Gujarat High Court
Prashant Arvindbhai Dave vs Gujarat Public Service Commission on 20 July, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/6760/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6760 of 2017
With
CIVIL APPLICATION NO. 2 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 10932 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14479 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 7053 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8897 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 9446 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
=========================================================
=
1 Whether Reporters of Local Papers may be
allowed to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the
fair copy of the judgment ? No
4 Whether this case involves a substantial
question of law as to the interpretation No
of the Constitution of India or any order
made thereunder ?
==========================================================
PRASHANT ARVINDBHAI DAVE
Versus
GUJARAT PUBLIC SERVICE COMMISSION
==========================================================
Appearance:
MR ANSHIN DESAI, SR. ADVOCATE WITH MR VAIBHAV VYAS FOR MR
ABHAYKUMAR P SHAH(3093) for the PETITIONER(s) No.
13,24,26,27,29,34,36,42,46,47,48,49,50,51,52,59,63,64,65,
66,67,68,69,9
MR ASIT B. JOSHI, ADVOCATE for the PETITIONER (s)
MR R.R. TRIVEDI, ADVOCATE for the PETITIONER (s)
MR MAHARSHI PATEL FOR HL PATEL ASSOCIATES for the
PETITIONER (s)
MS MANISHA L. SHAH, GOVERNMENT PLEADER WITH MR ROHAN
Page 1 of 15
C/SCA/6760/2017 CAV JUDGMENT
YAGNIK, AGP (99) for the RESPONDENT(s) No. 2
MR KAMAL B. TRIVEDI, ADVOCATE GENERAL WITH MR PREMAL R
JOSHI(1327) for the RESPONDENT(s) No. 1
MR VAIBHAV A VYAS(2896) for the RESPONDENT(s) No.
10,11,12,13,136,137,138,139,14,140,141,15,16,17,18,20,21,
22,23,24,26,27,28,29,3,30,31,32,35,37,39,4,40,41,42,44,45
,46,47,49,5,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,6
5,66,69,70,8,9
MR SHALIN MEHTA, SR. ADVOCATE WITH MS VIDHI J BHATT(6155)
for the RESPONDENT(s) No.
100,101,102,103,104,105,106,107,108,109,110,111,112,113,1
14,115,116,117,118,119,120,121,122,123,124,125,126,127,12
8,129,130,131,132,133,134,19,25,33,34,36,38,43,48,50,67,6
8,7,71,72,73,74,75,76,77,78,79,80,81,82,83,84,85,86,87,88
,89,90,91,92,93,94,95,96,97,98,99
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 20/07/2018
CAV JUDGMENT
All the above petitions, six in numbers, are treated simultaneously in this common judgment, since they involve identical facts and issues, and contain similar prayers.
1.1 Heard learned senior advocate Mr.Anshin Desai with learned advocate Mr.Vaibhav Vyas, learned advocate Mr.Asit B. Joshi, learned advocate Mr.R.R. Trivedi and learned advocate Mr.Maharshi Patel for HL Patel Associates for the respective petitioners, learned senior advocate and Advocate General Mr.Kamal Trivedi assisted by learned advocate Mr.Premal Joshi for respondent No.1 - Gujarat Public Service Commission, learned Government Pleader Ms.Manisha L. Shah assisted by learned Assistant Government Pleader Mr.Rohan Yagnik for respondent No.2 as well as learned senior advocate Mr.Shalin Mehta assisted by learned advocate Ms.Vidhi Bhatt for the private Page 2 of 15 C/SCA/6760/2017 CAV JUDGMENT respondents.
2. What the petitioners have prayed is to direct respondent No.1 - Gujarat Public Service Commission (GPSC) to forward their names to the respondent No.2 - State Government for their appointment to the post of Assistant Public Prosecutor, Class II. The prayer sought pending disposal of the petitions was to stay the process of appointment of 425 candidates whose names were enlisted and recommended by GPSC.
