Gujarat High Court
Guajrat Public Service Commission ... vs Parmar Nilesh Rajendrakumar & 99 on 11 September, 2015
Bench: M.R. Shah, G.R.Udhwani
C/LPA/1480/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1480 of 2013
In
SPECIAL CIVIL APPLICATION NO. 11996 of 2012
With
LETTERS PATENT APPEAL NO. 1298 of 2013
In
SPECIAL CIVIL APPLICATION NO. 11996 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE G.R.UDHWANI sd/
=========================================
1 Whether Reporters of Local Papers may be allowed to see YES the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any order made thereunder ?
============================================= GUAJRAT PUBLIC SERVICE COMMISSION THROU.SECRETARY....Appellant(s) Versus PARMAR NILESH RAJENDRAKUMAR & 99....Respondent(s) ============================================= Appearance:
MR DG SHUKLA, ADVOCATE for the Appellant(s) No. 1 HL PATEL ADVOCATES, ADVOCATE for the Respondent(s) No. 49 MR AS SUPEHIA, ADVOCATE for the Respondent(s) No. 9 10 , 13 , 15 16 , 19 , 21 22 , 24 , 29 , 36 , 38 , 40 , 48 , 52 54 , 56 , 59 , 63 65 , 67 68 , 70 , 72 , 74 76 , 80 , 84 85 , 88 89 , 91 , 94 , 99 100 MR DA BAMBHANIA, ADVOCATE for the Respondent(s) No. 1 2 MR. JAVED S QURESHI, ADVOCATE for the Respondent(s) No. 93 MS. SANGEETA VISHEN AGP FOR STATE MR. GUNVANT THAKKER, LD. FOR INTERVENER NOTICE SERVED for the Respondent(s) No. 87 , 97 RULE NOT RECD BACK for the Respondent(s) No. 44 , 46 RULE SERVED for the Respondent(s) No. 3 11 , 13 14 , 16 20 , 23 , 25 , 29 , 32 37 , 40 41 , 43 45 , 47 , 50 , 53 , 55 56 , 58 59 , 61 65 , 67 68 , 70 71 , 73 , 76 , 78 , 80 86 , 93 95 , 98 100 RULE UNSERVED for the Respondent(s) No. 21 , 27 , 74 75 Page 1 of 79 HC-NIC Page 1 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT SERVED BY AFFIX.(R) for the Respondent(s) No. 39 , 60 , 79 VIVAN T SHAH, ADVOCATE for the Respondent(s) No. 11 12 , 25 26 , 28 , 30 35 , 37 , 42 , 45 , 47 , 50 51 , 55 , 57 , 62 , 66 , 69 , 71 , 77 78 , 82 , 90 , 92 , 96 LPA NO.1298 OF 2013 MS. SANGEETA VISHEN AGP FOR APPELLANT MR. D.G. SHUKLA FOR GPSC MR. DA BAMBHANIA FOR ORIGINAL PETITIONERS MR. A.S. SUPHEHIA, FOR AFFECTED AND SELECTED CANDIDATES MR. VIVAN SHAH FOR AFFECTED AND SELECTED CANDIDATES MR. HL PATEL ADVOCATE FOR RESPONDENT NO.48 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 11/09/2015 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As both these Letters Patent Appeals are against the order passed by the learned Single Judge passed in Special Civil Application No.11996 of 2012 but by different original respondents, one by the Gujarat Public Service Commission (hereinafter referred to as the "GPSC") and another by State of Gujarat and another, both these appeals are heard, decided and disposed of by this common judgment and order.
2.0. That feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge dated 23.09.2013 passed in Special Civil Application No.11996 of 2012, by which, the learned Single Judge has allowed the said Special Civil Application preferred by the respondent nos.1 and 2 herein - original petitioners (hereinafter referred to as the "original petitioners") and has quashed and set aside the select list prepared Page 2 of 79 HC-NIC Page 2 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT by the GPSC for the post of Deputy Section Officer (State Secretariat Gujarat Legislative Assembly, Secretariat, Gujarat Public Service Commission) and Deputy Mamlatdar (Revenue), Class III and has directed to prepare the fresh select list after following direction as contained in para 78 of the said judgment and order, the original respondent no.2 GPSC has preferred Letters Patent Appeal No.1480 of 2013 and original respondent nos. 1 and 3 -
State of Gujarat and Another have preferred Letters Patent Appeal No. 1498 of 2013.
3.0. The facts leading to the present Letters Patent Appeals in nutshell are as under:
3.1. That the State Government in exercise of powers conferred by provision of Article 309 of the Constitution of India made Gujarat Civil Services Classification and Recruitment (General) Rules 1967 (hereinafter referred to as the "Recruitment Rules, 1967") vide notification dated 10.10.1967. As per subrule (2) of Rule 8 which prescribed the condition, the appointing authority has been given powers to relax the age limit in favour of the candidates belonging to the Schedule Castes, Schedule Tribes and Socially and Educationally Backward Class and in favour of candidates who are women to the extent indicated therein.
3.2. That the State Government, in exercise of powers under Article 309 of the Constitution of India vide notification dated 28.09.1979 framed the Rules called the Gujarat State Secretary Assistant, Deputy Mamlatdar and Sales Tax Inspector Recruitment (Examination) Rules, 1979 (hereinafter referred to as the Page 3 of 79 HC-NIC Page 3 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT "Examination Rules, 1979").
3.3. That the Ministry of Personnel, Public Grievances and Pension Department vide Office Memorandum No. 36012/13/88EST(SCT) dated 22.5.1989 formulated a policy in favour of Schedule Castes and Schedule Tribes category, in tune with the provision of Clause (4) of Article 16 of the Constitution of India, which enables the State Government to provide for reservation for the category of persons belonging to the backward classes. That thereafter, the Ministry of Personnel, Public Grievances and Pension Department vide Office Memorandum dated 1.7.1998 clarified the earlier Office Memorandum dated 22.5.1989.
3.4. That in the meantime, the State Government in its General Administration Department vide Government Resolution dated 11.12.1986 formulated a policy to the effect that the members belonging to the Schedule Castes and Schedule Tribes selected for the appointment by direct selection to any service or post included in the State Services or in the Subordinate Services on the basis of their merits, such members shall be considered for appointment on unreserved posts, which are filled in on merit along with other general category and such appointment on merits of the members belonging to such castes and tribes shall in no way affect claims of the members of such castes and tribes for appointment in the services or on the post reserved for them under the Government orders issued from time to time. At this stage, it is required to be noted that it is the case on behalf of the State Government that as Page 4 of 79 HC-NIC Page 4 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT per the instruction regarding the business of government issue under Rule 15 of the Gujart Government Rules of Business,1990, cases which affect or likely to be affected, the interest of Schedule Castes and Schedule Tribes falls within the purview of the Hon'ble the Chief Minister to take a decision and accordingly, the aforesaid policy decision dated 11.12.1986 was put up before the then Hon'ble Chief Minister for his decision and the then Hon'ble Chief Minister approved the note. Therefore, it is the case on behalf of the State Government that the aforesaid final decision was taken by the Hon'ble Chief Minister and not the Council of the Ministers.
3.5. That thereafter, the State Government vide Circular No. PVS 1099MVN 13G4 dated 29.1.2000 clarified that a reserved category candidate, if has not availed of any relaxation viz. age limit, experience qualification, number of chances to appear in the examination, in that case, the said candidate will be adjusted in the open category and in case, if the candidate has availed any of the aforesaid relaxation, the candidate will have to be adjusted against the reserved category seats.
3.6. That thereafter, the State Government, in its, General Administration Department, came out with a further clarity vide Circular No.PVS102003900G4 dated 23.07.2004. That in the said circular, it was clarified that reserved category candidate while competing with the unreserved category candidate gets selected on his own merits without availing of any of the relaxation available to the reserved category candidates then in that case, the said candidate will be considered in unreserved category. In other Page 5 of 79 HC-NIC Page 5 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT words, if any candidate while competing with unreserved category candidate, has availed of any of the relaxation as indicated in the circular dated 23.07.2004 then, in that case, the said reserved category candidate will have to be considered against the reserved quota and he or she will not be entitled to be adjusted in the unreserved category quota.
3.7. Thus, the appointments, in the category of Schedule Castes and Schedule Tribes and other backward class, to the post of Class I to Class III in the State Services are being governed by the aforesaid policies and State Government and / or any authorities effecting direct appointments are required to give any effect adhering to the aforesaid policy decision while effecting recruitment process viz. preparing the select list etc. 3.8. That the State Government in its General Administration Department and Revenue Department in exercise of powers by proviso to Article 309 of the Constitution of India has farmed Deputy Section Officer (in the Subordinate Secretariat Services) Recruitment Rules 2009 (hereinafter referred to as the " Rules, 2009") and Deputy Mamlatdar Class III in Subordinate Revenue Services Recruitment Rules 2010 (hereinafter referred to as the"
Rules, 2010") respectively governing recruitment in the post of Deputy Section Officer and Deputy Mamlatdar. That Clause (a) of Rule 3 of Rules 2009 prescribe eligibility of Standard for the candidate and all the appointments are to be made in tune with said Clause (a) of Rule 3. At this stage, it is required to be noted that said clause specifically provides that candidates should not be Page 6 of 79 HC-NIC Page 6 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT more than 28 years of age.
3.9. That the GPSC issued public advertisement for combined competitive examination for recruitment to the post of Deputy Section Officer and Deputy Mamlatdar for 948 posts, in accordance with the aforesaid Recruitment Rules of 2009 and Recruitment Rules of 2010 on 28.01.2011.
3.10. That the respondent nos. 1 and 2 herein - original petitioners along with other candidates applied pursuant to the aforesaid public advertisement. That the GPSC conducted the preliminary test on 26.6.2011, in which, original petitioners cleared the said test. Result of the preliminary test was declared on 30.08.2011 followed by the corrigendum dated 31.08.2011 and 17.09.2011.
3.11. That thereafter, GPSC conducted main written examination on 24/25.09.2011. That the original petitioners cleared the said examination also. That the GPSC declared on 25.5.2012 the result of the combined competitive examination (main) declaring list of 948 selected candidates. That thereafter, GPSC issued the corrigendum on 28.05.2012.
3.12. That the GPSC vide letters dated 25.05.2012 and 28.05.2012 recommended the name of the selected candidates to the State Government for appointment and accordingly, State Government in its General Administration Department gave appointment to the Deputy Section Officers on 2.6.2012 and Page 7 of 79 HC-NIC Page 7 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT concerned candidates were given posting and are working since then. That the State Government and its Revenue Department gave appointment to the Deputy Mamlatdars on 11.6.2012 and concerned candidates were given posting and are working since then.
3.13. That the commission had also prepared waiting list of 474 candidates dated 25.5.2012. That the said list was displayed on the notice board as well as on the website of the GPSC. That the name of the original petitioners were neither in the select list nor in the waiting list dated 25.5.2012.
3.14. That the details about total number of candidates in the waiting list and marks obtained by the last candidates in the waiting list are as under:
Category Total No. of Posts/ Total No. of Marks obtained Selected Candidates Candidates in by the Last Waiting list Candidate in the Waiting List Unreserved 554 277 135 (General) SEBC 242 121 132 SC 48 24 141 ST 104 52 104 3.15. It appears that out of the above posts, 14 posts were reserved for Physically Handicapped category candidates and 56 posts were reserved for ExServiceman. That as the original petitioners obtained 140 and 139 marks respectively and the last candidate in the Scheduled Castes category of which they belonged Page 8 of 79 HC-NIC Page 8 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT obtained 141 marks and therefore, the original petitioners were not selected by the GPSC and their names did not figure either in the select list or in the waiting list.
4.0. That thereafter i.e. after a period of approximately three months from the date of select list / waiting list on 24.08.2012, the original petitioners preferred Special Civil Application No.11996 of 2012 before this Court inter alia praying for following reliefs:
"(A) Your Lordships may be pleased to allow this petition; (B) Your Lordships may be pleased to quash and set aside the impugned merit list, so far it require and or permit the respondents authorities to put the Meritorious Candidates having more than marks of last General candidates in the merit list of Reserve Candidates; i.e. Schedule Caste candidates, and place the candidates having secure less and equal marks and placement in the select list, from merit No.621 to 694 of the General Candidates, and to place Meritorious Reserved Candidates Placed in Reserved List as shown in statement annexed to the petition and or on the basis of merit marks obtained, and Placed only in Reserved List instead of Meritorious Reserved Candidates only the ground of claiming age relaxation;
(C) Be pleased to declare the Placement of candidates who are Meritorious and have obtained more marks than last general candidates, in Reserved Class only on the ground of age relaxation as contrary to law, illegal, and be pleased to issue appropriate writ and or directions, to place these MRC candidates in the General Merit list, irrespective of availing of age relaxation;
(D) Be pleased to declare the circular dated 29/01/2000 and 23/07/2004 and instruction issued by the authorities and sought to be executed and implemented which so far as it permit the respondents authorities to place Meritorious Reserved Candidates to be shifted and placed as Reserved Candidates only on the ground of availing of age relaxation, as illegal, contrary to the basic policy and norms, arbitrary, and discriminatory and consequently nonoperative, and non est, and contrary to the law settled and in clear violation of Page 9 of 79 HC-NIC Page 9 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Article14 of the Constitution of India; null and void. And further be pleased to declare the provisions of these instructions under circulars being dehors the provisions of law, cannot be permitted to be sustained and be pleased to quash and setaside the same.
