Gujarat High Court
Arti Shankarlal Raval vs State Of Gujarat Thro Addl.Chief ... on 10 April, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/5007/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION NO. 1 of 2017
(MISC. CIVIL APPLICATION (Old) NO. 3123 of 2017)
In
SPECIAL CIVIL APPLICATION NO. 5007 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
==========================================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
==========================================================
STATE OF GUJARAT APPLICANT
Versus
ARTI SHANKARLAL RAVAL &
GUJARAT PUBLIC SERVICE COMMISSION
AND OTHERS RESPONDENTS
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Page 1 of 35
C/SCA/5007/2012 JUDGMENT
Appearance:
MR RASHESH RINDANI, ASSISTANT GOVERNMENT PLEADER
for the Applicant - STATE OF GUJARAT
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL OF INDIA
(for the UNION OF INDIA)
MR D G SHUKLA, ADVOCATE for the RESPONDENT - GPSC
MR TULSHI R SAVANI, ADVOCATE for the RESPONDENT No. 1
MR.SANAT B PANDYA, ADVOCATE &
MS VIDHI J BHATT, ADVOCATE for the other RESPONDENTS
==========================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 10/04/2018
ORAL JUDGMENT
1. This is an application by the State of Gujarat, requesting for extension of time, to comply with the directions of this Court, as contained in the common judgment and order dated 21.04.2017 recorded on Special Civil Application No.5007 of 2012 and cognate matters.
2. The directions of this Court were to be complied with, within a period of three months from the date of receipt of the said judgment dated 21.04.2017. The said period has expired in July, 2017. It is indicated in the application that, the decision was taken by the Government on 03.10.2017, not to challenge the said judgment. The extension prayed for is upto 31.03.2018.
3. Mr.Rashesh Rindani, learned Assistant Government Pleader for the applicant State has taken this Court through Page 2 of 35 C/SCA/5007/2012 JUDGMENT the averments made in the application and has submitted that, for the reasons stated in the application, the extension as prayed for be granted.
4. The point at issue before this Court is, whether the prayer of the Government for extension of time to comply with the directions of this Court, as contained in the judgment and order dated 21.04.2017 recorded on Special Civil Application No.5007 of 2012 and cognate matters, should be granted or not.
5. Having heard learned Assistant Government Pleader for the applicant State, on different dates starting from 23.11.2017 to 27.03.2018, and (ii) having considered the say of the Officers of the Government, who had also remained present before this Court on those dates, along with relevant files, and (iii) having considered the material on record of the Government (on different files), to the extent shown to this Court, which this Court had permitted, and (iv) having considered the material on record of this application, this Court finds as under.
5.1 From the averments made in the application, it is clear that, till October, 2017 no decision was taken by the Government, whether the judgment should be challenged or directions should be complied with. Thus, though the time limit prescribed by this Court had already expired in July, 2017, till October, 2017, not only no decision was taken, the State itself had granted Stay of the judgment of this Court, in its own favour.
Page 3 of 35C/SCA/5007/2012 JUDGMENT 5.2 This application was filed on 15.11.2017 and was
first listed for hearing on 23.11.2017. The judgment of this Court dated 21.04.2017 records in detail, apart from various other aspects, as to how injustice was done to the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women category. It was therefore felt necessary to first ascertain, whether the application of the State, requesting for extension of time to comply with the directions of this Court, was bonafide, or was one more attempt to prejudice the rights of such downtrodden citizens, which the State had already done earlier. Considering the totality, it appeared to this Court, at the relevant time (November, 2017) that the said application was less for bonafide purpose, and was more to shift the focus from other serious issues. However, before arriving at any such conclusion, full opportunity should be given to the State to put its case, and if there was any doubt in that regard, the benefit thereof should be passed on, in favour of the State. This application was therefore not disposed of, at that time (November, 2017) and was kept pending and was heard from time to time on different dates, to ascertain if there is any material progress in the right direction by the State. Now the period of extension as prayed for by the State (upto 31.03.2018) has also been over. Not only, no direction is complied with so far, there is no material on record to indicate that the said process has even started by this time. The lack of bonafide on the part of the State, which prima facie appeared to this Court at the relevant time (in November, 2017), has now turned out to be true.
5.3.1 The pleadings in the application, inter alia, is as
Page 4 of 35
C/SCA/5007/2012 JUDGMENT
under.
"5. It is noteworthy to mention here that due to State General Election 2017, Election Commission of India (needs to be consulted) before making any appointments. This will add to the layer in approval process."
5.3.2 The said election is over in December, 2017 but even now, even one appointment is not made.
5.4.1 Para:6 of the application reads as under.
"6. It is hereby submitted that the process to allot 5 candidates for 5 posts of Deputy Superintendent of Police is underway."
