Gujarat High Court
Inayathussain Ibrahim Hussain Shaikh vs State Of Gujarat on 30 March, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12961 of 2021
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12961 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed Yes
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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INAYATHUSSAIN IBRAHIM HUSSAIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1,2,3,4,5
MR SHALIN MEHTA with MR HEMANG SHAH for the Respondent(s) No.
4,5,6,7,8
MS DHARITRI PANCHOLI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,3
MR RC JANI(357) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 30/03/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Jit P. Patel on behalf of the petitioners Page 1 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 and learned AGP Ms. Dharitri Pancholi on behalf of the respondent-State, learned Advocate Mr. R. C. Jani for respondent no. 2-Gujarat Public Service Commission and learned Senior Advocate Mr. Shalin Mehta appearing along with learned Advocate Mr. Hemang Shah for respondents no. 4 to 8- Private respondents.
2. Issue Rule. Learned Advocates for the respective respondents would waive service of rule. With consent of learned Advocates, the petition is taken up for final hearing.
3. By way of the present petition, the petitioners seek to challenge a communication issued by the respondent no. 2- GPSC, pursuant to advertisement no. 131/2019-2020 dated 28.07.2021, whereby the present petitioners have been declared ineligible for personal interview on the ground that the applicants do not have adequate experience as per the Recruitment Rules. The petitioners also seek to impugn the selection of private respondents by the respondent no. 2 vide order dated 03.08.2021 as being in contravention of the Recruitment Rules.
4. Facts in brief relevant for deciding the issue in question are narrated as herein below. The respondent no. 2- GPSC had published an advertisement no. 131/2019-20 on 24.01.2020 for recruitment to the post Page 2 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 of Assistant Director/ Regional Fire Officer, Class-I. The petitioners were, according to them, possessing requisite qualification and experience had applied. After technical scrutiny and verification of documents, the candidature of the petitioners came to be rejected by the respondent no. 2- GPSC vide impugned order dated 28.07.2021. It would be pertinent to mention here that by virtue of the said order, petitioners were declared ineligible to be called for the interview and whereas the interview had been scheduled on 02.08.2021 and whereas pursuant to the interview a final result containing names of successful candidates to be recommended for appointment, candidates recommended to be kept in waiting list and list of the unsuccessful candidates had been published by the GPSC. Respondents no. 4-8 being the successful candidates have been joined it the petition.
5. The case of petitioners being that according to the advertisement which is based on the Recruitment Rules, the requirement, as relevant in case of the petitioners, was that the candidate should have a bachelor's degree obtained from any of the Universities established or incorporated by or under the Central or a State Act and recognized by the UGC and also having completed the Divisional Officers Course or the Fire Prevention Course recognized by the National Fire Service College, Nagpur. The candidates were also required to have about 7 years' experience in whole Page 3 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 time in the field of Fire Brigade out of which 3 years' experience should be on post which should be considered equivalent to the post not below rank of Station Officer or Assistant Divisional Officer in Government/ Local Bodies/ Government undertaking/ Board/ Corporation/ Limited Company established under the Companies Act, 2013. According to the petitioners all the petitioners fulfilled the educational requirement whereas all except petitioner no. 5 have more than 7 years' experience in the field of fire brigade.
6. Initially this Court vide order dated 07.09.2021 while issuing notice, by way of Ad-interim relief directed respondents no. 1 and 3 not to issue appointment orders to selected candidates and whereas the said interim relief still continues, as a result of which the private respondents have not yet been appointed to the post in question.