(E) Be pleased to directing the respondents their agent to re draw the merit lists, of selected candidates and select list of the respective category, separately for each category, and to draw common select list ignoring the availing of age relaxation;"
4.01. It was contended on behalf of the petitioners before the learned Single Judge that their names have been illegally and wrongfully excluded from the select list on account of illegal and arbitrary and confining of meritorious reserved candidates to the quota of their respective category even though they were required to be shifted to vacancies earmarked for general category candidates as they have secured equivalent or more marks prescribed for cut off level in general category. It was further submitted that to that extent vacancies of their respective quota, which remained vacant on such shifting of meritorious reserved category candidates to the vacancies in general category, would be available to other candidates of that reserved category only, resulting in inclusion of their names in the final select list for appointment. It was further contended on behalf of the petitioners that the action of the GPSC in preparing the merit list was absolutely illegal affects fundamental rights of reserved category candidates.
4.2. Before the learned Single Judge the original petitioners heavily relied upon the Government Resolution dated 11.12.1986 Page 10 of 79 HC-NIC Page 10 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT and submitted that as per the said resolution, meritorious reserved category candidates are to be treated and considered against the general vacancies only. It was further submitted on behalf of the original petitioners that Government Resolution dated 11.12.1986 was by the Council of Ministers as per the Rules of Business and therefore, any contrary subsequent circulars and / or resolution (more particularly which was relied upon by the State) which were not by Council of Ministers, the same were not required to be considered and the Government Resolution dated 11.12.1986 will prevail.
4.03. It was also contended on behalf of the original petitioners that as such availing the age relaxation cannot take away the right of the reserved category candidates to consider their case in the general vacancies. In support of their above submission, learned advocate for the original petitioners heavily relied upon the decision of the Hon'ble Supreme Court in the case of Jitendrakumar Singh And Anr. vs. State of U.P. and Ors, reported in (2010) 3 SCC 119.
4.04. Before the learned Single Judge, learned advocate for the original petitioners also heavily relied upon the decision of the Hon'ble Supreme Court in the case of Union of India V/s. Ramesh Ram reported in 2010 (7) SCC 234 as well as in the case of Indra Sawhney V/s. Union of India, reported in (1992) Supplementary SCC (3) page 215.
Page 11 of 79HC-NIC Page 11 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 4.05. Therefore, before the learned Single Judge it was contended on behalf of the original petitioners that their names were wrongly excluded from the select list and their cases were wrongly and illegally not considered in the general vacancies solely on the ground that they got the benefit of age relaxation.
5.01. The petition was opposed by both GPSC as well as State Government. It was submitted on behalf of the State that the State as well as GPSC strictly followed and considered the decision of the Hon'ble Supreme Court in the case of Indra Sawhney (supra) and Ramesh Ram (supra). It was submitted that after the decision of the Hon'ble Supreme Court in the case of R.K.Sabharwal and others V/s. State of Punjab and others, reported in 1995 (2) SCC 745 , Central Government issued guidelines vide its Office Memorandum dated 02.07.1997 followed by office memorandum dated 01/07/1998 providing inter alia as to which meritorious reserved category candidates are to be adjusted against open General Category vacancies and which meritorious reserved category candidates are not, if their selection is based upon any relaxed criterion or standard. It was submitted that aforesaid guidelines were followed by the State in its General Administration Department and Circular was issued on 29/01/2000 that if candidate concerned has availed of any relaxation mentioned therein, then in that case, such candidate will have to be adjusted against reserved category and she or he will be deemed to have been unavailable for general category. It was further submitted that in continuation thereof circular came to be issued 23/07/2004 providing that if candidate Page 12 of 79 HC-NIC Page 12 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT concerned has availed of fee concession only, then in that case, the candidate concerned will be considered against the open category. It was further submitted that the aforesaid circular cannot be whittled down in any manner as they are issued as per Rules of Business called Gujarat Government Rules of Business.
5.02. It was further submitted on behalf of State and GPSC that the decision of the Hon'ble Supreme Court in the case of Jitendrakumar Singh And Anr (supra) shall not be applicable as the said decision was with respect to specific Rules of the State of Uttar Pradesh and the same shall not be applicable with respect to statutory Recruitment Rules prevailing and operating in the State of Gujarat. It was further submitted that the policy applicable in the State of Gujarat cannot be equated with policy which was framed in the State of Uttar Pradesh. It was further contended on behalf of the State and GPSC that the relaxation in age limit is amounting to relaxation in standard.
5.03. That the petition was also opposed on the ground of non joinder of affected and proper parties. It was submitted that result / waiting list / select list was declared in the month of May 2012 and the State Government on 2.6.2012 and 11.6.2012 issued appointment orders to successful candidates and barring a few almost all of them have taken charge and are serving since more than 8 months. It was submitted that outcome of the petition is likely to affect some of the successful candidates and the petitioners have not joined them as party respondent in the petition. Relying upon the decision of the Hon'ble Supreme Court, it was submitted Page 13 of 79 HC-NIC Page 13 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT that as observed by the Hon'ble Supreme Court if successful parties whose rights are likely to be directly affected such party should be arraigned as necessary party for effective adjudication of the controversy in question. In support of their above submission, the learned advocate for the respondents heavily relied upon the decision of the Hon'ble Supreme Court in case of M.S.L. Patil Vs. State of Maharashtra, reported in (1996) 11 SCC 361 as well as decision of the Hon'ble Supreme Court in the case of Udit Narain Singh Vs. Board of Revenue, reported in AIR 1963 SC 786. Learned advocate for the GPSC also heavily relied upon the decision of the Hon'ble Supreme Court in the case of Sadanand Halo And Others Vs. Momtaz Ali Sheikh And Others reported in (2008) 4 SCC 619 in support of his submission to dismiss the petition on the ground on non joinder of necessary party as the candidates who have been selected has not been joined as party respondent.
6.0. That after hearing the learned advocates for the respective parties and considering the rival submissions, by impugned judgment and order the learned Single Judge concluded as under:
"(a) The recruitment in the instant case was governed by Gujarat Secretariat Assistants, Deputy Mamlatdars and Sales Tax Inspectors Recruitment (Examination) Rules, 1979 and these rules contain specific upper age limit for categories like SC, ST and SEBC and different age limit, upper age limit for the general category candidates. Thus, the eligibility criteria is statutorily provided for different categories by providing different upper age limit. This being absolutely in consonance with the provision of Constitution for implementing provision of Articles 14, 15 and 16. The same cannot be said to be a relaxation in any manner.
(b) The Government Resolution dated 11th December, 1986 is unequivocally clear in its effect. This resolution is issued by and Page 14 of 79 HC-NIC Page 14 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT under the approval of council of Ministers and therefore, as per the prevalent rules of business in the State of Gujarat framed under Article 166 of the Constitution of India, no other agency or even group of Ministers can bring in change, alteration or reversal in the policy decision enshrined in Government Resolution dated 11th December, 1986. The circulars dated 29th January, 2000 and 23rd July, 2004 having not been issued by the council of Ministers cannot therefore have any restrictive effect upon operation of Government Resolution dated 11th December, 1986 and therefore, both these circulars have to be read so as not to imped in any manner complete operation and implementation of Government Resolution dated 11th December, 1986 in its true spirit and letters.
(c) The decision in the case of Jitendra Kumar Singh (supra) cannot be said to be only on account of the existing rule specifically providing for migration of MRCs to general category despite there availing benefit of age relaxation. In that case as it is stated hereinabove the bench of the Supreme Court has infact discussed law prevalent in the country since articulation in case of Indra Sawhney V/s. Union of India (supra), and the relevant paragraphs cited in the discussion by this Court would unequivocally indicate that the judgment cannot be said to be not applicable to the facts of the present case.
(d) The relaxation in upper age limit, which is also provided in other various categories like physically challenged candidates, women candidates, exservicemen and SC, ST and SEBC, cannot be said to be a relaxation in standards for adjudging or assessing the merit of the candidate in competitive examination. The competitive examination as the present scheme of Gujarat Secretariat Assistants, Deputy Mamlatdars and Sales Tax Inspectors Recruitment (Examination) Rules, 1979 provides did not recognize or acknowledge any difference between the candidates belonging to different categories. All the examinees were subjected to uniform system of question papers, identical questions and they were treated at absolutely par with each other. And therefore, there cannot be said to be any different standards applied while selecting MRCs, who secured equivalent marks of 145 i.e. cut of marks in case of general category candidates.
(e) The Apex Courts decision in case of Union of India Vs. Ramesh Ram (Supra) will also have to be borne in mind while working out and preparing the select list as the MRCs securing equivalent or higher marks than the cut of marks prescribed for general category candidates, need not be disadvantaged on account of their such migration into general category so as to deprive them of their preferred cadre, post or service. The migration of MRCs will have to be thus, guided by this principle and in accordance therewith the select list is required to be reframed and readjusted.Page 15 of 79
HC-NIC Page 15 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 6.01. That the learned Single Judge has also negatived the objection raised on behalf of the respondent with respect to non joinder of proper and necessary parties by observing that selected candidates i.e. first two in the select list and last two candidates in the select list are already joined as party respondent. That thereafter, after arriving at aforestated conclusions, the learned Single Judge by impugned judgment and order has allowed the main Special Civil Applications and has quashed and set aside select list prepared by the GPSC and has issued the following directions:
"(i) The respondent nos.1 and 2 shall rearrange the select list so far as the general category vacancies are concerned and migrate all MRCs to occupy the general category vacancies and the resultant vacancies or seats becoming available on such migration of MRCs to general category be filledin by that reserve category candidates on the merit, which might require even lowering down of the reserve category candidates cut of marks so as to fulfill the quota requirement of the reserve category candidates.
(ii) While undertaking the exercise of readjusting the list, the principle enunciated by the Apex Court in case of Union of India Vs. Ramesh Ram (Supra) is required to be borne in mind completely. The MRCs, which are to be migrated to general category vacancies are not to be put to any disadvantages in any manner so as to deprive them of their preference in cadre and posting and in such a case such MRCs are not to be treated as migrating to general category and they will be accommodated against the reserve category seats and vacancies only.
(iii) The entire exercise as aforesaid be undertaken on or before 31st October, 2013."
6.02. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, original respondents GPSC as well as State Government have preferred Page 16 of 79 HC-NIC Page 16 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT present Letters Patent Appeals.
6.03. At this stage, it is required to be noted that present Appeals came to be Admitted by the Division Bench vide order dated 23.10.2013 and notice upon the respondents was made returnable on 18.11.2013. That in the respective Civil Applications for stay, the Division Bench granted the stay of the operation of the impugned judgment and order.
6.04. It appears that thereafter both the Letters Patent Appeals came up for final hearing before the Division Bench on 25.07.2014. At the time of final hearing of the aforesaid Letters Patent Appeals, it was strongly contended on behalf of the respective Appellants that without hearing adversely affected candidates or joining adversely affected candidates, learned Single Judge could not have issued the directions, issued while passing the impugned judgment and order. On considering the aforesaid objection and submission, the Division Bench passed the following order on 25.07.2014:
"1.After hearing the learned AGP, Ms.Sangeeta Vishen and Mr.Shukla, learned Counsel for the appellants and Mr.Bambhania, learned Counsel for the original petitioners, we find that one of the contentions raised by th learned Counsel for the appellants is that without hearing adversely affected candidates or joining the adversely affected candidates, direction could not have been given by the learned Single Judge.
2.Hence, the appellants shall give list of the candidates, who are to be adversely affected, if the direction given by the learned Single Judge is to be implemented. Such list shall be submitted on or before 5.8.2014. All such persons shall be implemented as party respondents in both the appeals.
3.Office shall issue notice in the present appeals for final hearing of the appeals, returnable on 27.8.2014. I.R., shall continue but with the further direction that no appointment shall be Page 17 of 79 HC-NIC Page 17 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT given to any new person from the existing list. It will be the duty of the concerned appellants to serve newly added parties. It would be open to the concerned appellants to serve the aforesaid newly added parties at the place where they are serving."
6.05. It appears that feeling aggrieved and dissatisfied with the order dated 25.07.2014, by which, the affected candidates were ordered to be joined as party respondents in the appeals, matter had been carried before the Hon'ble Supreme Court by way of SLP No. 22126 of 2014 and the Hon'ble Supreme Court by order dated 25.08.2014 has issued the notice and passed the following order:
"In the meantime, the petitioner may implead the affected parties in terms of the impugned order passed by the High Court, subject to outcome of the result of the Special Leave Petition. The High Court will decide the preliminary issue raised in the Writ Petition and dispose of the same without being prejudiced by the outcome of the decision of this petition."
6.06. That accordingly without prejudice by the outcome of the SLP before the Hon'ble Supreme Court the affected parties in terms of the order dated 25.07.2014 are joined as party respondents and they have represented through advocate Shri Vivant Shah and advocate Shri Supehia. That thereafter, pursuant to the earlier orders passed by the Division Bench of this Court, both these appeals are notified for final hearing and thereafter before this Bench and that is how both these appeals are heard finally by this Court.
7.0. Ms. Sangeeta Visen, learned Assistant Government Pleader has appeared on behalf of the State Government; Shri D.G. Shukla, learned advocate for the GPSC and Shri D.A. Bambhania, learned Page 18 of 79 HC-NIC Page 18 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT advocate for the original petitioners. Shri A.S. Supehia and Shri Vivant Shah, learned advocate has appeared on behalf of the affected selected candidates and Shri Gunvant Thakker, learned advocate has appeared as intervener pursuant to the order passed by this Court in Civil Application No.4958 of 2014 in Letters Patent Appeal No. 1480 of 2013.