5.4.2 The said process, which was indicated to be underway at the relevant time (15.11.2017), has not yielded any result, even after the entire period of extension is over. No appointment has been made so far (at least till 31.03.2018) by the Government.
5.5 There are number of other glaring aspects, which are noted hereinafter.
6. To understand the modus operandi of the State, how it has still continued its efforts to frustrate the rights of the citizens belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women, the following aspects need to be considered simultaneously.
Page 5 of 35C/SCA/5007/2012 JUDGMENT 7.1 The directions contained in the judgment of this
Court dated 21.04.2017 can be divided into three groups.
(i) The injustice done to the number of candidates, more particularly to the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women category was redressed by this Court, by giving appropriate directions in para:41 of the judgment dated 21.04.2017.
(ii) In para:43.1 & 44 of the said judgment, this Court had, on the basis of the material before it, ordered an inquiry, to look into certain illegalities, which on the basis of the record of the Government itself, in no uncertain terms pointed finger, principally towards the Advocate General of the State, that it is at his instance, there was serious compromise in the consultation with the constitutional authority like State Public Service Commission, there was also successful attempt to overreach the proceedings before this Court (on 06.05.2011), the directions of Hon'ble the then Chief Minister (now Hon'ble the Prime Minister) were also flouted, the decision which could be taken only by Hon'ble the then Chief Minister, was implemented by the State machinery at the instance of the Advocate General, without any authorisation by the Chief Minister in that regard, which ultimately resulted in injustice to the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women.
(iii) In para:40 of the judgment, this Court had set aside appointment of one candidate, from the post of Deputy Page 6 of 35 C/SCA/5007/2012 JUDGMENT Superintendent of Police, principally on the ground of not meeting with physical standards under the Rules.
7.2 Of the above three, so far the (iii) is concerned, it is indicated to have been interfered with, in the appeal filed by the concerned officer and to that extent the judgment dated 21.04.2017 stands modified. For the remaining two i.e. the above referred first two aspects i.e. the directions contained in para:41 of the judgment as per (i) above, and the directions contained in para:43.1 and 44 of the judgment, as per (ii) above - both hold the field and there is decision of the State, not to challenge it, and thus, it has attained finality, at least from the State. The State is thus under legal obligation to carry out the directions of this Court as contained in para:41, 43.1 and 44 of the judgment dated 21.04.2017.
7.3 The directions contained in para:41 of the judgment, qua which the extension is prayed for by the State, read as under.
"41. So far other petitions are concerned, the following directions are issued.
41.1 Though the impugned merit list dated 26.04.2011 prepared and published by the Gujarat Public Service Commission is unsustainable on facts and in law, instead of setting aside the said merit list, (for the reasons noted in the body of the judgment, more particularly in para : 35.1 and 35.3), and consequently setting aside all the appointments of about three hundred candidates Page 7 of 35 C/SCA/5007/2012 JUDGMENT and their further promotions in the respective hierarchy, it is directed that, the posts, which have remained unfilled because of non-joining of the candidates appointed by the Government vide appointment orders, claimed to have been issued on 06.05.2011, based on the impugned select list dated 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question (Advertisement No.87/2006-07). It is further directed that, while giving such appointments, the ceiling of the notified vacancies (total 317 vacancies) shall also be kept in view by the Authorities.
41.2 While giving such appointments, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Supreme Court of India shall also be kept in view.
41.3 The appointments of these candidates shall be treated to be notional from 06.05.2011 and they shall be entitled to all consequential benefits, except arrears of pay. (vide the decision of the Supreme Court of India in the case of State of Jammu and Kashmir Vs. Sat Pal reported in (2013) 11 SCC 737). For this purpose, the State Authorities may even take guidance from the procedure which it had undertaken while giving effect to the directions of this Court, in the case of D.G.Dalal (supra), which culminated into office orders passed by the General Administration Page 8 of 35 C/SCA/5007/2012 JUDGMENT Department of the Government of Gujarat on 04.08.2008 and consequential orders, the copies of which are made available to this Court by the State.
41.4 The above exercise shall be completed within a period of three months from the date of receipt of this order."
7.4 The prayer clause of this application, reads as under.
"7(B) Your Lordships may be pleased to grant extension of time to comply with the directions issued vide paragraph 41 of CAV Judgment of this Hon. Court dated 21.04.2017 up to 31.03.2018."
7.5 Thus, the extension is prayed by the State, qua the directions in Para:41 only. Para:43.1 & 44 of the judgment is not referred at all, in prayer clause.
