Thorat Nayan Hemchandra vs State Of Gujarat & 3 on 5 November, 2015

[Cites 1, Cited by 2]

Gujarat High Court

Thorat Nayan Hemchandra vs State Of Gujarat & 3 on 5 November, 2015

HC-NIC Page 1 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"12. The petitioner therefore humbly prays that Your Lordships be pleased to issue a writ of or in the nature of mandamus and/or any other appropriate writ, order or direction:

(a) to admit this petition and to issue Notice for final disposal on returnable date;

(b) to quash and set aside the impugned action of the respondent no.3 in wrongfully placing the name of the respondent no.4 herein in the selection list dtd. 1532013 as per AnnexureF for the post of Youth Board Officer, ClassI (under Youth, Service and Cultural Activities Department) and in placing the present petitioner in the waiting list, though the respondent no.4 is not possessing the requisite experience as per the advertisement dated 17102011 at AnnexureA;

(c) to direct the respondents and particularly the respondent no.3 to exclude the name of the respondent no.4 from the selection list and to place the present petitioner in the selection list for the post of Youth Board Officer, ClassI (under Youth Service and Cultural Activities Department) pursuant to the advertisement dtd. 17102011 at AnnexureA, and to give appointment to the petitioner on that basis;

(d) Pending the hearing and final disposal of this petition, be pleased to stay the operation of the impugned selection list for the post of Youth Board Officer, ClassI (under Youth, Service and Cultural Activities Department) published by the respondent no.3 GPSC on 1532013 as per AnnexureF;

(e) Pending the hearing and final disposal of this petition, be pleased to restrain the respondent nos.1 and 2 from giving appointment to respondent no.4 on the post of Youth Board Officer, ClassI (under Youth, Service and Cultural Activities Department) pursuant to the advertisement dtd. 17102011 as per AnnexureA;

(f) Pending the hearing and final disposal of this petition, be pleased to direct the respondent nos.1, 2 and 3 to place on record the relevant recruitment rules for the post of Youth Board Officer, ClassI (under Youth, Service and Cultural Activities Department), with a copy to the petitioner;

(f) to grant any other appropriate and just relief/s including the costs of this petition;"

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HC-NIC Page 2 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT 2 On 11.12.2013, while issuing Rule in this matter, the following order was passed:

1. Heard Mr. Pujara, learned advocate for the petitioner and Mr. Upadhyaya, learned advocate for the respondent no.4 and Mr. Patel, learned AGP for respondentState.

2. In the present petition the petitioner has prayed for interalia that : "(b) to quash and set aside the impugned action of the respondent no. 3 in wrongfully placing the name of the respondent no. 4 herein in the selection list dated 15/03/2013 as per AnnexureF for the post of Youth Board Officer, ClassI (under Youth, Service and Cultural Activities Department) and in placing the present petitioner in the waiting list, though the respondent no. 4 is not possessing the requisite experience as per the Advertisement dated 17/10/2011 as AnnexureA."

3. The above quoted is prayer made by the petitioner on the ground that the name of respondent no.4 was in the select list and he was offered appointment on the post in question though the said respondent no.4 does not possess the eligibility criteria related to experience as mentioned in the relevant rules i.e. Youth Board Recruitment Rules 1970.

4. The petitioner has claimed that the rules prescribe that the appointed candidates must have experience of 3 years in organization of Youth and cultural Activities. According to the petitioner, the respondent no.4 who is primary teacher in Primary School does not possess 3 years experience in organization of Youth and Cultural Activities. Therefore, the respondent no.4 is not eligible for appointment inasmuch he does not fulfill the qualificationeligibility criteria prescribed by the aforesaid Rules. On the said and such other contentions the petitioner has challenged the appointment of respondent no.4 on the said post.

5. After hearing the petitioner on 23/08/2013, passed below mentioned order: "Mr. C.B. Upadhyaya, learned counsel for respondent NO. 4 states that the affidavit shall be filed in the Registry latest by 26/08/2013 and an advance copy of the same shall be served upon Mr. K.B. Pujara, learned counsel for the petitioner and other learned counsel appearing for other respondents today itself.

