Gujarat High Court
Sanjaybhai Jadavbhai Solanki vs State Of Gujarat on 19 July, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24873 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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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SANJAYBHAI JADAVBHAI SOLANKI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AMAN A SAMA(11691) for the Petitioner(s) No. 1
MR MEET D KAKADIA(11896) for the Petitioner(s) No. 1
MR AYAN PATEL, AGP for the Respondent(s) No. 1
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2
MR GAURANG VAGHELA, ADVOCATE for RAVAL& TRIVEDI
ASSOCIATES(9262) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 19/07/2024
ORAL JUDGMENT
1. Heard learned Advocate Mr.Meet Kakadia with learned Advocate Mr. Aman Sama for the petitioner, learned AGP Mr. Ayan Patel for the Page 1 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined respondent No.1-State, learned Advocate Mr. Chaitanya Joshi for the respondent No.2- GPSC and learned Advocate Mr. Gaurang Vaghela for M/s Raval and Trivedi Associates for the respondent No.3.
2. By way of this petition, the petitioner seeks for the following reliefs :
"(18)(A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus and/ or any other appropriate writ, order or directions quashing and setting aside Final Result dated 07.01.2022 as well as Provisional Result dated 15.11.2021 published by the respondent GPSC (at Annexure D and E respectively) in pursuance of advertisement no. 145/2019/20 for the post of Mines Sirdar (Class III) and further be pleased to direct the respondent authorities to call the correct number of candidates for document verification and undertake the said recruitment process again from document verification stage qua the 2 vacant posts of SEBC Category in question; (B) During the pendency and final disposal of the said petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to decide the representations made by the petitioner dated 22.09.2022 and 10.11.2022 (annexed at Annexure F Colly to the present petition) in the interest of justice;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3. It is the case of the petitioner that the petitioner is aggrieved by the provisional result issued by the respondent No. 2 - GPSC in selection for the post of Mines Sirdar dated 15.11.2021 as well as final result dated Page 2 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined 07.01.2022, more particularly contending that the GPSC has not adhered to its own procedure.
4. Facts in brief as much as necessary are enumerated hereinbelow. 4.1 The respondent No.2 had issued an advertisement inter alia for recruitment to the post of Mines Sirdar (Sahayak) (Class-III) being Advertisement No. 145/2019/20 with the Gujarat Mineral Development Corporation, the respondent No.3 herein. It is stated that a total of 21 vacancies were advertised and relevant for the present petition are the vacancies in SEBC category, since the petitioner belongs of the said category. That from the 21 vacancies advertised, 05 vacancies were reserved for SEBC candidates and of the 05 vacancies, 04 vacancies were vertically reserved for women category. The advertisement inter alia mentions in its instructions that, if vacancies reserved for women candidates could not be filled in, then male candidates would be considered for the said posts in question. The said selection process as envisaged was of a written examination followed by document verification and no interview was contemplated. That the advertisement stipulated the number of candidates to be called for document verification, as compared to the number of vacancies and it was also stipulated that if there was 01 vacancy, 06 candidates were to be called Page 3 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined for; if there were 02 vacancies, 08 candidates were to be called for and if there were 04 or more vacancies, then candidates three times the number of the vacancies were to be called, for document verification. 4.2 It is the case of the petitioner that he had applied for the post in question and after the written examination, the respondents had declared the results, wherein the petitioner was shown at Serial No. 22 having scored 87.38 marks. The respondent-GPSC had thereafter published provisional result on 11.06.2021 where the GPSC had inter alia given a break up number of vacancies, number of candidates to be called for document verification and actual number of candidates available for document verification. The provisional result mentions that while there was 01 post for SEBC (common) category, for which, 06 candidates were to be called for document verification and there were 06 candidates available for document verification. As far as the SEBC female category is concerned, while there were 04 vacancies and the number of candidates required to be called for document verification was 12, only 01 candidate was called being the only eligible candidate for the document verification.