7.6 In the judgment dated 21.04.2017, after recording certain observations and findings, further directions were also given by this Court in para:44, the relevant part of which reads as under.
"44. .....In this factual background and with these observations, the further inquiry in the matter is left to the Government. In the event, the State is of the opinion that no such inquiry is needed, an order to that effect shall be passed and a copy of the said Page 9 of 35 C/SCA/5007/2012 JUDGMENT order shall be sent to the petitioners herein, within a period of three months from the date of receipt of this order. It would be open to the aggrieved party to challenge the said decision, if so advised."
7.7 The above was directed to be done by this Court, in view of para:43.1 of the judgment dated 21.04.2017, which reads as under.
"43.1 The respondent State is directed to look into the illegalities / irregularities, some of which are noted in this judgment. These instances are only illustrative and not exhaustive. The specific areas where from the inquiry can, and need to start, are as under..... "
7.8 The above inquiry is not done by the State so far. Even extension is also not asked for in that regard. To understand, what that inquiry is, which the Government has neither done, nor is willing to do, following aspects need to be considered, simultaneously, which are noted hereinafter.
8. It is a matter of record that, in the proceedings in hand, all sorts of illegalities are committed at all stages, most of which, as per the record of the Government, are attributable to none else than the Advocate General of the State. These illegalities / improprieties / mischiefs can be divided into three different groups. First is, what was done prior to the preparation and publication of the revised select list by the Gujarat Public Service Commission dated 26.04.2011, which was the subject matter in the group of petitions before this Page 10 of 35 C/SCA/5007/2012 JUDGMENT Court, on which the judgment dated 21.04.2017 was recorded by this Court. The second part is, the mischiefs played by the State machinery with the candidates, after publication of the said revised select list by the Gujarat Public Service Commission dated 26.04.2011 and also with this Court (on 06.05.2011), which is noted in detail, in the judgment dated 21.04.2017. And the third is, the mischiefs played after the pronouncement of the judgment of this Court dated 21.04.2017.
9. So far the above referred illegalities and mischiefs are concerned, the same need not be reiterated in this judgment, since detailed discussion and appropriate findings are already recorded by this Court in the judgment dated 21.04.2017. They are broadly to the effect that, the rights of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women were seriously prejudiced by publishing the revised select list dated 26.04.2011. Not only the same was illegal, it was done without the authorisation of Hon'ble the then Chief Minister (now Hon'ble the Prime Minister), who alone was the Competent Authority to take any decision in that regard. As per the record of the Government, it was done pursuant to the discussion in the chamber of the Advocate General of the State and as per his instructions jointly given to the Officers of the Government and the Gujarat Public Service Commission. It was also noted in detail in the said judgment, how serious mischief was played with this Court also, that too, against the orders of Hon'ble the then Chief Minister. The details in this regard are noted in detail in the judgment dated 21.04.2017, more particularly, para:43.1 to 43.6 of the said judgment. Relevant thereof, reads Page 11 of 35 C/SCA/5007/2012 JUDGMENT as under.
"43.1 The respondent State is directed to look into the illegalities / irregularities, some of which are noted in this judgment. These instances are only illustrative and not exhaustive. The specific areas where from the inquiry can, and need to start, are as under.
43.2 The Gujarat Public Service Commission prepared the merit list on 13.05.2010 of 316 candidates, who were found meritorious for appointment on different posts of Class-I and Class- II in the Government of Gujarat, pursuant to the Advertisement No.87/2006-07. The said merit list was duly notified on 28.07.2010 and consequently, recommendations were made by the GPSC to the Government under Article 320 of the Constitution of India, to give appointments to those candidates. It was open to the Government either to accept that advice or not to accept it, for valid reasons. The letter dated 20.01.2011 is written by the Joint Secretary of the General Administration Department of the Government of Gujarat, requesting the Gujarat Public Service Commission to recast the merit list. Along with the said letter, the original record of all the 316 candidates, which was sent to the Government by the GPSC along with its recommendation dated 29.07.2010, was also returned to the GPSC. Before the above letter was issued, the following note is recorded on the Page 12 of 35 C/SCA/5007/2012 JUDGMENT file of the General Administration Department. File No.SCS/ 122010/ 719418/R. "GAD : JS(S)
1. The above note refers.
2. This being an important matter having a direct bearing on the result already declared by the GPSC, it was discussed at length twice with the Commission. During the discussions, the Commission was apprised of the actual position regarding Women Reservation, scope of the Hon'ble High Court's Judgment in Komal Katara case, Hon'ble Supreme Court's Judgments in Rajesh Kumar Daria and Mamta Bisht cases.