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HC-NIC Page 3 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT The matter is adjourned to 05/09/2013. Status quo, granted earlier, to continue till then."

6. The respondents no.1 to 2 and respondent no.3 GPSC and the respondent no.4 have filed affidavit opposing the petition.

7. In its affidavit, the respondent no.1 and 2 have stated interalia that: "10. I say and submit that, as far as the controversy raised in the petition with regard to the experience which is referred to in the recruitment rules and more particularly rule3(d) is concerned, in respectful submissions of the deponent herein, the recruiting agency i.e. Gujarat Public Service Commission had verified all the requirements of selected candidate to the post of Your Board Officer and after due verification had selected respondent No. 4. Thus, as far as the present deponent i.e. State Authority are concerned, they have no role to play;

11. However, it is pertinent to make the following submission At the outset I would submit to the kind attention of the Hon'ble High Court the Recruitment Rules for the Post Youth Board Officer provides experience in organization of Youth Cultural Activities. It is Humble submission that organizing Youth Cultural Activities is to be accepted with a wider connotation since the Commission of Youth and Cultural Activities itself carries the same name and yet it organize Sport activities for villages, schools, women, disabled and others apart from having Youth activities which includes cycle rallies, swimming competition, Mountaineering, rock climbing like Girnar, Travels along seashores, forest tracks, inter State exchange and a host of other activities. Similarly Cultural activities includes traditional Ras Garba to folk music to Classical Dance events like Uttarardh Mahotsava. Thus, the complete work nomenclature of Commissioner of Youth is represented in Youth Board Officers work profile, who happens to be the only Class I Officer in the Commissionerate apart from officer on Special Duty who is deputed from Sachivalaya. Thus, the field activities of all Youth Cultural and Sports merge of some points in the duties to be handled by Youth Board Officer.

8. The respondent no.1 and 2 have also averred in the said affidavit that some correspondence was exchanged to seek clarification as regards the issue related to work experience parameters for Youth Board Officer wherein the Commissioner Youth Services & Cultural Activities clarified relevant aspects vide letters dated 29/01/2012 and 06/07/2012 and the action/decision have been taken in light of such clarifications.

9. Along with the said affidavit, the respondent no.1 and 2 has placed on record the copy of relevant part of the Rules. The relevant part of the Rule is read thus: 2//Appointment to the post of Officer in State Youth Board Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT ClassI shall be made either:

a) by transfer of an officer from the Gujarat Educationed Services. ClassI Administrative Branch.

b) by promotion of a person of proved merit and efficiency from amongst the officer working in the Gujarat Education Services. ClassII Administrative Branch.

c) be direct selection.

3//To be eligible for appointment to the post mentioned in rule 2, by transfer or promotion or be direct selection candidate must

a) be not more than 35 years of age :

b) have a Bachelor's degree in Arts, Science, Commerce or Law or an equivalent examination :

c) have a degree of Diploma in Physical Education of a recognized University or Institution.

d) have about three years experience in organisation of Youth and Cultural Activities.

Provided that the upper age limit may be relaxed incase of person already in the service of the Government of Gujarat in accordance with the provisions contained in the Gujarat Civil services Classification and RecruitmentGenera, Rules 1967.

Provided further that the upper age limit may be relaxed in the case of candidate possessing exceptionally good qualifications or experience or both.

3//The candidate appointed by direct selection shall be on probation for a period of two years.

10. In present case the appointment is made by mode of direct selection. Hence, in this case the relevant clauseprovision would be clause 3(d).

11. In light of the said provisions under the Recruitment Rules 1970, which was applicable to the respondent no.2, learned advocate for the petitioner contended that the Rules prescribe that 3 years experience in organization of Youth and Cultural Activities, whereas, the respondent has never worked in any organization of Youth and Cultural Activities.

12. It is also claimed that the respondent no.4 has, during his entire tenure worked in Primary School as a teacher.

13. Learned advocate for the petitioner contended that as a Primary School teacher the respondent no.4 might have conducted or arranged different activities for primary section student in his capacity as primary teacher and he might have arranged various activities in other organization, however, that would not amount to experience in Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT organization of Youth and Cultural Activities.

