Gujarat High Court
R.S. Bhatt vs Gujarat Public Service Commission & 2 on 29 January, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/7580/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7580 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== R.S. BHATT....Petitioner Versus GUJARAT PUBLIC SERVICE COMMISSION & 2....Respondents ========================================================== Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner MR PREMAL R JOSHI, ADVOCATE for Respondent No. 1 MS VS PATHAK, ASSISTANT GOVERNMENT PLEADER for Respondents Nos.2 and 3 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 29/01/2016 C.A.V. JUDGMENT
1. The present petition under Article 226 of the Page 1 of 29 HC-NIC Page 1 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT Constitution of India has been preferred, inter alia, with a prayer to quash and set aside the communication dated 13.11.2007, issued by respondent No.1 - Gujarat Public Service Commission ("GPSC"), whereby, the candidature of the petitioner for recruitment on the post of Assistant Director/ Administrative Officer, ClassII, has been rejected.
2. A short, but pertinent question arises for the consideration of the Court in the present petition, in the following factual matrix.
The GPSC issued Advertisement No.180/200607 for recruitment on the post of Assistant Director/ Administrative Officer, ClassII. This advertisement was published in the newspapers on 06.12.2006. The last date for submission of applications was 05.01.2007. The first requirement for the said post, as per the Administrative Officer / Assistant Director/ Manager (Publication Stationery) Recruitment Rules, 1982 ("the Recruitment Rules" for short), insofar as direct selection is concerned, is Page 2 of 29 HC-NIC Page 2 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT that the candidate should not be more than 35 years of age. However, provision has been made in the Rules to relax the age limit under certain circumstances, with which we are not concerned in the present petition, as the petitioner was within the prescribed age limit at the time he made the application. The second requirement is that the candidate must have passed a degree examination from a recognized University or its equivalent. The petitioner meets with this requirement as well, as he possesses a degree of Bachelor of Commerce from the Gujarat University and is also a law graduate from the same University. The third qualification required for the post, which is relevant in the present case, is that the candidate must have administrative experience of about five years in a Government or semi Government institution or commercial concern. Insofar as this requirement is concerned, it is the case of the petitioner that he joined service under the State Government in the Department of Printing and Stationery, as a Page 3 of 29 HC-NIC Page 3 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT Junior Clerk, in the year 1983. He was promoted, in due course, to the post of Senior Clerk, in the year 2001 and was working on the said post when he applied for the post in question. According to the petitioner, he fulfills the requirement of experience as well, therefore, he is eligible and qualified for appointment to the post in question. However, the candidature of the petitioner came to be rejected by the GPSC on the ground that the petitioner does not possess the requisite experience as it is only the experience on the post of Superintendent or Head Clerk, which are the feeder posts for promotion, that is to be counted. According to the GPSC, the administrative experience gained by the petitioner was on the posts of Junior Clerk and Senior Clerk, which are not the feeder posts for promotion to the post of Administrative Officer/ Assistant Director/ Manager (Publication), therefore, the petitioner is ineligible and his candidature cannot be considered. Aggrieved by the rejection of his candidature by the GPSC vide the impugned Page 4 of 29 HC-NIC Page 4 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT communication dated 13.11.2007, the petitioner is before this Court.
3. Mr.Vaibhav A.Vyas, learned advocate for the petitioner, has submitted that the stand of the GPSC that the administrative experience required for the post can only be the experience gained on a feeder post for promotion, is absolutely against the Recruitment Rules. It is submitted that the Recruitment Rules do not specify on which post the experience should have been gained. Had it been the intention of the legislature to limit the experience only to the feeder posts for promotion to the post in question, it would have been explicitly mentioned in the Recruitment Rules, as has been done in the Rule pertaining to promotion to the said post. The Recruitment Rules do not limit the experience gained by a candidate to any particular post insofar as direct recruitment is concerned. The interpretation of the Recruitment Rules made by the GPSC is impermissible, as the Rules have to be read as they are and cannot be restricted in the manner that is sought to be Page 5 of 29 HC-NIC Page 5 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT done by the GPSC.