The Commission was apprised of the fact that the advertisement given for the Combined Competitive Examination for recruitment to Class-I and Class-II categories of the Government service mentioned total 101 vacancies for women. As against this, the Commission has recommended 127 women candidates, some of whom have been recommended even by relaxing the minimum standard for selection.Page 13 of 35
C/SCA/5007/2012 JUDGMENT The GPSC appears to have followed the Hon'ble High Court's Judgment in Komal Katara case in the present case, although the facts of Komal Katara case were totally different from the facts of the present examination.
3. The Commission was also apprised of the Hon'ble Supreme Court's Judgment in Ramesh Ram v/s Union of India & Others case. This Judgment relates to the reserved category candidates recommended against unreserved category posts.
4. After detailed discussions, the Commission expressed the view that this whole issue needed to be discussed with the Advocate General who had already given an opinion on the point of implementation of High Court's Judgment in Komal Katara.
Time was taken from the Advocate General and a meeting was held with him, which was attended by the officers of the GPSC and GAD. After detailed discussion, the Learned Advocate General endorsed the views expressed by GAD and said that the Page 14 of 35 C/SCA/5007/2012 JUDGMENT ratio laid down by the Hon'ble Supreme Court about Women Reservation will apply in all the cases. (He also clarified that the facts of the Komal Katara case being unique and typical, the cases exactly identical to Komal Katara case will only be covered by the Hon'ble High Court's Judgment in Komal Katara case.) The Learned Advocate General also gave a clear opinion that the Apex Court's Judgment of 2010 in the case of Union of India v/s Ramesh Ram would apply in the present case also.
5. At the end of discussion, it became clear that the result already announced by the GPSC will have to be revised on the above mentioned two points. The GPSC also agreed to this suggestion and it was decided to revise the result along with a detailed self-speaking preface which would specifically refer to the relevant Judgments of the Supreme Court / High Court and clarify as to why it has become necessary to revise the result.Page 15 of 35
C/SCA/5007/2012 JUDGMENT
6. As decided in the meeting with
the Advocate General, a formal
letter may be sent to the GPSC so
that they can initiate the process
of revising the result. The draft
letter is kept at P.185/Cs for
approval.
Sd/-
(Harsh Brahmbhatt)
JS(S), GAD
19.1.2011
ACS(P)
C.S."
43.3 The above note and consequential letter dated 20.01.2011 led to cancellation of the earlier merit list dated 13.05.2010 ab-initio and publication of fresh merit list dated 26.04.2011. The said action on the part of the General Administration Department of the Government, may be on legal advice, was an action of the State of returning the advice of the State Public Service Commission, back to it, for its reconsideration. The Competent Authority, to take this decision in the Government, is the Chief Minister (vide Government Resolution dated 23.12.2005). The record makes it clear that the advice of the GPSC was returned to it, for its reconsideration, without any such authorisation by the Chief Minister. Thus the Page 16 of 35 C/SCA/5007/2012 JUDGMENT very basis of the reconsideration of the select list dated 13.05.2010 was an unauthorised request, claimed to have been made on behalf of the Government, which, as a matter of fact, was not the say of the Government. The consultation by and with the State Public Service Commission, as contemplated under Article 320 of the Constitution of India, has its own sanctity, which is seriously compromised while recasting the merit list for the recruitment in question.
43.4 The second area where the inquiry is needed is the conscious attempt on the part of the erring Officer of the General Administration Department to sabotage the orders of the Chief Minister dated 04.05.2011. The allocation of the posts to the selected candidates was put to the notice of the Chief Minister by the General Administration Department, on which, a question had cropped up about allocating different posts to the candidates who had given limited preferences. There was a specific order of the Chief Minster dated 04.05.2011 noted on File No. SCS-10/2011- 309040-R at page 5/N (the allotment file). It had two facets. First, let there not be any conflict with the judicial proceedings, and for that purpose, if need be even legal opinion be taken. The second was, let there be Page 17 of 35 C/SCA/5007/2012 JUDGMENT consultation with the GPSC in that regard.
43.5 The above orders of the Chief Minister dated 04.05.2011 are 'dealt with', (not carried out) by the General Administration Department with the following note dated 07.05.2011 at Page No.7/N on the same file.
"GAD : JS(S)
1. The matter pertains to giving appointments to the selected candidates on the basis of the result of the Gujarat Civil Services Class-I and II Combined Competitive Examination conducted by the GPSC.