4.3 It is the case of the petitioner that since there was a shortfall in the available number of female candidates which was known to the GPSC at Page 4 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined the time of provisional result, and since the extant policy envisaged consideration of male category candidates, if adequate female candidates were not available, therefore, at that stage itself the GPSC was required to called for appropriate number of candidates as per its own policy for document verification. According to the petitioner, since there was a shortfall of 03 female candidates and since the posts were sought to be filled in by male candidates, either total of 10 candidates ought to have been called for document verification, or, if the 03 female vacancies converted to male vacancies and were clubbed with the already available 01 vacancy for male candidate, then also a total of 12 candidates were required to be called for the document verification. It is the case of the petitioner that at the first instance, the GPSC had called only 06 candidates as against the 01 post for male candidate and it had filled in, the available vacancies for the said candidates. 4.4 It is further the case of the petitioner that as such, since 02 vacancies could not be filled in, an additional 04 candidates were called for document verification. According to the petitioner, even at that stage, the respondent - GPSC was required to call for adequate number of candidates commensurate with the number of vacancies and having not done so, the petitioner was gravely prejudiced. Page 5 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024
NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined 4.5 It is further the case of the petitioner that out of total 05 posts (for SEBC male and female categories i.e. 4 + 1, even after the wait list of the SEBC candidates has been exhausted, yet there were two more vacancies and according to the petitioner, had the respondent conducted the procedure as per the extant policy, the petitioner would have been eligible for being appointed. Thus, raising a grievance, the petitioner has approached this Court.
5. Learned Advocate Mr. Meet Kakadia for the petitioner would submit that when the advertisement itself stipulated the ratio of number of candidates to be called for document verification as against the vacancies available, the respondents should have adhered to the said policy. It is submitted by the learned Advocate that upon the GPSC being aware that adequate number of candidates were not available in the vacancies reserved for female candidates, they were converted into vacancies for common (male) category. It is submitted by the learned Advocate that at that stage, since there were 03 vacancies for female candidates converted to vacancies for common category, therefore, as per the policy of the GPSC, as against 03 vacancies, 10 candidates ought to have been called for. It is submitted that even if the said 03 vacancies were clubbed with the number of vacancy which was available for common category i.e. 01, Page 6 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined then also a total of 12 candidates were required to be called for document verification as against the 04 vacancies. Learned Advocate would submit that having not followed the said ratio, the entire selection process is clearly suffered from infirmities. Learned Advocate would further submit that even later on, upon a second provisional list being published, it would appear that the respondent, without specifying the number of vacancy, had called for only 04 candidates for document verification which also is not in consonance with the policy. Learned Advocate would submit that such non-following of the procedure, has resulted in eligible candidates like the petitioner not getting appropriate opportunity and the same has resulted in 02 vacancies, out of the total 05 vacancies in SEBC category, not being filled in. Under such circumstances, learned Advocate Mr. Kakadia would request this Court to intervene and grant the prayers as prayed for.
6. As against the same, the present petition is opposed by learned Advocate Mr. Chaitanya Joshi for the respondent No.2-GPSC. Learned Advocate Mr. Joshi would submit that the petitioner is seeking to challenge the selection process inspite of the petitioner having taken part in the selection process and not acquiring eligibility. According to the learned Advocate, the same is not permissible, more particularly the law Page 7 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined laid down by the Hon'ble Supreme Court in case of Madan Lal vs. State of Jammu Kashmir, reported in (1995) 3 SCC 486 has been relied upon. Learned Advocate Mr. Joshi would submit that the GPSC having conducted the selection process in accordance with its instructions and in accordance with the extant policy of the State Government, it is requested that this Court may not interfere with the selection process. It is submitted by learned Advocate Mr. Joshi that the provisional result itself clarifies that for 01 post which was advertised for SEBC (common) category, 06 male candidates were to be called for document verification and out of the 04 posts reserved for SEBC female candidates, there was only 01 female candidate was selected, as there was only 01 female candidate who got minimum qualifying marks. It is further submitted that the candidature of the 06 male candidates were considered qua the 1 + 3 vacancies and since there was a shortfall of 01 candidate in SEBC category, 04 SEBC candidates were called for document scrutiny and of the same, 02 candidates were not found eligible. It is submitted by the learned Advocate that a total of 30 candidates were called for against total number of vacancies and the same was in tune with the Government Resolution.