14. The respondent no.3 GPSC has filed affidavit and stated, interalia that : "4. I state that, petitioner and the respondent no. 4 herein had applied for the post of Youth Board Officer, ClassI pursuant to the advertisement No. 96/20112012 dated 17/10/2011 issued by the respondent no. 3. I state that, the said advertisement provides necessary qualification for the said post, which specifies that, a candidate should hold a degree in Science, Commerce, Arts or Law or equivalent of the same. I state that, it also provides that, a candidate should hold a degree or diploma of the recognized university or institute of physical education and further, candidate should have the experience of three years relating to the organization of Youth and Cultural Activities.

5. I state that, pursuant to the said Advertisement, 18 eligible candidates were called for interview, who were having the above stated qualification of education and experience. I state that, all the said 18 candidates were possessing degree or diploma in physical education and were having experience of over three years in organization of Youth and Cultural Activities. I state that, the respondent no.4 herein has a qualification of B.A., B.P.Ed. And M.P.E.(Masters in Physical Education). I state that, the respondent no.4 has also the experience of organization of Youth and Cultural Activities on and from 01/07/1992. I state that, respondent no.4 had submitted various certificates, from which it could be gathered that, he has such experience. I state that, petitioner is also having requisite qualification of education and experience. I state that, therefore, petitioner, respondent no.4 and other 16 candidates were called for the interview for selection of the right candidate for the said post. I state that, admittedly, petitioner secured 55 marks in the interview whereas, respondent no.4 secured 65 marks (AnnexureF Page 24 to the aforementioned petition). I state that, all the documents as also application submitted by the respondent no.4 has been sent to the State Government as he has been selected by the respondent no.3. I state that, petitioner's name has been included in the waiting list at Serial No.1."

15. In this view of the matter, present petition raises issue about interpretation and construction as well as meaning scope and purport of the clause 3(d) of Rules of 1970. Therefore in view of this Court the petition deserves consideration.

16. From the said affidavit it emerges that the respondent no.3 GPSC Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT seems to have construed and interpreted the Rules and read the provision to understand that the candidate should have experience of 3 years relating to the organization of Youth and Cultural Activities, whereas the relevant rule does not use the word relating to and according to the Rules 1970, applicable to the respondent no.4, what is required is experience in organization of Youth and Cultural Activities.

17. It has also prima facie emerged that the provision does not employ the word related to or the words relating to however the GPSC seems to have, on its own, read the said words into the provision.

18. It also prima facie appears that at the end of respondent no.1 and 2 as well as at the end of respondent no.3 GPSC, the scope and purport of the words experience in organization of Youth and Cultural Activities, are interpreted and treated as if the provision prescribes that the words experience of organizing Youth and Cultural Activities.

19. The respondent no.3 GPSC has, in light of its own reading and construction of the relevant clause i.e. clause 3(d) of the Rules, assumed that the respondent no.4 possess requisite experience, and it has, on that basis, proceeded with the selection process and it has also claimed that the performance of respondent no.4 was found to be better than other candidates, therefore he came to be selected.

20. Learned advocate for respondent no.3 relied on the details mentioned in the affidavit and she also submitted that when the petitioner filed this petition, it was filed without any basis and the respondent no.4, possesses requisite experience.

21. The respondent no.4 has filed affidavit and submitted that his selection and recruitment/appointment is just and proper as well as in accordance with the Rules and the respondent no.4 has also contended in his affidavit that his performance was better than the performance of other candidates. It is averred interalia that : "4. I state that, petitioner and the respondent no. 4 herein had applied for the post of Youth Board Officer, ClassI pursuant to the advertisement No. 96/20112012 dated 17/10/2011 issued by the respondent no. 3. I state that, the said advertisement provides necessary qualification for the said post, which specifies that, a candidate should hold a degree in Science, Commerce, Arts or Law or equivalent of the same. I state that, it also provides that, a candidate should hold a degree or diploma of the recognized university or institute of physical education and further, candidate should have the experience of three years relating to the organization of Youth and Cultural Activities;

6. I say and submit that, for the post in question, which is a Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT Class I post, a method of selection by interview has to be undergone. I state that, during the interview process, over all performance of the candidate is adjudged by the Commission i.e. interview committee. I state that, only those candidates are called in interview who possess requisite qualification and experience. I state that, unless and until, any mala fide or ablique motive is alleged, committee's decision cannot be interfered. I say and submit that, in the instant case, the petitioner is harping upon his experience vis a vis respondent no.