8.0. Ms. Sangeeta Vishen, learned Assistant Government Pleader appearing on behalf of the State has vehemently submitted that the learned Single Judge has materially erred in allowing the petition and quashing and setting aside the select list and has materially erred in issuing the direction in para 78 of the impugned judgment and order by holding and concluding as under:
(i). That relaxation in the age cannot be said to be relaxation in standard and thus a candidate who has availed of relaxation in age and fee is to be treated as General Category candidate. - That the principle laid down by the Apex Court in the case of Jitendra Kumar vs. Union of India, reported in (2010) 3 SCC 119 is squarely applicable to the facts of the present case.
(ii). That the Examination Rules contain a specific upper age limit and the said eligibility criterion is statutorily provided and thus, the same cannot be said to be a relaxation in standard for assessing the merit of the candidate.
(iii). That the Government Resolution dated 11.12.1986 having been promulgated by and under the approval of the Council of Ministers, any change/alteration would be possible only by the Council of Ministers and not by other agencies. Subsequent Circulars dated 29.1.2000 and 23.7.2004, having not been issued by the Council of Ministers cannot have restrictive effect upon the operation of the Government Resolution dated 11.12.1986.
(iv). That the petition cannot be said to be barred by nonjoinder of necessary parties inasmuch as, when petition was filed, it was not possible for the respondent Nos. 1 and 2, original petitioners, to ascertain as to who were the candidates likely to be affected by the outcome of the petition and in such an eventuality, it cannot be said that petition is required to be dismissed only on account of nonavailability of the 'likely to be affected candidates'.Page 19 of 79
HC-NIC Page 19 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 8.1. It is further submitted by Ms. Sangeeta Vishen, learned AGP for the State that learned Single Judge has materially erred in not dismissing the petition on the ground of non joinder of necessary, proper and affected parties.
8.2. It is vehemently submitted by Ms. Vishen, learned AGP for the State that the original petitioners while challenging the Select List dated 25.5.2012 and Corrigendum dated 28.5.2012, had not joined the successful candidates as partyrespondents. It is submitted that as such by the time petition was preferred challenging the select list and / or non exclusion of the petitioners in the select list / waiting, successful candidates were already given appointments and virtually all of them joined at respective places immediately. It is submitted that outcome of the Writ Petition has put them at a disadvantageous position in getting deprived of their employment. It is submitted that after declaration of the merit list dated 25.5.2012, followed by Corrigendum dated 28.5.2012, the list of successful candidates was very much available with the original petitioners. It is submitted that thus the original petitioners ought to have joined them as partyrespondents in the main Writ Petition, which was filed on 24.8.2012, i.e. three months after the declaration of the merit list dated 25.5.2012, followed by the Corrigendum dated 28.5.2012. It is submitted that having failed to do so, the learned Single Judge ought to have been rejected the petition on that ground alone.
8.3. It is further submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader and Shri Shukla, learned advocate Page 20 of 79 HC-NIC Page 20 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT for the GPSC that observations of the learned Single Judge in para 76 of the impugned judgment and order on the issue with respect to non joinder of proper parties are self contradictory and against well settled principle of law laid down by the Hon'ble Supreme Court in the catena of decisions. It is vehemently submitted that the by directions in para 78 the learned Single Judge has directed to prepare the select the list / merit list again and considering observations and conclusions arrived at in the petition, which are likely to affect the number of selected candidates whose name figured in the select list / merit list dated 25.5.2012 and the Corrigendum dated 28.5.2012. It is submitted that therefore, all those affected candidates were required to be joined as party respondents and all of them were required to be given opportunity of being heard before passing any final order canceling original select list / merit list dated 25.5.2012 / 28.05.2012 before issuing the direction contained in para 78 of the impugned judgment and order.
8.4. It is further submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader and Shri Shukla, learned advocate for the GPSC that selected candidates who are likely to be affected by impugned judgment and order and who are joined subsequently as party respondents in the present Letters Patent Appeals, the defect of non joinder of necessary and proper party cannot be cured in the Letters Patent Appeal preferred by the State and GPSC. Relying upon the decision of the Hon'ble Supreme Court in the case of Ritesh Tewari & Anr vs. State of U.P & Ors reported in AIR 2010 SC 3823, it is vehemently submitted by learned advocates for Page 21 of 79 HC-NIC Page 21 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT the original appellants as well as affected candidates that if an order is bad in its inception it does not get sanctified at a later stage. It is submitted that subsequent development of ordering the affected parties to be joined as party respondents in the appeals, which are filed by the original respondents, cannot validate an action, which was not lawful as its inception, for the reason that the illegality strikes at the root of the order. It is submitted that as such it would be beyond the competence of the authority to validate such an order, which is found to be in breach of principles of natural justice and/ or it is required to be quashed and set aside on the ground of non joinder of proper and affected parties, by ordering joined them subsequently in the appeals. It is submitted that if it is observed and found that judgment and order passed by the learned Single Judge cannot stand as necessary, proper and affected parties likely to be affected were not joined and that there was non joinder of affected and proper parties, in that case, that defect which goes to the root of the matter cannot be permitted to be cured at the appellate stage and that too in the appeals preferred by the aggrieved party i.e. GPSC and State Government.
8.5. Ms. Sangeeta Vishen, learned Assistant Government Pleader for the State and Shri Shukla, learned advocate for the GPSC have heavily relied upon the following decisions of the Hon'ble Supreme Court in support of their submissions that impugned judgment and order passed by the learned Single Judge is required to be quashed and set aside on the ground of non joinder of necessary, proper and affected parties.
Page 22 of 79HC-NIC Page 22 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT
1. Ishwarsingh vs. Kuldipsingh reported in 1995 Supp. (1) SCC 179
2. AMS Sushanth vs. M Sujatha reported in (2000) 10 SCC 197.
3. K. H. Siraj vs. High Court of Kerala & Ors reported in (2006) 6 SCC 395.
4. Sadananda Halo vs. Momtaz Ali Sheikh reported in (2008) 4 SCC 619.
5. Girjesh Shrivastava vs. State of M.P. reported in (2010) 10 SCC 707.
6. Ranjan Kumar vs. State of Bihar reported in 2014 (6) SCALE 579.
8.6. It is further submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader for the State and Shri Shukla, learned advocate for the GPSC that even otherwise the learned Single Judge has materially erred in passing the impugned judgment and order relying upon and considering the decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra). It is submitted that in the facts and circumstances of the case and recruitment rules prevailing in the State of Gujarat and reservation policy in the State which has been followed consistently since decade, decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) shall not be applicable to the facts of the case on hand. It is vehemently submitted by learned advocate for the original appellants herein that observations made by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) are required to be considered in light of the statutory provisions prevailing in the State of Uttar Pradesh.
8.7. It is vehemently submitted by Ms. Sangeeta Vishen, Page 23 of 79 HC-NIC Page 23 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT learned Assistant Government Pleader that so far as the State Government is concerned, State Government, in its General Administration Department, vide Government Resolution dated 11.12.1986 formulated a policy to the effect that the members belonging to the Scheduled Castes / Scheduled Tribes / SEBC selected for appointment by direct selection on the basis of merit alone, shall be considered for the appointment on unreserved post. It is further submitted that the Apex Court, in the case of R. K. Sabharwal vs. Union of India, reported in (1995) 2 SCC 745, while deciding the issue of postbased roster, held that the candidate concerned, if gets selected on his own merit, then in that case, he is to be adjusted against the open category and not against the reserved category. This gave rise to issuance of Government Resolution dated 8.3.1999. It is submitted that subsequently, the Central Government issued the guidelines, vide Office Memorandum dated 2.7.1997 followed by Office Memorandum dated 1.7.1998, interalia, providing that if a candidate has availed of any of the benefits, viz. (i) relaxation of age limit; (ii) experience qualification; (iii) permitted number of chances in the written examination; and (iv) extended zone of consideration larger than what is provided for general category candidates, the said candidate will be deemed to have become unavailable for the open category. It is further submitted that State Government, following the aforesaid office memorandum of the Central Government, took the conscious policy decision vide Circular dated 29.1.2000 that if the reserved category candidate concerned has availed of any of the relaxations mentioned therein, then in that case, the said candidate will have to be adjusted against the reserved category and he/she Page 24 of 79 HC-NIC Page 24 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT will be deemed to have become unavailable for the general category. It is submitted that since there appeared some confusion, the General Administration Department addressed a letter dated 17.11.2003 to the Deputy Secretary, Government of India, seeking clarification to the effect that when a candidate who has enjoyed exemption in form of fee, whether such candidate should be counted against general or reserve vacancy. It is submitted that the Government of India, vide letter dated 31.12.2003 clarified only to an extent that .... 'However, exemption from payment of examination fee does not debar the reserved category candidate from competing for unreserved vacancy'. Accordingly, the State Government issued another Circular dated 23.7.2004 providing that if the candidate concerned has availed of the fee concession only, then in that case, the candidate will be considered against the open category.
8.8. It is vehemently submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader that in this view of the matter, it is very clear that the policy which is prevailing in the State is to the effect that if candidates belonging to Scheduled Castes/Scheduled Tribes if avail of any of the relaxations envisaged in the Circular dated 29.1.2000 as well as 23.7.2004, such candidates would be deemed as 'unavailable' for consideration against the 'open category'. It is submitted that thus, the policy prevailing by virtue of Circulars dated 29.1.2000 as well as 23.7.2004 in the State on one hand and the instructions dated 25.3.1994 and G.O. dated 26.2.1999 prevailing in the State of Uttar Pradesh on the other are distinct and different from each other. It Page 25 of 79 HC-NIC Page 25 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT is submitted that hence, the case of Jitendra Kumar Singh (supra) cannot be made applicable to the facts of the present case. The Apex Court in para 65 categorically observed as under;
"65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in the various judgments as noticed above. In these matters, we are concerned with the interpretation of 1994 Act, the instructions dated 25 31994 and G.O. dated 2621999."
8.9. It is further submitted that apart from the above, the policy applicable in the said case and prevailing in the State of Gujarat cannot be equated with the policy, which was framed by the State of Uttar Pradesh, the same being distinct, different and independent of each other. In the said case, the State of Uttar Pradesh enacted the U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It is submitted that Section 8 of the said Act empowered the State Government to grant such concession in respect of fee and relaxation in upper age limit as it may consider necessary. It is submitted that in exercise of the said powers, the State of Uttar Pradesh issued the Government Instructions dated 25.3.1994 giving relaxation with a categorical assertion 'it shall be immaterial that he has availed of any facility or relaxation (like relaxation in age limit) available to reserved category candidates'.
8.10. It is further submitted by Ms. Vishen, learned AGP for the State that in the aforesaid backdrop, the Apex Court, in the case of Jitendra Kumar Singh (supra) held to the effect that since the State has not treated the relaxation in age and fee as relaxation in the standard for selection based on the merit of the candidate in the Page 26 of 79 HC-NIC Page 26 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT selection test followed by interview and thus, such relaxation cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination.
8.11. It is further submitted by Ms. Vishen, learned AGP for the State that the Hon'ble Supreme Court time and again, cautioned that the observations of the Courts are not to be read as Euclid's theorem nor as provisions of the Statute. It is further submitted that as observed by the Hon'ble Supreme Court that circumstantial flexibility, one additional or different facts may make a world of difference between conclusion in two cases.
8.12. It is further submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader on behalf of State that as such the State Government, in exercise of its powers under Article 309 of the Constitution of India, has framed the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 providing for recruitment in various posts viz. Class I to Class IV. It is submitted that Rule 8 provides for condition as prescribed qualification. It is further submitted that subrule (1) of Rule 8 envisages that subject to the provision of the Rules of 1967, no person shall be appointed to any service or post unless he possesses the qualification, if any, prescribed in the Rules 'relating to the recruitment to such service or post'. It is submitted that thus subrule (1) of Rule 8 categorically suggests that no person can be appointed to any service or post unless he possesses the qualification, if any, prescribed in the Rules relating to the recruitment. It is submitted Page 27 of 79 HC-NIC Page 27 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT that in other words, a person to be qualified for being appointed should possess the qualifications provided in the Recruitment Rules governing the recruitment and not the Examination Rules provided in this behalf. It is submitted that therefore, the learned Single Judge has materially erred in relying upon the provision of the Examination Rules 1979, which contemplates the upper age limit as 33, to come to a conclusion that 5 years of age relaxation availed of by the candidates belonging to reserved categories cannot be termed to be relaxation in standard and thus, the reserved category candidates who have availed of agerelaxation are to be treated as reserved category candidates and not in the General Category. It is submitted that therefore, the learned Single Judge has materially erred in holding that availing of age relaxation can be said to be a concession.
8.13. It is further submitted by Ms. Vishen, learned Assistant Government Pleader for the State that Rules governing the appointment of Deputy Section Officer in the Subordinate Secretariat Services as well as Deputy Mamlatdar ClassIII in the Subordinate Services of Revenue Department, have been framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India. It is submitted that said Rules are called the Deputy Section Officer (In the Subordinate Secretariat Services) Recruitment Rules, 2009 and the Deputy Mamlatdar ClassIII in the Subordinate Revenue Services Recruitment Rules, 2010. It is submitted that clause (a) of Rule 3 and clause (a) of Rule 4 respectively of the aforesaid Rules provide that to be eligible for appointment to the post by direct selection, a candidate shall not be Page 28 of 79 HC-NIC Page 28 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT more than 28 years of age. It is submitted that the State Government while exercising the powers under subrule (2) of Rule 8 of the Recruitment Rules, 1967, has relaxed the age limit in favour of the candidates belonging to the Scheduled Castes / Scheduled Tribes / SEBC. It is submitted that thus, the said relaxation in the age limit is nothing but the relaxation in standard of eligibility provided to all the candidates for competing in the direct selection for appointment and thus, by no stretch of imagination, it can be inferred that the relaxation in the age limit is a concession and not a relaxation in standard.