6.1 It is further submitted by learned Advocate Mr. Joshi that all 05 Page 8 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined vacancies in SEBC category had been filled in as per the final recommendation list. It is submitted that as such, since 03 candidates in the SEBC category recommended for appointment did not join, 01 candidate of SEBC who had been placed in the waiting list, was recommended for appointment. Learned Advocate would submit that since the petitioner had not succeeded in the examination, the petitioner was neither selected and recommended for appointment nor the petitioner was recommended for being placed in the select list and there is no infirmity or illegality in the process conducted by the GPSC, and thus it is submitted that this Court may not interfere in the present petition.
7. Learned AGP Mr. Patel for the respondent - State and learned Advocate Mr. Gaurang Vaghela for M/s Raval and Trivedi Associates for the respondent No.3 would submit that the dispute is essentially between the petitioner and the GPSC.
8. In rejoinder, learned Advocate Mr. Kakadia would submit that the GPSC has not clarified as to how the procedure adopted by them was in consonance with the rules or the extant policy. Learned Advocate would submit that the advertisement itself clarifies the vacancy-candidate to be called for document verification ratio and from the submissions of the respondent GPSC it is not discernible as to how the ratio had been Page 9 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined maintained. Learned Advocate would submit that as per the final result list/ recommendation for appointment list, 01 candidate Mr. Harshadkumar Abhabhai Solanki had been placed in the waiting list and as per the affidavit-in-reply filed by the GPSC, it would appear that the said candidate was recommended for appointment. It is submitted that the said candidate had obtained 89.94 marks, whereas the petitioner had secured 87.38 marks. It is submitted that the petitioner was the next meritorious candidate in the order of merit and if the GPSC had called adequate number of candidates for document verification, the present petitioner would have been eligible to be placed in the waiting list and would have also been entitled for appointment, more particularly since 03 SEBC candidates whose names were recommended for appointment did not join. Learned Advocate would submit that the petitioner being gravely prejudiced on account of the non-adherence to the procedure by the GPSC, interference of this Court is requested.
9. Heard learned Advocates for the respective parties and perused the documents on record.
10. The principal contention on behalf of the petitioner being that the GPSC did not follow the procedure, more particularly the GPSC did not maintain the ratio of number of candidates to be called for vis-a-vis the Page 10 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined number of vacancies which has prejudiced the petitioner. On the other hand, the GPSC claims that they have gone by the procedure and whereas additionally it is also contended that the petition itself may not be entertained as the petitioner having taken part in the selection process, is now seeking to challenge the same, more particularly the same being not permissible as the petitioner did not succeed in the selection process.
11. Having appreciated the rival contentions, this Court will first address the contention with regard to the locus standi of the petitioner. Paragraph Nos. 11 to 14 of the affidavit-in-reply whereby the above contentions have been taken, are reproduced hereinbelow for benefit.
"11. It is respectfully submitted that the petitioner has no locus to challenge the recruitment process. The petitioner had failed to obtain the requisite marks in the examination. Neither Petitioner is selected nor is he placed on the waiting list. Only contention of the Petitioner is that as 5 male SEBC candidates have been selected, 15 candidates ought to have been taken in zone of consideration. However this contention has no legal basis and the rules and office orders of the Respondent Commission do not prescribe any such procedure.
12. I state that the petitioner had participated in the competitive exam on the basis of his eligibility for the post and he has not get the cut off marks in preliminary Examination, as decided by the commission and so not selected for the application scrutiny. It is a well-setttled principle of law that those candidates who take part in the selection process knowing fully well the procedure laid down therein are not entitled to question the same after Page 11 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined having failed to clear it. Thus the petitioner after taking a calculated chance, appearing and participating in the examination, now cannot be turn around and make baseless allegations regarding the recruitment process.