4. I say and submit that, as afore stated, respondent no. 4 was also having requisite qualification and experience as mentioned in the said advertisement and hence, he was also called for the interview. I say and submit that, the interview committee found performance of the respondent no. 4 so as to give him 65 marks, whereas, petitioner's performance was allocated 55 marks. I say and submit that, therefore, it is misconceived on the part of the petitioner to say that, he should be selected rather then the respondent no. 4 for the post in question;

7. I state that, the petitioner is saying that, respondent no. 4 is a primary teacher and is possessing experience of teaching of primary education, without there being any document/substantial document in his hands. I reiterate that, from the certificate produced by the respondent no. 4, it can very well be gathered that, the respondent no. 4 has requisite qualification and experience. I say and submit that, petitioner cannot adjudge himself and can say that, he has the better experience then the respondent no. 4 as the same can be judged by the Interview Committee only. I say and submit that, qualification of education and experience are to be considered eligibility for calling the candidates in the interview and hence, better education and/or experience then the cocandidate, is not ground for challenging selection of the particular candidate, who ultimately, secured more marks in the interview because of his best performance amongst all the candidates, who were called for the interview. I say and submit that, the petitioner cannot adjudge himself and contend that, he is more meritorious then the respondent no. 4."

22. Learned advocate for the respondent no.4 relied on the certificates which are placed on record alongwith his affidavit. The said certificates are placed on record at page 63 to 71. On the basis of the said certificate, learned advocate for the respondent no.4 contended that the respondent no.4 possess requisite experience and therefore the selection and appointment of respondent no.4 is proper and in accordance with Rules and Regulation.

23. The respondent no.1 has filed affidavit wherein it is averred Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT interalia that : "3. I say and submit that the Recruitment Rules 1970 for the post of YBO under para 3(d) specifies as under : have about three years experience in organization of Youth and Cultural Activities. Apparently, it emphatically specifies the requirement and experience required to be eligible for appointment to the post of Youth Board Officer, Interalia, it requires three years experience in organization of Youth and Cultural Activities. The phrase Organization of Youth and Cultural Activities is very crucial in the entire sequence of the selection process and therefore I venture to elaborate on the implications intended in the said phrase.

There are two facets of the term required to be elaborated upon as desired by the Hon'ble High Court.

First, the phrase Organization of Youth and Cultural Activities denotes experience organizing such activities anywhere in the State. It is never intended that the said activities should have been handled in Youth and Cultural Activities Organization/Institution. Rather, it is intended that there should be experience of managing the event of Youth and Cultural Activities. Therefore the Gujarati Recruitment Rules use the phrase YUVA JANE SANSKRITIC PRAVRITYONA SANCHALAN NO ANUBHAV. The experience may be in any other institute/organization other than Commissioner Youth and Cultural Activities department thereby allowing wider field of choice for the Government to choose from. Had it been intended to have experience in Commissioner Youth and Cultural Activities Organization only as valid experience then there does not remain any justified need to have Direct Recruitment and a Special Competitive Departmental Exam would have been sufficed to select from deptt. Officers. But Govt. has opted for Direct Recruitment from public and Experience in managing/handling organizing Youth and Cultural Activities in institutes other than COY is also considered to be valid Experience.

Having expanded upon the term 'Organization of in the phrase I would attempt to submit the conotation of the term 'Youth and Cultural Activities' in the phrase.

From the affidavit Reply filed by the Government on 09/04/2013 particularly para 11 of the said affidavit in Reply may please be perused to appreciate that Youth and Cultural Activities include any activity related with Youth and therefore it encompass various sports and adventure activities also the scope of the tern has been descried in para11 of the affidavit in reply.

