Gujarat High Court
Gami Sagar Pranjivan & Ors vs State Of Gujarat & Ors on 23 February, 2017
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/1157/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1157 of 2013
================================================================
GAMI SAGAR PRANJIVAN & Ors ....Petitioners
Versus
STATE OF GUJARAT & Ors ....Respondents
================================================================
Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with
MS VIDHI J BHATT, ADVOCATE for the Petitioners
MR RASHESH RINDANI, AGP for the Respondent Nos. 1 -2 (State)
MR MITUL K SHELAT, ADVOCATE for the Respondent No. 3 (UGC)
MR DG SHUKLA, ADVOCATE for the Respondent No. 4 (GPSC)
MS MAMTA R VYAS, ADVOCATE for the Private Respondents
===========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 23/02/2017
ORAL ORDER
1. The petitioners have approached this Court with the following prayers.
"(A) Your Lordship may be pleased to issue a writ Page 1 of 14 HC-NIC Page 1 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER of certiorari or any other appropriate writ, order or direction declaring the impugned Assistant Professor in the Government Arts, Science and Commerce Coleges in Gujarat Educational Service, Class II, Recruitment Rules, 2011 as inconsistent and incompatible with the UGC Regulations for appointments of teachers and is thus bad in law and setting aside the same;
(B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the selection by the Gujarat Public Service Commission of candidates for appointment as Assistant Professor solely on the basis of interview without complying with the UGC Regulations relating to selection procedures as bad in law and illegal and quasing and setting asdie the same.
(C) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction delcaring the selection by the Gujarat Public Service Commission of candidates for appointment as Assisstant Professsor in Chemistry solely on the basis of interview (vide Selection result dated 09.01.2013) without folloiwng the procedure of trasparent, objejctive and credible methodology of analysis of the merits and credentials of the Page 2 of 14 HC-NIC Page 2 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER applicants based on weightages given to the performance of the candidate in different relavant dimensions and his performance on a scoring system proforma, as bad in law, arbitrary and quashing and settting aside the same;
(D) Your Lordships may be pleased to issue a writ of mandamus commanding the State of Gujarat and the Gujarat Public Service Commission to conduct the recruitment process for selection of candidates for appointment to the posts of Assistant Professor in accordance with the procedure and methodology prescribed by the University Grants Commission Regulations, 2010;"
2. Heard learned advocates.
3. Mr. Shalin Mehta, learned senior advocate for the petitioners has made the following submissions.
3.1 It is submitted that the Gujarat Public Service Commission had published an advertisement on 01.12.2011 inviting applications for recruitment on different posts. It also included recruitment on the posts of Assistant Professors in different subjects in the Government Colleges. Those faculties were identified as Advertisement No.120 to 147. It is submmitted the present petition petains to the subject of Chemistry. It was Advertisement No. 137 / 2011-12.
3.2 It is submitted that the petitioners were eligible and had Page 3 of 14 HC-NIC Page 3 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER applied for the same. It is further submitted that the petitioners were also called for interview by the GPSC and the petitioners had remained present.
3.3 It is submitted that in the final select list name of none of the petitioners is included and according to the petitioners, their exclusion is illegal.
3.4 It is submitted that the very initiation of selection process was illegal. It is submitted that the recruitment rules for the post in question is ultra-virus the constitutional provision and also the regulations of the University Grant Commission and thus, it is illegal. It is submitted that the recruitment Rules be declared illegal.
3.5 It is further submitted that the selection process undertaken by the Gujarat Public Service Commission was also faulty. It is submitted that the final selection is made solely on the marks obtained in the oral interview and further that there was no allocation of marks amongst the members of the selection committee.
3.6 It is further submitted that though the advertised posts are vacant, the petitioners are not included in the select list. It is submitted that non-inclusion of the petitioners in the select list is thus illegal on more than one count and therefore the select list be quashed and set aside.
3.7 Learned senior advocate for the petitioners has drawn the attention of this Court to the relevant regulations of the University Grants Commission, so also Para:41 of the affidavit Page 4 of 14 HC-NIC Page 4 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER in reply filed on behalf of the University Grants Commission. Serious grievance is made about the process undertaken by the Gujarat Public Service Commission by contending that the petitioners did not know, at the time when they were called for the interview that, minimum mark would be prescribed for being included in the select list and in any case, not only no break up was put to the notice of the candidates, as a matter of fact, no break up was made by the Commission, as pointed out in its own affidavit in reply. Learned senior advocates for the petitioners has taken this Court through the contents of the affidavit in reply filed by the Gujarat Public Service Commission. It is submitted that in the impugned selection process be quashed and set aside.
3.8 Reliance is placed on the decision of the Supreme Court of India in the case of Bishnu Biswas V/s Union of India and Others reported in (2014) 5 Supreme Court Cases 774.
4. On the other hand, Mr.D.G.Shukla, learned advocate for the Gujarat Public Service Commission has made the following submissions.
4.1 Firstly, it is submitted that the petitioners are not entitled to any relief, as prayed for, for more than one reasons.