7. The present petition having been opposed by the State, the GPSC, and the private respondents. The principle contention, raised by the respondent no. 2 GPSC and adopted by the other respondents is that the petitioners do not fulfill the requisite experience criteria and hence they were declared ineligible to be called for the interview whereas the private respondents having requisite experience as well as educational qualification were called for the interview wherein they have been Page 4 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 declared successful. According to respondent no. 2 while the advertisement and the Recruitment Rules required the candidates to possess the educational qualification of bachelor's degree from recognised University and also of having completed the Divisional Officers Course or the Fire Prevention Course and the candidates were also required to have experience of about 7 years' in whole time in field of Fire Brigade out of which 3 years' experience should be on the post which can be considered equivalent to the post not below rank of Station Officer or Assistant Divisional Officer. According to the respondent GPSC, the experience of these candidates could be counted only after the candidate completes the Divisional Officers Course or the Fire Prevention Course by the National Fire Service Collage, Nagpur, which experience according to the respondent no. 2 GPSC, the petitioners do not possess. The same having resulted in the ouster of the petitioners, this petition is preferred.
8. At the outset, it requires to be noted that since it appears to this Court that the issue involved is with regard to interpretation of Recruitment Rules to the post in question, submissions of learned Advocates for the respective parties in that regard are recorded in brief as herein below.
9. Learned Advocate Mr. Jit P. Patel appearing on behalf of the Page 5 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 petitioners has submitted that Recruitment Rules for the post in question require a candidate to be eligible for being appointed to the post of Assistant Director/ Regional Fire Officer in the Gujarat State Fire Prevention Services, Class-I to hold the Educational qualification of having a recognized bachelor's degree and also having completed the Divisional Officers or the Fire Prevention Course recognized by the National Fire Service college, Nagpur. The experience qualification requires a candidate to have about 7 years' experience in the field of Fire Brigade of which 3 years should be in a post not below rank of Station Officer or Assistant Divisional Officer in Government or equivalent thereto.
9.1. Learned Advocate Mr. Jit P. Patel, on behalf of the petitioners, has submitted that petitioners no. 1 to 5 having the requisite educational qualification is not in dispute. It is submitted that the only aspect considered by the respondents for declaring the petitioners as ineligible is reading the requirement of having total 7 years' experience in Fire Brigade, to have been obtained after the candidates/ petitioners had acquired the relevant experience qualification, i.e. after passing of the Divisional Officer's Course/ Fire Prevention Course.
9.2. Learned Advocate Mr. Patel would submit that petitioners no. 1 to 4 have completed the Sub Officers Course from the National Fire Service College, Nagpur and whereas the petitioners no. 1 to 3 were Page 6 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 appointed as Station Officer in the year 2012. Learned Advocate Mr. Patel would submit that since the experience qualification as required for the post of Station Officer and the experience qualification required for the present post being different and the fact of the Recruitment Rule specifically stating about the 3 years' experience specifically required out of 7 years' experience in Fire Brigade, of being in a post not below rank of Station Officer or Assistant Educational Officer, the respondent GPSC had grossly erred in requiring that the experience of 7 years should be after the candidate completed the Divisional Officers Course.
9.3. Learned Advocate Mr. Patel would submit that the Recruitment Rules not specifying that the experience should be after the candidate has completed the Divisional Officers Course or Fire Prevention Course, such a requirement could not have been read into the Recruitment Rules by the GPSC. Learned Advocate Mr. Patel would submit that when the recruitment is requiring qualification for a higher post and the experience required is in a lower post, the qualification as required for the higher post could not be taken to be the starting point from which the experience required could be counted.
9.4. Learned Advocate Mr. Patel has also assailed the selection of the private respondents inter alia by submitting that the Gujarat Fire Prevention and Life Safety Measures Act, 2013 inter alia requires a Fire Brigade for the entire State of Gujarat. Learned Advocate Mr. Patel Page 7 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 would for the said purpose rely upon Section-3 of the Act, whereby the State of Gujarat is empowered to declare fire brigade or any other fire service as being part of State fire service and whereas the provision would not apply for private fire services maintained for providing fire protection to specific building or industry. Learned Advocate Mr. Patel would submit in this regard that since respondents no 4 to 8 have acquired experience in fire protection services maintained by private industries therefore such experience could not be counted as experience in fire brigade. Learned Advocate Mr. Patel, in support of his contention has relied upon decision of the Supreme Court in Dr. (Major) Meeta Sahai v/s State of Bihar reported in 2019 (20) SCC 17. Learned Advocate Mr. Patel has, therefore, requested for quashing the impugned order dated 28.07.2021 whereby the petitioners were shown as disqualified and also order dated 03.08.2021 whereby private respondents were selected and further appropriate orders are requested to be passed by this Court.
