Gujarat High Court
Gujarat Public Service Commission vs Niketa Babulal Chaudhari on 31 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 1105 of 2015
In
R/SPECIAL CIVIL APPLICATION NO. 15057 of 2014
With
2. R/LETTERS PATENT APPEAL NO. 1106 of 2015
In
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1106 of 2015
In
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
3. R/LETTERS PATENT APPEAL NO. 1108 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
4. R/LETTERS PATENT APPEAL NO. 1109 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2015
In R/LETTERS PATENT APPEAL NO. 1109 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
5. R/LETTERS PATENT APPEAL NO. 1110 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2016
Page 1 of 131
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C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
In R/LETTERS PATENT APPEAL NO. 1110 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
R/LETTERS PATENT APPEAL NO. 1187 of 2015
6.
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2020
In R/LETTERS PATENT APPEAL NO. 1187 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of YES
the judgment ?
4 Whether this case involves a substantial question of YES
law as to the interpretation of the Constitution of India
or any order made thereunder ?
==========================================================
GUJARAT PUBLIC SERVICE COMMISSION
Versus
NIKETA BABULAL CHAUDHARI & 2 other(s)
==========================================================
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GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
Letters Patent Appeal No.1105 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 2
RULE SERVED BY DS (65) for the Respondent(s) No. 1
Letters Patent Appeal No.1106 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 2
MR YATIN N. OZA, Counsel with
MS. SHRUSHTI A THULA, Counsel for Respondent(s) No. 1
Civil Application No.1 of 2016
MR GM JOSHI, Senior Counsel with
Mr. VYOM H SHAH for the Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
MR DG SHUKLA, Counsel for the Respondent
MR YATIN N. OZA, Counsel with MS. SHRUSHTI A THULA, Counsel for
Respondent
Letters Patent Appeal No.1108 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR HRIDAY BUCH Counsel for the Respondent No.2733,34
MR VAIBHAV A VYAS, Counsel for Respondent No.7
MR YATIN OZA, Counsel with MS SRUSHTI A THULA, Counsel for
Respondent No.13, 4
MR SUDHIR NANAVATI, Sr. Counsel with MS ANUJA S NANAVATI,
Counsel for Respondent Nos. 1115, 1618, 19
MR SUNIT SHAH, Sr. Counsel with MR SANDEEP R LIMBAI, Counsel
for Respondent Nos. 13, 22
MS VIDHI J BHATT, Counsel for Respondent Nos. 2425, 26
MR MAHAVIR M GADHVI, Counsel for Respondent No. 833, 34.
Letters Patent Appeal No.1109 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 3
MR PRABHAKAR UPADYAY, Counsel for Respondent No.7
MR BHASKAR TANNA, Counsel for Tanna Associates for Respondent
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GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
No.12
MR VAIBHAV A VYAS, Counsel for Respondent No.6
MR SANDEEP R LIMBANI, Counsel for Respondent No.5
Civil Application No. 1 of 2015
MR DG SHUKLA, Counsel for the Applicant
Rule served by DS
MR PRABHAKAR UPADHYAY
MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for
Respondent
Civil Application No.2 of 2015
MR VAIBHAV A VYAS, Counsel for Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
MR PRABHAKAR UPADYAY, Counsel for the Respondent
MR DG SHUKLA, Counsel for the Respondent
Letters Patent Appeal No.1110 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent
MR MB PUJARA, Counsel for the Respondent
Civil Application No.2 of 2016
MR RITURAJ M MEENA, Counsel for the Applicant
MS DIMPLE A THAKER, Counsel for the Applicant
MR DG SHUKLA, Counsel for the Respondent
Letters Patent Appeal No.1187 of 2015
MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for Appellant
Nos. 12.
MR KM ANTANI, Assistant Government Pleader for Respondent No.1
RULE SERVED BY DS 5
MR PRABHAKAR UPADYAY, Counsel for the Respondent No.6
MR DG SHUKLA, Counsel for the Respondent No.2
MR SANDEEP R LIMBANI, Counsel for the Respondent No.4
Civil Application No.1 of 2020
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GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
And
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 31/03/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. These appeals have been filed against the common CAV judgement of the learned Single Judge dated 11.06.2015 passed in the respective Special Civil Applications, namely, Special Civil Applications No. 15057 of 2014, 16620 of 2014, 14330 of 2014, 14849 of 2014, 2125 of 2015. Letters Patent Appeals No. 1105, 1106, 1108, 1109 and 1110 of 2015 have been filed by the Gujarat Public Service Commission whereas Letters Patent Appeal No. 1187 of 2015 has been filed by the original petitioner of Special Civil Application No. 14849 of 2014, a respondent also in Letters Patent Appeal No. 1109 of 2015 filed by the GPSC.
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2. Facts in brief are as under:
2.1 The judgement under challenge is at the behest of the original petitioners, who were treated as unsuccessful candidates by the Gujarat Public Service Commission (GPSC) in the selection process for the post of Assistant Conservator of Forests, Class II (for short 'ACF') and Range Forest Officer, Class II (for short 'RFO') conducted pursuant to the advertisement dated 01.03.2010 (Advertisement No. 209/200910).
2.2 On 01.03.2010, the GPSC published an advertisement inviting applications for 47 posts of ACF (Class II) and 120 posts of RFO (ClassII). The distribution of 167 posts (47 + 120) in the advertisement is summarised as below:
Adv. Name of Total Posts Category wise posts. Category wise No. Post reserved posts for women Open S.C. S.T. SEBC Open SC ST SEBC 209 Assistant 47 24 3 7 13 8 1 2 4 Conservator of Forest Class II Range 120 60 6 19 35 18 1 6 11 Forest Officer, Class II Total Posts 167 84 9 26 48 26 2 8 15 Page 6 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 2.3 What is evident from the summarized table produced hereinabove is that for the purposes of female category in all categories, 15 posts of ACF and 36 posts of RFO were reserved for women. This was in accordance with the Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997 (for short 'Rules, 1997') which at the relevant time prescribed 30% reservation for women candidates.
2.4 On 30.05.2010, the GPSC conducted a preliminary test. From 27.05.2013 to 02.06.2013, the GPSC conducted written tests. On 21.05.2014, GPSC declared the result of the main Written Examination. 505 candidates had cleared the main Written Examination and appeared for the Personal Interview scheduled from 16.06.2014 to 31.07.2014. On 25.09.2014, GPSC declared the final result of the competitive examination for the posts of ACF and RFO. The preparation of the merit list and declaration of results on 25.09.2014 gave rise to the petitions as the original petitioners -
women candidates were declared unsuccessful.
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The result dated 25.09.2014 made the following declarations in the merit:
(i) Clause 8 of the result declared that with regard to women reservation, as provided for in the Government Notification dated 09.04.1997 and GAD Circular dated 22.05.1997, 51 women candidates (Gen 26, SEBC 15, SC 02 and ST 08) are required to be selected.
(ii)The result stipulated that as against this, 19 women of General Category, 6 women of SEBC Category, 1 woman of SC Category and 04 women of ST Category, thus total 30 women candidates have been selected.
(iii) Clause 9 of the result declared that the required number of women candidates of SEBC, SC, ST and General categories could not be selected even after relaxing 10% of the minimum qualifying standard prescribed for the male candidates of their respective categories.
1. The qualifying standards for general category male is 429.
Page 8 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) After relaxation of 10% marks, the qualifying marks for general category female comes to 386.10 and hence general category female candidates who have obtained more than 386 marks have been selected for recommendation to the Government.
2. The qualifying standard of SEBC category male is 375 marks. After relaxation of 10% marks, the qualifying marks for general category female comes to 337.50 and hence SEBC category female candidates who have obtained more than 337 marks have been selected for recommendation to the Government.
3. The qualifying standard of SC category male is 387 marks.
After relaxation of 10% marks, the qualifying marks for SC category female candidates comes to 348.30 and hence SC category female candidates who have obtained more than 348.30 marks have been selected for recommendation to the Government.
4. Similarly, the qualifying standard of ST category male is 316 marks. After relaxation of 10% marks, the qualifying marks for ST category female comes to 284.40 and hence ST Page 9 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) category female candidates who have obtained more than 284.40 marks have been selected for recommendation to the government.
(iv) Clause 10 of the result, therefore, stipulated that out of 51 total posts reserved for women candidates of General, SEBC, SC and ST categories, 19 women candidates of General, 6 women of SEBC category, 1 woman of SC category and 04 women candidates of ST category have been selected. Hence, male candidates of their respective categories are selected against the posts reserved for women of respective categories.
2.6 The aforesaid clauses prescribing qualifying standard of marks and positioning male candidates in the deficit posts - 21 in number, has given rise to the controversy under consideration.
3. Before the learned Single Judge, the unsuccessful female candidates in essential raised the following four grounds of challenge which the learned Single Judge classified under four heads as follows:
"(A) The method, procedure and basis followed and adopted by Page 10 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) GPSC for determining the qualifying standard (described by GPSC as cutoff marks).