2.1 All the petitioners were the candidates who participated in the process of recruitment to the posts undertaken by the respondent No.1 - GPSC. The petitioners were those candidates who successfully fared in the stages of the recruitment in the stage of interview, thus their names figured in the list of total 543 successful candidates.
3. The respondent - GPSC issued public advertisement on 12th February, 2014 in which total 554 posts were advertised to be filled up of Assistant Public Prosecutor, Class II. This total included 288 posts for General Category, 39 for Scheduled Caste, 78 for Scheduled Tribe and 149 posts for Socially and Economically Backward Class. The seats were earmarked for women candidates in each of the category out of the respective total seats. The posts were reserved for Physically Handicapped candidates as well as for Ex-servicemen. The written examination was held on 03rd and 04th May, 2015 and Page 3 of 15 C/SCA/6760/2017 CAV JUDGMENT the result was published on 04th June, 2015. The viva voce and personality was held between 21st April, 2016 to 23rd June, 2016. The result of the interviews was declared on 04th July, 2017 in which 543 selected candidates were enlisted as selected candidates and it was stated 11 posts in S.T. category were to be vacant for want of availability of suitable candidates.
3.1 The whole grievance in the pleading of the petitions was that though merit list of 543 candidates as above was declared by the GPSC, what was forwarded by the GPSC was the list of 422 candidates only to respondent No.2 recommending such restricted number of candidates for the appointment, and that the names of the 118 candidates were arbitrarily and illegally dropped. It was on this basic premise that jurisdiction of this Court was invoked under Article 226 of the Constitution making the above prayer.
3.2 Undisputedly, the present batch of petitions raising the grievance above grievance was filed during the pendency of and in the background of group of writ petitions in Bhavneeta Rajeshkumar Darji v. State of Gujarat being Special Civil Application No.12701 of 2016 and others, which were filed by the unsuccessful candidates in the recruitment process who, after participation in the process, were unable to secure minimum qualifying 25 marks in the viva voce. They contended in the said petitions that the said prescription of minimum 25 marks in the Page 4 of 15 C/SCA/6760/2017 CAV JUDGMENT interview was illegal and provided window for arbitrary selection.
3.3 Now, it appears that during the pendency of the Bhavneeta Darji (supra), in an earnest anxiety to carry forward the process, since no stay was granted, the GPSC listed out 425 candidates, who belong to such class of candidates as would be entitled to be recommended for appointment, for, they were to stood on merits as successful candidates irrespective of the outcome of Bhavneeta Darji (supra). In other words, these 425 candidates were those who had obtained the minimum qualifying 25 or more marks in the viva voce. The earmarking of these 425 candidates had no other significance. As such, there was no dropping of the rest of the 118 candidates as sought to be made out by the petitioners.
3.4 It was in the context of pendency of Bhavneeta Darji (supra) that the unaffected numbers of successful participants were earmarked and their names came to be forwarded to the Government. All the further steps in the process were to be acted upon by the GPSC and the State Government together in terms of and in accordance with the statutory rules governing selection process, as referred to herein. When 425 candidates were mentioned in the list as above, it did not create any right in them. Nor the reminder 118 candidates, amongst whom the petitioners claim to be belonging to, could be said to have suffered any prejudice, for the reason that they also did not have any right to be enforced until the Page 5 of 15 C/SCA/6760/2017 CAV JUDGMENT statutory rules were acted upon as discussed in the later part herein.
3.5 The submission of the respondents that the survivability of present petitions was very close to the lifeline of Bhavneeta Darji (supra), therefore, could not be brushed aside lightly. Bhavneeta Darji (supra) and the cognate petitions, which were heard at one point of time together with the present group, came to be treated separately by judgment dated 16th March, 2018 and came to be dismissed [2018 (3) GLH 350]. Be as it may.
4. The respondents contested the present petitions inter alia contending that list of 425 candidates recommended by GPSC was such candidates who were successful having obtained at least 25 qualifying marks in the viva voce. Learned senior counsels for the GPSC and the State Government submitted that looking to the long pressed need and paucity of Assistant Public Prosecutors in the courts, in order to smoothen and swift up the process, 425 names were earmarked during the pendency of Bhavneeta Darji (supra) who were the candidates entitled to lodge their claim on the basis of their merit irrespective of the dismissal or otherwise of the Bhavneeta Darji (supra).
