselves in the merit list for final selection.
2.2 The petitioner No.3 - Rajapara Savan Jagdishbhai secured the marks, which enabled him to get position in the merit-list for final selection.
Page 2 of 12 C/SCA/22981/2017 CAV JUDGMENTst The Court, by order dated 01 May, 2018, dismissed the petition in respect of petitioner Nos.1 and 2. Accordingly, the present petition survived only for st petitioner No.3. In the said order dated 01 May, 2018, it was further observed that the appointment, if any, shall be subject to further orders of the Court.
3. Noticing the relevant facts, respondent No.2
- Gujarat Public Service Commission issued advertisement No.37/2016-17 for the recruitment to the posts of Commercial Tax Officer and Account Officer, Class-II. As per the said advertisement dated 22nd January, 2017, preliminary examination was taken and the candidates including the petitioner No.3 who had applied for the post in question, appeared in the examination. This preliminary examination was to follow the main written examination.
3.1 It appears that as per the instructions in the advertisement, the applicant-candidates were required to submit the necessary documents which would enable them to appear in the main examination. It was the instruction that true copies of the certificates relating to qualifications including S.S.C.E. credit certificate were required to be submitted. The S.S.C.E. credit certificate was needed for the purpose of fortification of the birth date of the candidate.
3.2 The result of the preliminary examination Page 3 of 12 C/SCA/22981/2017 CAV JUDGMENT was declared on 25th April, 2017. The petitioner cleared the said examination. Thereafter the respondent published an instructive notification on 20th May, 2017 that the candidates who cleared the examination would be required to submit on-line form for the main examination between 20th May, 2017 to 05th June, 2017 and would have to send the necessary documents. It is the case of the petitioner that he has sent all the documents as required including the S.S.C.E. credit certificate by Registered A.D. Post which were received by the respondent No.2. The petitioner was thereafter permitted to appear in the main written examination. It appears that at this stage the respondent No.2 allowed all those applicants to pay up the fees/process charge, who had not paid the same within the time limit.
3.3 The result of the main written examination was declared on 20th November, 2017. It was in two parts being the list of eligible candidates and the list of ineligible candidates. It is stated that 902 candidates were declared eligible whereas 1153 candidates were declared ineligible. It is stated by the petitioner that his name did not figure in the list of eligible candidates but was included in the list of ineligibles. The ground on which the petitioner was treated ineligible and included in the class of ineligibles, was that S.S.C.E. credit certificate was not produced.
3.4 It is the case of the petitioner that soon after the result was declared on 20th November, 2017, Page 4 of 12 C/SCA/22981/2017 CAV JUDGMENT without wasteing time on 22nd November, 2017, the petitioner made representation stating that the S.S.C.E. credit certificate was already sent with application along with other documents. The petitioner said that it was entirely possible that the same was misplaced in the office of respondent No.2 - GPSC, and stated that since it was actually sent. The petitioner produced attested copy of the certificate and requested the respondent No.2 to treat him eligible.
3.5 This Court granted ad-interim relief by way of order passed in Civil Application directing that the petitioner shall be called in interview, but requiring the result of the interview of the petitioner to be produced before the Court. As noted hereinabove, out of the three petitioners, two petitioners failed in the interview and the petition survived only for petitioner No.3.
4. Heard learned senior advocate Mr.Anshin Desai assisted by learned advocate Mr.Manish Shah for the petitioners, learned Assistant Government Pleader Mr.K.M. Antani for respondent No.1 - State and learned advocate Mr.Manish J. Patel for respondent No.2 - Gujarat Public Service Commission.
4.1 It was asserted on behalf of the petitioner that the S.S.C.E. certificate was actually sent along with the other documents. Learned senior advocate for the petitioner submitted that respondent No.2 acted contrary to their own advertisement and instructions Page 5 of 12 C/SCA/22981/2017 CAV JUDGMENT which stated that upon the application being found satisfactory, the candidate would be permitted to appear in the examination, and that the petitioner was allowed to appear in the main examination accordingly. It was submitted that the certificate was sent along with the application and even after the intimation of respondent No.2, within two days, the petitioner vigilantly approached the authority making representation and submitting another attested copy of the certificate. Learned senior advocate also highlighted the aspect that in the matter of payment of application fee, respondent No.2 had relaxed the time limit and even subsequent to the last date prescribed for payment of fees, the fees were accepted. It was submitted that in treating the petitioner ineligible on the aforesaid ground of alleged non-production of S.S.C.E. credit certificate, the respondents acted unreasonably and arbitrarily. It was submitted that in the facts and circumstances of the case it was too technical a ground to be countenanced by court of law.
4.2 In the affidavit-in-reply what was sought to be contended by the respondent No.2 was that the main written examination was conducted without verification of the documents. It was submitted that documents when not found in respect of any candidate, such candidate cannot be permitted to be interviewed. It was submitted that without school leaving certificate, the date of birth could not be considered. It was submitted that the certificate in question was required to reach the office of Page 6 of 12 C/SCA/22981/2017 CAV JUDGMENT respondent No.2 before particular date and time and subsequent production of attested copy along with the representation after two days could not cure the defect for the petitioner.
4.3 In the rejoinder affidavit, the petitioner inter alia contended that he had immediately responded after finding himself in the list of ineligible candidates. It was further uncontrovertedly stated that the students belonging to M.B.A. who had the subject of Finance, were declared disqualified but upon their representation, they were accommodated and they were declared qualified. On this count, the petitioner alleged discrimination. It was further averred in the additional affidavit that respondent published amendment notice dated 08th May, 2018 whereby the candidates who were declared ineligible after the examination of the documents and certificate for the post of Class-I, their evidences were considered and they were declared eligible. It was further averred undeniably that these candidates who appeared in Class-I examination were granted opportunity to produce S.S.C.E. certificates. It was submitted that even if going by the stand of the respondent that the petitioner had not sent the certificate, the petitioner ought to have been granted the opportunity to make good the requirement, instead of adopting a technical and discriminatory stance.