(B) Transferring the quota reserved for female candidates to male candidates and also transferring the quota reserved for candidates possessing special qualification to the candidates not possessing such special qualification.
(C) Migrating the candidates.
(D) Adopting and applying criteria/policy which was not declared and informed to the candidates (and thereby changing the criteria in the midstream). "
3.1 With regard to heads (A) and (B) as noted above, perusal of the order of the learned Single Judge would indicate that the learned Single Judge held, on the submission made by the learned Counsel for the respective petitioners, that the qualifying standard which prescribed cutoff marks at the rate of 10% was introduced only after the stage when the interview got concluded and at the stage after the common merit list was prepared and when the GPSC started preparing the selection list for the first time in the entire selection process.
3.2 The learned Single Judge on examining the provisions of the Rules governing the examination for ACF and RFO, namely, The Assistant Conservator of Forest/Range Forest Officer Page 11 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Competitive Examination Rules, 2008 (for short 'the Examination Rules') in especially considering Rules 9 and 19 thereof, found that the Examination Rules do not empower the Commission to determine and prescribe minimum qualifying marks/standard at any stage other than the two stages mentioned in Rules 9 and 19 of the Examination Rules. According to the learned Single Judge, despite this rule position, it was for the first time that the GPSC introduced the qualifying marks standard after the preparation of the merit list. The learned Single Judge extensively discussed the position with regard to the Commission's legality in providing such qualifying standards (as discussed in paras 16 to 18 thereof) and found that the prescription of qualifying standards after the examinations were conducted in accordance with the Examination Rules, at the stage of preparation of merit list, was untenable. The learned Single Judge found that the concept of qualifying standard of 10% for assessing the bench mark for including the reserved quota for women in all the categories was based on the marks obtained by the last male candidate in each category of which 10% less was the yardstick prescribed for bringing in a female within that category. It will be in the fitness of things to Page 12 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) reproduce the relevant findings of the learned Single Judge on the issue in question.
"16.5 Under the said Examination Rules or under the Recruitment Rules, there is no provision (other than above quoted two Rules 9 and 19 in the Examination Rules), which empower determination of qualifying marks/standard at any stage, other than the said two stages mentioned in Rule 9 and Rule 19 of the Examination Rules. The Examination Rules and/or Recruitment Rules also do not contain any provision (other than said two Rules) which empower the commission to determine and prescribe minimum qualifying marks/standard at any stage other than the two stages mentioned in Rule 9 and Rule 19 of the Examination Rules. The Examination Rules and/or the Recruitment Rules do not contain any provision in light of which or on the strength of which minimum qualifying marks/standard can be introduced and enforced by the commission and that too at the stage which is not contemplated and provided for in the Rules.
16.6 Despite this position the commission determined, for the first time and introduced qualifying marks/standard (described by the commission as cutoff marks), after conclusion of stage of preliminary examination and the stage of written test and the stage of interview and after general / common merit list was prepared on the basis of aggregate marks secured by the candidates during the written test and interview.
17. The Examination Rules prescribe the procedure for conducting examinations for selection of candidates for the said two posts. Rule 3 of the said Examination Rules, 2008 prescribes, inter alia, that upon receiving requisition from the Government the Commission shall hold combined competitive examination for selection of candidates. Rule 4 of the said Examination Rules provides that examination shall be held in two successive stages whereby preliminary examination for selection of candidates and then main examination (written Page 13 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) test and interview) will be conducted. The said preliminary examination will comprise objective type test. At the second stage, main examination for final selection of candidates has to be conducted. The said main examination comprises written test and interview. PartI of the Schedule to the said Examination Rules, 2008 prescribes, inter alia, that the preliminary examination shall consist one paper of objective type and shall carry 150 marks. It also provides that the number of candidates to be allowed to appear in the main examination shall be about 15 times the approximate number of vacancies advertised. With reference to the main examination, the said Part I of the schedule provides that the written examination shall consist five papers of conventional type. Part III further provides that paper one, paper two and paper three will be compulsory papers and each paper will carry 100 marks and paper four and paper five will be optional papers and each paper will carry 200 marks. Rule 9 of Examination Rules, prescribes the procedure to be followed by the Commission and provides, inter alia, that the Commission shall arrange names of the candidates in order of merit on the basis of aggregate marks finally awarded to each candidate in the main examination (i.e. written and interview test) and in that order, the Commission shall recommend the candidates for appointment. The said provision under Rule 9 is subject to the proviso which prescribes that where the vacancies reserved for the candidates belonging to SC or ST or SEBC category cannot be filled up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up for the deficiency in the reserved posts. Thus, the said rule also confers power to relax the qualifying standard in the event vacancies reserved for candidates belonging to SC, ST or SEBC category cannot be filledup. Rule 19 obliges the commission to fix qualifying marks and it further provides that the candidates who obtain minimum qualifying marks, as may be fixed by the Commission in the preliminary examination shall be allowed to appear in the main examination subject to their satisfying the eligibility criteria Page 14 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) and that the candidates who obtain minimum qualifying marks as may be fixed by the Commission in the main examination (written) shall be called for interview. The expression the candidates who have obtained minimum qualifying marks as may be fixed by the commission... ... signifies and clarifies that the said provisions oblige the GPSC to fix minimum qualifying marks at the stage of preliminary examination stage (for allowing entry to appear for written test) and at the stage of main examination / written test (for allowing entry to appear in interview). The said expression indicates that the candidates who obtain marks fixed by GPSC as minimum qualification can enter into next level. The said Rule 19 also empowers the Commission to relax the said qualifying standard at the stage of examination i.e. in preliminary examination or in the main examination (written), if the Commission is of the opinion that sufficient number of candidates from SC or ST or SEBC category are not likely to be available for main examination (written) or for interview which is clarified by the expression "... ... ... may be allowed to appear........by relaxing the standard .."..
17.1 In light of said provision it comes out that (a) the Rules do not prescribe any particular percentage or marks as qualifying standard; (b) however the Rules prescribe the stage/s when the qualifying standard should be fixed viz. at the stage of preliminary examination (for allowing entry to appear in written test) and at the stage of written test (for allowing entry to appear in interview); (c) once the candidates cross the stage of main examination (i.e. the written test and interview), then further requirement in form of qualifying standard for entry in selection list (i.e. list containing names and marks of successful candidates in the written test and interview) is not prescribed by the Rules; (d) Rules 9 and 19 indicate that actually the said Rules aim at informing the qualifying standard to the students so that they know the minimum marks/standard they must achieve to reach next level.
18. Since the Commission had not fixed the qualifying Page 15 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) standard at any stage contemplated by the Rules (and until the stage of interview test got concluded) the candidates were not aware about the qualifying standard. Actually, the candidates were not even aware as to whether any qualifying standard is fixed or not. It is pertinent to mention at this stage that respondent GPSC determined, settled, adopted and applied different qualifying standard with regard to each of the four categories mentioned in the advertisement.
18.1 In present cases controversy and dispute have arisen on account of the basis adopted and the procedure and method followed by respondent GPSC for determining and settling the qualifying standard (cutoff marks) and the said method, procedure and basis have given birth to the objection that GPSC is neither justified nor authorized to determine qualifying standard for female candidates (for filling up the vacancies in reserved quota) on the basis of and by taking into account the marks secured by last male candidate i.e. the male candidate, who, depending on the number of vacancies available of particular category, is the "last candidate required (depending on number of notified vacancy) for complying the quota in that category and at such belated stage.
18.2 On this count, it is pertinent that for the purpose of determining the qualifying standard the respondent GPSC first pickedup the General / Unreserved Category and took into account total number of vacancies in that category. Thereafter the respondent GPSC started from the candidate at the top in the common merit list (i.e. the candidate with highest marks) and, while descending, it started identifying only male candidates belonging to the said / particular category and proceeded in descending order by taking into account marks of only male candidates in that particular category (i.e. excluding all female candidates/marks obtained by female candidates in that category) and continued to descend in similar manner until it reached the male candidate who, depending on the number of notified vacancies in the particular category, would be the last male candidate Page 16 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) required to fillup the vacancies in that particular category. The marks secured by such last male candidate of that particular category are treated and adopted and applied by GPSC as the qualifying marks/standard (what is described by GPSC as cutoff marks) for the respective category. The procedure and method followed by GPSC is explained by it in paragraphs No.6.2 to 6.4 of its affidavit dated 23.2.2015 filed in SCA No.14849 of 2014 and it is further explained in para No.2 of its additional affidavit dated 24.2.2015.