4. Now further, I say and submit that the Certificates given by the Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT respondent no. 4 in his affidavit at (page 67 to 71) are the certificates dated 05/02/2007, 03/02/2008, 12/09/2011, 07/09/2009 and 10/12/2008. Further, it is respectfully submitted that the certificate dated 10/12/2008 and 07/09/2009 are the certificates issued by the District Sports Officer, Ahmedabad for the sports event which was organized by the Bareja Primary School, Certificates dated 03/02/2007 and 05/02/2007 are the certificates issued by the District Primary Education Officer, Ahmedabad, and Principal District Education and Training Bhavan, Ahmedabad which was also for organizing sports found as a physical training. The certificates as placed by the respondent showing his eligibility of experience were taken into consideration by the GPSC for evaluating of his merits.

24. According to learned AGP the certificate produced by respondent no.4 satisfy the requirement prescribed by the Rules.

25. The respondent no.4 has filed further affidavit dated 23/08/2013. Wherein, the respondent no.4 has averred interalia that : "5. I respectfully say and submit that as per the government letter dated 21.01.2012 which annexed at pages (4647) are the letters by the governments to the GPSC (i.e. Respondent no.3) clarifying the criteria's qua Youth, Cultural Adventure and Sports activities for evaluating the applicants eligibility and merits as per the requirement of the Recruitment Rules, 1970 for appointment of Youth Board Officer which was as per the detailed clarification given by the Commissionerate of youth and service and cultural activities vide letter dated 29/06/2012 that could be considered incounting experience as activities pertaining to youth and cultural events."

26. At the time of hearing, learned advocate for respondent no.4 relied on the details/documents and another material at page nos. 63, 43, 72, 73, 83, 85, 88 and 59.

27. Learned advocate for the respondent no.4 has taken the Court through the said documents and material which have been considered by the Court.

28. The purport of the submission made by learned advocate for the respondent no.4, respondent no.3 GPSC and respondent no.1 and 2 is that the respondent no.4 possess the requisite experience as prescribed in the advertisement consideration by the Court.

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HC-NIC Page 10 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT

29. However in light of rival contentions, it has emerged that, it would be necessary, for deciding the petition to examine whether the words in organization means or can be construed to mean experience of working in an organization (i.e. a body/establishment) which is engaged in activity of Youth and Cultural Activities or whether the said rule contemplate that 3 years experience should be experience of organizing Youth and Cultural Activities in an organization (i.e. a body or an establishment) which is engaged in conducting activities for Youth and Cultural Activities or the words experience in organization of Youth & Cultural Activities means and can be construed to mean experience of organizing Youth and Cultural Activities anywhere i.e. in any primary school or any other establishment which may or may not be an organization (i.e. a body/establishment) engaged in Youth and Cultural Activities. Differently put, the petition involves and calls for interpretation of relevant provision under the applicable Rules.

30. Since the petition calls for interpretation and construction of the Rules, the petition deserves consideration. Hence below mentioned order is passed.

31. Rule.

32. Having regard to the fact that the petition involves pure issue of interpretation of Rules and also in view of the fact that since 09/04/2013 any request/application to vacate or modify the interim relief is not taken out and the interim arrangement which is made vide order dated 09/04/2013 has been in operation until now, it appears appropriate to direct that the interim arrangement made vide order dated 09/04/2013 would continue until further orders. In the facts of the case it is obvious that the petition requires earlier hearing. Therefore, rule is made returnable on 07th January, 2013."

3 The order referred to above is quite exhaustive. It contains the facts of this case and also the issue involved in the matter. Therefore, I need not to reiterate the facts as well as the submissions canvassed on both the sides.

4 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT for my consideration is the interpretation of the word "in organization"

as contained in Rule 3 of the 'Officer in the State Youth Board Recruitment Rules, 1970'.

5 The Recruitment Rules of 1970 were framed by the State Government. According to the State Government, the phrase "organization of youth and cultural activities" denotes experience of organizing such activities any where in the State. According to the Government, the same should not be interpreted as the said activities to be handled in the Youth and Cultural Organization/ Institution. The interpretation of the rules or rather the rule explained by the State Government is quite contrary to what has been submitted by Mr. Pujara, the learned counsel appearing for the petitioner. Not only the plain interpretation of the rule, but having regard to the other materials on record, it is not possible or rather permissible for me to interpret the rule in the manner suggested by Mr. Pujara.