4.2 Learned advocate has taken this Court through the contents of the affidavit in reply in detail and has pointed out that the procedure which is consistently followed by the Gujarat Public Service Commission over decades was followed in the present case also and there was no arbitraryness on any count.
Page 5 of 14HC-NIC Page 5 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER 4.3 It is submitted that the petitioners, after having participated in the selection process and having not been included in the select list, can not be permitted to challenge the same subsequently. In support of this submission, number of decisions are relied by him.
4.4 Learned advocate for the Commission has submitted a statement giving details of number of posts advertised, number of candidates called for interview, those who remained present and those who are found to be meritorious to be included in the select list. It is submitted that allocation of mark is in the domain of the recruiting agency and it is not that in the present case some differnt norm is adopted by the Gujarat Public Service Commission. It is submitted that it is not even the case of the petitioners that either there is favouritism or victimisation.
4.5 It is further submitted that, so far challenge to the recruitment rules is concerned, the Gujarat Public Service Commission will not have any say in that regard, since it is framed by the State. However as a constitutional body, it is contended that there is no discrepancy or inconsistency in the recruitment rules, so far as eligibility criteria is concerned, with the guidelines / regulations of the University Grants Commission. It is submitted that the petitioners are not entitled to any relief, so far the challenge to the recruitment rules is concerned. It is submitted that this petition be dismissed.
4.6 Learned advocate for the Gujarat Public Service Page 6 of 14 HC-NIC Page 6 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER Commission has relied on the following decisions.
A) In the case of Amlan Jyoti Borooah V/s State of Assam and Others reported in 2009 (3) SCC 227.
B) In the case of Sadananda Halo and Others V/s Momtaz Ali Sheikh and Others reported in 2008 (4) SCC 619. C) In the case of Andhra Pradhes Public Service Commission V/s Baloji Badhavath and Others reported in 2009 (5) SCC 1. D) In the case of Union of India V/s S Vinodh Kumar reported in (2007) 8 SCC 100 E) In the case of Madhya Pradesh Public Service Commission V/s Navnit Kumar Potdar and Another reported in AIR 1995 SC 77 F) In the case of Lila Dhar V/s State of Rajasthan and Others reported in AIR 1981 SC 1777 G) In the cases of Anilkumar Shankarlal Joshi V/s State of Gujarat and Others reported in 1991 (2) GLH 633. H) In the cases of Ranjan Kumar etc. V/s State of Bihar and Others reported in 2014 AIR SCW 2968
5. Mr. Rindani learned Assistant Government Pleader for the State Authorities has made the following submissions.
5.1 At the outset, it is submitted that, the State would be well within its right to contend that these petitioners can not be permitted to challenge the recruitment rules at this stage, since they have already participated in the selection process and have failed. It is however submitted that, when the Recruitment Rules are challenged, the State owes duty to satisfy the Court that the Rule is legal.
Page 7 of 14HC-NIC Page 7 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER 5.2 On merits, it is submitted that the recruitment rules for the post in question so also the guidelines of the University Grants Commission are on record. The stand of the University Grants Commission is also on record. Attention of this Court is invited to the contents of the affidavit in reply filed by the UGC, to point out that it is only the eligibility criteria which would be scrupulously followed and so far assessment process is concerned, the UGC has less role. It is submitted that there is no material on record to point out that, there is any inconsistency in the eligibility criteria prescribed in the Rules vis-à-vis the stipulations made by the UGC. It is submitted that for this reason, the challenge to the recruitment rules be rejected.
5.3 It is further submitted that so far the selection process is concerned it is undertaken by the GPSC and it being an independent consititutional body the State will not have any role in that regard, however it is submitted that, as pointed out by the Commission in its affidavit in reply, it is clear that the Commission has conducted the selection process in accordance with law and therefore no interference be made in that regard either. It is submitted that this petition be dismissed.
6. Mr. Mitul Shelat, learned advocate for the UGC has made the following submissions.
6.1 Attention of this Court is invited to the contents of the affidavit in reply filed on behalf of the UGC. Attention of this Court is specifically invited to the contents of para 41.
Page 8 of 14HC-NIC Page 8 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER 6.2 Mr.Shelat has submitted that so far the prescription of eligibility criteria in the recruitment rules in question, is concerned, there is no inconsistency with the rules / regulations of the UGC.
6.3 It is submitted that so far the selection process is concerned, though the UGC does have some say in the matter, the procedural aspects are left to the recruiting agencies. It is submitted that when it is by the Constitutional body like the State Public Service Commission, UGC would be loath in making any interference in the selection process. It is submitted that considering this stand of the UGC, appropriate order be passed by this Court.
7. Ms.Vyas, learned advocate for the private respondents has supported the submission of learned advocate for the respondents. It is submitted by her that this petition be dismissed.
8. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that the points for consideration before this Court are, firstly, whether the recruitment rules for the post in question are ultra-vires the constitution and / or is inconsistent with the regulations of the UGC and / or is illegal in any manner, as contended by the petitioners. Secondly, whether the selection process undertaken by the Gujarat Public Service Commission is illegal in any manner. Thirdly, whether the non- inclusion of the petitioners in the select list for the posts in question, needs any interference by this Court on any other Page 9 of 14 HC-NIC Page 9 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER count.
9. The relevant part of the Recruitment Rules, for the post in question reads as under:
"3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall -
(a) not be more than 30 years of age provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.
(b) possess a post graduate degree with atleast 55% of the marks or at least its equivalent grade of B in the seven point scale with letter grades O, A, B, C, D, E and F at the master degree level in relevant subject of any of the Universities established or incorporated by or under the Central or State Act in India or any other educational institutiton recognised by the Government or declared deemed to be a University under Section 3 of the University Grants Commission Act, 1956; or possess an equivalent degree from an accredited foreign University or possess an equivalent qualification recognized as such by the Government:Page 10 of 14
HC-NIC Page 10 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER Provided that the requirement of 55% marks at the post graduate degree may be relaxed to 50% in respect for the candidate belonging to Scheduled Castes and Scheduled Tribes and different disabled (physically and visually different-abled) categories. Such relaxation shall be permissible, only on consideration of the qualifying marks:
Provided further that such relaxation shall be available to have candidates, who have completed their Ph.D degree and have obtained Master's degree prior to the 19th September, 1991;
(c) have cleared the National Eligibility Test (NET) / State Level Eligibility Test (SLET) for recruitment and appointment of Assistant Professors in colleges being conducted by the University Grants Commission, Council of Scientific and Industrial Research or such similar tests like State Level Eligibility Test (SLET) / State Eligibility Test (SET) accredited by the University Grants Commission:
Provided that candidates who are or have been awarded Ph.D degree in accordance with the University Grants Commission (Minimum Standards and Procedure of Award of Ph.D Degree) Regulations, 2009 shall be exempted from the requirement of cleraing of NET / SLET for recruitment and appointment of Assistant Page 11 of 14 HC-NIC Page 11 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER Professor or equivalent position in Colleges:
Provided further that NET / SLET / SET shall not be required for in respect of such subject for which NET / SLET / SET is not conducted.
Explanation: 1 - It is hereby clarified that where the University/College/Institution declare results in grade point which is on a scale of seven, the following mechanism shall be referred to ascertain equivalent marks in percentage:-
Grade Grade Point Percentage
Equivalent
'O' - Outstanding 5.50 - 6.00 75 - 100
'A' - Very Good 4.50 - 5.49 65 - 74
'B' - Good 3.50 - 4.49 55 - 64
'C' - Average 2.50 - 3.49 45 - 54
'D' - Below Average 1.50 - 2.49 35 - 44
'E' - Poor 0.50 - 1.49 25 - 34
'F' - Fail 0 - 0.49 0 - 24
Explanation 2. - While relaxing the standard for eligibility for appointment in respect of certain categories as stated above, grade 'C' and 3 or more grade points shall be required.
(d) possess the basic knowledge of Computer Application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and
(e) possess adequate knowledge of Gujarati or Hindi, or both"Page 12 of 14
HC-NIC Page 12 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER
10. This Court has taken into consideration the regulations of the UGC which are on record, the affidavit filed by the UGC and the stand taken by the learned advocate for the UGC. Having considered this, conjointly, this Court finds that, the petitioners have not been able to show as to which part of the Recruitment Rules is inconsistent with which part of the regulations or how does it offend any constitutional gaurantee. Further the UGC has also made its stand clear that there is no inconsistency in the recruitment Rules so far the eligibility criteria is concerned. The challenge to the recruitment Rules therefore needs to be rejected.
11. So far the selection process is concerned, it needs to be noted that the petitioners have already participated in the selection process and having not found place in the select list, they have challenged the process. The challenge at the hands of such petitioners can not be, need not be entertained. Additionally, this Court finds that the Gujarat Public Service Commission has not committed any error or irregularity either in procedure or in substance, in the selection in question. The challenge to the selection process also therefore needs to be rejected.
12. It is noted that the Authorities cited by learned advocate for the Gujarat Public Service Commission would apply with full force in the present case, against the petitioners. It is also noted that in the case of Bishnu Biswas (Supra), the facts before the Supreme Court were that the Rules of the game were changed after commencement of the recruitment process, which is not the case at present. The said decision Page 13 of 14 HC-NIC Page 13 of 14 Created On Sun Aug 13 23:30:57 IST 2017 C/SCA/1157/2013 ORDER therefore would not help the petitioners. Viewing the matter from any angle, no relief can be granted to the petitioners. This petition therefore needs to be dismissed.
13. For the above reasons, this petition is dismissed. Rule is discharged. No order as to costs.
(PARESH UPADHYAY, J.) SHRIJIT PILLAI Page 14 of 14 HC-NIC Page 14 of 14 Created On Sun Aug 13 23:30:57 IST 2017