10. On the other hand, learned Advocate Mr. R. C. Jani on behalf of respondent no. 2, GPSC, would submit that since the Recruitment Rules for the post in question does not specify that the date from which the experience is to be counted, therefore, reliance is placed on the Classification Rules which clarifies on this aspect. Learned Advocate Mr. Jani would submit that Rule-8 of the Gujarat Civil Services Classification Page 8 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 and Recruitment (General) Rules, 1967 states with regard to 'Condition as to prescribed qualification' and sub rule-8 thereof inter alia states that in a recruitment to any service or post requires in its qualifications, a qualification as to practical experience for a given period than the period of practical experience shall be computed from the date of which the requisite qualifications are obtained.
10.1. Learned Advocate Mr. R. C. Jani would submit that since the Recruitment Rules require amongst its qualifications, a qualification of practical experience and Rule 8(8) of the Classification Rules laying down that experience is to be counted after the candidate acquired the educational qualification, the experience criteria of having seven years in Fire Brigade is required to be counted from the date the candidates clear the Divisional Officer's Course or the Fire Prevention Course.
10.2. Learned Advocate Mr. Jani would further submit that as far as the petitioners are concerned, they do not have the requisite experience as per the Recruitment Rules read with the Classification Rules and whereas in so far as the private respondents who have been selected, since they fulfill the experience criteria as above, they were called for the interview which they had successfully cleared and hence they have been placed in the select list. Learned Advocate Mr. Jani would submit that the GPSC having conducted the selection procedure, strictly in accordance with the Recruitment Rules read with the Classification Rules, no fault Page 9 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 could be found with the said respondent. Learned Advocate Mr. Jani would, therefore, submit that the petition may be rejected by this Court. Learned Advocate Mr. R. C. Jani has relied upon decision of this Court in case of Shivrajsinh Bhupat Chavda Vs State of Gujarat Special Civil Application No. 1896 of 2017 dated 22.02.2017 and decision in case of Anjnaben Mansukhlal Pandya Vs State of Gujarat dated 06.08.2019 in Special Civil Application No. 13126 of 2019 in support of his submissions.
11. Learned AGP Ms. Pancholi, on behalf of the State, would submit that the Recruitment Rules have to be read along with the Classification Rules, more particularly, since the Recruitment Rule does not provide a date from which the experience of 7 years has to be counted and therefore no infirmity can be found in the procedure adopted by the respondent no. 2 GPSC. In so far as the respondents no. 4 to 8 are concerned, according to learned AGP Ms. Pancholi, since the said respondents fulfilled the criteria as per the Recruitment Rules and have been selected by the GPSC, no infirmity could be alleged in so far as the said selection was concerned.
12. Learned Senior Advocate Mr. Shalin Mehta with learned Advocate Mr. Hemang Shah has adopted the submission made on behalf of Page 10 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 respondent -GPSC and the Government. Learned Senior Advocate Mr. Mehta would further submit that the term 'Fire Brigade' is a terminology which denotes a group of professional persons who deal in protecting life, environment and property in the event of fire. Learned Senior Advocate Mr. Mehta would submit that the term is used in the Recruitment Rules and the advertisement in its general sense and whereas a narrow meaning i.e. Fire Brigade being a Fire Brigade of the State or some instrumentality of the State in exclusion of Fire Brigade maintained by Private Companies, could not be attributed to the term. Learned Senior Advocate Mr. Mehta would further submit that since the Recruitment Rule and the advertisement prescribes eligibility criteria which includes a person having requisite experience in limited company established under the Companies Act, therefore, no objection could be raised against the candidatures of the private respondents being considered. Learned Senior Advocate Mr. Mehta would further submit that since the Recruitment Rule itself envisages equivalence of experience of a person working in the fire brigade of the State or any instrumentality of the State and a Private company, the respondent GPSC could not be faulted in considering the experience of the private respondents as being a valid experience.