6 In the aforesaid context, I may usefully refer to and rely upon the decision of the Supreme Court in the case of Ajeet Singh Singhvi v.

State of Rajasthan [1991 Supplementary (1) SCC 343]. In the said case before the Supreme Court, the issue was with regard to the interpretation of a rule providing for promotion in the Rajasthan Administrative Service. The issue was whether selection for promotion Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT and appointment in the service had to be made on the basis of merit alone and not on the basis of merit and senioritycummerit in proportion of 50 : 50. The Supreme Court ruled that in case of doubt, the Government being the author of the rule, had kept itself, as a matter of prudence, the right to remove any ambiguity, the view of the Government in respect of the rule, should ultimately clinch the matter. It further ruled that where the Government put forth as a defence in the Court, its view nevertheless was entitled to great weight before the Court and burden would lie on the appellant to establish to the contrary. The following observations fortify the submissions of Mr. Upadhya and the learned AGP.

"10. Argument was sought to be built that in Rule 32, Super Time scale was introduced with effect from 1771987 whereunder the Government was required to make an appointment on the basis of merit and seniority cummerit on 50:50 basis in accordance with subrule 6 of rule 28B in the absence of identification of posts. The argument looses its thrust in entirety when viewed on the basis of subrule (2) whereunder the procedure and principles for selection by merit shall, in so far it may apply, is the same as provided in rule 28B. which embodies subrule (7) as well. We have in the context to apply the Rule of harmonious construction. In The J. K. Cotton Spinning & Weaving Mills Co. Ltd. v.

The State of Uttar Pradesh & Others; [1961] 3 SCR 185 this Court applied the rule of harmonious construction even to subordinate legislation and laid down as follows:

"In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumption will have to be made in the case of rule making authority also."

Then again in Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 at pages 40405 it was observed as follows:

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HC-NIC Page 13 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT "The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to the posed is whether there is any ambiguity in the language used in rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act."

11. On the application of above principles, it is noticeable that the terms `higher post' and `highest post' occurring in Rules 28B and 32 by all means are relative ones expected to be created in singular or plural terms under Rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time. Subrule (7) even before the amendment of 1771987 postulated a highest post/posts capable of being filled on the basis of merit alone. The fact that they remained unidentified gives no basis to the plea that the State was incapacitated to identify at a later stage the highest posts in the State Service required to be filled on the basis of merit alone. It seems to us, on a close analysis,and on the language employed in Rules 28B and 32 that the highest post/posts conceptually were part of the Rules but their effectuation and identification has surfaced only by means of the amendments of July 17, 1987 and the notification of January 12, 1988.

12. Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants. There is an inbuilt safety kept in the explanation added to subrule (8) of Rule 28B which prescribes that if any doubt arises, amongst others, about the categorisation of the posts as the highest posts in the Service, the matter shall be referred to the government in the Department of Personnel and Administrative Reforms, whose decision there on shall be final. The appellants could easily have raked up and got referred the matter to the government to have a decision thereon. The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy. In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court Page 14 of 15 HC-NIC Page 14 of 15 Created On Fri Nov 06 03:00:05 IST 2015 C/SCA/3532/2013 CAV JUDGMENT or the Government to give the same interpretation or exposition to the rules requiring interpretation herein. Besides the government being the author of the rule, has kept to itself, as a matter of prudence; the right to remove any ambiguity about the identification of any post including the highest post/posts. The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court, its view nonetheless are entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled."

7 In the aforesaid view of the mater, I hold that there being no merit in this petition, the same deserves to be rejected. This petition is, accordingly, rejected. Rule stands discharged.

(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment is pronounced, Mr. Pujara, the learned counsel appearing for the petitioner prays that the interim order passed earlier by this Court, may be continued for a period of four weeks from today.

Ms. Roopal Patel, the learned counsel appearing for the respondent No.3 has opposed the prayer. In the facts of this case, and more particularly, considering that the interim relief has continued for more than two years, the interim order passed earlier by this Court shall continue for a period of four weeks from today.

(J.B.PARDIWALA, J.) chandresh Page 15 of 15 HC-NIC Page 15 of 15 Created On Fri Nov 06 03:00:05 IST 2015

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