8.14. It is further submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader for the State that upper age limit in the Examination Rules, 1979 is inclusive of relaxation, and therefore, to contend that the upper age limit provided in the Examination Rules of 1979 is 33 years is fallacious and against the provisions of the Recruitment Rules of 1967. It is submitted that as such Examination Rules 1979 are to be read harmoniously with Recruitment Rules 1967. It is submitted that as such the Examination Rules 1979 are not required to be read and / or cannot be read in isolation nullifying the specific Recruitment Rules, 1967.
8.15. It is further submitted by Ms. Vishen that assuming without admitting that the statutory Examination Rules of 1979 provides the upper age limit as 33 years, the same would give rise to an anomalous situation in view of the fact that the Recruitment Rules of 1967 as well as the Recruitment Rules of 2009 and the Page 29 of 79 HC-NIC Page 29 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Recruitment Rules of 2010 governing the recruitment provides upper age limit of 28 years. It is submitted that as per the settled principle of interpretation, one should observe the maxim ut res magis valeat quam pereat to mean that it is better than a thing may rather have effect than making it void. Thus, the Examination Rules of 1979 read in juxtaposition with the Recruitment Rules of 1967 and the Recruitment Rules of 2009 and the Recruitment Rules of 2010, leads to only one conclusion that the upper age limit provided is 28 years. Ms. Vishen, learned Assistant Government Pleader for the State in support of her above submission, has relied upon decision of the Hon'ble Supreme Court in the case of H.S. Vankani and Ors. v/s State of Gujarat and Ors., reported in (2010) 4 SCC 301 (para 43).
8.16. Now, so far as Issuance of Executive Instructions by the State Government, providing for relaxation is concerned, it is submitted by Ms. Sangeeta Vishen, learned Assistant Government Pleader for the State that the Governor of the State has framed the Gujarat Government Rules of Business, 1990 in exercise of the powers conferred under Article 166 (2) and (3) for the conduct of the business of the State Government. It is submitted that Rule 12 of the Rules of Business provides that any order or instrument made or executed by or on behalf of the State Government shall be expressed to be made in the name of the Governor. It is submitted that Rule 13 of the Rules of Business provides that every order or instrument of the Government shall be signed either by a Secretary, Joint Secretary, etc. including Section Officer, and the same shall Page 30 of 79 HC-NIC Page 30 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT be deemed to be proper authentication of such order or instrument. It is submitted that Rule 15 empowers the Governor to frame the instructions on advice of the Chief Minister. It is submitted that as per subclause (iv) of Clause 15 of the Instructions, the subject as regards the decision in the matter of Scheduled Castes and Scheduled Tribes has been assigned to the Chief Minister. It is submitted that accordingly it is the Chief Minister who is empowered to take the decision with respect to the interests of Scheduled Castes/Scheduled Tribes and SEBC.
8.17. It is submitted that the decision vide Government Resolution dated 11.12.1986 was taken by the Chief Minister at the relevant point of time by virtue of the powers flowing from the Instructions issued under Rule 15 of the Rules of Business. It is submitted that said policy was followed by the policies dated 29.1.2000 and 23.7.2004 and final decisions in that behalf were also taken by the Chief Minister. It is submitted that therefore, it cannot be contended that the subsequent circulars dated 29.1.2000 and 23.7.2004, in effect and substance, have superseded the earlier Resolution dated 11.12.1986 without any authority. It is submitted that the executive orders in the form of Circulars dated 29.1.2000 and 23.7.2004, have been issued after following the required procedure as provided under the Rules of Business and thus, the same are legal and valid.
8.18. It is further submitted by Ms. Sangeeta Vishen learned Assistant Government Pleader for the State that even otherwise subsequent circulars dated 29.1.2000 and 23.7.2004 cannot be Page 31 of 79 HC-NIC Page 31 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT said to be in conflict with the Government Resolution dated 11.12.1986. It is submitted that by Government Resolution dated 11.12.1986 a policy decision was taken that if a candidate beloning to the reserved category is found to be meritorious with the General Category candidate, he shall be first accommodated in the General Category vacancy. It is submitted that said decision was in conformity with the decision of the Hon'ble Supreme Court in the case of Indra Sawhney (supra). It is submitted that in the said resolution nothing has been provided with respect to situation like in the present case and / or provided in the subsequent circulars dated 29.1.2000 and 23.7.2004 which were on the basis of policy decision of the Central Government. It is submitted that thereforem the subsequent circulars can be said to be independent policy decision not in conflict with the Government Resolution dated 11.12.1986.
8.19. It is further submitted that as such the Government Resolution dated 11.12.1986 was issued solely on the basis of representation of Utkarsh Mandal. It is submitted that however, the Sadhwani Commission was not concerned with the issue of relaxation / concession to the Scheduled Caste, Scheduled Tribes and Other Backward Classes.
8.20. Ms. Sangeeta Vishen, learned AGP for the State and Shri Shukla, learned advocate for the GPSC have vehemently submitted that the learned Single Judge has erred in not accepting the contention of the appellants - State and GPSC that original petitioners, having participated in the recruitment process cannot Page 32 of 79 HC-NIC Page 32 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT be permitted to challenge the same since they could not secure place in the merit list. It is submitted that in the advertisement itself inviting the applications, it was specifically mentioned that those candidates belonging to the reserved category they apply for General Category vacancy, they shall not be entitled to age relaxation. It was submitted that it was specifically mentioned in advertisement inviting the applications for the post in question that the candidates belonging to the SC, ST and SEBC shall be entitled to five years age relaxation. It is submitted that therefore, it was known to all the candidates including the original petitioners with respect to age relaxation of five years to the reserved category candidates as well as the fact that those reserved category candidates who apply for General Category vacancy shall not be entitled to age relaxation. It is submitted that at the relevant time the original petitioners did not challenge the same and as such participated in the recruitment process pursuant to the aforesaid advertisement. It is submitted that once having participated in the recruitment process and thereafter having failed to secure their place in the merit list, thereafter it was not open for them to challenge the aforesaid. In support of their above submissions, they have heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Union of India vs. S.Vinodh Kumar reported in (2007) 8 SCC 100 (para 18 & 19); in the case of Amlan Jyoti Borroah vs. State of Assam and Others reported in 2009(3) SCC 227 (para 35 and 36); in the case of Ishwar Singh (supra) and in the case of Sadananda Halo (supra).
8.21. Making above submissions and relying upon the above Page 33 of 79 HC-NIC Page 33 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT decisions, it is vehemently submitted that learned Single Judge has materially erred in applying the principle laid down by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra)and has materially erred in quashing and setting aside the select list prepared by the GPSC and has materially erred in issuing the direction contained in para 78 of the impugned judgment and order and the learned Single Judge has materially erred in allowing the petition despite the fact that same was barred by non joinder of necessary, proper and affected candidates and / or barred by delay and laches. Therefore, it is requested to allow present Letters Patent Appeals and quash and set aside the impugned judgment and order passed by the learned Single Judge.
9.0. Shri D.G.Shukla, learned advocate for the GPSC and learned advocates for the respective selected candidates have adopted the submission made by Ms. Sangeeta Vishen, learned AGP for the State and they have reiterated mainly what has been submitted by Ms. Sangeeta Vishen, learned AGP for the State.
10. Learned advocate for the private respondents - successful candidates have vehemently submitted that the defect of non joinder of proper, necessary and affected candidates, which goes to the root of the matter cannot be cured and / or cannot be permitted to be cured by joining them as party respondents in the Letters Patent Appeals filed by the State and GPSC wherein one of the ground challenging the impugned judgment and order passed by the learned Single Judge is that the petition was required to be dismissed on the ground of non joinder of affected, proper and Page 34 of 79 HC-NIC Page 34 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT necessary parties. Therefore, it is requested to quash and set aside impugned judgment and order passed by the learned Single Judge on the aforesaid ground alone as by the direction issued in para 78 of the impugned judgment and order, the successful candidates are vitally affected and no opportunity has been given to them at all.
11.0. Present Appeals are vehemently opposed by Shri D.A. Bhambhania, learned advocate for the original petitioners.
11.1. Shri Bhambhania, learned advocate for the original petitioners has vehemently submitted that in the facts and circumstances of the case and the statutory provision contained in the Rules, 1979 and the Government Resolution dated 11.12.1986 the learned Single Judge has not committed any error in applying the ratio laid down by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra). It is submitted that the learned Single Judge has rightly held that relaxation in the age cannot be said to be relaxation in standard and thus, a candidate who has availed of relaxation in age and therefore is entitled to appointment on merits in General Category vacancies. It is submitted that therefore, principle laid down by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) shall be squarely applicable to the facts of the present case.
11. 2. It is further submitted by Shri Bhambhania, learned advocate for the original petitioners that as the Examination Rules 1979 which are statutory Rules framed for the posts in question Page 35 of 79 HC-NIC Page 35 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT and framed under Article 309 of the Constitution of India contain specific upper age limit, the relaxation in the age cannot be said to be relaxation in standard for assessing the merits of the candidates.
11.3. It is further submitted that the learned Single Judge has rightly observed and held that as the Government Resolution dated 11.12.1986 having been promulgated by and under the approval of the Council of Ministers, any change, alteration or qualifying the same would be possible only by the Council of Minister and not by any other agency and therefore, the subsequent circulars dated 29.1.2000 and 23.07.2004, having not been issued by the Council of Ministers cannot have any effect upon operation of the Government Resolution dated 11.12.1986.
11.4. It is further submitted by Shri Bambhania, learned advocate for the original petitioners that as the petition was filed by only two petitioners and considering the relief sought in the Special Civil Application, when the original petitioners joined first two candidates in the select list and last two candidates in the select list, the learned Single Judge has rightly held that petition is not barred by non joinder of necessary parties.
11.5. It is further submitted by Shri Bambhania, learned advocate for the original petitioners that to appreciate and consider the issue involved in the present appeals, the Legislature providing reservation and / or reservation policy which led to issuance of Government Resolution dated 11.12.1986 and the statutory provision in the State of Gujarat are required to be Page 36 of 79 HC-NIC Page 36 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT considered, which inter alia are as under:
"A. That, State Government of India, in the year 1952, pursuant to provisions made in Article 15 and 17, provided for further more affirmative policies, which provided for giving employment opportunity in favour of Scheduled Castes and Tribes, as Notified by the Government of India, and States, and with concurrence of all the States, provided for extending concession in recruitment by way of age relaxation of 5 years, in addition to which is provided in the Recruitment Rules, in Class III posts, in the year 1955, further provided for Gazetted Posts which reads as under:
"Ministry of Home Affairs O.M. No. 15/1/55, SCT, dated the 30th April, 1955, to all Ministries / Departments etc."
In order to secure greater representation of the Scheduled Castes and Scheduled Tribes in the public services, the maximum age limit prescribed for appointment to a non gazetted service or post was increased by five years in the case of candidates belonging to these Castes and Tribes vide Government of India, Ministry of Home Affairs Resolution No.42/19/51NGS dated the 25 th June, 1952. It has now been decided that this concession should be extended to appointments to gazette posts in the Central Services. The application of these orders to recruitment to All India Services is separately under consideration.
2. The above decision will take effect immediately. The Union Public Service Commission have agreed that where the advertisements issued by them require that applications from candidates should reach the Commission on a date falling within 15 days from the date of this Resolution, the last date of the receipt of application from Scheduled Castes and Scheduled Tribes candidates will be extended by two weeks. Other recruiting authorities for posts under the Government of India will also take similar action wherever necessary."
B.That Government of Bombay bilingual Bombay State also followed and implemented the said Policy decision of the Government of India, made applicable to all and passed the Resolution in the year 1952. That, on bifurcation of bilingual Bombay State, State of Gujarat has followed and made applicable which is applicable as on today, in the State of Gujarat. General Rules framed from time to time by the State of Gujarat and All Examination Rules for Recruitment provides for increased by five years in the case of candidates belonging to these - Scheduled Castes and Tribes, irrespective of whether there are vacancies reserved fro such Castes or Tribes or not.
C.That, Government of Gujarat, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, framed the Statutory Rules regulating the Gujarat Civil Services, viz: Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and Rule 8 of the said Rule provides for Condition as to Page 37 of 79 HC-NIC Page 37 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Prescribed qualification and Rule 8(2) to (9) provides for relaxation of age and the appointing authority may relax the age limit under Rule 8(2) in favour of candidates belonging to the (Schedules Casts, Scheduled Tribes) and SEBC and favour of candidate who are women and under Rule 8(5) in favour of a candidates who is already in Gujarat Government Service either as a permanent or a temporary servant Officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation etc. D.Rule 16 A & B, Rule 16 Provides for concessions; Rule 16 B Added: Pursuant to Sadhwani Commission Recommendations:
with nonobstacle clause:
E.Statutory Rules 1979 framed for the posts in question under Article 309 of the Constitution of India, provides as under: Rule 7. 7(1) A candidate for the post of Assistant / Deputy Mamlatdar / Sales Tax Inspector must have attained the age of 20 years and must not have attained the age of 28 years on the date of advertisement to the issued by the Commission at each time.
(2). Notwithstanding anything contained in subrule (1) the upper age limit specified in the said subrule shall be
(i). 33 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes recognized as such by the Government for the purpose of recruitment to the posts and services under Government.
(ii). 38 years in the case of candidates who are physically handicapped, provided they apply for the posts along with a medical certificate from a recognized Medical Practitioner indicating such handicap or through the office of the Employment Exchange at which they may have registered their names as physically handicapped persons.
(iii).In the case of Exserviceman, age relaxation will be given in accordance with the general orders, which may be in force at the relevant time.