18.3 Besides this even in the notification dated 25.9.2014 GPSC itself has admitted and stated that: The candidates at Rank No...... ST being female candidates have been selected after relaxing the minimum qualifying standard prescribed for male candidates of their respective categories. (Emphasis supplied) 18.4 From the details mentioned in said affidavits it has emerged that for combined (i.e. ACF + RFO) 84 position of unreserved / general category, 26 position are reserved (@ 30% of total number of notified vacancy for the said category) for female candidates and for selecting female candidates for said position, the marks secured by the male candidate in general category whose name is listed at Sr.No.78 in the general / common merit list is treated as the marks of last candidate in general / unreserved category (though only 58 position / vacancies are to filledup) and the marks secured by the said male candidate at Sr.No.78 is recognized as minimum qualifying marks/standard for the female candidates in general / unreserved category on the premise that the said candidate at Sr.No.78 is last male candidate to enter the selection list in general/unreserved category and the said marks are then adopted and applied as benchmark for selection of female candidates and for complying the reserved quota. In response to the query, the learned counsel for GPSC submitted and clarified that the standard/basis which came to be fixed, settled and adopted in above mentioned manner (as qualifying marks/standard) is treated as yardstick and benchmark for all purposes including Page 17 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the process and purpose of fillingup the reserved quota for women in other three categories as well and for the candidates seeking selection in the quota reserved for persons holding special qualification.
18.5 It is relevant to mention that the stage of finalizing selection list and declaring successful candidates was reached after crossing three stages of screening. It is also relevant to note that the respondent GPSC also did not adopt the marks secured by a candidate in particular category regardless or irrespective of the fact that such last candidate is male candidate or female candidate but the respondent GPSC consciously started the process by picking up the marks secured only by male candidates in respective categories and proceeded going downwards while taking into account the marks secured by only male candidates and it consciously opted for and adopted marks secured by such last male candidate as the qualifying standard.
18.6 It is pertinent that neither the Recruitment Rules nor the Reservation Rules nor the Examination Rules provide for or contemplate or permit such procedure and method and/or authorize GPSC to follow such procedure. Such method, basis and procedure is, therefore, not permissible under the Rules. Actually, such procedure militates against and frustrates diligent, honest and genuine and complete implementation of quota reserved for female candidates of all four categories.
19. The basis/standard adopted and the procedure and method followed by GPSC for determining and settling the qualifying marks/standard is not only contrary to and beyond the purview of the Rules or de hors the Rules but there is no rationale for the decision / action of adopting marks secured by only male candidate as the base / benchmark and the GPSC has not offered any explanation or justification for such decision and the procedure, basis and method followed and adopted by GPSC are irrational, unjustified and do not find support from the applicable Page 18 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Rules and are not sustainable.
20. The Court would hasten to clarify that the aforesaid view and finding is not to say or to suggest and it does not mean that the Court finds fault with the principle and/or practice of applying the qualifying standard and/or with the practice of not relaxing the qualifying standard below certain extent. Nay. Not the least. What, in the opinion of the Court, is objectionable and untenable, is the manner in which GPSC determined the qualifying marks/standard and the procedure it followed and the basis which it adopted (wherein it took into account marks secured by only male candidates) for the said purpose and not the decision to determine and apply qualifying marks/standard. In this background and in this view of the matter, the Court is convinced to hold that the impugned method, basis and procedure are incapable of approval and acceptance. The very basis adopted by GPSC is fundamentally erroneous and irrational and untenable."
[Emphasis Supplied] 3.3 In short, the learned Single Judge found that prescription of applying the qualifying standard with the practice of relaxing the qualifying standard for female candidates with reference to minimum qualifying marks for male candidates was faulty.
However, in para 25 of the decision, the learned Single Judge clarified that the action of determining qualifying marks and/or the action of allowing relaxation therein essentially are not sustained on account of the manner in which the said process is carried out and the basis which the GPSC adopted and not for want of jurisdiction to Page 19 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) do so. The learned Single Judge held that the action of allowing relaxation is not sustained also because it is tainted with vice of discrimination and the error of not applying relevant factors and not for want of power.
"25. For the foregoing reasons and in light of the facts, the impugned method and procedure followed by GPSC and the basis adopted by GPSC for fixing / determining the qualifying standard as well as the qualifying marks/standard determined and settled and adopted by GPSC are not sustainable and deserve to be set aside and are consequently set aside and as corollary all subsequent and consequential decisions and actions by GPSC which are taken in pursuance of and on the basis of such qualifying standard (decided in impugned method) fall and stand vitiated. At this stage, it is necessary to further clarify that the action of determining qualifying marks / standard and/or the action of allowing relaxation therein are, essentially, not sustained on account of the manner in which the said process is carried out and the basis which GPSC adopted and not for want of power. The action of allowing relaxation is not sustained also because it is tainted with vice of discrimination and the error of not applying relevant factors and not for want of power.
[Emphasis Supplied] 3.4 On the second limb of the fallout of this qualifying standard, the learned Single Judge held that by virtue of this operation of the qualifying standard of 10%, the process of selection of female candidates seeking selection in the reserved quota caused a substantial shortfall in the number of female candidates being Page 20 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) selected, though sufficient number of female candidates in each category who meet with and fulfill the eligibility criteria prescribed by the Rules and notified in the advertisement are available. On the submission of the learned Counsel for GPSC that this 10% relaxation of GPSC was based on the opinion of the learned Advocate General, the learned Single Judge held that such an opinion taken years back had no foundation of a statutory backing and had no nexus with the post in question and therefore could not have been relied upon.
3.5 As a result of the shortfall of 21 vacancies not being fulfilled in as a result of the process of restricted intake of female candidates in each of the four categories inasmuch as out of 51 vacancies only 30 female candidates found their place as a result of the qualifying standard and the treatment by GPSC in transferring these 21 positions to male candidates and their consequential selection was also a subject matter of consideration before the learned Single Judge. Having held that on the conjoint reading of the recruitment rules, relaxation of qualifying standards was faulty, the learned Single Judge held that when the recruitment rules and the Page 21 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) reservation rules are read, then the recruitment examination rules provided that the qualifying standards ought to be relaxed to accommodate required number of candidates of reserved category and the Commission must strive to fill up the quota reserved for female candidates belonging to reserved categories even by relaxing the qualifying standards fixed by it rather than transferring the position to the male candidates. By doing so and restricting the intake of female candidates, the female reservation got constricted which was not in consonance with the Rules.
3.6 On reliance placed by the GPSC on the Circulars dated 09.04.1997 and 22.05.1997 providing for a clarification that in the event, a requisite number of female candidates are not available, then the vacancies may be filled up by male candidates of the respective categories, the learned Single Judge on an extensive discussion of the Circulars found that a recourse to such Circulars could not be taken when the Examination Rules obliged the Commission to fill up the notified vacancies of the reserved quota to the fullest extent and when female candidates were available.Page 22 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 3.7 In other words, the learned Single Judge found that the benefit of reservation of women as prescribed under the Reservation Rules got restricted by virtue of providing for 10% relaxation and transferring of the posts - 21 reserved for women to the male candidates was contrary to the spirit of the Recruitment Rules and the Reservation Rules and the petitions were therefore allowed. The final result dated 25.09.2014 and the subsequent revision of result carried out by the GPSC based on the decision of the Apex Court in the case of Union of India vs. Ramesh Ram [(2010) 7 SCC 234 was quashed and set aside. The learned Single Judge in para 57 held as under:
"57. In the result and as an upshot of foregoing discussions:
(a) the qualifying marks / standard (described as cutoff marks by GPSC) determined and applied by the respondent GPSC by following and adopting earlier discussed method, procedure and base are, for the recorded reasons, set aside.
(b) Consequently, all subsequent decisions and actions which are based on the said qualifying standard and/or which are taken pursuant to and/or on the basis of and by applying the said qualifying standard / cutoff marks do not survive and all such consequential decisions, steps and actions are set aside.
(c) In the result and for the recorded reasons, impugned selection list notified by GPSC on 25.9.2014 stands quashed.
Thus, the list revised by GPSC vide notification dated 23.1.2015 automatically falls and does not survive.
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(d) The action of the respondent GPSC of categorizing part of the notified vacancies reserved for women candidates and also out of the vacancies reserved for candidates with special subject, as vacant and the further / subsequent action of transferring the position out of reserved quota for women candidates to male candidates and out of the quota reserved for candidates with special subject, to other candidates not holding said special qualification, also stand quashed.
(e) The action of considering the meritorious reserved category candidates (who secured their position in general/open category on account of their performance) in their respective reserved category only because they availed benefit of "concession" which cannot be considered as "relaxation in merits" also set aside since it is found to be contrary to the decision by Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra).
(f) So far as Special Civil Application No.14849/2014 is concerned, it stands partly allowed inasmuch as petitioners' objection against the qualifying standard fixed by GPSC and the objection against adopting criterion of 10% for relaxing qualifying standard and the objection against considering the marks obtained by last male candidate as cutoff marks / qualifying standard are accepted and the selection list prepared on such basis is set aside. However, the contention that meritorious reserved category candidates who secured position in general/unreserved (open) category list should be, for the purpose of complying reserved quota, considered in their respective reserved category is not accepted. Horizontal reservation, even compartmentalized reservation, cannot be maintained by taking away a slice from the quota for vertical reservation.