2. With the reference of the Hon. CM's orders at page-5/ante it may be stated that -
(a) Since there was acute shortage of
time, Chairman, GPSC was apprised of
the logic for offering particular posts to the 19 candidates who have given limited preferences and who did not get any of the posts for which they have given such limited preferences. The Chairman, GPSC agreed to the logic proposed by the GAD for giving appointments to such candidates.Page 18 of 35
C/SCA/5007/2012 JUDGMENT
(b) While a writ petition had
already been filed in the Hon'ble
Gujarat High Court challenging the
revised result declared by the GPSC,
4 new writ petitions were filed
before the High Court which came up
for hearing on 6.5.2011. Since there
was every likelihood of the High
Court giving an interim stay or
passing orders for observance of
status quo, the Learned Advocate
General was consulted personally
(the AGP concerned Shri Maulik
Nanavati was also consulted along
with the AG). Both of them were of
the view that the orders should be
issued today itself, otherwise there was a possibility of High Court giving an interim stay or passing orders for maintenance of status quo. Therefore, the allotment Page 19 of 35 C/SCA/5007/2012 JUDGMENT letters were issued yesterday itself and the concerned administrative departments of the Sachivalaya, were requested to issue the appointment orders in respect of the candidates alloted to them. Accordingly, all the Departments issued appointment order yesterday itself i.e. on 6.5.2011.
3. Since the appointment orders were issued, the High Court did not grant any interim relief nor did it pass any order for maintenance of status quo. Now, all these matters are slated for hearing on 10th/12th instant.
4. The above position is submitted for information.
Sd/-
(Harsh Brahmbhatt) J.S.(S), GAD 7.05.2011 ACS (P) CS"
43.6 The above would show many fold manipulations. Firstly, the hush up on Page 20 of 35 C/SCA/5007/2012 JUDGMENT 06.05.2011 as noted in the order of this Court dated 06.05.2011, (quoted in para : 3 above), has relevance here. Inspite of the orders of the Chief Minister to respect the judicial proceedings appropriately, the attempt on the part of the officer(s) was to overreach the proceedings before this Court, for obvious reasons as noted in the findings qua issues No.2, 3 and 4. Secondly, whether telephonic / oral discussion by some officer of the Government with the Chairman of the GPSC can be said to be 'consultation by the Government with the State Public Service Commission' as envisaged under Article 320 of the Constitution of India' and further, whether the said act can be said to be due compliance of the orders of the Chief Minister. It is noted that there is no letter on the file in that regard, nor the said file is ever submitted to the Chief Minister thereafter."
10. At this stage, reference also needs to be made to Para:3 of the judgment dated 21.04.2017, which reads as under.
"3. At the outset, it needs to be noted that, this Court has, on this group of petitions, passed interim orders at different stages, which need to be taken into consideration at this stage. One of such orders needs to be noted at this stage. This Court (Coram:Page 21 of 35
C/SCA/5007/2012 JUDGMENT Hon'ble Smt. Justice Abhilasha Kumari) had, on 06.05.2011 recorded the following order on the lead matter being Special Civil Application No.6057 of 2011.
" The learned counsel for the
petitioners submits that he may be
permitted to file one page petitions
for petitioners Nos.2 to 10. Permission to do so, is granted. The said petitions be listed along with the main matter on the next date of hearing. The learned counsel for respondent No.2 may provide the addresses of respondents Nos.3 to 30 to the learned counsel for the petitioners, today.
Heard Mr.K.B.Pujara, learned counsel for the petitioners and Mr.D.G.Shukla, learned counsel for respondent No.2 - Caveator.
At the behest of Mr.Maulik G. Nanavati, learned Assistant Government Pleader, the matter was kept in the second session, in order to enable him to take instructions. When the matter is taken up in the second session, Mr.Maulik G. Nanavati, learned Assistant Government Pleader states, upon instructions from Mr.Harsh Brahmbhatt, Joint Secretary, General Administration Department, that Page 22 of 35 C/SCA/5007/2012 JUDGMENT the allotment letter has been issued by the General Administration Department and pursuant thereto, appointment letters have been issued by the concerned Departments.
Notice returnable on 12.5.2011.
It is clarified that any action taken by the respondents shall be subject to the final decision of the petition.
In addition to the normal mode of service, Direct Service today, is also permitted."
11. The stand of the State as projected before this Court on 06.05.2011, and which was also reflected in the above quoted order of this Court dated 06.05.2011, was put on record of the Government by the note dated 07.05.2011, which is quoted in the judgment of this Court dated 21.04.2017, more particularly in para:43.5 thereof. The relevant part of the said note, though quoted above, needs to be read again, which reads as under.