(iv). 30 years in the case of candidates who are graduates in law and who are willing to be posted as Assistants in the Legal Department or Gujarat Legislature Secretariat.
Thus Statutory Rules itself provides the level playing field; for eligibility; and it cannot be termed as concession in qualifications and standards for evaluating merits.
F.That the Government of Gujarat in exercise of executive powers conferred under Article 162 read with Article 15 of the Constitution of India, framed the reservation policy, after recommendation of Commission and approval of Cabinet Sub Committee and Cabinet, and accordingly revised reservations policy framed and made applicable in the Statutory Rules regulating appointment and promotion under its Policy decision Page 38 of 79 HC-NIC Page 38 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT vide Government Resolution No. PVS/1386(1)G5 dated 11th December 1986 (Annexure H Colly) at page 109 of the petition compilation) which has come into force as rules and regulations regulating appointments, promotions and service conditions of the officers and servants of the State and it has binding force, and it cannot be altered and modified save and except by following the procedure prescribed under Rules of Business, by substitution, and / or modification of existing policy by enacting and framing substituted and / or modified policy decision framed and executed in the form of Resolutions. It is further submitted that, this policy framed has to be read along with decision rendered by the Hon'ble Apex Court.
G. That, Statutory Rules framed under Article 309 of the Constitution of India, and under the Executive Powers conferred under Article 162 of the Constitution of India, by the State are to be read harmoniously and under resolved decision of the Government of Gujarat under Rules of Business, Resolution issued by the Government of Gujarat has the same effect and flavor of the statute and Resolution dated 11th December 1986, provides as under:
"The Point No.1 of the agreement dated 4th June 1986 arrived at between the representative of the Gujarat Karmachari Utkarsh Mandal (Action Committee) and the State Government is as under:
"In the direct recruitment, the candidate belonging to the SC/ST for whom reservation is made and who comes on merit will be counted against non reserved vacancies. The reservation percentage will be applied in addition to those who come on merit."
2. "After careful consideration, the Government has decided to implement the above agreement and is accordingly pleased to decide that where members belonging to the Scheduled Castes and the Scheduled Tribes are selected for appointment by direct selection to any service or post included in the State Services or the Subordinate Services and Panchayat Services on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes shall not, in any way, affect the claim of the members of such Castes and Tribes fro appointment in the services or on the posts reserved for them under the Government orders issued from time to time. These rules were framed on recommendation of Sadhwani Commission appointed by the decision of the Cabinet of Council of Ministers and monitored by the Cabinet SubCommittee. On receipt of report of the Commission, it was led before the Cabinet SubCommittee and on its approval to Cabinet, and thereafter after following due procedure Prescribed being the policy of the Page 39 of 79 HC-NIC Page 39 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT State, decision making process under Article 162 of the Constitution of India was carried out and it is in force as on today.
H. That, Government of Gujarat, reviewed its policy under Government Resolution dated 9.3.1999, in light of Constitutional Bench Judgment in the case of R.K. Sabharwal and Ors vs.State of Punjab of the Hon'ble Apex Court, reported in (1995) 2 SCC 745 wherein it has been held that the reserve category candidates can compete for the non reserve posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation.
The resolution provided where members belonging to the Reserved Category of Castes for whose favour reservation have been provided and such candidates who are selected for appointment by direct selection on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes and such appointment on merit shall not be counted against their quota of reservation."
11.6. It is submitted that neither policy decision and its contents can be altered and / or substituted and / or modified by clarification through circulars by the executive officers, as the policy decisions are binding on them which has also statutory force.
11.7. It is submitted that the State of Gujarat follows the recruitment procedure through GPSC for various posts and cadres as prescribed and existing policy rules and regulations are required to be followed by the body like GPSC and Gujarat Subordinate Services Selection Board. It is submitted that despite the above and despite the law laid down by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) the State Government and GPSC adopted the policy which has suited to the General Category candidates. It is submitted that in light of decision rendered interpreting the provision and relaxation in age and fee, in the field Page 40 of 79 HC-NIC Page 40 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT of recruitment and appointment and recorded its finding by giving interpretation to that words and terminology are binding to the State of Gujarat and in light of that, conditions laid down in Circulars are required to be read as interpreted by the Hon'ble Apex Court in the case of Jitendra Kumar Singh and Ors vs. State of UP reported in AIR 2010 SC 1851 :(20100 3 SCC 119) and precisely the petitioners are praying that relief/s as prayed for in the petition as all decisions rendered including in the case of Jitendr Kumar Singh (supra), which is prior in point of time of decision making process by the Hon'ble Apex Court, whereas decision rendered in Union of India vs. Ramesh Ram is later in point of time, and it has been pointed out and accordingly there is no question of non availability of decision for consideration. It is submitted that thus, it is the case of original petitioners that the original petitioners belonging to a specified class falling within the category of Reserved Class category are given total hostile discrimination and act and omission are intentional and arbitrary and as such illegal and in clear violation of Articles 14, 15(4) and 16 of the Constitution of India. It is submitted that Government administration is blowing hot and cold while defending the proceedings and interprets the circulars on their own and which suits them. It is submitted that in one case on oath statement has been made by interpretation of Government Circular of 23.07.2004 to the effect that Reserved Category candidates who have been extended age relaxation but are selected on merit they shall be counted as General Category Candidates (Affidavit in reply filed by the Secretary, Gujarat Subordinate Services Selection Board dated 26.4.2010 in Special Civil Application No.4114 of 2010)whereas Page 41 of 79 HC-NIC Page 41 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT the GPSC has been made to the different way and mode by misinterpreting the Statutory Rules, Government Resolution and Circulars. It is submitted that even otherwise circular dated 23.07.2004 provides that candidates belonging to the SC/ST/SEBC selected on merit without any relaxation on merit, shall not be adjusted against reserved post but in a case of selection in relaxation of marks of competitive written examination and interview qualifying marks of SC/ST/SEBC, they shall be counted against reserved posts.
11. 8. It is further submitted by Shri Bambhania, learned advocate for the original petitioners that during the year 20102011 various recruitment processes have been undertaken by the respondents authority and on the basis of reservation policy framed, all the recruitment procedure and recruitment required to give effect to the main and basic policies. It is submitted that during the aforesaid process and pending final selection and even after selection procedure were completed, the respondent authorities decided to revise the select list of the candidates, with a contentions and submission that law laid down by the Hon'ble Apex Court under Article 141 are binding and required to be given effect thereto whether rules and regulations provides for it or not. It is submitted that however the authority blow hot and cold while giving effect to the decisions of the Hon'ble Apex Court and have attempted to implement those judgment which are suited to a class of candidates and intentionally omitted to implement that decision and judgment which is not suited to that particular class of candidates and more particularly Reserved Category Candidates Page 42 of 79 HC-NIC Page 42 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT though all such judgments were pronounced by the Hon'ble Apex Court in contemporary period, which reads as under as claimed by the authority even after th results have been declared in some cases. It is submitted that in one of the result the authorities have specifically disclosed that Selection list have been scrapped and altered and modified pursuant to Advocates' notice pointing out this decisions of the Hon'ble Apex Court.
11.9. It is further submitted by Shri Bambhania, learned advocate for the original petitioners that however decisions pointed out on behalf of the General Category Candidates have been given effect thereto, which were suited to them, whereas decision pointed out on behalf of the Reserved Class Candidates have been conveniently ignored and not given effect thereto and one of the decision which was forwarded to authority. It is submitted that terminology employed as to age relaxation in favour of reserved category candidates would be entitled to be counted as meritorious reserved category candidates to be considered as General Category Candidates to occupy the slot and quota of General Category candidates and / or reserved category candidates and Hon'ble Apex Court has held that only on account of extension of relaxation of fee and age limits and otherwise no relaxation is competition and examination and marks are extended in favour of reserved category candidates they cannot be treated as reserved category candidates if they secure more marks than last General Category candidate selected and shall be considered against the slot and quota of General Category candidates of meritorious reserved category.
Page 43 of 79HC-NIC Page 43 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 11.10. It is submitted by Shri Bambhania,learned advocate for the original petitioners that clause 3 of the Advertisement No.20 provided for age. It is submitted that accordingly candidate of not below the age of 20 years and above 28 years, as on last date of receipt of application i.e. 26.2.2011 has been provided (25.2.1991 to 27.2.1983). However, 5 years concession in the matter of age has been provided for female candidates and SC, ST and ECBS - male candidates belonging to Gujarat, whereas in the case of Army Ex Serviceman /ECO/SSCO personnel Total service + 3 years, 10 years for disabled and 10 years for SC, ST, ECBC of Gujarat - female candidates inclusive of 5 years of relaxation for female.
11.11. It is submitted by Shri Bambhania,learned advocate for the original petitioners that thus the public advertisement dated 28.1.2011 for combined competitive examination for recruitment of disputed posts provided the age relaxation in favour of the following category candidates: (1) Female, (2) SC/ST/SEBC, (3) Army - Ex Serviceman and (4) Disabled.
11.12. It is submitted by Shri Bambhania,learned advocate for the original petitioners that as per Clause 1, qualification for eligibility has been provided of Graduates and / or equivalent qualification of any University which has been established under any Act of State or Parliament or under UGC Act, 1956. It is submitted that thus there is no relaxation in qualification for eligibility in favour of the reserved class Page 44 of 79 HC-NIC Page 44 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT candidates.
11.13. It is submitted by Shri Bambhania,learned advocate for the original petitioners that qualifying merit examination for passing examinations, examinations has been classified in two parts (1) Primary Test: Objective typed question paper of General Knowledge of 100 marks; Syllabus: (1) General Science, (2) Constitution of India (3) Recent important National Events (4) Geographical issues of Gujarat & Natural resources (5) Agriculture & Industries of Gujarat (6) Cultural heritage of Gujarat, Arts, Religion and Literature of Gujarat (7) General Knowledge Test (8) Sports (9) Economy and Polity of Gujarat, (10) Panchayati Raj, (11) Mahagujarat Andolan and subsequent important events (12) Women contribution to various fields in the country. (2) Main Written Examination: Main three papers: (1) Paper 1 Gujarati - 100 marks, (2) Paper2 English 100 marks and (3) Paper 3 General Education - 100 marks.
It is submitted by Shri Bambhania,learned advocate for the original petitioners that in none of the qualifying Educational Qualification and / or Examinations any relaxation and / or concession have been extended to Reserved Category candidates and more particularly SC & SEBC.
11.14. It is submitted by Shri Bambhania,learned advocate for the original petitioners that the Government of Gujarat in exercise of executive powers conferred under Article 162 read with Article 15 of the Constitution of India, framed the Page 45 of 79 HC-NIC Page 45 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT reservations policy after recommendation of Commission, and approval of Cabinet Sub Committee and Cabinet, and accordingly revised reservations policy framed and made applicable in the Statutory Rules regulating appointment and promotion under its Policy decision vide Government Resolution No. PVS/1386(1)G5 dated 11th December 1986 (Annexure H Colly) at page 109 of the petition compilation) which has come into force as rules and regulations regulating appointments, promotions and service conditions of the officers and servants of the State and it has binding force, and it cannot be altered and modified save and except by following the procedure prescribed under Rules of Business, by substitution, and / or modification of existing policy by enacting and framing substituted and / or modified policy decision framed and executed in the form of Resolutions. It is further submitted that, this policy framed has to be read along with decision rendered by the Hon'ble Apex Court.
11.15. It is submitted by Shri Bambhania,learned advocate for the original petitioners that Statutory Rules framed under Article 309 of the Constitution of India, and under the Executive Powers conferred under Article 162 of the Constitution of India, by the State are to be read harmoniously and under resolved decision of the Government of Gujarat under Rules of Business, Resolution issued by the Government of Gujarat has the same effect and flavor of the statute and Resolution dated 11th December 1986, provides as under:
"The Point No.1 of the agreement dated 4th June 1986 arrived at between the representative of the Gujarat Karmachari Utkarsh Page 46 of 79 HC-NIC Page 46 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Mandal (Action Committee) and the State Government is as under:
"In the direct recruitment, the candidate belonging to the SC/ST for whom reservation is made and who comes on merit will be counted against non reserved vacancies. The reservation percentage will be applied in addition to those who come on merit."
11.16. It is submitted by Shri Bambhania,learned advocate for the original petitioners that after careful consideration, the Government has decided to implement the above agreement and was accordingly pleased to decide that where members belonging to the Scheduled Castes and the Scheduled Tribes are selected for appointment by direct selection to any service or post included in the State Services or the Subordinate Services and Panchayat Services on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes shall not, in any way, affect the claim of the members of such Castes and Tribes for appointment in the services or on the posts reserved for them under the Government orders issued from time to time.
11.17. It is submitted by Shri Bambhania,learned advocate for the original petitioners that Government of Gujarat, reviewed its policy under Government Resolution dated 9.3.1999, in light of Constitutional Bench Judgment in the case of R.K. Sabharwal and Ors vs. State of Punjab of the Hon'ble Apex Court, reported in (1995) 2 SCC 745 wherein it has been held that the reserve category candidates can compete for the non reserve posts Page 47 of 79 HC-NIC Page 47 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. The resolution provided where members belonging to the Reserved Category of Castes for whose favour reservation have been provided and such candidates who are selected for appointment by direct selection on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes and such appointment on merit shall not be counted against their quota of reservation.
11.18. It is submitted that therefore, neither policy decision and its contents can be altered and / or substituted and / or modified by clarification through circulars by the executive officers, as the policy decisions are binding on them which has also statutory force.
In support of his above submissions, he has heavily relied upon the observation made by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) and Indra Sawhney (supra).
