Gujarat High Court
Jayesh Ganpatbhai Panchal vs State Of Gujarat on 10 May, 2019
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/6200/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6200 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6200 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 6200 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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JAYESH GANPATBHAI PANCHAL
Versus
STATE OF GUJARAT
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Appearance:
MR GAUTAM JOSHI WITH MR VYOM H SHAH(9387) for the Petitioner(s)
No. 1,10,11,2,3,4,5,6,7,8,9
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 2
MR KM ANTANI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 10/05/2019
CAV JUDGMENT
The petitioners herein are the Deputy Page 1 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT Section Officers working in the Secretariat. They
participated in the process of promotion by selection to the post of Section Officer through the mode of special competitive examination.
2. The petitioners, by filing the present petition under Article 226 of the Constitution, have prayed as under.
(i) to issue writ of mandamus to declare the action of the Gujarat Public Service Commission of not calling the present petitioner for interview and non disclosure of any efficiency criteria during the recruitment process as illegal and violative of Article 14 and 16of the Constitution;
(ii) to quash and set aside the result declared on 17.1.2019 for calling only 70 candidates to appear in the personal interview round scheduled on 11.2.2019 and 14.2.2019;
(iii) to issue a writ of mandamus directing Gujarat Public Service Commission to issue a fresh notification calling for the petitioners having higher aggregated marks obtained in written examination for the personal interview by applying the rules as prevailing during prior recruitment process.
3. The General Administration Department of the State Government issued Circular for filling up the posts of Section Officer by granting promotion from amongst the Deputy Section Officers and called for applications from the candidates who had completed five years of service. The post of Section Officer at the Secretariat can be filled-in by modes either by way of direct selection or by way of promotion or what is called the third mode, the special competitive examination.
3.1 The rules framed under Article 309 of the Page 2 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT Constitution called the Section Officer, Class II in Gujarat Secretariat Service Recruitment Rules, 1983 govern the process of selection and promotion to the post of Section Officer. This third mode of selection by way of competitive examination is under Rule 2(c) of the Rules.
3.2 Respondent No.2 - Gujarat Public Service Commission issued call letters on 01st November, 2018 to the petitioners to enable them to appear in the competitive examination which was held on 11th November, 2018 and 18th November, 2018. On 17th January, 2019 the result of the written examination conducted by the Gujarat Public Service Commission was announced. Out of the approximate 210 candidates who appeared at the said competitive examination, 70 candidates were called for personal interview. Since the petitioners were not called, it is their case that they stood surprised. The petitioners' further case is that it came to their notice thereafter that respondent No.2 had determined, what they called the efficiency bar in form of cut-off marks and on that basis, the result was declared.
3.3 The interviews were conducted by Gujarat Public Service Commission and final result was declared on 16th February, 2019. The petitioners have stated that they inquired from Gujarat Public Service Commission (GPSC), pursuant to which the Gujarat Public Service Commission clarified on 21st February, 2019 that the petitioners may seek details about the result under the Right to Information law by making Page 3 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT necessary application. It is the further case of the petitioners that some candidates who had secured less marks were also called in the interview, but the petitioners were kept out. The petitioners have given the instance of candidate listed at Serial No.29 in the result declared by the GPSC, stating that the said candidate had less marks than the petitioners, yet the petitioners were not called for interview.
4. Heard learned advocate Mr.Gautam Joshi with learned advocate Mr.Vyom Shah for the petitioners, learned Assistant Government Pleader Mr.K.M. Antani for respondent No.1 - State and learned advocate Mr.Shivang Shukla for respondent No.2 - Gujarat Public Service Commission.
4.1 Learned advocate for the petitioners vehemently submitted that the cut-off marks was fixed by the Commission which criteria was not made known to the petitioners and the petitioners were not aware at any point of time about any such cut-off marks. It was submitted that the fixing of such minimum efficiency criteria as passing standard was in violation of petitioner's right to be considered for promotion and resulted with injustice to them. It was submitted that by such fixation of cut-off criteria, petitioners were deprived of chance to appear in the personal interview at which their suitability could have been better assessed. It was contended that GPSC fixed passing criteria for the examination after the Circular for recruitment process was issued and that such action was without authority and their existed Page 4 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT no power with the GPSC to fix any such passing standard.
4.2 The petition was contested. Respondent No.2 GPSC filed affidavit-in-reply to state that the process for giving promotion through competitive examination was held, in which 238 applications were received which included 06 applications from the GPSC's own cadre and 232 applications received from the candidates in the Secretariat. It was stated that the Commission by letter dated 29th September, 2018 informed the General Administration Department to prescribe minimum qualifying standard. It was stated that the qualifying standard was fixed as permitted under Rule 7 of the Rules to determine the eligibility of the candidate for appearing in the interview.
4.3 It was next stated that the General Administration Department of the Government by letter dated 05th October, 2018 intimated all the respective administrative departments regarding fixation of minimum qualifying standard for each paper and the candidates who were from the different departments were instructed about the said fact to bring the same to their knowledge. It was stated that the petitioners could not exhibit consistency in all the papers, they failed to secure minimum qualifying marks. Hence, were not eligible to be called for interview.
