Gujarat High Court
Digviyajsinh Mahendrasinh Chavda & vs State Of Gujarat & 5 on 5 February, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13857/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13857 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15057 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
SPECIAL CIVIL APPLICATION NO. 14331 of 2014
With
SPECIAL CIVIL APPLICATION NO. 15805 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
SPECIAL CIVIL APPLICATION NO. 16365 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1100 of 2015
With
SPECIAL CIVIL APPLICATION NO. 1141 of 2015
With
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
CIVIL APPLICATION NO. 193 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION NO. 196 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
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DIGVIYAJSINH MAHENDRASINH CHAVDA & 10....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR. HJ KARATHIYA, ADVOCATE for the Petitioner(s) No. 1 - 11
GOVERNMENT PLEADER for the Respondent(s) No. 1
Page 1 of 15
C/SCA/13857/2014 ORDER
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 05/02/2015
ORAL ORDER
1. The above captioned petitions are preferred against the notification dated 25.09.2014 issued by the respondent-Commission.
2. After the petitions came to be filed, or around that time, the Commission had, on its own, undertaken the exercise of correcting the list/ notification dated 25.09.2014 and revised the said list / result declared vide commission's notification dated 25.09.2014.
3. The said entire exercise was undertaken by the Commission on its own and not under any order of the Court or at the suggestion of the Court, much less under the direction by the Court. Page 2 of 15 C/SCA/13857/2014 ORDER
4. The Commission, by undertaking such exercise, on its own decision, revised the list / result notified by its vide Notification dated 23.09.2014 and on its own revised the list / result and prepared new (i.e. revised list / result).
5. During the hearing of the group of petitions, GPSC informed the Court about its said action. Therefore, in one of the above mentioned petitions i.e. Special Civil Application No. 15805 of 2014, order dated 13.01.2015, came to be passed, whereby the commission was permitted to open the sealed cover which contained the revised list i.e. the list / result dated 25.09.2014 which was revised by the respondent commission on its own (and not under any direction or suggestion by the Court) and to place it on the record of the petition. The said order in Special Civil Application No. 15805 of 2014 dated 13.01.2015 reads thus:-
Page 3 of 15 C/SCA/13857/2014 ORDER
1. Mr.Shukla, learned advocate for the GPSC submitted that after publication of the select list, GPSC had undertaken certain exercise as a result of which, the impugned select list has been revised.
2. He further submitted and clarified that in view of pendency of the petition and certain restraint orders passed by the Court, which are in operation, GPSC has not implemented the revised list and has not declared/published the said list.
3. In this background, learned advocate for the GPSC prayed for permission to open the sealed cover and to place the revised list on record, with clarification that until any fresh order is passed by the Court, GPSC or the Government will not act upon and will not operate the revised list.
4. Learned advocates for the petitioners and respondents submitted that they do not have any objection if the respondent-GPSC is permitted to open the sealed cover and place the revised list on record of the petition, subject to the condition that it should not be operated.
5. In view of the submissions by learned advocate for the respondent-GPSC and learned advocates for other respondents and the petitioners, the respondent-GPSC is permitted to open the sealed cover and to place the revised list on record of the petition.
6. It is clarified that this order is passed only to ensure that GPSC is not faced with allegation of breach of earlier orders passed by the Court and also to examine the steps taken by the GPSC after publication of earlier impugned select list.
7. Permission is granted with further clarification that revised list will not be acted upon and/or implemented unless any order granting such permission is passed by the Court.Page 4 of 15 C/SCA/13857/2014 ORDER
8. The list shall be placed on record under an affidavit and copies thereof shall be served to the learned advocates for the respondents and petitioners. This Process shall be completed on or before 15.01.2015.
For the said limited purpose, the matter shall be listed on the Cause List of 15.01.2015, but hearing shall be on 16.01.2015."
6. Thereafter, the respondent Commission circulated Civil Application being Civil Application No. 415 of 2015. In the said Civil Application, the respondent Commission prayed, inter alia, that:-
"5(B) Your Lordships may be pleased to modify the order dated 13.01.2015 and be further to permit the applicant Commission to publish the revised result of the examination in the Official Gazette in two parts and to display the revised result on its Notice Board as provided under the said Rules before placing on record under an affidavit and serving copies thereof to the learned advocates and serving copies thereof to the learned advocates for the original respondents and petitioner and the time to complete the said process may be extended till 27.01.2015 in the interest of justice."