4.1 At the same time, it was indicated in the affidavit-in-reply filed by respondent No.2 - State Government through its Legal Department that the intention of the State Government was to allot one Page 6 of 15 C/SCA/6760/2017 CAV JUDGMENT Assistant Public Prosecutor in ratio one-is-to-one, meaning thereby one Assistant Public Prosecutor to each Court of Judicial Magistrate. The aforementioned affidavit dated 29th August, 2017 further stated that at the material time the sanctioned working strength of the Civil Judges and Judicial Magistrate First Class was 429, which was augmented by creation of 375 posts of ad-hoc nature in the cadre of Civil Judge and JMFC under the Gujarat Swarnim Project which made the total number of posts to be 804 out of which 534 posts were vacant. It was stated that at one stage, by communication dated 09th April, 2013 requisition was sent to GPSC to fill up 554 posts in terms of the Rules called Assistant Public Prosecutor in the General State Service Class II Recruitment Rules, 2008.
4.2 What was further stated in the affidavit is relevant and quite bearing on the issue. It was given out that pending the process of recruitment, the Registrar General of the High Court intimated by communication dated 28th July, 2016 that the High Court has surrendered 275 ad-hoc posts out of the aforementioned 375 ad-hoc posts in the cadre of Civil Judge created under Swarnim Gujarat Scheme. It was further resolved by the High Court to convert the remaining 100 ad-hoc posts into regular posts of Civil Judge in various districts. The implication was indicated that there would be thenceforth the requirement of less number of APPs. This Court while passing order dated 29th August, 2017 observed about this aspect to further mention that once the relevant Page 7 of 15 C/SCA/6760/2017 CAV JUDGMENT figures are available, the posts can be filled up for which appropriate directions can be thereafter issued.
4.3 Therefore, the process of recruitment to the post of Assistant Public Prosecutors was to culminate with making of appointments of the persons on the requisite number of posts in accordance with the procedure laid down in the relevant Rules.
5. The Rules called Assistant Public Prosecutor in the General State Service Class II Recruitment Rules, 2008 as notified under Notification of the Legal Department dated 05th August, 2008 read wtih Assistant Public Prosecutor Gujarat General State Service Class II Recruitment (Examination) Rules, 2008 notified on 24th October, 2008 by the Legal Department are appliable to guide and govern the process and procedure of selection and making appointment. Rule 9 of the Examination Rules provides for eligibility, provides for educational qualification, Rule 10 deals with the submission of application, Rule 11 is about admission in examination. Rule 12 contemplates the nature of examination to be in two parts, the first part being written examination and the second part to be of viva voce and personality test.
5.1 Rule 14 deals with the result of examination which would bear relevance with the present controversy. Rule 14 reads as under.
"14. (1) After two stages of the Examination are Page 8 of 15 C/SCA/6760/2017 CAV JUDGMENT over, the Commission shall prepare the result arranging the marks of the candidates seriatum according to merit taking into consideration the total marks obtained by the candidates as per the qualifying standards fixed for the written examination and Viva- voce and Personality Test and shall declare a list of qualified candidates accordingly.
(2) The Commission shall publish the result of the examination in the Official Gazette in two parts.
Part-I shall show the names and seat numbers of the candidates arranged by the Commission in the order of merits on the basis of total marks obtained by the candidates as per the qualifying standard fixed for the written examination and viva-voce test and in that order the Commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in.
Part-II shall show the names and seat number of candidates arranged according to merit showing total marks obtained by each candidates and who are to be kept in the waiting list. The Commission shall preparing of waiting list above 25% in number of the posts so advertised. The waiting list shall remain in force in accordance with the instructions issued by the Government from time to time maximum upto two years or the declaration of the result of the next examination whichever is earlier.