13. Heard learned Advocates for the respective parties and perused the Page 11 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 record. The petitioners have been declared as being ineligible in the selection process on account of the petitioners not fulfilling the experience criteria, such declaration of ineligibility on account of invoking of Rule- 8(8) of the Classification Rules and whereas if Rule 8(8) of the Classification Rules had not been invoked the petitioners would be eligible to compete in the selection process. The petitioners in addition to challenging their being declared as ineligible have also challenged the Respondent no. 4 to 8 being declared as being eligible, more particularly, since the experience acquired by the private respondents according to the petitioners not being relevant and comparable experience. In view of this conspectus, the following issues arise for consideration of this Court:
(1) Whether the GPSC was justified in invoking Rule-8(8) of the Classification Rules to prescribe the date of acquisition of qualification as the relevant date for counting of the period of experience. (2) Whether the GPSC could be faulted in considering the experience as acquired by the respondents no. 4 to 8 in a private company as relevant experience for being considered for selection.
14. For deciding question no. 1 the Recruitment Rules as well as the Classification Rules require a closer appreciation/ interpretation. Rule 3(b)(1), 3(b)(2) and 3(c) of the Assistant Director/ Regional Fire Officer Page 12 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 of Gujarat State Fire Prevention Service, Class-I, Recruitment Rules, 2019 being the relevant rules the same are reproduced herein below for benefit.
Assistant Director/ Regional Fire Officer Recruitment Rules "Rule 3(b)(1): A Bachelor's degree obtained from any of the Universities established or incorporated by or under the Central or a State Act in India; or any other educational institution recognized as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956, and Completed the Divisional Officers Course or the Fire Prevention Course recognized by the National Fire Service College, Nagpur."
GCS Classification & Recruitment (general) Rules, 1967.
"Rule 3(b)(2): a degree of Bachelor of Engineering (Fire)/ Bachlor of Technology (Fire)/ Bachelor of Engineering (Fire and safety)/ Bachelor of Technology (Fire and safety) / Bachelor of Science (Fire) obtained from any of the Universities established or incorporated by or under the Central or a State Act in India; or any other educational institution recognized as such or declared to be deemed as a University under Section-3 of the University Grants Commission Act, 1956."
"Rule 3(c): Have about seven years' service experience in a whole time in the field of Fire Brigade out of which three years' experience on the post which can be considered equivalent to the post not below the rank of Station Officer or Assistant Divisional Officer in Government/ Local bodies/ Government Undertaking Board/ Corporation/ Limited Company established Page 13 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 under the Companies Act, 2013."
14.1. It is required to be noted that the Recruitment Rules sets out the educational and experience qualification in two parts. In so far as the educational qualification criteria, the candidate is required as per Rule (3)
(b)(i),
(a) to possess a Bachelor's degree from a recognized University, and
(b) completed the Divisional Officers Course or the Fire Prevention Course recognized by the National Fire Service College, Nagpur. The experience qualification as per Rule (3)(c) requires a candidate
(a) to have about 7 years experience in whole time in field of Fire Brigade and
(b) 3 years of the 7 years should be on a post not below the rank of Station Officer or Assistant Divisional Officer in the state or on a post considered equivalent thereto.
14.2 The contention on behalf of the respondent no. 2 GPSC being that the date of acquisition of the requisite qualification being the date from which the experience could be counted. Since such a requirement is being read into the Recruitment Rule by invoking aid of the Classification Page 14 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 Rule, Rule 8(8) of the Gujarat Civil Services, Classification and Recruitment Rules, 1967 is reproduced herein below. GCS Classification & Recruitment (General) Rules, 1967 "Rule-8(8): Where the qualifications prescribed for any service or post include a qualification as to practical experience of a given period and applications are invited for such service or post "the period of practical experience shall be computed-
(a) Unless otherwise provided in recruitment rule from the date on which requisite qualifications are obtained.