7. After considering the said application, the Court passed order dated 21.01.2015, which reads thus:-
Page 5 of 15 C/SCA/13857/2014 ORDER
1.Heard Mr. Shukla, learned advocate for the Gujarat Public Service Commission ("GPSC" for short) Mr. Majmudar, learned advocate for Mr. Kuntal Joshi, learned advocate for the respondent Nos. respondent Nos. 1 to 5, Mr. P.K. Jani, learned Additional Advocate General for respondent No. 6 and Mr. Upadhyaya, learned advocate for the respondent No. 7.
2. Having regard to the fact that certain other petitions involving similar issue are also filed and such other matters are being considered along with Special Civil Application No. 15805 of 2014 (wherein this application is taken out) learned advocates appearing in the said other matters are also heard with regard to request made in this application.
3. Accordingly Mr. Yagnik, learned advocate whose application (on behalf of selected candidates) seeking permission to join the proceedings and Mr. Mehta, learned Senior Counsel have also been heard.
4. In present application the applicant GPSC has prayed, inter alia, that:-
5(A) Your Lordships may be pleased to allow this Civil Application. (B) Your Lordships may be pleased to modify the Order dated 13.01.2015 and be further pleased to permit the Applicant Commission to publish the Revised Result of the examination in the official gazette in two parts and to display the Revised Result on its notice board as provided under the said Rules before placing on record under an affidavit and serving copies thereof to the learned advocates for the original respondents and petitioners and the time to complete the said process may be extended till 27.1.2015 in the interest of justice."
5. The above quoted request is made by the applicant in light of and in pursuance of the order dated 13.1.2015 passed in SCA No. 15805 of 2014 by the Court. The said order was passed after hearing learned advocates Mr. Yagnik and learned Senior Counsel Mr. Mehta and having regard to the fact that all learned advocates had declared that they had no objection if the revised list was placed on record of the petition provided it would not be implemented.
The said order dated 13.1.2015 reads thus:-
1.Mr.Shukla, learned advocate for the GPSC submitted that after publication of the select list, GPSC had undertaken certain exercise as a result of which, the impugned select list has Page 6 of 15 C/SCA/13857/2014 ORDER been revised.
2.He further submitted and clarified that in view of pendency of the petition and certain restraint orders passed by the Court, which are in operation, GPSC has not implemented the revised list and has not declared/published the said list. 3.In this background, learned advocate for the GPSC prayed for permission to open the sealed cover and to place the revised list on record, with clarification that until any fresh order is passed by the Court, GPSC or the Government will not act upon and will not operate the revised list.
4.Learned advocates for the petitioners and respondents submitted that they do not have any objection if the respondent-GPSC is permitted to open the sealed cover and place the revised list on record of the petition, subject to the condition that it should not be operated.
5.In view of the submissions by learned advocate for the respondent-GPSC and learned advocates for other respondents and the petitioners, the respondent-GPSC is permitted to open the sealed cover and to place the revised list on record of the petition
6.It is clarified that this order is passed only to ensure that GPSC is not faced with allegation of breach of earlier orders passed by the Court and also to examine the steps taken by the GPSC after publication of earlier impugned select list.
7.Permission is granted with further clarification that revised list will not be acted upon and/or implemented unless any order granting such permission is passed by the Court.
8.The list shall be placed on record under an affidavit and copies thereof shall be served to the learned advocates for the respondents and petitioners. This Process shall be completed on or before 15.01.2015. For the said limited purpose, the matter shall be listed on the Cause List of 15.01.2015, but hearing shall be on 16.01.2015."
6. After said order dated 13.1.2015 came to be passed, the applicant GPSC has taken out present application citing the provisions contained in Rule 21 of the Assistant Conservator of Forests / Range Forest Officer's Competitive Examination Rules, 2008.