13. In the case of Madan Lal v/s State of Jammu and Kashmir, [(1995) 3 SCC 486] this principle has been clearly elucidated by the Apex Court in Para 8 as under:
"Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court then when the petitioners appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
Therefore as stated above after participating in the Page 12 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined examination and being unsuccessful in the same, the petitioners now cannot assail the recruitment process in writ jurisdiction before this Hon'ble Court.
14. It is the case of the Petitioner that once requisite female candidates were not available for the seats reserved for female candidates, the Respondent Commission ought to have called for further fresh male candidates to maintain the ratio of calling three times candidates vis-a-vis the number of posts. It is contention of the Petitioner that as this ratio has not been maintained, recruitment process is bad in law. It is most respectfully submitted on behalf of the Respondent Commission that there has been no illegality whatsoever in the recruitment process."
11.1 The first objection/contention raised in the affidavit-in-reply, as could be noticed, is that the petitioner has failed to obtain requisite marks as mentioned in paragraph No. 11, the petitioner not getting cut off mark in preliminary examination as appearing in paragraph No.12, and the petitioner being unsuccessful in the examination as appearing in paragraph No. 13. As far as the said contention is concerned, to this Court, it appears that the said contention is absolutely baseless. The affidavit-in-reply if read in its entirety it does not state once as to whether any cut off mark had been prescribed and as to what was the cut off marks. As a matter of fact, from a perusal of the final result, it would clearly appear that there was a reverse cut off mark prescribed by the GPSC. To clarify, it would appear that the marks obtained by candidate who was the lowest in each category was fixed as cut off marks. As such, Page 13 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined it would appear that there was no cut off mark prescribed while the result was declared. Rather, it would appear from the provisional result that the GPSC was relying upon the instructions of its own dated 07.01.2021, as appearing at Para No. 3(3) of the provisional result that for selection to Class-III posts in Board, Corporation or Nigam, candidate should have secured minimum 15% of the marks. The said aspect gets more fortified insofar as the SEBC female category candidates are concerned. To elaborate, it would appear as per the result, a total of 62 candidates had appeared in the written examination of which there were 03 SEBC female candidates of which only 01 candidate was called for document verification. The reason for the same as could be discernible is that the said candidate had obtained more than 60 marks out of the requisite 400 marks whereas the other two candidates had secured less than 60 marks. Thus, it would appear that minimum requisite marks which entitled a candidate to be eligible for being considered for document verification was 60 marks i.e. 15% of the total 400 marks. Thus, it would appear that apparently misleading statements have been made by the respondent- GPSC in the affidavit-in-reply. The petitioner having scored more than 60 marks was entitled and eligible to be called for document verification.
12. Insofar as the objection that the petitioner is not entitled to Page 14 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined challenge the selection process after having appeared in the selection process and not being successful in the same, to this Court, it does not appear that either the petitioner is challenging the selection process or as noticed hereinabove, the petitioner had been unsuccessful in the selection process, rather it appears that the petitioner is challenging the action of the respondent-GPSC of not adhering to their own policy. Thus, the said objection being baseless and is not countenanced.
13. Insofar as the principal contention, it would be apposite to mention that in the advertisement for the post in question, more particularly at Clause 3(2), the ratio of number of candidates to be called for document verification as against number of vacancies is specifically mentioned. As noticed hereinabove, it is stated that if there is 01 vacancy, 06 candidates would be called for; if there are 02 vacancies, 08 candidates would be called for; if there are 04 or more vacancies, then candidates three times the number of vacancies would be called, for document verification.