4.4 Respondent No.1 filed affidavit-in-reply Page 5 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT through Under Secretariat, General Administration Department submitting inter alia that the cut-off standard was very well known to all the candidates who were from the different departments of the Government. It was stated in this regard to supplement the stand of the GPSC that, "such cut off were conspicuously notified by the Establishment Branch of all the concerned departments of the State Government as directed by the GAD in the State Government. Evidence substantiating instances of such conspicuous notifications of cut off in case of Home Department, Revenue Department and the Social Justice Department, indicating that the aspirant DySo's had personal knowledge of the cut off marks are annexed hereto...".
4.5 It was further stated that the Notification regarding cut-off marks acknowledging the said information was signed by 11 candidates amongst the present petitioners. It was thus contended that, "the premise of the present petition is a falsehood and that the petitioners made a false statement that they were not aware about the factum of prescription of passing standard or cut-off criteria".
4.6 Learned advocate for the applicants in the Civil Application who were the selectees, submitted also that the petitioners were well aware about the cut-off marks fixed for each paper of the GPSC in accordance with the Rules. He submitted that the Notification itself fixing cut-off marks was circulated amongst the candidates by means of social Page 6 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT media application. Learned advocate for the private parties additionally submitted that petition itself was not maintainable on the ground that the successful candidates were not joined who were the necessary parties to be impleaded and the petition was bad for non-joinder of necessary parties. It was submitted that even when the petitioners subsequently filed Civil Application seeking stay, private candidates who were selected, were not made party.
5. Rule 7 of the aforementioned Section Officer, Gujarat Secretariat Service (Class II), Special Competitive Examination Rules, 1993 reads as under.
"7. Qualifying standard for passing examination:
the qualifying standard for passing the examination shall be as determined by the Commission from time to time. The Commission may, if necessary, fix different qualifying standards for reserved category of candidates."
5.1 Thus, the above Rule 7 empowers the GPSC for determining the qualifying standard for passing the examination. Commission may fix the necessary qualifying standard differently for the reserved category than which may be fixed for general category, as per the Rules. It is in the exercise of these powers under the statutory rules that the Commission fixed the qualifying standard.
5.2 In Arunachan Pradesh Public Service Commission v. Tage Habung [(2013) 7 SCC 737] the facts were akin to the facts of the present case. The Arunachal Pradesh Public Service Commission issued Page 7 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT advertisement dated 25th July, 2006 inviting applications for admission to Arunachal Pradesh Public Service Commission for recruitment to Group A and Group B posts under the Government of Arunachal Pradesh. On 13th June, 2007 decision was taken by the Commission fixing minimum cut-off marks at 40% qualifying marks for English subject. Notification to that effect was issued on 02nd July, 2007. The main examination commenced on 26th December, 2007. By Notification dated 11th July, 2018, Commission published list of candidates who had qualified in General English by securing 40% marks. However, prior to completion of the main examination, the office memorandum dated 07th August, 2007 was issued whereby it was declared that the cut-off marks would be 33% for all the subjects. The candidates who were qualified on the basis of 40% standard, filed writ petition challenging the decision dated 13th June, 2007 as well as the Notification dated 11th July, 2008.
5.3 It was held by the Supreme Court that the merit of the candidate and his suitability is always assessed with reference to his performance at the examination. It was further held that fixing of qualifying marks in viva voce test after commencement of selection process was not justified but fixing criteria for a candidate to qualify in the written examination is necessary in order to short list the candidates for participation in the interview. The Supreme Court held that fixation of qualifying marks to be 33% in the written examination could not be Page 8 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT held to be illegal merely because it was notified during the recruitment process. The exercise of powers by the Arunachal Pradesh Public Service Commission in fixing the qualifying marks in the written examination after commencement of the recruitment process was not interfered with.
5.4 What is significant to notice in Tage Habung (supra) is that in that case Rule 11 of the Arunachal Pradesh Public Service Commission Rules, 2001 governed the continuation of minimum marks. It could be noticed from the Rule quoted by the Supreme Court that the same was virtually pari materia in terms of its language and operation.
6. As such the entire premise of challenge and the limb of contention raised by the petitioners in the petition was that they were not made known about the fixation of cut-off marks. The submission of learned advocates for the respondents including the private respondent that the petitioners had clear knowledge, yet filed the petition on the ground of being not aware, could be countenanced. In raising a plea that the petitioners were not aware to be the only plank of challenging the cut-off marks, the petitioners could be said to have misdirected, at least, themselves.
6.1 On one hand it could not be gainsaid that the fixation of the qualifying standard under Rule 7 of the Rules of the GPSC was valid exercise of statutory powers and could hardly be questioned for Page 9 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019 C/SCA/6200/2019 CAV JUDGMENT its legality, the facts showed that the petitioners were wholly within the knolwedge of the factum of prescription of cut-off marks or the qualifying standard. Not only from the clear uncontroverted averments of facts by the respondent - State that the instructions were issued to all the departments regarding the Notification of the GPSC fixing the cut-off marks and that the information had thereafter travelled to the petitioners and other candidates appearing in the examination. Even 11 of the petitioners were shown to have been signed the letter which amounted to acknowledgment of knowledge. Furthermore and finally, those selected are admittedly the more meritorious than the petitioners, having attained the qualifying standard.
7. The petition stands meritless and the same is hereby dismissed. Notice is discharged.
ORDER IN Civil Applications In view of disposal of the main petition, Civil Applications do not survive for any orders and the same is disposed of accordingly.
(N.V.ANJARIA, J) Anup Page 10 of 10 Downloaded on : Tue Jun 25 01:02:47 IST 2019