4. It is further submitted that the process of recruitment by direct selection is different from the process of selection by promotion as there are different eligibility criteria for both modes of selection. The petitioner has been working for twentythree years in the same Government Department. He, therefore, meets with the criteria of five years' administrative experience in a Government or semiGovernment institution. The Recruitment Rules provide that the experience of five years can be gained not only in a Government or semiGovernment Department, but also in a commercial concern. Such concerns may, or may not, have the same feeder posts as are required for promotion. Hence, the stand of the GPSC for rejecting the candidature of the petitioner only on the ground that he does not possess the necessary experience on the post of Superintendent or Head Clerk, is unjustified and contrary to the Recruitment Rules.
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5. Learned counsel for the petitioner has drawn the attention of the Court to the proviso to Rule 3
(c) of the Recruitment Rules and submitted that, not only is the petitioner eligible in all respects as per the said Rules, he is also required to be given preference, as he has obtained a Degree in Law, which aspect is stated in the Recruitment Rules.
6. In support of his submissions, learned counsel for the petitioner has placed reliance upon a judgment of a Division Bench of this Court dated 19/20.03.2012 rendered in Letters Patent Appeal No.2034 of 2010 in Special Civil Application No.12453 of 2009 (Gujarat Public Service Commission v. Dr.D.S.Maru & Anr.), to buttress the contention that the intention of the legislature is to be gathered from the language of the Rules.
7. Mr.Premal R.Joshi, learned counsel for the GPSC has submitted that usually, the experience required for recruitment to a higher post is expected to be that of the feeder post and not Page 7 of 29 HC-NIC Page 7 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT the experience gained on a lower post. The experience gained by the petitioner on a lower post, therefore, cannot be considered. It is further submitted that the Recruitment Rules for direct selection are silent about the post on which the candidate is required to have five years' experience. In such a case, the adequacy of experience ought to be left to the subjective satisfaction of the Competent Authority, such as the GPSC. In support of this submission, reliance has been placed upon the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal And Another
- (2007)10 SCC 260.
8. Learned counsel for the GPSC has further submitted that the experience of a Senior Clerk, which is the post held by the petitioner, cannot be equated with the experience of a Superintendent or Head Clerk. The duties attached to these posts are different, as are the payscales. Besides, the feeder cadre for the post of Head Clerk is Senior Clerk. A Senior Clerk has to work under the supervision of the Page 8 of 29 HC-NIC Page 8 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT Head Clerk, therefore, the post of Senior Clerk is subordinate to the post of Head Clerk. Thus, on no count can the experience on the post of Senior Clerk be held to be equal to that gained on the post of Head Clerk.
9. On the above grounds, it is submitted that there is no error on the part of the GPSC in passing the impugned order; hence, the petition be rejected.
10. The State Government has not filed any affidavitinreply. Ms.V.S.Pathak, learned Assistant Government Pleader, has only stated that she would support the stand of the GPSC.
11. Before deciding the issue regarding the adequacy of the experience possessed by the petitioner, it may be relevant to note that during the pendency of the petition, this Court, while issuing Rule vide order dated 15.09.2008, granted interim relief in terms of Paragraph 6(F) of the petition, subject to the final decision of the petition. The interim prayer of Paragraph 6(F) is to direct the authorities of Page 9 of 29 HC-NIC Page 9 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT the GPSC to permit the petitioner to participate in the selection process for the recruitment to the post of Assistant Director/ Administrative Officer, ClassII, subject to the outcome of the petition.
12. Pursuant to the above order, the petitioner was permitted to appear in the interview for the post in question and his result was kept in a sealed cover. As is reflected in the order dated 18.02.2013, the result of the petitioner was produced before this Court by the GPSC in a sealed cover, which was opened in the presence of learned counsel for the respective parties. It was found that the petitioner has been placed at Sr.No.1 of the Wait List.