11.19. It is submitted that in view of the decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra) that being followed by the various High Courts including High Court of Gujarat, Rajasthan High Court, Punjab and Hariyana High Page 48 of 79 HC-NIC Page 48 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Court in the following decisions :
(I). Mangla Ram Bishnoi and ors vs. State of Rajasthan and others reported 2011(7) SLR 585 (Raj) (II). Madan Lal vs. State of Rajasthan & Ors in writ petition No. 15152 of 2011 dated 27.4.2012 (III). In the case reported in 2012(1) SCT 542.
11.20. It is submitted by Shri Bambhania,learned advocate for the original petitioners that at the time when the petition was filed and / or even subsequently also the State Government / GPSC did not disclose that in fact the selected candidates are already appointed and they already resume the duty and therefore, all the selected candidates were not joined as a party respondent. It is submitted that as the petitioners were only two and therefore, they were under the impression that if the petition is allowed, in that case, only two candidates shall be affected and therefore, the original petitioners joined first two candidates from the select list and last two candidates from the select list.
11.21. The sum and substance of contention on behalf of the original petitioners can be summarized as under:
(i) Relaxation in age, the same being concession, cannot be construed as relaxation in standard and thus, the Scheduled Castes/ Scheduled Tribes/ SEBC Class candidates have to be adjusted in the General Category.
(ii) The concession of relaxation in age has been provided only with a view to bringing the aforesaid classes at par with Page 49 of 79 HC-NIC Page 49 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT other General Category candidates, giving them a fair chance to compete by providing a levelplaying field.
(iii) The relaxation in age cannot be regarded as relaxation in standard inasmuch as, by virtue of the Recruitment Rules, 1967 as well as Examination Rules. 1979, the same provide for relaxation of age in the form of concession in the Rules itself.
(iv) The aforesaid issue has been settled by the Apex Court in case of Jitendra Kumar Singh vs. Union of India, reported in (2010) 3 SCC 119 wherein the Apex Court has categorically held that relaxation in age and concession in fee is nothing but a concession and cannot be construed as relaxation in standard.
(v) By issuance of the subsequent circulars dated 29.1.2000 and 23.7.2004, the State Government has superseded the Government Resolution dated 11.12.1986 which is impermissible under law, for, the Government Resolution dated 11.12.1986 is a result of a collective decision of Council of Ministers and the same could not have been changed/altered by the Chief Minister, more particularly when the said Resolution was issued on the basis of the recommendations of the Sadhwani Commission.
(vi) The Examination Rules of 1979 read with Policy have always gone with the word 'concession' and not 'relaxation'. That the circulars are issued in exercise of the powers under Article 162 and the same are without any authority of law, since the policy decision has not been taken by the Cabinet Page 50 of 79 HC-NIC Page 50 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT and the circulars cannot have overriding effect over the Government Resolution.
(vii) All throughout, it was never the case of the appellant State and/or Gujarat Public Service Commission that the appointments have already been given and the successful candidates have joined their services and that the pleadings in this behalf are absent.
(viii) If action is brought seeking mandamus for implementation of the law laid down either by the Apex Court or by the Hon'ble High Court, then in that eventuality, all the concerned candidates are not required to be joined as a party respondent. Representations were made to the State Government since the year November 2011 (Pg.106 & 125), followed by the representations by the respondent Nos.1 and 2 i.e. original petitioners immediately after the declaration of the result (Pg.99, 100, 102, 103 & 105) and despite the said fact, the State Government did not act upon the representation and thereby, failed to observe the principle laid down by the Apex Court in the case of Jitendra Kumar Singh vs. Union of India (supra). Making above submissions and relying upon the above decisions, it is requested to dismiss the present Letters Patent Appeals and confirm the impugned judgment and order passed by the learned Single Judge which is absolutely in consonance with law laid down by the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (Supra).
12. Heard the learned advocates for the respective parties Page 51 of 79 HC-NIC Page 51 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT at length. At the outset, it is required to be noted that in the main Special Civil Application the original petitioners challenged the action of the GPSC in not including their names in the select list / merit list for the post of Deputy Section Officer and Deputy Mamlatdar (Revenue Department), Class III and challenged the action of the GPSC / State Government in considering their cases along with other Reserved Category Candidates or Reserved quota and in not considering their cases for the general vacancies. It is also required to be noted at this stage that in the main petition original petitioners joined only four candidates from the select list i.e. first two and last two from the select list. By impugned judgment and order, by allowing the main Special Civil Application in para 78 learned Single Judge has issued the following directions:
"(i) The respondent nos.1 and 2 shall rearrange the select list so far as the general category vacancies are concerned and migrate all MRCs to occupy the general category vacancies and the resultant vacancies or seats becoming available on such migration of MRCs to general category be filledin by that reserve category candidates on the merit, which might require even lowering down of the reserve category candidates cut of marks so as to fulfill the quota requirement of the reserve category candidates.
(ii) While undertaking the exercise of readjusting the list, the principle enunciated by the Apex Court in case of Union of India Vs. Ramesh Ram (Supra) is required to be borne in mind completely. The MRCs, which are to be migrated to general category vacancies are not to be put to any disadvantages in any manner so as to deprive them of their preference in cadre and posting and in such a case such MRCs are not to be treated as migrating to general category and they will be accommodated against the reserve category seats and vacancies only.
(iii) The entire exercise as aforesaid be undertaken on or before 31st October, 2013."Page 52 of 79
HC-NIC Page 52 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 12.1 From the impugned judgment and order passed by the learned Single Judge, it appears that the learned Single Judge has allowed the writ petition on the following grounds:
(i). That relaxation in the age cannot be said to be relaxation in standard and thus a candidate who has availed of relaxation in age and fee is to be treated as General Category candidate. - That the principle laid down by the Apex Court in the case of Jitendra Kumar Singh vs. Union of India, reported in (2010) 3 SCC 119 is squarely applicable to the facts of the present case.
(ii). That the Examination Rules contain a specific upper age limit and the said eligibility criterion is statutorily provided and thus, the same cannot be said to be a relaxation in standard for assessing the merit of the candidate.
(iii). That the Government Resolution dated 11.12.1986 having been promulgated by and under the approval of the Council of Ministers, any change/alteration would be possible only by the Council of Ministers and not by other agencies. Subsequent Circulars dated 29.1.2000 and 23.7.2004, having not been issued by the Council of Ministers cannot have restrictive effect upon the operation of the Government Resolution dated 11.12.1986.
(iv). That the petition cannot be said to be barred by nonjoinder of necessary parties inasmuch as, when petition was filed, it was not possible for the respondent Nos. 1 and 2, original petitioners, to ascertain as to who were the candidates likely to be affected by the outcome of the petition and in such an eventuality, it cannot be said that petition is required to be dismissed only on account of nonavailability of the 'likely to be affected candidates'.
Nonjoinder of necessary parties:
13. Now, so far as the contention on behalf of the appellants herein - State Government and the GPSC that the learned Single Judge has materially erred in not dismissing the writ petition on the ground of nonjoinder of necessary, affected and proper parties and / or impugned judgment and order passed by the learned Single Judge is required to be quashed and set aside on the ground of nonjoinder of necessary, affected and proper parties is concerned, it is required to be noted and it cannot be disputed that as such if the direction issued by the learned Single Judge in Page 53 of 79 HC-NIC Page 53 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT para 78 of the impugned judgment and order are implemented and / or allowed to be operated / implemented in that case, the placement of respective candidates in the select list / merit list both General Category Candidates as well as Reserved Category Candidates is likely to be affected and changed. It also cannot be disputed that pursuant to the direction issued by the learned Single Judge in the impugned judgment and order, more particularly, in para 78, entire select list / merit list is required to be rearranged and entire select list / merit list shall have to be reshuffled. Pursuant to the direction issued by the learned Single Judge in the impugned judgment and order, those candidates belonging to the reserved category who have availed the benefit of concession of age relaxation of five years and those candidates who have obtained more marks than the candidates belonging to the General Category, their cases are required to be considered for the General vacancies / quota. Therefore, all the candidates whose names figured in the select list / merit list are likely to be affected. As observed herein above, the original petitioners have joined only four candidates from the select list i.e. first two candidates and last two candidates from the select list. Thus, it is an admitted position that all other candidates from the select list were not joined as party respondents and no opportunity has been given to them.
13.1. It is required to be noted that the GPSC declared the merit list on dated 25.05.2012, followed by corrigendum dated 28.05.2012. That simultaneously GPSC recommended the names of the selected candidates to the State Government and as a consequence, the respective departments i.e. General Page 54 of 79 HC-NIC Page 54 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT Administration Department and the Revenue Department issued the appointment orders on 2.6.2012 and 11.06.2012 respectively. That thereafter, after a period of approximately three months, writ petition came to be filed without joining the successful candidates who were already by the time appointed. Now, the submission on behalf of the original petitioners that they were not aware and / or it was not disclosed by the GPSC and / or State Government at the time of hearing of the petition that appointment orders are already issued, has no merits. It is required to be noted that in the affidavit in reply it was disclosed that successful candidates are already appointed. At this stage, it is required to be noted that even select list / merit list came to be declared by the GPSC on 25.05.2012 followed by corrigendum dated 28.05.2012 and in which the list of successful candidates was very much available with the original petitioners.
13.2. From the impugned judgment and order, it appears that learned Single Judge while rejecting the objection raised on behalf of the original respondents with respect to non joinder of necessary and affected parties, has observed that when the petition was filed, it was not possible for the petitioners to ascertain as to whether who were the candidates likely to be affected by the outcome of the petition and has further observed that provision of law, if not adhered to by the State authorities and instrumentality and when a citizen is approaching the Court for seeking writ of mandamus compelling the State to carry out its duty, then, the outcome of the petition likely to affect a fraction of citizen would not warrant their presence in the petition as and when the writ of mandamus is Page 55 of 79 HC-NIC Page 55 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT sought. The learned Single Judge has also rejected the objection raised by the original respondents with respect to non joinder of necessary and proper parties by further observing that when by way of abundant precaution the petitioners have joined the first likely to be affected candidate and last likely to be affected candidate of the general category then, the petition cannot be dismissed on the aforesaid ground. To the aforesaid, it is required to be noted that as such the learned Single Judge has not restricted the relief granted with respect to the original petitioners only. By the direction issued by the learned Single Judge in the impugned judgment and order, more particularly, in para 78, the learned Single Judge has directed to rearrange the entire select list / merits list in light of the observation made in the impugned judgment and order. Thus, by rearranging the entire select list, not only the General Category candidates but even the reserved category candidates are also likely to be affected. Under the circumstances, the learned Single Judge has materially erred in rejecting the objection raised on behalf of the original respondents with respect to nonjoinder of necessary and affected parties.
13.3. Even the observation made by the learned Single Judge while rejecting the objection raised by the original respondents with respect to nonjoinder of affected and proper parties that when a writ of mandamus is sought compelling the State to carry out its duty, then, the outcome of the petition likely to affect a fraction of citizen would not warrant their presence in the petition as and when the writ of mandamus is sought, cannot be accepted. Even in a case where writ of mandamus is sought, in that case also, Page 56 of 79 HC-NIC Page 56 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT if the final relief which is granted is likely to affect the fraction of citizen, that fraction of citizen is required to be given an opportunity if ultimately by issuing such a writ of mandamus their civil rights are likely to be affected and / or they are likely to be adversely affected. With respect, we do not agree with the observation and conclusion adverted by the learned Single Judge that in a writ petition seeking writ of mandamus, the fraction of citizen likely to be affected are not required to be joined and / or their presence is not warranted in the petition. It is cardinal principle of law and as per the catena of decision of the Hon'ble Supreme Court as well as this Court that if by granting any relief, any person is likely to be affected and / or is likely to be adversely affected he is required to be given an opportunity and as such that is the cardinal principle of natural justice.
13.4. Similarly the observations made by the learned Single Judge while rejecting the objection raised on behalf of the original respondents appellants herein with respect to nonjoinder of necessary and proper parties, that when the petition was filed, it was not possible for the original petitioners to ascertain as to who were the candidates likely to be affected by the outcome of the petition and in such an eventuality, it cannot be said that petition is required to be dismissed only on account of nonavailability of the 'likely to be affected candidates is concerned, it is required to be noted that as such when the merit list was declared on 25.05.2012 followed by corrigendum dated 28.05.2012, the list of successful candidates was very much available to the original petitioners. In fact, original petitioners joined first two and last two candidates Page 57 of 79 HC-NIC Page 57 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT from the merit list. Apart from the above, in fact in the affidavit in reply filed by the GPSC, it was specifically declared that after declaration of the merit list / select list, successful candidates are already issued the appointment orders and most of them have in fact joined the duty. Therefore, even at that stage, original petitioners ought to have joined all those successful candidates. Even otherwise, the reliefs which are granted by the learned Single Judge in the impugned judgment and order are likely to be affected to all successful candidates whose names figured in the select list / merit list dated 25.05.2012 and 28.05.2012 and therefore, without giving any opportunity to them the learned Single Judge ought not to have issued such directions. Therefore, as such the impugned judgment and order passed by the learned Single Judge and the directions issued by the learned Single Judge contained in para 78 of the impugned judgment and order are as such in breach of principles of natural justice as all candidates likely to be affected, are not given any opportunity of being heard. Therefore, as such learned Single Judge ought to have dismissed the petition on the ground of non joinder of necessary, affected and proper parties.
13.5. Now, next question which is posed for consideration of this Court would be whether joining all those successful candidates as respondents in the present Letters Patent Appeals, which are filed by the GPSC and State can cure the defect of non joinder of necessary, affected and proper parties in the main petition ? It cannot be disputed that as such the plea / defence of non joinder of necessary and proper parties goes to the root. Therefore, such a defect cannot be cured and /or permitted to be cured at an Page 58 of 79 HC-NIC Page 58 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT appellate stage and that too in appeals filed by the State Government and the GPSC, in which, the judgment and order passed by the learned Single Judge is vehemently attacked on the ground of non joinder of necessary and proper parties.