(b) With reference to the last date fixed for receipt of such application."
15. Rule-8(8) of the Classification Rules prescribes that the period of practical experience, which is prescribed in recruitment for a post shall be computed from the date on which the qualifications are obtained. Having noted the same, it would be absolutely relevant to mention that such a requirement in the Classification Rules, is not unqualified. Rule-8(8)(a) begins with the pre-condition for invoking the sub-rule "unless otherwise provided in Recruitment Rule". Thus, reading rule-8(8) as a whole, it could be stated that in a recruitment for a post where practical experience is also a requisite qualification and if there is no provision in the Recruitment Rule which specifies how the period of experience is to be counted than the period of experience shall be computed from the date from which requisite qualifications are obtained.
Page 15 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022
C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 15.1. Reading the Recruitment Rule, one finds that the Rule specifically provides as to how the practical experience is to be computed as stated herein above. Rule-3(c) states with regard to general experience of about 7 years in the field of Fire Brigade and specific requirement of 3 years out of the said 7 years being on a post not below the rank of Station Officer or Assistant Divisional Officer in the State or on any equivalent post. The Recruitment Rule very specifically providing as to how the practical experience has to be computed, in the considered opinion of this Court, the pre-condition as found in Rule-8(8)(a) as noted herein above would come into play and under such circumstances the requirement of counting the period of experience from the date the requisite qualifications were obtained could not have been invoked, more particularly, the sub rule itself making it clear as to where the said sub rule could be applicable and not applicable as the case may be. The Recruitment Rules very specifically providing as to how the experience is to be computed, the same ought not and could not have been ignored by the GPSC for invoking aid of the Classification Rules which in the considered opinion of this Court was not applicable.
16. As noted herein above, the Recruitment Rules specify about the candidate acquiring general experience of about 7 years and specific experience of 3 years, in the 7 years on a particular post in the State or on Page 16 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 an equivalent post. It also appears that the posts of Sub-Officers and Assistant Divisional Officer are subordinate posts to the post of Assistant Director/Regional Fire Officer i.e. the post in question. The qualification required for appointment to the post of Station Officer being that the candidate should pass a Sub-Officers Course. Notification dated 02.05.2017 relied upon by the applicants & GPSC with regard to sending officers working in the Fire Brigade of the State or instrumentalities of the State for completing various courses at the National Fire Service College, Nagpur states that a candidate for appearing in the Divisional Fire Officers Course is required to clear the Sub Fire Officer, Station Officer and Instructor course. Thus, it appears that for being appointed as Station Officer, a candidate is required to clear the most basic course i.e. the Sub Officers course.
16.1. Considering the said aspect in light of the submission by the GPSC there appears an apparent incongruity in as much as while the Recruitment Rules specify that the candidate should have 3 years experience as Station Officer or Assistant Divisional Officer, yet the GPSC reads the requirement of passing an examination which is the requirement for a higher post as being the date from which the experience is to be counted. Since the Station Officer is not required to pass a Divisional Officers Course, therefore the stand of the GPSC does not appear to be in consonance with the Recruitment Rules. Page 17 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022
C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 16.2. This is because if Sub-Rule (b)(1) and (c) of Rule-3 of the Recruitment Rules are read harmoniously, which should have been the case, then it clearly appears that the intent of the rule being that a candidate with a Bachelor's degree, other than a Bachelor's degree with regard to Fire and Fire Safety as envisaged in clause-(b)(II), gets a level play field upon his completion on a Divisional Officers Course or Fire Prevention Course as the case may be that candidates having Bachelor's degree as per clause-3(b)(II).