7. So as to justify and support the request made in the application, the applicant has averred and stated that:-
"2. The applicant Commission submits that as provided under Rule 21 of the Assistant Conservator of Forests / Range Forest Officer's Competitive Examination Rules, 2008, the Applicant Commission is required first to publish the result of the examination in the Official Gazette in two parts and further Page 7 of 15 C/SCA/13857/2014 ORDER required to display the result on its Notice Board.
3. The applicant commission is, therefore, required to publish the Revised Result in the Official Gazette in two parts and display the Revised Result on its Notice Board as provided in the said Rules before placing on record under an Affidavit and serving copies thereof to the learned Advocates for the original respondents and petitioners on or before 15.1.2015 as directed by this Hon'ble Court.
4.The applicant commission, therefore, submits that it would be in the interest of justice and fitness of things that the applicant commission be permitted to publish the revised result of the examination in the official gazette in two parts and to display the Result on its Notice Board as provided under the said Rules before placing on record under an Affidavit and serving copies thereof to the learned Advocates for the original respondents and petitioners and the time to complete the said process may be extended till 27.1.2015 in the interest of justice"
8. Before proceeding further it is relevant and necessary to mention that earlier, vide order dated 13.1.2015 the Court had, subject to the conditions and clarifications mentioned in the order and GPSC's stipulation recorded in the order, permitted GPSC to open the select list and place it on record of the petition.
8.1 However, in view of the provisions contained under Rule 21 of the Assistant Conservator of Forests / Range Forest Officer's Competitive Examination Rules, 2008, the applicant GPSC has taken out present application with above quoted request.
9. At the time of hearing of this application, Mr. Jani, learned Additional Advocate General, Mr. Mehta, learned Senior Counsel, Mr. Majmudar, learned advocate for Mr. Kuntal Joshi, learned advocate for the respondent Nos. 1 to 5 and Mr. Upadhyaya, learned advocate for respondent No. 7 have declared and submitted that they do not have any objection if the request made in the application is granted.
10. However, Mr. Yagnik, learned advocate representing the candidates whose names are in the select list which is already published by the GPSC (and which is the subject matter in the application) raised certain objections and expressed certain reservation, on various grounds; mainly on the ground that the petition itself is premature and there is no Page 8 of 15 C/SCA/13857/2014 ORDER reason or justification for GPSC to revise the select list applying principles and ratio to the judgment by Apex Court in case of Union of India vs. Ramesh Ram and others (2010 [7] SCC 234)
11. Learned advocate for the GPSC and learned Additional Advocate General as well as Mr. Mehta, learned Senior Counsel, Mr. Mr. Majmudar, learned advocate for Mr. Kuntal Joshi, learned advocate for the respondent Nos. 1 to 5 and Mr. Upadhyaya, learned advocate for respondent No. 7 have submitted that the said objection and contention can be considered at the time when the revised select list is placed on record after its publication and when it is examined by the Court, however at this stage when, the applicant GPSC is merely seeking permission to publish the list, it would not be necessary to examine the said issue and the objections against the revised select list.
12. The Court is of the view that there is substance in the submission made by learned Additional Advocate General and learned advocates for the respondents and learned advocate for the applicant.
13. Having regard to the facts of the case and the provision which the applicant GPSC has relied and also having regard to the fact that under order dated 13.1.2015 the Court, subject to the condition and stipulation recorded therein, already granted permission to GPSC to place on record the revised list and that the said order was passed with consent of the learned advocates, relief prayed for in present application is granted.
14. However, permission is granted subject to the condition that the select list will not be operated and implemented by GPSC until any other or further order is passed by the Court and the condition that all objections and contentions on behalf of the concerned candidates (i.e. those whose names are already published in the select list and those whose names are not included in the select list) are kept open and they will be considered at the time of hearing of the petition.
15. In that view of the matter the order dated 13.1.2015 stands partly modified.
Page 9 of 15 C/SCA/13857/2014 ORDER
16. Mr. Shukla, learned advocate for the applicant submitted that GPSC will complete necessary process today itself by forwarding the list for purpose of publication. In view of the said submission, it is expected that the applicant GPSC will complete the process of getting the list published in the Gazette by 23.01.2015. Accordingly the Civil Application is disposed of."