"(b) While a writ petition had already been filed in the Hon'ble Gujarat High Court challenging the revised result declared by the GPSC, 4 new writ petitions were filed before the High Court which came up for hearing on Page 23 of 35 C/SCA/5007/2012 JUDGMENT 6.5.2011. Since there was every likelihood of the High Court giving an interim stay or passing orders for observance of status quo, the Learned Advocate General was consulted personally (the AGP concerned Shri Maulik Nanavati was also consulted along with the AG). Both of them were of the view that the orders should be issued today itself, otherwise there was a possibility of High Court giving an interim stay or passing orders for maintenance of status quo. Therefore, the allotment letters were issued yesterday itself and the concerned administrative departments of the Sachivalaya, were requested to issue the appointment orders in respect of the candidates alloted to them. Accordingly, all the Departments issued appointment order yesterday itself i.e. on 6.5.2011.
3. Since the appointment orders were issued, the High Court did not grant any interim relief nor did it pass any order for maintenance of status quo. Now, all these Page 24 of 35 C/SCA/5007/2012 JUDGMENT matters are slated for hearing on 10th/12th instant."
12. Thus, the process of allotment of more than three hundred candidates, to the respective departments, and in turn giving appointments by all those departments to all those candidates, after completing all the necessary procedure as prescribed under statutory rules, was claimed to have been completed within three and half hours on 06.05.2011. This Court has, by the directions contained in para:41 of the judgment, directed the State to undertake certain exercise. Those directions, qua which extension is asked for are already quoted here-in-above. What is ordered by this Court is not something new. The State was required to undertake the said exercise, even at the time of fresh appointment, since that is the mandate of law. In the application, it is so projected that, the said exercise is so complicated that, it would require very long extension of time. At this stage, a question may crop up, if the said exercise is that lengthy, how on 06.05.2011, it was claimed to have been completed within few hours. The totality of the circumstances indicate that, the stand of the State before this Court on 06.05.2011, was less a statement of fact, more an attempt to obstruct the administration of justice. This has to be dealt with iron-handedly. This could be done by this Court on its own, however the same was left to the Government, for the reasons and with the expectation as recorded in para:42 of the judgment, which reads as under.
"42. So far dealing with the glaring irregularities / mischiefs by the officer(s) of the respondent Government, which have come on record of this Page 25 of 35 C/SCA/5007/2012 JUDGMENT group of petitions are concerned, this Court could have gone into it, however this Court has restrained itself from entering into further inquiry in that regard for more than one reasons. Firstly, the mischiefs played by some individuals need not be seen as the policy of the State Government against the citizen of the State. There is presumption in favour of the State that its policy would always be to protect the fundamental rights of the citizen, more particularly the weaker sections of the society belonging to Scheduled Castes, Scheduled Tribes, SEBC and Women. Secondly, due care need to be taken that no impression is created that there is any trust deficit between the judiciary and the executive, which are two important pillars under the Constitution of India. There is no reason to assume for this Court that, if it is left to the Government of the day, the issues noted by this Court would not be examined by the Government with due seriousness or that it would not be taken to its logical end, with appropriate penal and / or corrective measures, if required. For this reason, the further inquiry in the matter is left to the Government with the following observations and directions."
13. Keeping the above aspects in view, this Court had, before giving further directions to the State (as contained in Para: 44 of the judgment), made the following observations in para:44 of the judgment itself, which read as under.
Page 26 of 35C/SCA/5007/2012 JUDGMENT "44. ...... There is no reason to assume that, if it is left to the Government of the day, the issues noted by this Court, would not be examined by it with due seriousness or that it would not be taken to its logical end with appropriate penal and / or corrective measures, if required. It is further observed that what is being left to the Government by this Court, also includes dealing with the attempts by the officers of the Government to overreach the proceedings before this Court as noted above, which this Court itself could have done. The onus on the shoulders of the Government is thus much more to reciprocate appropriately. In this factual background and with these observations, the further inquiry in the matter is left to the Government. In the event, the State is of the opinion that no such inquiry is needed, an order to that effect shall be passed and a copy of the said order shall be sent to the petitioners herein, within a period of three months from the date of receipt of this order. It would be open to the aggrieved party to challenge the said decision, if so advised."
14. Though the above inquiry was left to the Government with the above observations and expectations, the Government has not only not done it, it has not even started it, nor has asked for extension of time to do the same. Therefore this Court finds at this stage that, an undeserved courtesy was shown by this Court to the Government.
15. A question may crop up, why the State is not willing Page 27 of 35 C/SCA/5007/2012 JUDGMENT to undertake the said inquiry. From the record, it transpires that, many of the illegalities, which are noted by this Court in detail in the judgment dated 21.04.2017, were on the say of the Advocate General of the State. The proceedings before this Court on 06.05.2011 and the reference thereto in the note submitted to the Government on 07.05.2011 is sufficient to indicate that, not only the sanctity of the proceedings of this Court were not respected, but were sabotaged on the say of the Advocate General of the State.