13. It has been submitted by Mr.Vaibhav A.Vyas, learned advocate for the petitioner, that neither of the two selected candidates have joined their duties and the posts are still vacant. Nothing to the contrary has been stated, and no document produced, by learned counsel for the respondents.
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14. This Court has heard learned counsel for the respective parties at length, perused the documents on record and considered the rival submissions.
15. When the GPSC had issued an advertisement for recruitment on two posts of Assistant Director/ Administrative Officer, ClassII, being Advertisement No.180/200607, the petitioner was serving as a Senior Clerk in the Government Department of Printing and Stationery. He applied for the post in question as a direct recruit. The petitioner had joined service in the Department as a Junior Clerk, in the year 1983. He was, thereafter, promoted to the post of Senior Clerk in the year 2001.
16. The Recruitment Rules for the post in question specify two modes for filling up the post. The first mode is by promotion of the inservice employees and the second is by direct selection from amongst all eligible and qualified candidates from the open market. The relevant extract is reproduced below:
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HC-NIC Page 11 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT "2. Appointment to the post of Administrative Officer/ Assistant Director / Manager (Publication) in the Gujarat State Service ClassII in the Printing and Stationery Department shall be made either:
a) by promotion of a person of proved merit and efficiency from amongst the persons working as Superintendent/ Head Clerk in the Subordinate Service, ClassIII, in the Printing & Stationery Department and who has served as such for a period of at least five years and have also passed the prescribed department examination; or
b) by direct selection
3. To be eligible for appointment by direct selection to the posts mentioned in rule 2, a candidate must:
a) not be more than 35 years of age:
Provided that the upper age limit may be relaxed in favour of a candidate possessing exceptionally good qualification or experience or both;
Provided further that the upper age limit may also be relaxed in favour of a candidate already in service of the Government of Page 12 of 29 HC-NIC Page 12 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT Gujarat in accordance with the provisions of Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 as amended from time to time.
b) have passed a degree examination of a recognized University or its equivalent examination.
c) have administrative experience of about five years in Government or semiGovernment institutions or Commercial concern.
Provided that the qualification regarding experience may be relaxed in the case of a candidate belonging to the Scheduled Castes and Scheduled Tribes, at any stage of Selection, if the Gujarat Public Service Commission is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancies reserved for them:
Provided further that the preference shall be given to a candidate who possess, in addition:
i) a degree in law; and
ii) have knowledge of labour laws, factory act, printing processes, etc."Page 13 of 29
HC-NIC Page 13 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT (emphasis supplied) As can be seen from a perusal of the above Rules, the post of Administrative Officer / Assistant Director / Manager (Publication), ClassII, is to be filled in by promotion from amongst inservice candidates who belong to the feeder cadre, that is, Superintendents and Head Clerks serving in the Printing and Stationery Department, and by direct recruitment. The eligibility criteria for both the modes for filling up the posts are meticulously laid down in the Recruitment Rules. Though the petitioner was serving in the same Department, he did not fall in the zone of consideration for promotion. However, considering himself eligible and qualified as per the Recruitment Rules, the petitioner applied as a direct recruit.
17. Promotion is a different method of filling up a post than direct recruitment. In promotion, the eligible candidates are limited only to those serving on the specified feeder cadres as per Rules. The scope is, therefore, quite limited. The process of direct recruitment, however, Page 14 of 29 HC-NIC Page 14 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT opens up a wider area for consideration where all eligible and qualified persons, whether in service candidates or fresh hands, can apply for recruitment to the post in question.