(g) So far as Special Civil Applications No.14330/2014, 14331/2014 and Special Civil Applications No. 16620/2014 are concerned, the said petitions are also partly allowed inasmuch as the objection against qualifying standard fixed by GPSC by considering marks of last candidate as the base is Page 24 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) accepted and the qualifying standard determined by GPSC on such basis and the selection list are set aside and the objection against adopting criterion of 10% for relaxing said qualifying standard is also accepted. However, so far as the further relief claimed by the petitioner in Special Civil Application no.16620 of 2014 that her case should be considered for the post of AFO is concerned, it is clarified that at this stage, the said request cannot be considered because now the process of preparing fresh selection list will have to be undertaken and it shall be finalized afresh.
(h) So far as Special Civil Application No.13857/2014 is concerned, the said petition is also partly allowed inasmuch as the decision of applying said qualifying standard and the decision to apply criterion of 7% for relaxing qualifying standard and the decision to consider part of the notified position from the quota reserved for candidates with special subject (i.e. the candidates holding specified special qualification) as vacant and the further decision to transfer such position to the candidates not holding qualification of special subject by treating such notified position as vacant, is set aside.
(i) So far as Special Civil Application No.15057/2015 is concerned, having regard to the fact that at the relevant time, only one contention/objection was raised and pressed in service, viz. the impugned notification is bad and unsustainable because waiting list is not prepared and notified under the said notification, the said petition is, therefore, examined in light of the said singular contention and with regard to the said objection (of the petitioner in Special Civil Application No.15057/2015) it is found and held that in light of applicable Rules said objection is not sustainable. Though the said petitioner did not raise any other contention with regard to the notification and/or selection list, it is clarified that the decision with reference to the qualifying standard / cutoff marks and the selection list (with regard to the objections by other petitioners) will apply to and will govern the case of the petitioner in SCA No.15057/2015 also.
(j) So far as Special Civil Applications No.1100/2015 and Page 25 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 1141/2015 are concerned, the said petitions are also partly allowed and the decision of the respondent GPSC of considering the candidates who availed benefit of relaxation / reservation though they have not availed benefit of relaxation in qualifying standard, is, it being contrary to the decision by Apex Court in case of Jitendra Kumar Singh (supra), set aside.
(k) So far as Special Civil Application No.2125/2015 is concerned, in view of the fact that the qualifying standard / cutoff marks decided by the GPSC is set aside, the decision with regard to allotment of any candidate to the post of ACF or RFO will have to be taken afresh by the respondent GPSC after preparing fresh selection list and that, therefore, at this stage, the declaration as prayed for by the petitioner (i.e. to allot the said petitioner to the post of ACF) cannot be granted. However, so far as other contentions which are similar and common as in other petitions, are concerned, they shall be governed by the conclusion with reference to other petitions. It is clarified that if the petitioner has any grievance with regard to her allotment after fresh selection list is prepared, then at that stage, it would be open and permissible to the petitioner to take appropriate action against the decision by GPSC. However, in view of the Court's decision with reference to the qualifying standard / cutoff marks, the consequential actions including allotment of the candidates to the higher post will not survive and that process also will have to be taken afresh. "
[Emphasis Supplied]
4. Mr. D.G. Shukla, learned Counsel for the Gujarat Public Service Commission has invited the attention of the Court to the relevant provisions. He would defend the procedure and the base to decide the qualifying marks/standard (cutoff marks adopted by the GPSC) and the result declared on 25.09.2014 and the subsequent Page 26 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) action of transferring the reserved quota for women candidates to male candidates. He would invite the attention of the Court to the Affidavitinreply filed by the GPSC.
4.1 Mr. Shukla would submit that after conducting of the Preliminary Test, the Written Examination and the Physical Endurance Test, the results were declared. He would submit that the concept of horizontal reservation and filling of the posts of women was in accordance with the law laid down by the Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission [(2007) 8 SCC 685]. He would submit that as laid down by the Apex Court in the said decision, social reservation in favour of categories of SC, ST and OBC under Article 16(4) are "vertical reservations" whereas special reservations in favour of Physically Handicapped, Women etc. under Articles 16(1) and 15(3) are "horizontal reservations".
4.2 Mr. Shukla would submit that the Notification dated 09.04.1997 issued by the General Administration Department (GAD) prescribing the Gujarat Civil Services (Reservation of Page 27 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Posts for Women) Rules, 1997 prescribed rules providing for 30% of posts for women belonging to all categories. On 22.05.1997 the GAD issued a Notification. He would take the court to the Notification and explain that the Notification envisaged that if women candidates are not available then the posts can be filled by the male candidates.
4.3 Mr. Shukla would also invite the attention of the Court to the paper book of the appeal wherein file notings have been produced by the original petitioner wherein extensively considering the opinion of the Advocate General, a decision was taken by the Commission on 25.10.2001 to select women candidates after relaxing 10% of the minimum qualifying standards prescribed for the male candidates of their respective categories. An additional affidavit has also been filed by Mr. Shukla during the course of hearing on behalf of the GPSC. Relying on the affidavit, he would submit that the appellant Commission had taken a policy decision on 25.10.2001 to select women after relaxing 10% of the minimum qualifying standards prescribed for male candidates of their respective categories. The said policy decision was taken based on the opinion of the then Page 28 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Advocate General, Gujarat dated 06.10.2001. The opinion of the Advocate General, the file notings and the policy decision dated 25.10.2001 are on record. The same are quoted hereinbelow for ready reference:
"Exparte:
The Secretary, Gujarat Public Service Commission Ahmedabad. .... Querist.
OPINION:
In exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the State Government has made the rules known as 'Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997. Rule 2 of the said rules reads as under: "2. Reservation of posts for women Notwithstanding anything contained in any rules or orders relating to recruitment to public services and posts in connection with the affairs of the State
(a) there shall be reserved in favour of women belonging to the Scheduled Castes thirty percent of the posts reserved in favour of such Castes;
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(b) there shall be reserved in favour of women belonging to the Scheduled Tribes thirty percent of the posts reserved in favour of such Tribes;
(c) there shall be reserved in favour of women belonging to the Socially and Educationally Backward Classes thirty percent of the posts reserved in favour of such Classes;
(d) there shall be reserved in favour of women thirty percent of the posts not being posts reserved in favour of the Scheduled Castes; Scheduled Tribes and Socially and Educationally Backward Classes. "
2. The Gujarat Public Service Commission invited applications for Class I and Class II posts in Gujarat Administrative Services. Since there were 70,000 applications, the Public Service Commission held Elimination Test. The results of the Elimination Test are under process. On the result of the Elimination Test, candidates will be required to compete at the Written Test and the Oral Test to be held. The results of Elimination Test are not to be considered for the purpose of assessment at the Written Test and Oral Test to be subsequently held.
3. The querist - Secretary, Gujarat Public Service Commission, therefore seeks my opinion as to whether it is possible for the Commission to relax the standard of merit for Elimination Test for women candidates so as to enable them to go in for further competitive test.Page 30 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022
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4. For the benefit of the women candidates, a general policy decision can be taken by the Public Service Commission to grant relaxation in qualifying marks determined for elimination test. This policy is legally permissible under article 16 of the Constitution of India.
5. In 1999(9) Judgments Today 152 (Haridas Parsedia vs. Urmila Shakya & Ors) the Supreme Court has observed as under:
"We have, therefore, to see whether the State of Madhya Pradesh, in its discretion and within permissible limits of Article 16, had taken any policy decision to give general relaxation of passing marks to SC/ST candidates appearing at the departmental examinations."
The Court held that "Even when SC/ST candidates compete among themselves for the reserved category posts they are required to pass the written examination. For them the passing marks remain the same i.e. 40% as compared to general category candidates for whom 50% passing marks are prescribed."
Thus, the qualifying marks in respect of reserved category candidates were reduced from 50% to 40% marks.
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6. In AIR 1997 SC 303 (Chattar Singh vs. State of Rajasthan) the Supreme Court has examined the scheme of elimination test. In para 14 of its judgement, the Supreme Court observed as under:
"The object is to eliminate unduly long list of candidates so that opportunity to sit for main examination should be given to candidates numbering 15 times the notified posts/vacancies in various services in various services; in other words for every one post/vacancy there should be 15 candidates. There would be wider scope to get best of the talent by way of competition in the examination. The ultimate object is to get at least three candidates or as is prescribed, who may be called for vivovoce. Therefore, the lowest range of aggregate marks as cut off for general candidates should be so worked out as to get the required number of candidates including OBCs, Scheduled Castes and Scheduled Tribes. The lowest range would, therefore, be worked out in such a way that candidates numbering 15 times the notified posts/vacancies would be secured so as to afford an opportunity to the candidates to compete in the main examination.