14. The GPSC in its affidavit-in-reply has referred to office instructions dated 07.01.2021. Incidentally, the instructions dated 07.01.2021 is the same instructions as mentioned in the provisional result where cut off mark 15% is mentioned. The said office instructions also state about the ratio of number of candidates to be called for document Page 15 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined verification as against the number of vacancies. The said office instructions categorize the vacancies in two categories namely, (i) vacancies where experience is not a criteria and (ii) vacancies where experience is a criteria. The break up is reproduced as hereinbelow :
Number of Advertised posts Advertised posts with Vacancies without experience experience 01 06 08 02 08 12 03 10 14 04 or more Three times of Four times of vacancies vacancies 14.1 The present selection for a post where experience is not a criteria, the ratio of 1 : 6 and so forth would be applicable which is even otherwise mentioned in the advertisement.
14.2 Again, it appears that the same instructions with the same table as reproduced hereinabove is mentioned in Para No. 3(3) of the provisional result referred to hereinabove. Thus, the policy of the GPSC is absolutely unambiguous inasmuch as, a specific number of candidates have been prescribed for being called at the stage of document verification having regard to the number of vacancies available.
15. Now, the question would be that whether the GPSC had followed Page 16 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined its own procedure. From the provisional list, it clearly appears that there was 01 vacancy for SEBC (common) male category as against which vacancy, 06 candidates were to be called for document verification. On the other hand, while 04 vacancies were notified for female candidates, there was only 01 female candidate, who was eligible to be called for the document verification.
15.1 At this stage, it would be apposite to refer to the advertisement which clearly states that if sufficient number of female candidates are not available, then male candidates would be considered. It would appear that the said procedure being followed as per the Notification of the State Government dated 22.05.1997, and the same being an admitted position, no further discussion on the said issue is required.
16. Thus, reverting back to the principal issue, as noticed from the provisional result, out of 04 vacancies reserved for SEBC female candidates, since only 01 female candidate was eligible to be called for document verification, the GPSC had converted the 03 SEBC female vacancies to SEBC male vacancies. The contention of the GPSC appears to be that the ratio is required to be maintained for regular vacancies and such ratio is not required to be maintained for converted vacancies i.e. female vacancies converted into male vacancies. To this Court, it appears Page 17 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined that such a contention is completely dehors the office instructions and the policy of the GPSC itself. When the instructions prescribed minimum number of candidates to be called for commensurate to the number of vacancies, it was not open for the GPSC not to have adhered to the said instructions on a specious plea. The instructions of the GPSC does not make any distinction as to the ratio being required to be maintained for regular vacancies and the ratio not being required to be maintained for vacancies converted from female to male.
16.1 As such, it requires to be mentioned at this stage that while the GPSC in its reply has maintained the stand that the ratio has been followed by them, the stand as above as regards the ratio not being applicable to female converted to male vacancies, has been taken at the stage of oral submission, since apparently the instructions have not been followed.
17. Insofar as the stand of the GPSC taken either way i.e. the stand of the GPSC as regards the rules having been followed or the stand of the GPSC that the ratio is not required to be maintained for female converted to male vacancies, both clearly appear to be incorrect. As is apparent from the record the ratio has not been maintained by the GPSC, since in the provisional result itself, there were 04 vacancies available for male Page 18 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined candidates i.e. 01 regular vacancy and 03 converted vacancies and under such circumstances, the GPSC was required to call for a total of 12 candidates for document verification i.e. 4 x 3. Furthermore, it also appears that later i.e. at the stage of second list of eligible candidates for scrutiny published by the GPSC on 15.11.2021, as against 01 vacancy, only 04 candidates were called for document verification, whereas the policy itself stipulates that for 01 vacancy, 06 candidates ought to be called for document verification. Thus, it clearly appears that at both the stages as above, the procedure followed by the GPSC, was violative of their instructions.
18. At this stage, this Court seeks to rely upon the Latin maxim "expressio unius est exclusio alterius", which means that when a thing is required to be done in a particular manner then it has to be done in that manner only and all other modes are necessarily excluded or prohibited.