17. It further appears in this regard that the Recruitment Rule did not intent the experience criteria to be clubbed with the educational criteria. The Recruitment Rule after mentioning the age criteria states about the educational qualification criteria. 3(b)(i) being the criteria for a candidate having any recognized Bachelor's degree and having completed the Divisional Officer's Course or the Fire Prevention Course, whereas 3(b)
(ii) being the criteria for candidates having a recognized degree in Bachelor of Engineering, Technology or Science in Fire or Fire Prevention, while the requirement of completing the Divisional Officer's Course or Fire Prevention Course is not required. Rule 3(c) being the experience criteria states about having the general whole time experience of 7 years in Fire Brigade and particular experience of 3 years in Station Officer or Assistant Divisional Officer post in the State or equivalent Page 18 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 thereto including from private companies under the Companies Act. It thus appears that a candidate having any recognized degree and a candidate having a recognized degree in Fire or Fire Safety would be brought at par upon the candidate having non fire or fire safety related recognized degree passing the Divisional Officer's Course or Fire Safety Course. The equivalence being achieved upon the course mentioned herein above being passed, then as far as experience criteria is concerned both the class of candidates stand at par. The experience criteria very specifically mentioning only about the general and the specific experience to be possessed without any reference to any educational qualification. Reading the Recruitment Rule in a manner as done by the GPSC and supported by the State would clearly be to the disadvantage of non fire or fire safety related degree holders which is not the intent of the rules. Rather as noted herein above the intent appears to be to bring an equivalence between two sets of qualifications whereafter the experience criteria would be equally applicable to both the classes. In this view of the nature of the recruitment rules, this Court fails to appreciate the rationale of the GPSC in invoking aid of the Classification rule, more particularly, since there is no mention about the aim which is intended to be achieved by invoking the Classification Rules.
18. The Classification Rules relied upon by the GPSC clearly providing Page 19 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 that the requirement of counting of the date of acquiring experience as the relevant date for counting of experience only if the Recruitment Rules does not provide anything in that regard and in the instant case, the Recruitment Rules specifically providing for how experience is to be computed, and in absence of any rationale pointed to invoke the aid of the Classification Rules, in the considered opinion of this Court, the stand of the GPSC as supported by the State and the private respondents cannot be countenanced and is hence rejected.
19. In so far as the decisions relied upon by the learned Advocate for the GPSC, the same in the considered opinion of this Court would not advance the cause of the GPSC. In case of Shivrajsinh Chavda (Supra) this Court (Justice Bela Trivedi, as she then was), was concerned with a recruitment, where the advertisement itself mentioned that the period of experience has to be counted from the date on which the requisite educational qualification was acquired. In the instant case, neither the Recruitment Rule nor the advertisement prescribed the said condition. After the application forms were received, it appears that the GPSC invoking aid of Rule 8(8) of the Classification Rules have read the condition that the period of experience has to be counted from the date the requisite qualification was acquired in the recruitment rules. The facts being entirely different, the ratio laid down by this Court in decision of Page 20 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 Bhupatsinh Chavda would not be helpful to the respondent Commission.
19.1. In the decision in case of Anjanaben Pandya (Supra) this Court (Justice N. V. Anjaria) was considering the case of a candidate who did not have the requisite qualifications as per the recruitment rules, which is not the fact situation here. Thus, the said decision also would be of no avail to the respondent Commission.
20. Insofar as question at Sr. No. 2 i.e. with regard to experience held by respondent no. 4-8 as being valid. Rule (3)(b)(ii) inter alia envisages that a candidate should possess a valid degree of BE (Fire)/ B. Tech (Fire)/ B. E. (Fire Safety)/ S.Sc (Fire). Rule (3)(c) inter alia envisages that the candidate should have 7 years' experience in Fire Brigade of which 3 years could be considered equivalent to the post not below the rank of Station Officer or Assistant Divisional Officer in the State or any of its instrumentalities. In so far as respondents no. 4 to 8 are concerned, it is required to be noted that respondents no. 4 to 8 have acquired qualification of experience while working with private companies.
20.1. A plain reading of the Rule 3(c) clearly suggests that the Recruitment Rule does not envisage any difference in experience obtained while working in the field of Fire Brigade with the State or any of its entities or with a private organisation namely company established under the Companies Act, 2013. The respondents having acquired Page 21 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 experience as required while working with a company, the same being one of the acceptable categories in the Recruitment Rule, no fault could be found with the GPSC considering their candidature.