8. After the said order, the respondent Commission issued notification dated 23.01.2015 and thereunder declared the revised list / result (which is subject to conditions mentioned in the order dated 21.01.2015).
9. The said notification dated 23.01.2015 was subsequently placed on record of the petitions.
10. When the said notification was read in the Court, it was noticed that the Commission had not presented the facts accurately in the said notification inasmuch as it was mentioned in the said notification dated 23.01.2015 that "... has been revised as per oral order of the Hon'ble High Court in Special Civil Application No. 15805 Page 10 of 15 C/SCA/13857/2014 ORDER of 2014 dated 21.01.2015...". (emphasize supplied)
11. The said statement in the notification dated 23.01.2015 mentioned, and thereby created impression, that the notification / list was revised because of the order by the Court and as per Court's order i.e. order dated 21.01.2015. Whereas in fact the GPSC had undertaken that exercise on its own and even before the hearing of the petitions commenced before the Court and long before the order dated 21.01.2015.
12. The said statement was incorrect (inasmuch as the commission had revised the notification / list on its own and even before the petitioners were heard by the Court). The list / result was not revised under any order of the Court or even at the suggestion of the Court, much less under any direction by the Court.
Page 11 of 15 C/SCA/13857/2014 ORDER
13. Therefore, the respondent-Commission was directed to delete the said statement and rectify the misrepresentation of the facts by issuing proper corrigendum.
14. Thereafter, the respondent-Commission issued corrigendum dated 04.02.2015.
15. In the said corrigendum again the respondent Commission has made statement which is not accurate and is misleading and gives impression as if the Correction / revision in the list / result and notification dated 25.09.2014 was made pursuant to i.e. in view of and on account of and as per the order passed in Civil Application No. 415 of 2015, whereas by the order dated 21.01.2015 in Civil Application No. 415 of 2015, the Court had merely allowed the respondent- Commission to declare the revised list, which was already prepared by the Commission on its own.
16. In the corrigendum dated 04.02.2015, the Page 12 of 15 C/SCA/13857/2014 ORDER Commission has again mentioned that "... has been revised pursuant to Special Civil Application No. Civil Application No. 415 of 2015 in Special Civil Application No. 15805 of 2014 filed by the Commission before the High Court of Gujarat with a prayer to permit the Commission to publish the revised list..."
17. The said statement in the corrigendum gives the impression as if the notification dated 25.09.2014 and corrected on 16.10.2014 was revised in view of and pursuant to order dated 21.01.2015 in Civil Application No. 415 of 2015, whereas the fact is otherwise inasmuch the Commission has revised the list / result and the notification dated 25.09.2014 on its own.
18. Therefore, last chance is granted to the Commission to rectify its mistake and incorrect statement in its notification and corrigendum.
19. If the mistake and incorrect statements are Page 13 of 15 C/SCA/13857/2014 ORDER not corrected on or before 07.02.2015, then appropriate actions against the responsible officer will be taken for making incorrect statements in the Notification dated 23.01.2015 and in the corrigendum dated 04.02.2015.
20. The Commission shall clearly mention in the fresh corrigendum that the list / result and the notification dated 25.09.2014 were corrected by its own and not in view of and / or not on account of and/or not under any direction or suggestion or order of the Court.
21. The Commission shall also clarify that the statements in the notification dated 23.01.2015 and the corrigendum dated 04.02.2014 are deleted and should be treated as deleted.
22. The Commission shall specifically mention that the revision is effected by the Commission on its own and it will subject to the orders by Page 14 of 15 C/SCA/13857/2014 ORDER this Court. For the said purpose, time until 07.01.2015 is granted.
23. At the request of learned advocate for GPSC, though time was granted to file affidavit for certain unforeseen and unavoidable circumstances, he could not file affidavit today and prayed for more time, i.e. until 9.2.2015.
24. However, in view of the submissions by other learned advocates, learned advocate for GPSC was requested to make submissions with regard to other aspects and contentions raised by the petitioners. Accordingly, learned advocate for GPSC commenced his further submissions. He has not completed his submissions. Therefore, hearing of group petitions is adjourned to 6.2.2015.
(K.M.THAKER, J.) Girish Page 15 of 15