The said principle is found in decision in case of Nazir Ahmed vs. King Emperor, (1936) L.R. 63 I.A. 372. The said principle has been followed in catena of judgments and whereas in a recent decision in case of Vivek Narayan Sharma Vs. Union of India, [Writ Petition (Civil) No.906 of 2016, decided on 02.01.2023] reported in 2023 (0) AIJEL-SC 70247, Constitutional Bench of the Hon'ble Supreme Court had inter alia Page 19 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined explained the said legal principle, more particularly in the minority view of the Hon'ble Ms. Justice B. V. Nagarathna. Para Nos. 18, 18.1 and 18.2 of the minority view being relevant for the present purpose are relied upon and reproduced hereinbelow for benefit.
"18. There are certain legal principles which are applicable in this case: one is expressed in the maxim "to do a thing a particular way or not at all"; this principle has also been expressed in terms of the latin maxim "expressio unius est exclusio alterius", which means that when a manner is specified for doing a certain thing, then all other modes for carrying out such act are expressly excluded; and the other principle is, exercise of discretion which is a well known principle in Administrative Law. The same would be discussed at this stage.
18.1 The first principle which is of relevance to the controversy at hand is that, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden vide, Taylor vs. Taylor (1875) 1 Ch D 426 . Hence, when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden, vide Nazir Ahmed vs. King Emperor (1936) L.R. 63 I.A. 372 .
18.2 This Court too, has applied this maxim in the following cases:
(i) Parbhani Transport Co-operative Society Ltd. vs. The Regional Transport Authority, Aurangabad (1960) (3) S.C.R. 177: AIR 1960 SC 801 , wherein it was observed that the rule provides that an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way.
(ii) In Dipak Babaria vs. State of Gujarat AIR 2014 SC Page 20 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined 1972 , this Court set aside the sale of agricultural land, on the ground that the sale was not in compliance with the statutory procedure prescribed in that regard under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The matter was examined on the anvil of the aforestated maxim and it was held that alienation of agricultural land by adopting any alternate procedure to the one prescribed under the Act, was necessarily forbidden.
(iii) In Kameng Dolo vs. Atum Welly AIR 2017 SC 2859, election of an unopposed candidate was declared as invalid on the ground that the nomination of his opponent was not withdrawn as per the procedure statutorily mandated. That the nomination of the opposite candidate ought to have been withdrawn in the manner provided for under the relevant statute and withdrawing the same in any other manner was necessarily forbidden. That withdrawal of the nomination, not carried out in accordance with the procedure established under the relevant statute, enabled the successful candidate to win unopposed. Hence, his election was declared as void.
(iv) Similarly, in The Tahsildar, Taluk Office, Thanjore vs. G. Thambidurai AIR 2017 SC 2791, assignment of land was cancelled on the ground that statutory requirements were not followed in assigning the land. It was held that when a statute prescribes that a certain Act is to be carried out in a given manner, the said Act could not be carried out through any mode other than the one statutorily prescribed.
(v) It may also be apposite to refer to the decision of this Court in Union of India vs. Charanjit S. Gill (2000) 5 SCC 742, wherein this Court held that any provisions introduced by way of "Notes" appended to the Sections of the Army Act, 1950, could not be read as a part of the Act and therefore such notes could not take away any right vested under the said Act. It was observed that issuance of an administrative order or a "Note" pertaining to a special type of weapon to bring it within the ambit of the Army Act, which was hitherto not included therein, could not be said to have been included in the manner in which it was supposed to be included. That the Army Act empowers the Central Page 21 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined Government to make rules and regulations for carrying into effect the provisions of the Act; however, no power is conferred upon the Central Government of issuing "Notes"
or "issuing orders" which could have the effect of the Rules made under the Act. That rules and Regulations or administrative instructions can neither be supplemented nor substituted by "Notes". That administrative instructions issued or the "Notes" attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result, which is supposed to be achieved through enactment of Rules. What emerges from the above discussion is that when a statute contemplates a specific procedure to be adhered to in order to arrive at a desired end, such procedure cannot be substituted by an alternative procedure which is not contemplated under the statute. Further, if an action is to be carried out by way of issuance of a particular statutory instrument on the basis of certain requirements, such action cannot be validly carried out by way of issuance of an instrument when the same is not contemplated under the Act. This is particularly so when the instrument enacted stands on a different footing than the one meant to be enacted.