Under the provision, if that range has not been reached by the candidates belonging to the SCs or the STs, there may be 5% further cut off from the last range worked out for the general candidates so as to declare them as qualified for appearing in the main examination. In other words, where candidates belonging to the SCs and STs numbering 15 times the total vacancies reserved for them are not available then Service Commission has to go down further and cut off 5% of the marks from the lowest of the range prescribed for general candidates and then declare as eligible the SC and ST candidates who secured 5% less than the lowest range fixed by P.S.C. for general candidates so as to enable them to appear for the main examination."
7. In AIR 1999 SC 2894 (Dr. Preeti Srivastava and another Page 32 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) vs. State of Madhya Pradesh) the Supreme Court held that "it is basically, for an expert body like the Medical Council of India to determine whether in the common entrance examination, lower qualifying marks can be prescribed for the reserved category of candidates as against the general category of candidates; and if so, how much lower. There cannot, however, be a big disparity in the qualifying marks for the reserved category of candidates and the general category of candidates at the postgraduate level." The Supreme Court did not approve of the cut off percentage of 20% for the reserved category and 45% for the general category saying that the disparity of qualifying marks being 20% for the reserved category and 45% for the general category is too great a disparity to sustain public interest at the level of postgraduate medical training and education.
8. In the background of the aforesaid decisions of the Supreme Court, the Public Service Commission can determine a lower qualifying marks for women candidates, in comparison with the male candidates of respective sources (categories) of recruitment, both at the Elimination Test as well as Competitive Test which the Public Service Commission is conducting for selection of candidates. The percentage of marks to be lowered is to be determined by the Public Service Commission in the context of the aforesaid decisions of the Supreme Court. It can be within the range of 5 to 15 per cent.
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Ahmedabad, (S.N. Shelat)
Date : 6th October, 2001 Advocate General
Gujarat State"
FILE NOTING:
(TRANSLATED VERSION )
By two notifications dated 09/04/1997 of the General Administration Department, the provision was made by the State Government to keep 30% posts reserved in the respective category for the appointment of women on all services and posts. Moreover, at the stage of direct recruitment in the government services, it is provided to give five years relaxation in the upper age limit. This order has come into effect from 09/04/1997. Thereafter, a clarification was made by the General Administration Department vide Circular dated 22/05/1997 regarding several issues raised in the said matter, which contains below mentioned important provisions.
The seat of women candidate could be allotted to the male candidate if sufficient women candidates are not available for seats reserved for women. The government aims to fill 30% of Page 34 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the total vacancies by women candidates. Therefore, after computing the candidates admitted on the basis of merit at the time of recruiting 30% posts, remaining of women candidates in 30% could be admitted on reservation basis.
2. Following the opinion of the Advocate General regarding the standard of selection for women candidates in respect of the government's policy of reserving 30% seats for women candidates, the Commission has adopted a standard of selection by decision dated 25/10/2001 to keep the qualifying standard as low as 10% of the standard of male candidates in that category. Following the decision of the Commission, such procedure is followed while finalizing the result in personal interview of various vacancies conducted by the Commission.
3. The commission issued advertisement for the Medical Officer (Ayurveda) ClassII vide Sr.no.100/20052006, containing total 170 seats. Out of the said 170 seats, 40 seats were reserved for ST, wherein 12 seats were reserved for women. In personal interview of the said post, the commission had fixed qualifying standard of 40 marks for Male Candidates and 36 marks for female candidates for general category and for reserved posts, 25 marks for male candidates and 22 marks for female candidates. In 28 seats out of 40 seats of ST, two candidates were selected who obtained 25 marks, whereas in 12 seats of women candidates, three candidates Page 35 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) obtained 25 marks and remaining nine candidates obtained 22 marks were selected, whereas, other women candidates obtaining 22 makrs were not included in selection list. Among these candidates, Dr. Komal Katara and another candidate had sought relief in the matter from the Hon'ble High Court, In which, the judgment of the Special Civil Application was in favour of the Commission and the candidates had preferred L.P.A, wherein the Division Bench had delivered judgment on 10/09/2009. It was ordered therein to prepare merit after including ST candidates (Male or Female), who have obtained 25 marks or more, in the merit list of 28 posts and after considering female candidates, who have obtained less than 25 marks but more than 22 marks, against 12 reserved posts for women candidates. Following this judgment, the result of the said post was sent for recommendation of the government and accordaingly, the candidates have been appointed.
4. The Commission or the State had not drawn the attention of the Hon'ble High Court towards the provision of the circular dated 22/05/1997 of the General Administration Department and same thing happened in L.P.A., too. Therefore, the Commission and the State had preferred M.C.A. regarding the judgment of the division bench of the Hon'ble High Court. The judgment of M.C.A. No.411/2010 was delivered on 16/03/2010, while remaining three M.C.A. filed by the Commission and one M.C.A. filed by the State are still Page 36 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) pending. In the judgment of M.C.A., the Assistant Government Pleader had submitted that as explained in point no.7 of the circular dated 22/05/1997 of the General Administration Department, the women candidates can be appointed only on the reserved posts, when the posts are reserved for the women candidates and remaining 70% posts are not required to be taken into consideration. The said submission was not accepted by the Hon'ble High Court and confirmed the judgment delivered earlier.
5. Advocate General's opinion was sought by the Commission whether the facts of order dated 10/09/2009 of the Honourable High Court are applicable to all advertisements or it is only applicable to the advertisement of Medical Officer (Ayurved) Class2. Advocate General's opinion was received vide his letter dated 24/12/2009 stating that until the judgement of Review Petition is pronounced, this judgement is applicable to all the advertisements. Hence, the Commission has followed this judgement accordingly in the advertisements and it is continued. That is, female candidates who are included in the merit list of general post other than the female reservation, have been included on the basis of merit and separate merit list for female candidates with respect to reserved posts has been prepared.
6. There is provision in the circular of General Page 37 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Administration Department dated 22/05/1997 to consider 30% of the reserved posts for the candidates included on the basis of merit. Whereas, in view of the above mentioned judgement, the Commission has not considered meritorious female candidates against 30% reserved posts. They are considered in the merit list of remaining post other than the reserved posts of woman.
(7) As per the same standard, the result of the exams of Gujarat Administrative Services Class 1/2 published on 13 052010 have been prepared. In which, 23 female candidates have been selected as meritorious candidates who were fulfilling the eligibility criteria meant for the male candidates and have not been counted in reference to the posts of female reservation.
(8) The Judgments are rendered by the Hon'ble Supreme Court regarding Vertical and Horizontal
reservations. In which the latest judgment is given on 0306 2010 in the case of Public Service Commission, Uttranchal Versus Mamta Bist and others. Looking to the other judgments of the Supreme Court mentioned in this judgment as well as considering the details of this judgment, the female reservation has been included in Horizontal reservation. Hence, while making the selection for the seats of female reservation, the meritorious female candidates shall also be counted in Page 38 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) reference to the reserved post earmarked for them. In such circumstances, presently four Review Petitions are pending in the Hon'ble High Court. Therefore, it is to consider whether it would be proper to take steps to get the said petitions heard first by giving reference of Supreme Court judgments OR to take steps to correct the result in view of Supreme Court judgments in the cases where result is published and appointment process is pending.
(9) The legal opinion is to be taken in this case because, after the Commission has declared the result of the post of Class 1 / Class 2 on 13052010, a legal notice has been issued to the Government and Public Service Commission by Tanna Associates through its letter dtd. 05072010. Public Service Commission has received this notice on 0807010. In this Legal Notice, two recent judgments of the Supreme Court have been referred.
(1) Union of India Vs. Ramesh, Ram and Others.
C.A. no. 4310 4311 / 2010 Judgment dtd. 07052010 and (2) Public Service Commission, Uttranchal Vs. Mamta Bist and others.
Civil Application no. 5989/ 2007, Judgment dtd. 03062010 Referring these two judgments, it has been submitted that the necessary procedure should be followed after reviewing the Page 39 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) result declared on 13052010 and the recommendations done regarding the same by the Public Service Commission to the Government on 03082010. Hence, before carrying out further procedure by the Government in reference to the appointment of Class1 and Class2, necessary discussion / procedure is to be done regarding the Legal Notice received from Tanna Associates.
(10) From the above details, it can be observed that while discussing 30 percent reservation for women, the Public Service Commission is required to take into consideration/ decide upon two issues/ factors. (1) 30% reservation for women in direct recruitments of Class 1/2 posts through competitive exams and (2) 30% reservation for women in direct recruitments on the basis of interview without competitive exam. While discussing the issue, it has to be also taken into consideration that the norms of commission in different types of direct recruitments with reference to 30 percent reservation for women remain identical and noncontradictory. Additionally, it is to be seen that any further procedure in this regard does not lead to violation/ contempt of court until any modification takes place in the judgment of Gujarat High Court mentioned above at para4.