18. Rule 2 of the Recruitment Rules provides for the promotion of an employee from the feeder cadres of Superintendent or Head Clerk to the post of Administrative Officer/ Assistant Director / Manager (Publication). A perusal of the Rule would indicate that apart from merit and efficiency, the eligible employees from the feeder cadre ought to have served the Department on the feeder post for a period of at least five years and to have passed the prescribed Departmental Examination. If Rule 3 of the Recruitment Rules, which pertains to direct selection, is compared with Rule 2, it can be observed that the eligibility criteria enshrined therein are quite different. There is no dispute regarding the fact that the petitioner qualifies the criteria of age and educational qualifications. The only hurdle faced by him is regarding the requisite administrative Page 15 of 29 HC-NIC Page 15 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT experience of five years in a Government, semi Government institution or commercial concern. According to the petitioner, he possesses the necessary administrative experience in a Government Department, as he has been serving in the same Department for the past twentythree years, first on the post of Junior Clerk and later as a Senior Clerk.
19. The candidature of the petitioner has been rejected by the GPSC solely on the construction it is putting on Rule 3(c), by interpreting it in a manner that, according to them, means that the administrative experience of five years is required to be gained on the feeder post of Superintendent or Head Clerk, only. The stand of the GPSC is that, as the petitioner has served as a Junior Clerk and Senior Clerk, the experience gained by him on the said posts, cannot be considered, as those posts do not form the feeder cadres for the post in question.
20. Upon a careful perusal of the Recruitment Rules, it becomes clear that the stand of the GPSC that Page 16 of 29 HC-NIC Page 16 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT the experience stated in Rule 3(c) pertains only to that gained on the feeder posts, is intrinsically flawed. If the stand taken by the GPSC is accepted, it would have a disastrous effect. No person who is eligible or qualified for the post by direct selection can ever be selected by this method, if he is working in the same Department of the State Government. The result would be that only persons who are qualified for promotion would be qualified for direct recruitment. This would tilt the balance of the Rules in favour of promotees and rob the potential direct recruits of an opportunity to compete for the post. The method of direct recruitment cannot be limited or restricted in such a manner by a distorted interpretation of the Recruitment Rules. Besides, the chances of persons working in Government, semiGovernment or Commercial concerns, other than the Printing and Stationery Department, would be restricted if such an interpretation is permitted, even though they may be otherwise eligible as per the Recruitment Rules.
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21. The Recruitment Rules are clear and unambiguous and need no further interpretation. They are to be read and understood as they are. Rule 3(c) of the Recruitment Rules clearly states that the administrative experience of five years should be in a Government or semiGovernment Institution or a Commercial concern. It does not state that the experience ought to have been gained on any particular post. It is only the institution where the experience is gained that is to be seen and not the post on which it is gained. The petitioner has gained experience of twentythree years in the same Department, which is very much a Government Department. He, therefore, clearly meets with the requirement of Rule 3(c). The interpretation of Rule 3(c) being made by the GPSC is unreasonable and uncalled for, apart from being unfair. It amounts to restricting the scope of the said Rule in a manner that would operate unjustly for a large section of eligible, inservice candidates and candidates from the open market who, obviously, would not have worked on the feeder posts before Page 18 of 29 HC-NIC Page 18 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT applying for the post in question. The GPSC cannot be permitted to mix up the Rules pertaining to promotion and direct recruitment in a manner that amounts to rewriting the Rules.
22. It is clearly mentioned in Rule 2, which deals with promotion, that the candidate ought to have experience of at least five years as a Superintendent or Head Clerk, which are the feeder cadres, and should have passed the prescribed Departmental Examination. Had it been the intention of the legislature to restrict the requirement of experience for direct recruits to only that of the feeder cadre, nothing would have prevented it from stating so in Rule 3(c). The very fact that such an embargo has not been introduced in Rule 3(c) clearly shows that it is not intended. The GPSC cannot add into Rule 3(c) something that is neither stated nor intended by the legislature.
23. That the petitioner was working as a Junior Clerk and Senior Clerk, which posts are subordinate to the posts of Superintendent and Page 19 of 29 HC-NIC Page 19 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT Head Clerk, is immaterial and irrelevant insofar as direct selection is concerned. The submission on the part of the GPSC that the posts of Junior Clerk and Senior Clerk carry different duties and payscales to those of Superintendent and Head Clerk is also irrelevant. The Recruitment Rules do not envisage any comparison with the work, duties or payscales of the employees manning those posts.