(3) The Commission shall also display on its Notice Board in Part-III of the result in each category showing the seat numbers and marks obtained by the remaining candidates not shown in Part-I and Part-II.
(4) The Commission shall also send a copy of the result so published in the Official Gazette to the Legal Department."
5.2 According to sub-rule (1) of Rule 14, at the conclusion of the aforesaid two stages of examination, the Commission would parepare the result by arranging marks of the candidates taking into account total marks and the list of qualified candidates would be accordingly declared. As per sub- rule (2), the result would be declared in two parts, the part one being the list of names of the candidates prepared on the basis of total marks Page 9 of 15 C/SCA/6760/2017 CAV JUDGMENT obtained by such candidates as per the qualifying standards fixed in the written as well as oral examination. It is further contemplated that the GPSC shall recommend the qualifying candidates for appointment "to the extent of number of vacancies to be filled in".
5.3 The Rule further says that result in part two would be of those candidates to be kept in waiting list which would remain in force as provided for. Sub-rule (3) contemplates part three of the result who are to be the candidates not shown in part one and part two. According to Rule 16, the Commission shall recommend to the Legal Department the list of candidates along with the particulars. Sub-rule (2) of Rule 16 clearly states that mere success in the examination shall, by itself, not confer any right to appointment and no candidate shall be appointed unless the government is satisfied after making inquiry that the candidate is suitable in all respect for public service.
5.4 The conjoint reading of Rule 14(2) and 16(1) of the aforesaid Rules suggest that the recommendation by the GPSC amongst the candidates qualified in the process for the purpose of appointment would be to meet the vacancies to be filled in, which number is to be determined by the State Government. It is the number of vacancies adjudged by the State Government would form the basis for recommendation by GPSC. The number of recommended candidate matches the requirement expressed by the Page 10 of 15 C/SCA/6760/2017 CAV JUDGMENT State Government.
5.5 On 09th May, 2018, this Court passed the following order.
"... ... ... Learned Government Pleader states that State Government shall determine the exact number of APPs required and shall fix roster in consonance with the said requirement and send proposal to GPSC. Such exercise shall be undertaken by the State Government as expeditiously as possible, preferably latest by 31.05.2018. The GPSC, on receipt of such list, shall prepare revised select list and produce on record, in Special Civil Application No.6760 of 2017 latest by 12.06.2018. Ad-interim relief granted earlier shall continue till next date of hearing. S.O. to 14.06.2018."
5.6 The aforesaid order was passed after hearing all the parties and the same was evidently in order to ensure that the number of APPs as may be needed by the State Government are appointed without booking any further delay. There was a concern amongst all quarters since the need to appoint APPs in the courts of the State was long standing. In Bhavneeta Darji (supra) this Court in paragraph 12 observed thus, "the subordinate criminal courts suffer from a functional paralysis for want of availability of adequate numbers of Assistant Public Prosecutors, which become matter of greater concern becuase of scarcity of quality numbers". The aforesaid order dated 09th May, 2018 was not only in furtherance of Rule 14, it could be said to be reflective of aliveness of the Court that the State Government appoint APPs, for which the way was already paved with dismissal of Bhavneeta Darji (supra). As seen above, Rule 14(2) provide that to the extent of number of vacancies to be filled in, the GPSC shall Page 11 of 15 C/SCA/6760/2017 CAV JUDGMENT recommend the qualified candidates.
5.7 Pursuant to the aforesaid order dated 09th May, 2018, the State Government determined exact number of APPs required to be appointed. The respondent No.2 through Deputy Secretary, Legal Department, filed affidavit dated 22nd June, 2018 stating that the State Government had determined 374 posts of APPs to be filled in and the roster in consonance with the said requirement was also fixed and further that a detailed proposal to the GPSC was forwarded on 21st June, 2018 requesting GPSC to start further process. By filing affidavit dated 28th June, 2018, GPSC confirmed that proposal was received from the State Government and thereupon it had prepared a revised select list and the same was recommended to the State Government on 27th June, 2018.