(11) On 08/01/2011, an informal meeting was arranged in the chamber of Advocate General to discuss the Page 40 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) issue where the Secretary of the commission, Joint Secretary Shri V.N. Desai, Shri Deepak Shukla, a panel advocate of the commission and the Registrar remained present. In the meeting, the provisions of GAD circular dated 22051997 and subsequent judgment by the Division Bench in Dr. Komal Katara case were discussed. The opinion of Advocate General with reference to the judgment is considered while following procedure at present. The details thereof were given. Three MCAs of the Commission and one MCA of the GAD are pending before the High Court. Detailed discussion about legal aspects was held with Advocate Shri Deepak Shukla, a panel advocate of the commission and the Advocate General that considering the circumstances, whether the present procedure be continued in accordance with the judgment in case of Dr. Komal Katara or the procedure prescribed vide the judgment of Hon'ble Supreme Court be implemented. After the discussion, the Advocate General opined that the procedure be followed in accordance with the judgment of Hon'ble Supreme Court. The MCA in Review Petition of Dr. Katara being pending, implementation of the procedure is not bound by the same. The Hon'ble High Court can also justify it by placing on record the judgment of Hon'ble Supreme Court. As per the legal opinion of 24122009, Komal Katara Judgment is only applicable to the cases where situation similar to Komal Katara case has arisen. In a case where situation not similar to Komal Katara case has emerged, recruitment of women is to be decided considering Page 41 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) instructions of 1997 of the GAD and judgments of the Supreme Court in Mamta Bist case and other similar cases. Under such circumstances, now the Commission is required to take the decision about the matter after a review.
(12) Perusing the Judgment of Hon'ble Supreme Court in the case of Rajeshkumar Dariya V/S Rajasthan P.S.C. Dated: 18/07/2007, it appears that, in the case of female reservation, the merit list should be prepared according to the total vacancies of concerned category at first, and if the number of female candidates equivalent to the reserved posts of female or more are included in this merit list, the posts of female reservation are deemed to be filled up. But if the female candidates equal to number of female reservation are not available, they shall be considered from the merit list in the following order for the selection of the number of such female candidates and the male candidates to that extent shall be decreased from the merit list. For example, 10 posts are to be filled from unreserved category, out of which 3 posts are reserved for female. If the passing criteria for unreserved category is 40 marks, the combined list of male and female candidates securing 40 marks or more is to be prepared first, and if three or more females are included in it on merit, no further consideration is to be made considering that 30 percent female reservation is fulfilled as per rules. But if two female candidates are included, one more female candidate is to be Page 42 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) selected and for that, the female candidates from the merit list are to be considered in the following order and the male candidate at sr.No.10 in the merit list is to be excluded from the selection list. This kind of consideration is to be adopted for the candidates of scheduled cast / scheduled tribe / socially and educationally backward / physically disabled. After discussion of this fact, following can be considered in the result which will be declared afterwards.
(a) Instead of prescribing the minimum passing marks / selection criteria separately for the male and female candidates of unreserved and reserved category, the minimum passing / selection criteria for unreserved category (common minimum passing / selection criteria for Male and female) and for the reserved category (common minimum passing / selection criteria for Male and female) may be prescribed.
(b) If the female candidates equal to the posts of reserved seats of female or more are included in the merit list prepared on the basis of minimum passing criteria, no relaxation standard shall be fixed for the female candidates considering that the provisions of 30 percent female reservation are complied.
(c) If the female candidates sufficiently equal to the posts of female reservation are not available in the merit list prepared on the basis of minimum marks, the shortfall of female candidates shall be selected from the relaxed standard for female candidates.
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(d) Considering the legal opinion submitted by the Advocate General on 06/10/2001 in respect of what extent the minimum standard is to be relaxed for filling up 30 percent posts of female, the Commission has decided that, 10 percent of the minimum marks prescribed for the candidates of unreserved/reserved candidates shall be relaxed as the standard in this regard. Such standard is found proper to be followed in the result which will be declared hereinafter. Purpose of the Commission to take such decision is to maintain 30% female reservation as well as efficiency / merit etc in government service. Aforesaid relaxed standard should be adopted only for shortfall of candidates in female reservation seats and a separate waiting list of female candidates on the basis of relaxed standard should not be maintained.
(Ch) As shown in (Gh) above, if sufficient female candidates are not available for 30% after relaxing standard, such shortfall / vacant seats shall be filled by male candidates as per their merit number.
(Chh) Before preparing common merit list for recommendation to the Government, joint list of all the candidates, category wise separate common merit list for general candidates (male and female), Scheduled Caste candidates (male and female), Scheduled Tribe candidates (male and female), Socially and Educationally Backward Candidates (male and female), Page 44 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) physically handicapped candidates (male and female) shall be prepared first.
(Jh) It would also occur sometimes that due to preparing the merit list in aforesaid manner, number of candidates with minimum or more marks would be more than total number of aforesaid category. Under the circumstances, candidates equal to number of posts should be kept in selection list and remaining candidates should be included in waiting list and if a candidate does not join after making recommendation and proposal is received to call for a name from waiting list, in such an event, if female candidate has not joined, recommendation should be made from waiting list serially if 30% seats (meaning seats shown in advertisement) are filled with female candidates in recommendation list and if 30% seats are not filled with female candidates, female candidate should be recommended from waiting list, which method is being followed at present.
(Z) The decision dated 09092005 taken by the Commission (Circular No.:EXM822000Part2CNF) to call three times the number of candidates to seats in preliminary test should be continued.
For consideration and order of the Commission."
Page 45 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) POLICY DECISION DATED 25.10.2001 (translated version) Through two notifications dated 09/04/97 of the General Administration Department of the Government, it has been provided by the State Government that 30 % seats shall be reserved in the concerned cadres for the appointment of women in all the services. In this regard, necessary note had been prepared and produced before the Commission earlier for the implementation of the said order in the case of direct recruitment and competitive examinations conducted by the Commission. However, it appears that no decision has been taken by the Commission in this regard. Moreover, the respective file has also not been returned to the office. In such circumstances, the copy of the said note has been produced again to the Correspondence Department : 1 to 3 for necessary action. It is requested that appropriate decision should be taken after consideration in this regard.
Signature (Illegible) (Chandravadan Kapadiya) Secretary Date - 31/07/2001.
As per the above mentioned notification of the Government as well as the clarification dated 22/05/97, it is provided that, for Page 46 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 30 % reservation for female candidates, after counting the female candidates passed on merits, the shortfall female candidates required for 30% reservation can be appointed on the basis of reservation. All these provisions shall be followed at the time of selection for the posts of all the direct recruitments by the Commission.
Signature (Illegible)
3/8/2
Member, Mr. Rana Discussion shall be done
Signature (Illegible) 06/08/01
Member, Dr. Patel Signature (Illegible) 06/08/01
Member, Mr. Chavda Discussion shall be done in
Commission.
Signature (Illegible) 07/08/01
Chairman After discussing today, the
opinion of the Advocate
General shall be asked as
soon as possible.
Member, Mr. Rana Signature (Illegible) 24/09/01
Member, Dr. Patel Signature (Illegible) 24/09/01
Member, Mr. Chavda Signature (Illegible) 24/09/01
Chairman Signature (Illegible) 24/09/01
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C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Submitted with compliments.
2. Kindly see the letter dated 06102001 of the Advocate General received on 22102001.
3. It has been provided in the notification dated 09041997 of General Administrative Department to keep 30% posts reserved for women in all the services and vacancies under the State Government. It also clarifies the issues raised out of the circular dated 22051997. As the result of preliminary examination for Gujarat Civil Services ClassI and II is to be prepared, a letter was sent to the Advocated General of Gujarat on 26092001 seeking his opinion for more clarification in this regard. His opinion has been received on 22102001. The details are as follows.
"As per the judgement of the Supreme Court, the Commission may keep selection criteria for appointment of women candidates lower than that of male candidates. This criteria is applicable to all elimination tests and competitive examinations. However, the Commission shall decide as to upto what extent the selection criteria to be kept. This lower criteria shall be fixed in the range of 5% to 15%."
As the result of preliminary examination for appointment to the posts of Gujarat Civil Services, ClassI and II, conducted on 26082001 is pending, kindly decide appropriately as to how much lower the selection criteria for women candidates is to be kept than that of male candidates in accordance with the Page 48 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) opinion of the Advocate General.
4. For consideration and order of the Commission. Sd/ (Illegible) Date: 22102001 Secretary As recommended in para(8) of the opinion given by the Advocate General, State of Gujarat, keeping selection criteria for women candidates in the range of 510 percent in comparison to male candidates for Gujarat Civil Services (Preliminary) Examination, August 2001, procedure be carried out so that 30% women may get selected at every stage as per Rule2 of Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997.
Sd/ (Illegible) Date: 23102001 Member Shri Rana Sd/(Illegible) 23102001 Member Dr. Patel Sd/(Illegible) 23102001 Member Shri Chavda Sd/(Illegible) 23102001 Chairman Discussion was held today in the commission.