16. This Court can not be a mute spectator to the defiance of the Constitution of India, by anyone, not even by the State. The Court would be more vigilant, when it comes to protecting the rights of the citizens belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women, which is the case in hand. A Court of Law can also not afford to ignore any attempt to overreach the proceedings before the Court, which in the present case is done by no less than the Government itself, that too under the guidance, and at the instance of the Advocate General of the State, going by the noting of the Government itself.
17. Further, cognizance also needs to be taken of the fact that, even the aspect of misguiding Hon'ble the then Chief Minister (now Hon'ble the Prime Minister), and exercising the powers, which he alone could exercise under the rules of the Government at the relevant time, (of returning the advice of the State Public Service Commission for its reconsideration), does not appear to have been even put to the notice of the appropriate Authority, though this aspect is in public domain since long, in the form of the judgment of this Court dated Page 28 of 35 C/SCA/5007/2012 JUDGMENT 21.04.2017.
18. This Court, in this background had ordered, in para:44 of the judgment dated 21.04.2017 that, let these affairs be looked into by the State. The irony is that, the record further shows that, the person (Advocate General) who should have been questioned in this regard, himself has been a guide to the Government, how this should be dealt with. At this stage, reference can be made to the decision making process of the Government in this regard, which was put to the notice of this Court, by showing the relevant files of the Government, which also included the correspondence in this regard. Reference can be made to the letter written by the Principal Secretary of the Government of Gujarat (General Administration Department) dated 17.07.2017, which was in response to the letter of the learned Government Pleader dated 04.07.2017. The same is public record, which, as noted above, this Court had noticed, during the course of hearing of the matter, which was on different dates in these six months, and on some of such dates the files were also shown to the Court by the learned Assistant Government Pleader. Those two letters show manipulation of the record of the Government to save the skin of the Advocate General.
19. The conjoint consideration of all the above factors lead to only one conclusion that, at the time of making recruitment on the posts of Deputy Superintendent of Police, Deputy Collector, Mamlatdar (Tehsildar), Section Officer in State Secretariat etc., the first merit list prepared by the Gujarat Public Service Commission dated 13.05.2010 was got revised in the name of the State, leading to publication of fresh Page 29 of 35 C/SCA/5007/2012 JUDGMENT merit list by the Gujarat Public Service Commission dated 26.04.2011, in such a way that, the rights of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women were seriously jeopardised, since it illegally excluded number of candidates belonging to those categories, who were already there in the first list. For getting that done, the consultation with the Gujarat Public Service Commission, as contemplated under Article 320 of the Constitution of India, which has its own sanctity, was also seriously compromised. All that was done, not only without the authorisation by Hon'ble the then Chief Minister (now Hon'ble the Prime Minister), who was the only Competent Authority, as per the rules of the Government, to request the Gujarat Public Service Commission to reconsider its advice. It was also against the words of caution recorded by him. The record further shows that, all that was done under the guidance / dictates of the Advocate General of the State. It did not end there. When the said illegal list was challenged before this Court, successful attempt was made by the State machinery to over - reach the proceedings of this Court (on 06.05.2011). That was also, again, at the instance of the Advocate General of the State, as noted on the Government file on 07.05.2011, the relevant portion of which was quoted in the judgment dated 21.04.2017, and which is noted / quoted again, herein-above. This does not stop there. After the final judgment was pronounced by this Court on 21.04.2017, doing justice and protecting the rights of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women category, further obstructions are also made by the Advocate General of the State, by even manipulating the record of the Government, in the decision Page 30 of 35 C/SCA/5007/2012 JUDGMENT making process of the State. As already noted above, reference can be made to the letter written by the Principal Secretary of the Government of Gujarat (General Administration Department) dated 17.07.2017, in response to the letter of the learned Government Pleader dated 04.07.2017. Said two letters are part of public record, which this Court had noticed, during the course of hearing of the matter, which was on different dates in these five months, and on some of such dates, the files were also shown to the Court by the learned Assistant Government Pleader. It shows manipulation of the record of the Government, to save the skin of the Advocate General. Having already put to the notice of the Government by this Court vide judgment dated 21.04.2017, the Government ought to have been more vigilant by not permitting any further manipulation, at the hands of the Advocate General, but it appears that the Government did not take its lesson properly, which has led to this embarrassment for the Government. This Court can not be a mute spectator to all this. Inspite of what is recorded above, it is noted that, this Court does not hold even prima facie that, all these illegalities and mischiefs have happened at the hands of the State, as its policy. On the contrary, the record shows, in no uncertain terms that, all these things