20.2. Rule 3(c) of the Recruitment Rules, inter alia envisages about the experience which a candidate should possess for being considered. The said rule contemplates equivalence of experience between insofar as posts not being below the rank of Station Officer or Assistant Divisional Officer in the State or its instrumentalities and in Limited Companies under the Companies Act, 2013. Thus, when the Recruitment Rules itself envisages the equivalence of experience and when the Recruitment Rules have not been challenged, it would not be open for the petitioners to challenge the selection of the private respondents on the ground that their experience was while working in limited companies. Moreover it is also not the case of the petitioners that the private respondents have not worked on posts which could be considered equivalent to the post of Station Officer or Assistant Divisional Officer.
20.3. Insofar as decision relied upon by learned Advocate of the Hon'ble Apex Court in case of Dr. (Major) Meeta Sahai, it would be relevant to mention that the said judgment insofar as relied upon by the learned Advocate for the petitioner would not be applicable to the facts of the present case. The Hon'ble Apex Court was concerned with an issue regarding narrow interpretation of the term "work experience" restricting Page 22 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 the same to experience gained while working in Government hospitals run by the Government of Bihar. The Hon'ble Apex Court had held such a restriction as being constitutional-unjust had held the term to encompass experience gained in hospitals run by the Government of Bihar or the Central Government and its instrumentalities. It would also be relevant to note that the Hon'ble Apex Court had clearly noted that the petitioner therein was not challenging the selection process rather she was challenging narrow interpretation of the term "work experience". It is with reference to such a challenge that the observations at paragraph no. 18 which is relied by the learned Advocate for the petitioners. Paragraph 18 of the said judgment reads as thus:
Paragraph 18. "The question of permissibility of giving weightage for "work experience" in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions." In the considered opinion of this Court the observations has to be read in the context of the facts before the Hon'ble Supreme Court. That in the Page 23 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 instant case the equivalence being envisaged in the recruitment rules and the rules not being challenged, such observations would not come to the aid of the petitioner. The rules making it clear that even comparable experience gained while working in Limited Companies established under the Companies Act would be considered as equivalent experience. So long as the Rules are in force, the respondent commission could not be faulted in adhering to by the same.
20.4. Furthermore challenge by the petitioners to the selection process whereby the private respondents have been selected, would be negated by observations of the Hon'ble Apex Court in the very judgment of Dr. (Major) Meeta Sahai at paragraph (16) which reads as thus.
Para 16 - "It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
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C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 Having regard to the law laid down by the Hon'ble Apex Court as above, a candidate having taken part in the selection process cannot turn around and question the same, the challenge to the selection of the private respondents not being maintainable, is hereby rejected.
21. In view of the above discussion and reasoning the questions raised at paragraph (13) are answered as herein below:
(13)(1) The GPSC respondent no. 2 was not justified in invoking the aid of Rule (8)(8) of the GCS Classification and Recruitment (General) Rules, 1967.
(13)(2) The GPSC could not be faulted in considering experience of respondent no. 4 - 8 as relevant experience.
22. In view of the aforestated findings, the following directions are passed.
a) Order/List dated 28.07.2021, insofar as it concerns the petitioners is set aside.
b) Respondent no. 2 GPSC is directed to hold interview of such of the petitioners who qualify as per the experience criteria as found in the Recruitment Rules without any reference to the Classification Rules.
c) The interview will be conducted by the same Interview Page 25 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022 C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022 Committee which had conducted the interview of candidates on 02.08.2021, preceding the select list of 03.08.2021.
d) Upon completion of the interview and as per the results, the GPSC shall publish a fresh Select list for the post of Assistant Director/ Regional Fire Officer, Gujarat State Fire Prevention Services, Class-I, pursuant to Advertisement No. 131/2019-2020. in super session of select list dated 03.08.2021.
e) The entire exercise as above shall be completed in 4 weeks from date of receipt of the judgment.
23. The petition stands allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to cost.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 26 of 26 Downloaded on : Thu Mar 31 21:34:46 IST 2022