5.8 Thus the stage had arrived with the aforesaid order dated 09th May, 2018 pursuant to which the GPSC and State Government co-ordinated themselves to deterimne the number of vacancies to be filled in and the GPSC in turn may recommend the qualified candidates to be 374 in numbers. The petitioners could not have claimed any enforceable right who were the candidates in the merit list of total 543 persons. It would have marked a closure of the petition. However, the ingenious advocacy by the counsels of the parties provided a phoenix-like revival to further submissions to expand the controversy. Learned senior advocate vehemently submitted that though the Court had observed in Page 12 of 15 C/SCA/6760/2017 CAV JUDGMENT Bhavneeta Darji (supra) to express concern about need to appoint APPs, the State Government was not responsive. This submission overlooked the aspect that the said order was perhaps passed with a very object to drive the State and the GPSC to speed up the process. None of the parties were aggrieved by order dated 09th May, 2018 which was indeed passed after hearing all concerned.
5.9 Referring to the rejoinder affidavit and additional affidavit filed on behalf of the petitioners, it was sought to be disputed by their learned senior advocate that information furnished by the authorities under the Right to Information Act, 2005 showed that more than 550 vancies were available for the post of APP and that the State Government had said nothing except that it determined 374 vacancies to be filled in. He further relied on decision of the Supreme Court in Miss Neelima Shangla v. State of Haryana [AIR 1987 SC 169] to submit that the GPSC ought to have sent all the names and the State Government ought to have filled up more vacancies. In Ms.Neelima (supra) the factual controversy was entirely different. It was held that the Public Service Commission cannot withheld some of the names on the ground of limited vacancies are available. In this case, there was no withholding of any name as such.
6. The number of vacancies advertised need not result into selection of equal number of candidates. The selected candidates would be those who have Page 13 of 15 C/SCA/6760/2017 CAV JUDGMENT cleared the qualifying standards set in the examination process. The total reading of the aforesaid Rules also indicate that the total numbers of selected candidates may also not to be the number of vacancies to be filled in. In other words, all those selected and recommended by the GPSC may not be the probable appointees. As per the contemplation of Rule 14(2), once the extent of number of vacancies to be filled in is determined by the State Government, the GPSC shall recommend the qualified candidates. The State Government had acted on relevant material and on rational criteria as was revealed from the facts pleaded in affidavit-in-reply dated 29th August, 2017. On the basis of the relevant data, the State Government arrived at the number of 374 being the posts of APPs to be filled in.
6.1 Besides the factual and eventual position arising and shaping as above, all the petitions suffered from a centripetal defect of fundamental nature. The petitioners were the candidates who had been successful in the interview and accordingly their names were enlisted by the GPSC as qualified candidates. They were not even in the select list for being appointed. It was a stage of making recommendation by the GPSC under the Rules. It is a well settled principle that a person in the merit list of selected candidates does not have indeficible right to be appointed. The stage in the present case was a stage even prior to this juncture. The number of candidates to be recommended by the GPSC was to meet with the extent of vacancies to be filled in.
Page 14 of 15 C/SCA/6760/2017 CAV JUDGMENTThe State Government was the authority to determine such numbers of vacancies to be filled in. At this stage, therefore, there was no enforceable right to be recommended. When there was no enforceable right, writ of mandamus would not be issued. The prayer in the petitions was incapable of being granted.
7. As a result of above discussion, the petitions which were virtually still-born, are herewith dismissed.
ORDER IN CIVIL APPLICATION In view of order passed in the petitions, present Civil Application does not survive for any further consideration and the same is hereby disposed of.
(N.V.ANJARIA, J) FURTHER ORDER At this stage, learned advocate Mr.Vaibhav Vyas for the petitioners requested that interim relief which was granted by this Court on 04 th April, 2017 may be continued for reasonable time.
For the reasons recorded while dismissing the aforesaid petitions and having regard to the undisputed position that there prevails paucity of Assistant Public Prosecutors in the courts of the State and the appointment of such officers is an urgent need, the request is rejected.
(N.V.ANJARIA, J) Anup Page 15 of 15