are manipulated and got done by the Advocate General of the State. Thus, though, from the record, an unmistakable picture has emerged before this Court that, all sorts of illegalities, as noted above, have taken place in the name of the State, it is less likely that the State would do this or allow it, as its policy. On the contrary, the record shows that, all that has happened because of the illegalities / manipulations by the Page 31 of 35 C/SCA/5007/2012 JUDGMENT Advocate General of the State. Be that as it may, it can not be neither of the two. It is for the State to take a call - where does it stand. If it is not the policy of the State, which hopefully would not be, then the affairs of the State, on all these important aspects, like dealing with rights of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women, dealing with Court's proceedings, sabotaging the orders of Hon'ble the then Chief Minister (now Hon'ble the Prime Minister) etc., were being managed and manipulated by the Advocate General of the State, against the policy of the State, and the State is either ignorant about it, or is helpless before him. However, if at all it is the satisfaction of the State that, these mischiefs / illegalities are not attributable to the Advocate General of the State, then there is no escape from the conclusion that, the same is done by the State, as its policy and the consequence thereof would be that, such a Government can not be allowed to continue in the office, even for a day. In that eventuality, one may conceive of at least deliberating, whether this would not be akin to failure of constitutional machinery in the State, warranting, if not action, at least deliberation qua the purpose of having Article 356 in the Constitution of India. Since the final decision which can be taken by this Court on this application is only, as to whether the extension as prayed for by the Government, should be granted or not, keeping that judicial discipline in mind, this Court has restrained itself from giving any direction to any of the Authorities, however it is observed that, when it comes to take a call by the Government of the Page 32 of 35 C/SCA/5007/2012 JUDGMENT Union of India, whether in a particular State, circumstances warrant exercise of powers under Article 356 of the Constitution of India, it would not be relevant, which political party rules the State.
20. The timing of recording this order may also be a matter of concern for many. A Court of Law would not owe any explanation in that regard, however with a view to see that, there is no confusion in that regard, it is noted that, this application was filed on 15.11.2017, seeking extension upto 31.03.2018. As noted above, since it appeared to this Court, at the relevant time (November, 2017) that the filing of this application was less for bonafide purpose, if there was any doubt in that regard, that benefit should pass on to the State, and for this reason, it was deemed proper not to record any order prior to 31.03.2018. After 31.03.2018, this application is listed for hearing before this Court, for the first time today. Keeping this application pending now, would be prejudicial to the interests of the citizens of the State, particularly belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women. This is how, this order is recorded today.
21. Considering the totality, this Court finds that, though this application by the State of Gujarat, for extension of time, to comply with the directions of this Court, as contained in the judgment and order dated 21.04.2017 recorded on Special Civil Application No.5007 of 2012 and cognate matters, is unreasonable and lacks bonafide, it needs to be allowed by extending the time limit, so that the Government can restore the rights of the candidates belonging to Scheduled Castes, Page 33 of 35 C/SCA/5007/2012 JUDGMENT Scheduled Tribes, Socially and Educationally Backward Class and Women category, and also looks into the issues as directed by this Court. It also needs to be noted that, though the extension is asked for only qua para:41 of the judgment, the extension needs to be granted to comply with the directions contained in para:41, 43.1 & 44 of the said judgment. It is also noted that, even if the extension as prayed for by the State is granted it is prayed upto 31.03.2018 and the said date has also gone by this time and therefore the State is again exposed to the contempt proceedings. Keeping this aspect in view, as a gesture of grace by this Court, some more time needs to be granted.
22. It is noted that, while this order is being dictated (in the open Court), Mr.Devang Vyas, learned Assistant Solicitor General of India is present in the Court.
23. Considering the totality and for the reasons recorded above, the following order is passed.
23.1 This application is allowed.
23.2 The request of the State of Gujarat, for extension of time, to comply with the directions of this Court, as contained in the judgment and order dated 21.04.2017 recorded on Special Civil Application No.5007 of 2012 and cognate matters, is allowed.
23.3 The extension prayed for by the State is upto 31.03.2018. The said time limit has also gone by this time, and the State is again exposed to the contempt proceedings.
Page 34 of 35C/SCA/5007/2012 JUDGMENT Considering this, as a gesture of grace by this Court, and further with a view to see that, the Government restores the rights of the candidates belonging to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Class and Women category, and also looks into the issues directed by this Court, the time to comply with the directions contained in para:41, 43.1 & 44 of the judgment and order dated 21.04.2017 recorded on Special Civil Application No.5007 of 2012 and cognate matters, is extended till 30.04.2018.
23.4 Mr.Devang Vyas, learned Assistant Solicitor General of India states that, this order shall be communicated to the Appropriate Authority.
(PARESH UPADHYAY, J.) MAHESH O. BHATI/PS/21 Page 35 of 35