13.6. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Public Service Commission, Uttaranchal vs. Mamta Bisht and Ors reported in (2010) 12 SCC 204 relied upon by Shri Bambhania, learned advocate for the original petitioners in support of his submission that as original petitioners are only two and therefore, the first and last two candidates in the select list were joined as party respondents and therefore, it cannot be said that there was non joinder of necessary party is concerned, it is required to be noted that in the aforesaid decision there is no absolute proposition of law laid down by the Hon'ble Supreme Court that if last candidates from the select list is joined and other likely to be affected candidates are not joined, still it will sufficient the recruitment to join proper and necessary parties. In the case before the Hon'ble Supreme Court it was the case of only one candidate and pursuant to the order passed by the High Court only one candidate and the last candidate of the select list was likely to be affected and to that Hon'ble Supreme Court has observed that as last candidate from the select list was joined, it will be sufficient requirement of joining proper and necessary parties. In the present case, what is required to be considered is the relief granted by the learned Single Judge. The learned Single Judge has not restricted the prayer and / or granted relief with respect to the two petitioners only. By the relief granted by the Page 59 of 79 HC-NIC Page 59 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT learned Single Judge it is likely to affect not only all the successful candidates from the select list but even candidates belonging to the reserved category are also likely to be affected. Under the circumstances, the aforesaid decision of the Hon'ble Supreme Court shall not be applicable to the facts of the case on hand and same shall not be of any assistance to them.
13.7. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. A.N. Mathur and Ors reported in (2014) 13 SCC 531 by Shri Bhambhania, learned advocate for the original petitioners in support of his submission that if the order / action is voidable, to give an opportunity would be a mere formality and therefore, even if there is violation of principles of natural justice, the said order is not required to be quashed and set aside is concerned, it is required to be noted that the aforesaid would not be applicable to the facts of the case on hand. The aforesaid decision would be applicable in case of administrative action but shall not be applicable with respect to any judicial decision. Therefore, the observations are required to be considered in light of the controversy / issue in the case.
13.8. In the case of A.M.S. Sushanth and Others (supra) the Hon'ble Supreme Court has observed and held that principles of natural justice demand that any person who is likely to be adversely affected by the order is required to be given an opportunity of being heard.
Page 60 of 79HC-NIC Page 60 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 13.9. In the case of K.H. Siraj (supra) even in a case where notice in the newspaper was given the Hon'ble Supreme Court held that all the candidates in the select list should have been impleaded as party in the writ petition as otherwise they will be affected without being heard. In the case before the Hon'ble Supreme Court, the writ petitioners contended that there was only challenge to the list to a limited extent and therefore, all the candidates in the select list were not required to be joined as a party to the writ petition. However, the Hon'ble Supreme Court negatived the said contention by observing that acceptance of their contention may result in a total rearrangement in the select list and candidates will be displaced from their present ranks, besides some of them may also be out of the select list. That the Hon'ble Supreme Court observed that therefore, it was imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions and therefore, writ petitions have also to fall on the ground of absence of necessary parties in the party array. In the present case also by the direction contained in para 78 of the impugned judgment and order the learned Single Judge has as such granted larger relief of rearranging the select list and / or the direction issued by the learned Single Judge would result in total rearranging the select list, due to which, some of the candidates will be dispensed from present rank and some of them may also out of the select list. It is required to be noted that in the present case by the time the petition was preferred, select list / merit list already operated and appointments have already made.
13.10. In the case of Girjesh Shrivastava and Others Page 61 of 79 HC-NIC Page 61 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT (supra) while considering the earlier decision of the Hon'ble Supreme Court in the case of Prabodh Verma vs. State of U.P reported in (1984) 4 SCC 251; in the case of Ramrao Vs. All India Backward Class Bank Employees Welfare Assn reported in (2004) 2 SCC 76 and another decision in the case of B.Ramanjini vs. State of A.P. reported in (2002) 5 SCC 533 has held that the persons / candidates affected were required to be given an opportunity of being heard and an order issued against the persons without impleading him as a party and thus, without giving him an opportunity of hearing must be held to be bad in law.
13.11 In the present case, as observed herein above, the only four candidates i.e. two candidates from the top and two candidates from the bottom of the select list / merits list were joined as party respondent. The candidates who were included, were not treated to be in the representative capacity. The candidates likely to be affected were known to the original petitioners as the select list / merit list was already declared on 25.05.2012 and 28.05.2012. It was not large body of candidates having their place in the select list / merit list. Under the circumstances, in absence of all the candidates affected / likely to be affected, the learned Single Judge would not have / ought not to have allowed the petition and ought not to have issued the direction contained in para 78 of the impugned judgment and order i.e. to rearrange the entire select list.
13.12. For the reasons stated above, we are of the opinion that the learned Single Judge has materially erred in not dismissing the Page 62 of 79 HC-NIC Page 62 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT petition on the ground of non joinder of necessary and proper parties and we are of the opinion that impugned judgment and order passed by the learned Single Judge, more particularly, directions contained in para 78 of the impugned judgment and order are in breach of principles of natural justice as the same has been issued without affording any opportunity of being heard to the affected candidates who are now joined as party respondents pursuant to the order passed by the Division Bench of this Court, however in the appeals preferred by the GPSC and the State Government.
14. Apart from the above, the learned Single Judge has materially erred in considering the subsequent Circulars dated 29.1.2000 and 23.7.2004 and in conflict with the Government Resolution dated 11.12.1986 and also in holding that the Government Resolution dated 11.12.1986 having been promulgated by and under the approval of the Council of Ministers the subsequent changes by way of Circulars dated 29.1.2000 and 23.7.2004, having not been issued by the Council of Ministers cannot have restrictive effect upon the operation of the Government Resolution dated 11.12.1986. The Government Resolution dated 11.12.1986 and the Circulars dated 29.1.2000 and 23.07.2004 reads as under:
Resolution dated: 11.12.1986 The Point no.1 of the agreement dated 4th June, 1986 arrived a between the representatives of the Gujarat Karmachari Utkarsh Mandal (Action Committee) and the State Government is as under :
1. In the direct recruitment, the candidate belonging to the SC/ST for whom reservation is made and who come Page 63 of 79 HC-NIC Page 63 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT on merit will be counted against nonreserved vacancies.
The reservation percentage will be applied in addition to those who come on merit.
2. After careful consideration, the Government has decided to implement the above agreement and is accordingly pleased to decide that where members belonging to the Scheduled Castes and the Scheduled Tribes are selected for appointment by direct selection to any service or post included in the State Services or the Subordinate Services and Panchayat Services on the basis of merit, then such members shall be considered for appointment on unreserved posts which are filled in on merit, along with other candidates not belonging to such Castes and Tribes and such appointment on merit of the members belonging to such Castes and Tribes shall not, in any way, affect the claims of the members of such Castes and Tribes for appointment in the services or on the posts reserved for them under the Government orders issued from time to time.
3. These orders will also be applicable in case of semi direct recruitment scheme in which there is reservation for SC/ST candidates.
4. The SWD will monitor implementation of this GR as done in cases of other GRs regarding roster and reservation system. However, in case of this GR, the SED will forward to GAD quarterly progress report will all necessary details.
5. These orders will take effect from the date of agreement with the Gujarat Karmachari Utkarsh Mandal i.e. date 4th June, 1986
6. All departments of the Secretariat are also instructed to ensure the implementation of this policy in the Statutory Bodies, Public Undertakings, Grant in Aid Bodies and such other similar autonomous bodies under their administrative control.
7. The Secretariat departments and all Heads of Departments are requested to implement the above instructions scrupulously.
Circular Date: 29.1.2000 In the Government Resolution issued by G.A.D. dated 8399 shown under Reference No. (3), and in the circular shown under Reference No. (5), there are such a provision and the clarification that in the cases of direct recruitment, the persons belonging to Scheduled Caste/Scheduled Tribe/Socially and Educationally Backward Classes selected and appointed on the Page 64 of 79 HC-NIC Page 64 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT basis of their merit, and not on the basis of reservation, are not to be taken into consideration against the fixed quota of reservation, that is to say, they shall have to be considered as the candidates of General Category by giving them a place in the roster against the unreserved posts. In this connection, the matter of the issuance of certain clarifications in respect of the officeyadi shown under Reference No. (5) of the Ministry of Personnel, Public Grievances and Pensions, (Personnel and Training Department), Government of India dated 1798 was under consideration of the Government. It is hereby clarified at the end of due and careful consideration of this matter that only such SC/ST/SEBC candidates who are selected on the same standard as applied to the candidates from General Category shall have to be taken into consideration/adjusted against the unreserved posts instead of the reserved posts. When a relaxed standard is applied in selecting a candidate from SC/ST/SEBC category, for example in the agelimit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what has been adopted for the candidates of General Category etc., the candidates of SC/ST/SEBC selected in this manner shall have to be considered against their reserved posts. Such candidates would be deemed as unavailable for consideration against unreserved posts.
2. The procedure in accordance with the aforesaid clarifications shall have to be followed at the time of implementing the Government Resolution dated 8399 shown in the Reference.
By the order and in the name of the Governor of Gujarat.
Circular dated 23.07.2004 As per the instructions issued vide circular of General Administration Department of government under the reference (2) dated 29/1/2000, only the candidates of SC / ST / SEBC, who have been selected on the basis of same standard which has been applied to candidates of general category, shall be considered / adjusted against unreserved posts instead of their reserved posts. When standard of relaxation has been applied for the selection of candidates of SC / ST / SEBC with regard to age limit, qualification of experience, number of attempts admissible in written examination and other standards considered for them in more expanded field than the standards applied for the candidates of general category, such selected candidates of SC / ST / SEBC shall be considered against their reserved posts. Such candidates are considered to be available Page 65 of 79 HC-NIC Page 65 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT against unreserved posts.
(2)As per aforesaid instruction, if the candidates of reserved category have been given relaxation in competitive examination or in the qualifying standards for personal interview and if they have been given exemption from paying examination fees, whether such candidates of reserved category should be considered against the posts of unreserved candidates or not? or whether they can compete or not? The matter to issue clarifications in this regard was under consideration of government. At the end of careful consideration by the government, it has been clarified that the candidates of SC / ST / SEBC who have been selected in competitive examination on their merits without taking benefit of any relaxation as per prescribed standards for candidates of unreserved category, shall not be adjusted against reserved posts. But, the candidates of SC / ST / SEBC who have been selected by getting relaxation in qualifying marks of competitive written examination and interview shall be considered against unreserved posts. In spite of this, candidates of reserved category who have been exempted from paying examination fees, shall not be restricted from competition for unreserved vacancies.
(3)At the time of implementing the resolution of GAD dated 8/3/99 as mentioned against Reference (1), the procedure shall have to be conducted in accordance with aforesaid clarifications.
By order and in the name of the Governor of Gujarat.
.
14.1. It is required to be noted that so far as Government Resolution dated 11.12.1986 is concerned, it is not with respect to issue whether reserved category candidates availing age relaxation is entitled to consider his case in the General Category vacancies. The Government Resolution dated 11.12.1986 seems to be taken only on the basis of representation of the Utkarsh Mandal and same was issued in line with the decision of the Hon'ble Supreme Court in the case of Indra Sawhney (supra). Neither before the Sadhwani Commission nor at the time when the Government Resolution dated 11.12.1986 was issued there was any issue of relaxation / Page 66 of 79 HC-NIC Page 66 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT concession to the reserved category candidates. The Government Resolution dated 11.12.1986 was issued on the basis of the representation made by the Utkarsh Mandal, relating to the aspect that if a candidate concerned gets selected in the services on the basis of merit, such candidate shall be appointed on unreserved post. Even subsequent resolution dated resolution dated 8.3.1999 issued apropos the judgment rendered in the case of R.K. Sabharwal (supra) interalia providing for postbased reservation as well as making a provision that if a candidate gets selected on the basis of merits, such candidate should be appointed on unreserved post. However, so far as subsequent circulars dated 29.1.2000 as well as 23.7.2004 are concerned, they are directly on the issue with respect to the candidate having availed the benefit of age relaxation. Therefore, as such it cannot be said that by the circulars dated 29.1.2000 as well as 23.7.2004 the earlier Government Resolution dated 11.12.1986 has been superseded. The circulars dated 29.1.2000 and 23.07.2004 specifically provide that reserved category candidates who avail the benefit of age relaxation, his case is required to be considered on the reserved post.
14.2. At this stage, it is required to be noted that even the circulars dated 29.1.2000 as well as 23.07.2004 were issued by the Hon'ble the Chief Minister as required by Rule 15 of the Gujarat Government Rules of Business, 1990 cases which affected or likely to affect interest of Scheduled Castes & Scheduled Tribes were required to be submitted before issue of the order.
Page 67 of 79HC-NIC Page 67 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 14.3. Under the circumstances, the learned Single Judge has materially erred in not considering the circulars dated 29.1.2000 and 23.07.2004 and / or in holding that aforesaid circulars cannot be made applicable as the same are without any authority and / or the effect of Government Resolution dated 11.12.1986 cannot be nullified by the subsequent circulars.