5. The arena of facts and the rival case, leads to suggest that the case of the respondents that Page 7 of 12 C/SCA/22981/2017 CAV JUDGMENT S.S.C.E. certificate was not sent by the petitioner, was beset with a serious dispute. It was the specific case of the petitioner that through R.P.A.D. post, while sending the application, the S.S.C.E. credit certificate was sent along with the other documents. Respondent No.2 took a stance that the same was not received and treated the petitioner to be ineligible for the purpose of interview, after permitting the petitioner to participate in the process by taking main written examination. Even on demurer, what turns out is the alleged non-sending of S.S.C.E. certificate along with the application. However, the existence of S.S.C.E. certificate at the material time, that is sending of the application and other documents, and the availability of such certificate with the petitioner was not in dispute.
5.1 In view of what is born out as above, it leaves no reason for doubt that the petitioner did have the S.S.C.E. Certificate indicating the age proof and on the basis of such availability, he made the application. The application form was sent on- line and non-producing the Certificate along with the on-line application was a sheer omission. The petitioner did produce the Certificate which was already in existence at the time of written examination. The petitioner was permitted in the written examination. In addition that the conduct of the respondents in receiving and accepting the appellant form, not rejecting it, and further permitting the petitioner to participate in the process even until the stage of written examination, Page 8 of 12 C/SCA/22981/2017 CAV JUDGMENT may attract successfully the doctrine of estople by conduct, the clinching aspect could be that the non- production of the Certificate at the time of making application being out of inadvertence and in no way fraudulent or misrepresentative in nature, it is not liable to be treated as a defect in the nature of illegality due to which candidature of petitioner may be treated as ineligible. It was a procedural lapse condonable, and which was made good at the later juncture when irreversible situation had not arisen.
5.2 Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects. It is a situation contrary to the principle of law. As against this, an irregularity as defined lexicographically, is want of adherence to some prescribed rule or mode of proceedings. It consist in omitting the rule something that is necessary for due and orderly conducting of a suit or doing it in an unreasonable time or improper manner. In Law Lexicon by R. Ramanatha Aiyar, 1997 Edition, irregularity is defined as "a neglect of order or method; not according to regulations; the doing of an act at an unreasonable time, or in an improper manner; the Page 9 of 12 C/SCA/22981/2017 CAV JUDGMENT technical term for every defect in practical proceedings or the mode of conducting an action or defence, as distinguished from defects in pleading. Irregularity is failure to observe that particular course of proceedings which, conformable with the practice of the court, ought to have been observed".
5.3 A thing irregularly done is not regularly done. It is not in conformity of rule or principle. The concepts "illegal", "irregular" and "procedurally irregular", are often understood in terms of their degree which they bear to be not in conformity with rule of particular course of action. The illegality is a highest kind of breach of law which will taint and vitiate the action. One who commit "illegality" has to be denied the assertion of his right and he stands disentitled to relief in law. Irregularity, as noticed, is breach of procedure of rule or some orderly conduct but not of such nature which could be said to be in the nature of a debilitating defect. It is pardonable in law. The concept of procedural irregularity is indicative of lapse of minor nature in procedure which could not affect adversely rights of a party, nor would exceptionally reverse the obligation of the other side.
5.4 On behalf of the respondents, decision of this Court in Shaileshkumar Maharubhai Chaudhari v. Gujarat Public Service Commission being Special Civil th Application No.7465 of 2012 decided on 24 July, 2012 was pressed into service to submit that in that case also the candidate had not submitted the marksheet of Page 10 of 12 C/SCA/22981/2017 CAV JUDGMENT the S.S.C. examination which was not condoned by the Court. Not only that the said decision stood on its own facts, the distinguishing aspects were that the petitioner therein was informed for specific number of times, yet he had failed to provide the requisite documents. In this case, the petitioner's case was that he had sent the S.S.C.E. Certificate and even otherwise, after being declared as ineligible, immediately, without wasting time, he produced another certificate duly attested. Secondly, in Shaileshkumar Maharubhai Chaudhari (supra), the selected candidates had already been recommended and appointed, therefore the Court did not think it fit to interfere. Furthermore, in that case the Court did not consider whether non-supply of the copy of S.S.C.E. Certificate by the petitioner of the said case was an illegality or irregularity. In the facts and circumstances of the case, the omission was treated as illegality by the Court, whereas it is entirely possible to take a different view in the present set of facts.
6. A Certificate already in existence and the factum of birth date on the basis of such Certificate being indisputable, when bona fide omitted to send along with the on-line application by a candidate whose such application was accepted and who has subsequently participated in the stages of selection process, could not be allowed to be prejudiced on the ground of inadvertent non-sending of the Certificate, produced later before the rights and obligations underwent change, more particularly when no other Page 11 of 12 C/SCA/22981/2017 CAV JUDGMENT adverse or accentuating aspects override. The defect incurred on part of the petitioner-candidate could be categorised as procedural irregularity so as not to disentitle him in participating in the further process of selection, and not rendering him as ineligible if he is otherwise eligible to be appointed.
7. In view of the aforesaid discussion and reasons, the petition deserves to be allowed. The action and decision of respondent No.2 - Gujarat Public Service Commission in treating the petitioner
- Rajapara Savan Jagdishbhai as ineligible in the th result dated 20 November, 2017 is set aside. The petition stands allowed accordingly.
Rule is made absolute accordingly.
(N.V.ANJARIA, J) Anup Page 12 of 12