While preparing result for various exams conducted by the commission for recruitment through competitive exam and direct recruitment, i.e Objective test(Elimination test), Written test, Personal Interview and (Skill test) Stenography, the Page 49 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) shortfall required on the posts reserved for women are to be taken on the basis of reservation.
For this, 10% lower eligibility standard is decided for female candidates than that of male candidates of respective category. Even after doing so, if the posts reserved for women remain vacant, then it is decided to fill these posts with male candidates of the respective category.
Clarification In personal interview, it is decided to set 10% lower eligibility standard for female candidates than that of male candidates for the posts at present. For example, Eligibility standard Eligibility standard for Men for Women 50 45 40 36 35 31 25 22 Member Shri Rana Sd/ illegible 251001 Member Dr. Patel Sd/ illegible 251001 Member Shri Chavda Sd/ illegible 251001 Chairman Kindly keep copy."
Page 50 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 4.4 Mr. Shukla would also rely on the Gujarat Public Service Commission Procedure Rules, 1962 which regulate its procedure and function. Relying on clause (ii) of Sub Rule (ii) of Rule 2 of the Procedure Rules, he would submit that after the receipt of the applications the GPSC will determine as to who should be admitted at the examination and fix the date and programmes of the examination and make all arrangement for the conduct of the examinations. In his submission, when no specific provision is made in the Rules, it is within the domain of the Commission to formulate a yardstick for qualifying the merit position.
4.5 Taking us to the Affidavit, Mr. Shukla explained the manner and the method in which the result was furnished. He would submit that the following male candidates had been selected against the posts reserved for women for respective categories as a result of unsuccessful women candidates who did not qualify on the relaxed standard of 10% in the respective category vizaviz the male candidates. The details of the male candidates, 21 in number who were selected in place of female candidates are as under:
Page 51 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) CATEGORY NO. OF MALE CANDIDATES GEN 8 SEBC 8 SC 01 ST 04 TOTAL 21 He would submit that this was because of non availability of women candidates even after relaxing 10% of the qualifying of the respective categories.
4.6 Taking us to the Affidavitinreply filed by the GPSC on 09.02.2015, particularly paras 6.3 to 6.6, Mr. Shukla would explain that the candidates have been arranged in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main examination (Written and Personal Interview) and explaining the working of the results, he would submit that the Commission firstly prepared the list in the order of merit in descending order, i.e. the candidate with the highest total marks at Merit No. 1 and the candidate securing lowest marks at the bottom. He would further submit that for Unreserved/General category, there were 24 Page 52 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) vacancies for the post of ACF of which 8 had to be filled by female candidates. Similarly, 60 vacancies were for the post of RFO of which 18 had to be filled by women candidates of General category.
In all, 84 general posts were to be filled in of which 26 were reserved for female candidates. He would submit that going down the list the last candidate at Merit No. 78, who had secured 433 marks was the yardstick worked out and 10% relaxation for female candidates on that basis was counted as 389 for the purpose of yardstick of the female candidates in unreserved category.
4.7 In other words, the GPSC went into each category and the last male candidate of the said category was considered and 10% qualifying standard was relaxed so as to consider the eligibility of a female candidate for being appointed in the respective reserved categories against female reservation. While working up such list, only 30 women candidates were found qualifying and hence deficit of 21 posts were filled in by transferring such posts male candidates for respective categories.
4.8 Mr. Shukla would submit that it is entirely within the domain Page 53 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) of the GPSC to prescribe for qualifying standards and the findings of the learned Single Judge that the GPSC had either no power or that the power was utilised arbitrarily, was misconceived. He would submit that the list was operated in accordance with the decision of the Apex Court in the case of Rajesh Kumar Daria (supra) and in accordance with the dictum of the Apex Court in the case of Union of India vs. Mamta Bisht [(2010) 12 SCC 204].
4.9 A preliminary objection was raised by Mr. Shukla during the course of his submissions that the original petitioners - candidates who had taken part in the selection process knowing fully well the procedure laid down therein could not question the same. In support of his submission, he would rely on the following decisions:
(i) Union of India vs. S. Vinodh Kumar reported in 2007 (8) SCC 100 : AIR 2008 SC 5
(ii) Amlan Jyoti Barooah vs. State of Assam and Others reported in 2009 (3) SCC 227
(iii) Sadananda Halo & Others vs. Momtaz Ali Sheikh & Others reported in 2008 (4) SCC 619 & Page 54 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
(iv) Ranjan Kumar etc. vs. State of Bihar and Others reported in 2014 AIR SCW 2968.
4.10 With regard to the powers of the GPSC to judge the merits of the candidates, Mr. Shukla invited the attention of the Court to the decision in the case of Andhra Pradesh Public Service Commission vs. Balaji Badhavath and Others [(2009) 5 SCC 1.
He would particularly invite the attention of the Court to paras 12 to 25 thereof to submit that it is for the Commission to judge the merit of the candidates and unless the procedure adopted by it is held to be arbitrary or against the principles of fair play, the Superior Courts would not ordinarily interfere therewith. He would submit that no one had a fundamental right to be appointed because the right merely provides for a right to be considered.
4.11 In context of his submission explaining the concept of women reservation and prescribing the standard of qualifying marks, Mr. Shukla would rely on the decision dated 13.12.2007 in the case of Dr. Mehta Rakshaben Kantilal vs. Gujarat Public Service Commission and Another (Special Civil Application No. Page 55 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 25773 of 2007). He would invite the attention of the Court to relevant contentions raised by the parties therein, wherein the petitioner had prayed to quash and set aside alleged norms fixed by the GPSC being dehors the advertisement and the recruitment rules. He would invite the attention of the court to para 16 of the decision and submit that fixation of cutoff marks cannot be said to be arbitrary. Specific attention was drawn to para 18 of the decision wherein the court had observed that if there is a relaxation or a provision of cutoff marks between reserved category candidates for entry of female candidates it cannot be said to frustrate female reservation. He would also invite the court's attention to para 23 of the decision. In support of his submissions he also relied on the following decisions:
(a) Asha M. Barasara v. Gujarat Public Service Commission reported in 2008(3) GLR 2462 : 2008(2) GCD 1560
(b) Prajapati Ishwarbhai Joitaram & 18 v. State of Gujarat delivered by Gujarat High Court in LPA No. 1350 of 2012 in SCA No. 13495 of 2012 Page 56 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
(c) Nagori Ruksana Ahmedkhan v. State of Gujarat delivered by Gujarat High Court in LPA No. 2474 of 2010 in SCA No. 10060 of 2000
(d) Hemlata R. Joshi v. State of Gujarat of Gujarat High Court in SCA No. 5733 /2004
(e) Hemlata R. Joshi v. State of Gujarat of Gujarat High Court delivered by Gujarat High Court in LPA No. 649 of 2005 in SCA No. 5733 /2004
(f) Public Service Commission, Uttaranchal v. Mamta Bisht and Others reported in 2010(12) SCC 204 4.12 Reading extensively the decision in the case of Prajapati Ishwarbhai Joitaram (supra), Mr. Shukla would submit that the Division Bench of this Court held that even in reserved categories while making appointments efficiency of administration cannot be completely ignored and therefore a prescription of cutoff marks for appointment even in reserved categories was held to be just and proper. He would submit that the Division Bench also held that it is well settled that women reservation is horizontal and in respect of seats of women the merit will be at par with the male candidates Page 57 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) and if requisite merit is not available conversion of posts in the respective category cannot be said to be arbitrary. Under no circumstances, should the GPSC be compelled to go down below the cutoff marks because the same would compromise with efficiency.
Mr. Shukla in context of the decision of the Division Bench relied on para 6.
4.13 In support of his submission that the Commission is within its powers to provide for prescription of cutoff marks, an additional set of judgements was tendered by him on 16.03.2021. The list of judgements read as under:
(a) Prof. A. Marx v. Government of Tamil Nadu reported in 2013(O) GLHELSC54739 : 2014(13) SCC 329
(b) Lekhabahen Kanaiyalal Modi v. State of Gujarat reported in 2015(O) AIJEL - HC - 232965 : 2015 JX (Guj) 661
(c) Artiben Manilal Makwana v. State of Gujarat Page 58 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) delivered by Gujarat High Court in LPA Nos.1428 of 2015 & 19 of 2016 (Interim Order dated 19.12.2018)
(d) Ira Harshadkumar Bhavsar v. State of Gujarat delivered by Gujarat High Court in SCA No.8857/2013 dated 18.4.2017
(e) Bhavneeta Rajeshkumar Darji v. State of Gujarat reported in 2018(O) AIJELHC239188 : 2018(2) GLH 350.