Applying the said principle to the facts of the present case, it is observed that what ought to have been done through a Parliamentary enactment or plenary legislation, could not have been carried out by simply issuing a notification under sub- section (2) of Section 26 of the Act by the Central Government. As noted hereinabove, the said provision does not apply to cases where the proposal for demonetisation originates from the Central Government and the same is not envisaged under the Act. Hence, issuance a notification to give effect to the Central Governments proposal for demonetisation, was clearly based on an incorrect understanding of subsection (2) of Section 26 of the Act. The Central Government did not follow the procedure contemplated under law to give effect to its proposal for demonetisation. This is not a matter of form but one of substance as in law, the powers of the Central Board of the Bank and the Central Government are totally distinct in the matter of demonetisation of bank notes." Page 22 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024
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19. Having regard to the observations of the Hon'ble Supreme Court and considering the same in the perspective of the fact situation, it would appear that the GPSC as per its own policy was required to call for a minimum number of candidates based upon the number of vacancies available. The policy does not provide for any exception, thus it was incumbent upon the GPSC at both stages i.e. at the stage of provisional result, while publishing the first list of eligible candidates for scrutiny, to have called for 12 male SEBC candidates as against the 04 vacancies available and whereas even at the stage of second list of eligible candidates for scrutiny, the GPSC was required to call for 06 candidates. The GPSC having called for 6 and 4 candidates respectively, at the above stages, had violated its own policy and therefore in the considered opinion of this Court, interference is required to be warranted.
20. At this stage, it is also required to be mentioned that since the GPSC in the affidavit-in-reply has relied upon apparently incorrect and misleading statements, appropriate cost is required to be imposed upon the GPSC.
21. In view of the aforesaid discussion, observations and conclusion, the following directions are issued :
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(i) The respondent-GPSC to prepare two lists, namely (i) a fresh list of eligible candidates insofar as the SEBC male candidates are concerned, having regard to the number of vacancies available at the stage of the list of eligible candidates for application scrutiny dated 11.06.2021 and (ii) a list of eligible candidates for application scrutiny dated 15.11.2021.
(ii) The GPSC to, after the lists are prepared, publish the same and call all such candidates for document scrutiny who were otherwise eligible but not called for document scrutiny at the relevant point of time.
(iii) The GPSC shall thereafter publish a modified final result, more particularly by appropriately placing eligible candidates in the select list or the waiting list, as the case may be.
(iv) Upon the above exercise being conducted, if the present petitioner is eligible for being offered appointment, the GPSC shall appropriately recommend to the State Page 24 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined Government to appoint the present petitioner. The appointment of the petitioner shall be on the day after the candidate on the waiting list of the SEBC category had been offered appointment, and whereas if the petitioner is found eligible and appointed, then while the petitioner would not be entitled for any arrears, but he would be entitled to seniority as well as salary, as if the petitioner had been appointed on the day after the candidate on the waiting list had been appointed.
(v) The above directions shall not be construed as giving a second opportunity to any candidate whose candidature had been considered in the first list or in the second list as above, and who had after being offered appointment had not opted for the same.
(vi) It is further clarified that the appointment of the petitioner shall in no manner disturb the seniority of candidates who have already been appointed pursuant to the above selection.
(vii) Costs quantified at Rs. 25,000/- is imposed upon the Page 25 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024 NEUTRAL CITATION C/SCA/24873/2022 JUDGMENT DATED: 19/07/2024 undefined respondent-GPSC to be paid to the Gujarat High Court Legal Services Authority within a period of four weeks from the date of receipt of this judgment.
22. With the above observations and directions, the present petition stands disposed of as allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J) BDSONGARA Page 26 of 26 Downloaded on : Thu Jul 25 20:36:30 IST 2024