24. The crux of the matter is the eligibility of the petitioner for appointment to the post in question through direct recruitment. In the view of this Court, the petitioner possesses the necessary experience as per Rule 3(c) and is, therefore, eligible.
25. Learned counsel for the GPSC has submitted that the decision regarding the adequacy of the experience of the petitioner ought to be left to the subjective satisfaction of the Competent Authority, in this case, the GPSC. In support of this submission, reliance has been placed upon a Page 20 of 29 HC-NIC Page 20 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal And Another (supra). That was a case that turned on its own facts and the particular recruitment rules applicable for the post of Head Master. According to the Rules, teaching experience of five years was essential. The feeder post to the post of Head Master was Teacher Grade II. For Grade II, the feeder post was Grade III. In view of this hierarchy, the Supreme Court held that the Public Service Commission rightly decided that the teaching experience as a Teacher Grade III did not satisfy the eligibility conditions for appointment as Headmaster, under the relevant rules.
26. In the present case, the Recruitment Rules for direct recruitment do not prescribe experience on any particular post but state that five years' experience should have been gained in a Government or semiGovernment institution or a commercial concern. Rule 3(c) is much wider in ambit and would take into its sweep even those Page 21 of 29 HC-NIC Page 21 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT persons who are not working strictly in a Government or semiGovernment institution, but also in a commercial concern. The judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal And Another (supra), does not, in any manner, come to the aid of the GPSC in the present factsituation.
27. The GPSC may be an expert body for the selection of candidates but it cannot be permitted to tamper with the Recruitment Rules by making an interpretation where none is called for, in view of the clear language of the Rules. There are no lacunae in the Rules that are required to be filled up by resorting to such a disastrous interpretation.
28. In Manoj Krishna Nayak and others v. State of Orissa and others - AIR 1984 SC 1002, the Supreme Court was dealing with the Orissa Education Service Class II (Recruitment to the School Branch) Rules, 1971, and examining the conditions of eligibility for appointment in ClassII posts. It was held by the Supreme Court Page 22 of 29 HC-NIC Page 22 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT that nonprescription of experience for direct recruits was not a ground that could vitiate the Rules. The Supreme Court, therefore, upheld the Rules and the language in which they were couched. The relevant extract of the judgment is reproduced hereinbelow:
The scheme under the Rules of filling up vacancies in Class II service by direct recruitment as also promotion is not an innovation. There are several services constituted under law where such schemes are operating and while in respect of promotees experience is a requisite qualification, for direct recruits no experience is insisted upon as a prerequisite. Hence non prescription of experience for the direct recruits is not a ground which would vitiate the Rules.
(Para 9) In the above judgment, the Supreme Court upheld the Rules as they were even though they did not prescribe for experience in direct recruitments.
In the present case, five years' experience has been prescribed in a Government or semi Government institution or a commercial concern.Page 23 of 29
HC-NIC Page 23 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT The Rules have, therefore, to be read as they are and they cannot be restricted or rendered nugatory in the manner sought to be done by the GPSC.
29. In The Director General, Telecommunication and another v. T.N.Peethambaram - AIR 1987 SC 162, the Supreme Court was interpreting the Telegraph Engineering Service (Group B) Recruitment Rules, 1981, and held that:
"Rule" does not employ the expression `aggregate', and it is impossible to inject the said word in the rule in the disguise of interpretation, as it would lead to absurd results. Since the rule does not specify a different passing standard for `each' subject, the prescribed minimum passing standard must be the yardstick to apply to each of the subjects or items. Minimum must mean minimum in each, as much as to minimum in aggregate.
(Para 2) Similarly, in the present case as well, Rule 3(c) does not employ the expression "experience on the post of Superintendent or Head Clerk", therefore, these words cannot be injected into the Rule in the guise of interpretation, as is Page 24 of 29 HC-NIC Page 24 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT being done by the GPSC. Such a potentially mischievous interpretation would cause great injustice to candidates such as the petitioner, who are desirous of applying for the post in question through the mode of direct recruitment, not only in the present case, but in future cases as well. The injustice resulting from such an interpretation would be a recurring one. Such a situation cannot be permitted to arise.