15.0. Now, so far as next question which is posed for this Court whether learned Single Judge is right in holding that relaxation in age cannot be construed as relaxation in standard and it can be said to be a concession ? While holding that the relaxation in the age cannot be said to be relaxation in standard and it can be said to be a concession, the learned Single Judge has heavily relied upon the Examination Rules, 1979 by observing that a specific upper age limit and the said eligibility criterion is statutorily provided, however while considering the aforesaid issue and holding that the relaxation in age cannot be said to be relaxation in standard, the learned Single Judge has not properly appreciated and / or considered the other statutory Recruitment Rules i.e. Recruitment Rules, 1967 as well as Recruitment Rules 2009 and 2010. It is required to be noted that the State Government, in exercise of its powers under Article 309 of the Constitution of India, has framed the Rules called 'the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 providing for recruitment in various posts viz. Class I to Class IV. Rule 8 provides for condition as prescribed qualification. As per subrule (1) of Rule 8 subject to the provision of the Rules of 1967, no person shall be appointed to any service or post unless he possesses the Page 68 of 79 HC-NIC Page 68 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT qualification, if any, prescribed in the Rules 'relating to the recruitment to such service or post'. Thus, as such a person to be qualified for being appointed should possess the qualifications provided in the Recruitment Rules governing the recruitment and not the Examination Rules provided in this behalf. In the present case, Recruitment Rules 2009 and Recruitment Rules 2010 specifically provided that to be eligible for the post of direct selection, a candidate shall not be more than 28 years of age. However, subrule (2) of Rule 8 of the Recruitment Rules, 1967 confers the power upon the State Government to relax the age limit and consequently the State Government, while exercising the power under sub rule (2) of the Rule 8 of Rules, 1967 has relaxed the age limit in favour of the candidates belonging to the reserved category candidates. Thus, the relax in the age limit is nothing but a relaxation in standard of eligibility provided to all the candidates for competing in the direct selection for appointment. As observed herein above, learned Single Judge solely relied upon the Examination Rules and has not considered the Recruitment Rules, 1967 , Recruitment Rules 2009 and 2010. As such all the Rules are required to read together and one Rule cannot be read in isolation so as to make the provision in the other Rules redundant and nugatory. If the Examination Rules, 1979 are read in isolation as done by the learned Single Judge, in that case, the specific Recruitment Rules, 1967, 2009 and 2010 would be ineffective and / or would become nugatory. Thus, all the Rules are required to be read together and harmoniously to make all the Rules effective and applicable. Under the circumstances, relaxation in the age can be said to be a relaxation in standard and not the Page 69 of 79 HC-NIC Page 69 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT concession as observed and held by the learned Single Judge.
15.1. In the case of H.S. Vankani and Ors (supra), the Hon'ble Supreme Court has observed and held that the Courts have to avoid a construction of an enactment that leads to an unworkable, inconsistent or impracticable results, since such a situation is unlikely to have been envisaged by the Rule making authority. It is further observed that Rule making authority also expects rule framed by it to be made workable and never visualises absurd results. In the aforesaid decisions, in para 43 to 46, the Hon'ble Supreme Court has observed and held as under:
"43. It is a well known Rule of construction that the provisions of a statute must be construed so as to give them a sensible meaning. The legislature expects the court to observe the maxim ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). The Principle also means that if the obvious intention of the statute gives rise to obstacles in implementation, the court must do its best to find ways of overcoming those obstacles, so as to avoid absurd results. It is a well settled principle of interpretation of statutes that a construction should not be put on a statutory provision which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience or anomaly.
44. . In this connection reference may be made to the judgment in R. (on the application of Edition First Power Ltd) v. Central Valuation Officer and another (2003)UKHL 20(2003) 4 ALL ER 209 at (116),(117), wherein Lord Millett said: "The court will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it....."
45. Reference may also be made in the Judgment in Andhra Bank v. B. Satyanarayana (2004) 2 SCC, 657, wherein this Court has held: Page 70 of 79 HC-NIC Page 70 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT " A machinery provision, it is trite, must be construed in such a manner so as to make it workable having regard to the doctrine " ut res magis valeat quam pereat".
46. In Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam & Ors. (1989) 3 SCC, 709, this Court held as follows: "The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle " ut res magis valent quam pereat". It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it."
15.2. Now, so far as other issues on merits whether the relaxation in the age can be said to be relaxation in standard and / or it can be said to be a concession, in the policy decision of the State Government vide Government Resolution dated 11.12.1986 as well as subsequent circulars dated 29.01.2000 and 23.07.2004 is concerned, at the outset, it is required to be noted that the learned Single Judge considering the Examination Rules, 1979 has held that relaxation in the age cannot be said to be relaxation in standard and thus, relaxation in age being concession, cannot be construed as relaxation in standard and therefore, SC/ST/SEBC Class candidates have to be adjusted in the General Category is concerned, it is required to be noted that while holding so, the learned Single Judge has not properly appreciated and / or considered the relevant Recruitment Rules, more particularly, statutory Recruitment Rules of 1967 and Recruitment Rules 2009 and Recruitment Rules, 2010.
Page 71 of 79HC-NIC Page 71 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT 16.0. From the impugned judgment and order, it appears that the learned Single Judge has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Jitendra Kumar Singh (supra). However, it is required to be noted that in the case of Jitendra Kumar Singh (supra), the Hon'ble Supreme Court was considering the policy prevalent in the State of Uttar Pradesh, more particularly, Instructions dated 25.3.1994 and the G.O. Dated 26.2.1999 prevailing in the State of Uttar Pradesh which are distinct and different from the policy applicable in the State of Gujarat. In para 65, the Hon'ble Supreme Court has specifically observed that "we are concerned with the interpretation of 1994 Act, the instructions dated 2531994 and G.O. dated 2621999." In the case before the Hon'ble Supreme Court, the Hon'ble Supreme Court was considering the provision contained in U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 8 of the said Act empowered the State Government to grant such concession in respect of fee and relaxation in upper age limit as it may consider necessary and in exercise of the said powers, the State Government issued the Government Instructions dated 25.3.1994 giving relaxation specifically mentioning that 'it shall be immaterial that he has availed of any facility or relaxation (like relaxation in age limit) available to reserved category candidates'. To the aforesaid, the Hon'ble Supreme Court held that since the State has not treated relaxation in age and and fee as relaxation in the standards for selection based on the merit of the candidate in the selection test followed by interview and thus, such relaxation cannot deprive a Page 72 of 79 HC-NIC Page 72 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination.
16.1. Now, so far as policy prevailing in the State of Gujarat and declared by the State vide Government Resolution dated 11.12.1986; Government Resolution dated 8.3.1999 and the policy decision vide circulars dated 29.01.2000 and 23.07.2004 are reproduced / stated herein above.
16.2. As observed herein above, the relevant Recruitment Rules, 1967; Recruitment Rules 2009 and 2010 specifically provide for upper age limit but does not contain any provision as mentioned in Section 8 of the UP Act.
16.3. It cannot be disputed that every decision is required to be considered in light of the facts of the case and controversy before the Court. As observed by the Hon'ble Supreme Court in the case of Haryana Financial Corporation vs. Jagdamba Oil Mills, reported in (2002) 3 SCC 496 one additional or different facts may make a world difference between conclusion in two cases. Under the circumstances, decision of the Hon'ble Supreme Court in the case of Jagdamba Oil Milss (supra) in which, the Hon'ble Supreme Court was considering the relevant provision of UP Act and the policy applicable in the State of Uttar Pradesh, shall not be applicable to the facts of the case on hand and / or the same shall not be of any assistance to the original petitioners. In the aforesaid Page 73 of 79 HC-NIC Page 73 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT decisions, in para 19 to 22 the Hon'ble Supreme Court has observed and held as under:
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes.
To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
20.In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech..is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
21.Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22.The following words of Lord Denning in the matter of applying precedents have become locus classicks:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad Page 74 of 79 HC-NIC Page 74 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT resemblance to another case is not at all decisive."
"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
16.4. Now, so far as decisions referred herein above relied upon by the learned advocate for the original petitioners is concerned, in light of the observation made herein above and the policy prevalent in the State of Gujarat and statutory provision contained in the Recruitment Rules, 1967, 2009 and 2010 and aforesaid government circulars dated 29.01.2000 and 23.07.2004, the aforesaid decisions shall not be applicable to the facts of the present case.
16.5. Even otherwise, it is required to be noted that as such policy of the State Government contained in the circulars dated 29.01.2000 and 23.07.2004 has been followed consistently since many years and in all the recruitments the reserved category candidates who have availed the benefits of age relaxation his case is considered in the reserved quota post as per the circulars dated 29.01.2000 and 23.07.2004. It is also required to be noted that as such original petitioners had not challenged the specific government circulars dated 29.01.2000 and 23.07.2004 and / or they have not prayed to quash and set aside the earlier decision of the State Government contained in the circulars dated 29.01.2000 and 23.07.2004.
17.0. Even otherwise, it is required to be noted that in the Page 75 of 79 HC-NIC Page 75 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT advertisement itself inviting the application for the post in question that there is specific mentioned with respect to age relaxation. It was specifically mentioned that candidates belonging to reserved category shall be entitled to five years age relaxation. In the advertisement itself, it was specifically provided and mentioned that those reserved category candidates who applied for General Category vacancy shall not be entitled to age relaxation. Thus, all the candidates including the original petitioners were made to understand / known that if they applied for the General Category vacancy they shall not be entitled to age relaxation. That at the relevant time, they did not challenge the same. They participated in the recruitment process with open eye and thereafter having failed to get their names secured in the merit list, thereafter it is not open for them to challenge the same.
17.1. In the case of S.Vinod Kumar and others (supra) the Hon'ble Supreme Court has held that those candidates who had taken part in the selection process knowing fully well that the procedure laid down therein, are not entitled to question the same. In the said decision, the Hon'ble Supreme Court has further held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein, are not entitled to question the same. In the case of Sadananda Halo and others (supra), in para 59 the Hon'ble Supreme Court has held that unsuccessful candidates cannot turn back and assail selection process. In the said decision the Hon'ble Supreme Court referred to the judgement in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla, reported in 1986 Supp. SCC 285, wherein it has Page 76 of 79 HC-NIC Page 76 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT been specifically held that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise. Similar view has been taken by the Hon'ble Supreme Court in the recent decision in the case of Amlan Jyoti Borooah (supra). In the said decision the Hon'ble Supreme Court has held that a candidate who had subjected himself to a faulty selection process could not question it later on on the ground of estoppel and acquiescences.
In the present case as stated above, the respective petitioners were informed before the commencement of the oral / Vivavoce and Personality Test with respect to fixing minimum 10 marks to be obtained by the candidate and thereafter the respective petitioners appeared in the oral interview and participated in the further recruitment process / selection without raising any grievance / objection about such qualifying marks for Vivavoce Test as fixed by the GPSC and even till filing of the petitions never raised any grievance / objection with respect to the same and therefore, considering the aforesaid decisions of the Hon'ble Supreme Court, they are now estopped from challenging the fixation of the qualifying marks after they have been declared unsuccessful at the Vivavoce and Personality Test.
17.2. Under the circumstances, after having participated in the recruitment process pursuant to the advertisement inviting application for the post in question which contained aforesaid clauses and thereafter having failed to secure their place in the merit list on the ground of estoppel and acquiescence, thereafter it Page 77 of 79 HC-NIC Page 77 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT was not open for the original petitioners to challenge the same.
18. The sum and substance of the aforesaid discussions would be that learned Single Judge has materially erred in observing and holding that the relaxation in the age to the candidates belonging to the reserved category cannot be construed as relaxation in standard the same being concession and therefore, reserved category candidates who availed the benefit of age relaxation shall have to be adjusted in the General Category vacancies. The learned Single Judge has also materially erred in not dismissing the petition on the ground of non joinder of necessary parties. The learned Single Judge has also materially erred in considering the subsequent circulars dated 29.01.2000 and 23.07.2004 in conflict with the Government Resolution dated 11.12.1986 and has materially erred in not relying upon the said circulars dated 29.01.2000 and 23.07.2004. That the learned Single Judge has also materially erred in heavily relying upon the Examination Rules, 1979 while holding that relaxation in the age cannot be said to be relaxation in standard and it can be considered to be concession, despite the specific provisions in the statutory Recruitment Rules, 1967, 2009 and 2010 which provide and contain a specific upper age limit. That the learned Single Judge has materially erred in relying upon the decision of the Hon'ble Supreme Court in the case of Jitendrakumar Singh (supra). The learned Single Judge has also erred in not dismissing the petition on the ground of estoppel and acquiescence by the original petitioners and in not properly appreciating the fact that despite the specific clause in the advertisement inviting the applications for Page 78 of 79 HC-NIC Page 78 of 79 Created On Tue Sep 15 01:40:10 IST 2015 C/LPA/1480/2013 CAV JUDGMENT the post in question with respect to age relaxation and a specific clause that those reserved category candidate who avail the benefit of age relaxation shall not be entitled to apply for the General Category vacancies, they participated in the recruitment process and having failed to secure their place in the merit list, thereafter it was not open for them to challenge the same. Under the circumstances, impugned judgment and order passed by the learned Single Judge deserve to be quashed and set aside.
19. For the reasons stated above and considering the reservation policy applicable in the State of Gujarat contained in circular dated 29.01.2000 and 23.07.2004 and relevant statutory provisions i.e. Recruitment Rules, 1967, 2009 and 2010, it is held that all those candidates belonging to the reserved category if they avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for General Category vacancies and that their cases are required to be considered for the reserved category vacancies.
20. In view of the above and for the reasons stated above, both the Letters Patent Appeals succeed. The impugned judgment and order passed by the learned Single Judge dated 23.09.2013 passed in Special Civil Application No.11996 of 2012 is hereby quashed and set aside. No costs.
sd/ (M.R.SHAH, J.) sd/ (G.R.UDHWANI, J.) Kaushik Page 79 of 79 HC-NIC Page 79 of 79 Created On Tue Sep 15 01:40:10 IST 2015