30. Learned counsel for the petitioner has placed reliance upon a judgment in Gujarat Public Service Commission v. Dr.D.S.Maru & Anr. (supra), wherein a Division Bench of this Court has held as below:
"10. On perusal of the said Rules it is specifically noticed that in subrule (b) of Rule 3 of the said Rules, the phrase, "or equivalent degree or diploma" is not incorporated by the legislation. Meaning thereby, the Legislature never intended to confer a right on the persons holding a degree equivalent to the degrees mentioned in the said subrule. In other words, person holding any degree other than the ones which are mentioned in subrule (b) of Rule 3 of Page 25 of 29 HC-NIC Page 25 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT the said Rules are not considered eligible being not at par with the persons holding the degree mentioned in the subrule.
It is trite law that courts cannot legislate. Courts have to interpret the law as it stands. The legislature in its wisdom has thought fit not to incorporate the phrase, "or an equivalent degree or diploma"
in subrule (b) of Rule 3. That being so, the court cannot insert that phrase in sub rule (b) of Rule 3 of the said Rules.
If at any time, the Legislature feels like amending the rule, it can always do so. If it is felt that the rules as they stand do not cope up with the required social change, the same can be amended after following the procedure prescribed for the same." As held by the Division Bench in the above judgment, since the administrative experience of five years on the post of "Superintendent/ Head Clerk" is not incorporated in Rule 3(c), it can be gathered that the legislature did not intend to restrict the experience required for the said posts in the case of direct recruits. The Rules are to be interpreted as they are. They cannot be read in a manner that contemplates the addition of something that is not indicated or Page 26 of 29 HC-NIC Page 26 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT intended, the effect of which would severely limit the Rules and go against the intention of the legislature in enacting them.
31. As a result of the above discussion, this Court arrives at the inescapable conclusion that not only does the petitioner possess the requisite qualifications for the post of Assistant Director/ Administrative Officer, ClassII as per Rule 3(c) of the Recruitment Rules, he is also required to be accorded preference, as he possesses a Law degree, which is one of the preferences prescribed in the second proviso to Rule 3(c).
32. Consequently, the GPSC ought to have considered the candidature of the petitioner for the post in question. The petitioner has been successful in the interview that was held during the pendency of the petition, and his name is placed at Sr.No.1 on the Wait List. There can be no further impediment to consider the candidature of the petitioner by the GPSC, as it is reported that both the posts are still lying vacant, as Page 27 of 29 HC-NIC Page 27 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT the selected candidates have not joined. Nothing to the contrary has been brought on record by learned counsel for the GPSC or the learned Assistant Government Pleader.
33. Though the State Government has not filed any affidavitinreply, the stand taken by the Assistant Government Pleader, to the effect that she supports the stand of the GPSC, is peculiar, to say the least. The Rules framed by the State Government are under consideration and if the State Government endorses a faulty and restrictive interpretation of the Rules, it would cause havoc. The submission of the learned Assistant Government Pleader, supporting the stand of the GPSC cannot, therefore, be countenanced.
34. As a result of the above discussion and for the aforestated reasons, the impugned communication dated 13.11.2007 is hereby quashed and set aside. The GPSC is directed to consider the candidature of the petitioner for the post of Assistant Director/ Administrative Officer, ClassII, in the Gujarat State Services, Class Page 28 of 29 HC-NIC Page 28 of 29 Created On Sat Jan 30 01:45:44 IST 2016 C/SCA/7580/2008 CAV JUDGMENT II, in the Printing and Stationery Department, by taking all consequential action within a period of two weeks from the date of the receipt of a copy of this judgment.
35. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) Mr.Premal R.Joshi, learned advocate for the GPSC, has made a request to stay the operation of the present judgment. For reasons stated in the judgment, the request is declined.
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