4.14 Extensively relying on the decision of this Court in the case of Lekhaben Modi (supra) wherein the Circulars of 09.04.1997 and 22.05.1997 were considered holding that unless it was found to be arbitrary 10% relaxation in context of female reservation was held to be valid, Mr. Shukla submitted that the learned Single Judge committed an error in holding the prescription of such qualification as being beyond the powers of the GPSC. Relying on the decision in the case of Bhavneeta Rajeshkumar Darji (supra), Mr. Shukla would invite the attention of the Court to para 7 in support of his submission.
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5. In the case before us, in Letters Patent Appeal No. 1109 of 2015, for the respondent - original petitioner - unsuccessful candidate who has also filed LPA No. 1187 of 2015, Mr. Bhaskar Tanna, learned Senior Advocate appeared. He drew the attention of the Court to the Affidavitinreply of the GPSC and read the same in context of the 'Convenience Note' filed by him in LPA No. 1187 of 2015. He would submit that the appellants of LPA No. 1187 of 2015 were general category candidates who had been deprived the benefit of female reservation on account of erroneous implementation of policy of reservation for women. He would submit that while declaring the merit list of 25.09.2014, the GPSC had not followed the 30% reservation for females as envisaged by the Apex Court in the case of Mamta Bisht (supra).
5.1 Mr. Tanna would further submit that GPSC at the relevant time was not even entitled to prescribe 10% relaxation in qualifying marks for women and thereby transferring the shortfall to be occupied by male candidates of the respective categories. As far as the Letters Patent Appeal filed by the original petitioners, he would Page 60 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) submit that he was aggrieved by the observation of the learned Single Judge in para 57(f), which misinterpreted the concept of horizontal and compartmentalized reservation taking it as a concept and an argument which was not found favourable as taking away a slice from the quota of vertical reservation.
5.2 Mr. Tanna would submit that when sufficient qualified female candidates were available, steps should have been taken by the GPSC to fill in the reserved post in each category with the available female candidates and the contention of Mr. Shukla that the power of the GPSC was backed by an opinion of the Advocate General dated 06.10.2001 was misconceived. There was no power with the Commission to prescribe such qualifying standard. Mr. Tanna in support of his submission would rely on the leading case as he would put it in the case of Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar rendered in Letters Patent Appeal No. 1910 of 2019 dated 05.08.2020. He would submit that the decision of the learned Single Judge (J.B. Pardiwala, J.) in the case of Lekhaben Modi (supra) was no longer a good law in view of the decision in the case of Tamannaben Desai (supra) (authored by Honourable Page 61 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Justice J.B. Pardiwala himself with Honourable the Chief Justice Vikram Nath) which in para 56 provided and explained the proper and correct method of implementing horizontal recommendation for women. He would submit that the manner and the method in which the GPSC operated the merit list, was seriously flawed and the learned Single Judge had committed no error in assessing such fault as he did. He would want the court to read extensively the manner in which the learned Single Judge found the working of the female reservation as being flawed in comparison to one laid down in Tamannaben Desai (supra). Mr. Tanna would submit that the learned Single Judge has distinguished the decisions in the case of Dr. Mehta Rakshaben (supra) and Prajapati Ishwarbhai Joitaram (supra).
5.3 Mr. Tanna would further invite the attention of the Court to the decision of the Apex Court in the case of Saurav Yadav and Others vs. State of Uttar Pradesh and Others reported in (2020) SCC OnLine 1034 and submit that the procedure so laid down by the Gujarat High Court in Tamannaben Desai (supra) has been approved and referred to in paras 33 and 36 of the decision.
Page 62 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 5.4 Mr. Tanna would extensively read para 56 of Tamannaben Desai (supra) and elucidate the step wise implementation of women reservation in each category. He would submit that the learned Single Judge was right in his perception of holding that the Rules of the games were changed and the judgements cited by Mr. Shukla that once having participated in the selection process, the petitioners ought not to have approached this court would not apply to the facts of this case. Mr. Tanna would also rely on the recent decision of the Division Bench of this Court in the case of Alpesh Surendrasinh Rathod vs. State of Gujarat in Letters Patent Appeal No. 1246 of 2019 dated 17.10.2020.
6. Mr. K.B. Pujara, learned Advocate has appeared in LPA No. 1110 of 2015. He would invite the court's attention to the distribution of seats and submit that he was canvassing on behalf of SEBC candidate female. 15 seats were reserved for women in the SEBC category. He would submit that after holding OMR test, Written Examination and Oral Tests and after final selection list was published, the petitioner of Special Civil Application No. 2125 of Page 63 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 2015 was placed at SEBCF15. He would invite the attention of the Court to the operative portion of the learned Single Judge, para 57(k) and submit that he would support the impugned judgement of the learned Single Judge.
6.1 Mr. Pujara would submit that the Rules, 1997 provided a statutory requirement of 30% (now 33%) reservation for women under the proviso to Article 309 of the Constitution of India. He would submit that though large number of eligible candidates were available in each category, the GPSC selected much less number of women than notified vacancies for them in the final selection list dated 25.09.2014.
6.2 Mr. Pujara would submit that by not actually selecting the sufficient number of women for the posts reserved for women as notified in the advertisement, the GPSC failed to implement the statutory policy of women reservation of the State Government.
GPSC committed illegality by preparing select list and final list on a wrong premises by applying irrational and illogical formula of fixing qualifying marks on the basis of the marks obtained by the "last Page 64 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) male candidate" of the respective category and then granting 10% relaxation for selecting women candidate on the reserved quota. In the submission of Mr. Pujara, such formula had no legal sanctity as it was not even contemplated by the statutory rules. The GPSC being a creature of the Constitution under the Article 320 it must scrupulously follow the statutory rules. He would invite the attention of the Court to para 12.2 of the judgement of the learned Single Judge. In support of his submissions, Mr. Pujara would rely on the decision in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission (supra) wherein the Apex Court has explained the concept of women reservation and how the same is to be implemented. He would also rely on the decision of the Apex Court in the case of State of Punjab vs. Manjit Singh [(2003) 11 SCC 559]. He would invite the attention of the Court to para 9 thereof to submit that where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules, it would not be for the Commission to impose any extra qualification.
6.3 Mr. Pujara would also invite the attention of the Court to the Page 65 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) decision in the case of Inder Parkash Gupta vs. State of Jammu and Kashmir [(2004) 6 SCC 786]. He would submit relying on para 28 of the decision that the Commission must scrupulously follow the Proviso to the Rules under Article 309 and it cannot fix any "cutoff marks" not contemplated under the statutory rules.
6.4 Mr. Pujara would rely on the decision in the case of P.V. Indiresan (2) vs. Union of India [2011 (8) SCC 441] which explains the concept of "cutoff marks". He further relied on the decision in the case of Government of Andhra Pradesh vs. P.B Vijayakumar [(1995) 4 SCC 520] which provides the spirit of reservation inasmuch as the reservation in benefit of a person who is required not to compete in equal terms with the open category, their selection and appointment to the reserved post is independently on their interse merit and not as compared with the merits of the candidates in the open category. The very purpose of reservation according to Mr. Pujara is to protect the weak against the competition of the open category.
7. Mr. Yatin Oza, learned Counsel with Ms. Srushti Thula, Page 66 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) learned advocate has also appeared for the respondents in LPA Nos.
1108 of 2015 - original petitioners and made the submissions in support of the decision of the learned Single Judge. Mr. Oza would submit that had the qualification of 10% not been so prescribed post merit list, the original petitioners would have been in the female category in the deficit 21 seats that were transferred to the male candidates which were completely against and prejudicial to the women's right and dignity. The fixing of qualifying standards after the announcement of the results, in his submission, has been rightly upset by the learned Single Judge. He would submit that the Commission is constituted as a Constitutional Body under Article 320 of the Constitution of India and must faithfully follow the Rules and it must select the candidates in accordance with the Examination Rules. Mr. Oza has relied on the decisions which were cited by Mr. K.B. Pujara during the course of his arguments and therefore he submitted that he would not repeat and reiterate those citations but would adopt the arguments on the judgements cited by Mr. Pujara during part arguments made by him in the earlier course of hearing in this court.
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8. We have also heard Mr. Prabhakar Upadhyay, learned Advocate who appears for the respondent in LPA No. 1109 of 2015.
He would submit that he was the respondent no. 7 in LPA No. 1109 of 2015 and respondent no. 6 in LPA No. 1187 of 2015. He would submit that the concerned respondent whom he represents was issued an order of appointment on 28.01.2016, pursuant to an order passed by this court in Civil Application No. 11408 of 2015 on 14.10.2015. He was sent for training on 01.03.2016. The subsequent decision and the modification of the list based on the decision of the Apex Court in the case of Ramesh Ram (supra) according to Mr. Upadhyaya is flawed. He would submit that the learned Single Judge has rightly held that the judgment in the case of Ramesh Ram (supra) is rules specific and would not apply to the rules as they exist in the State of Gujarat.
9. Mr. Sandeep Limbani, learned Advocate has appeared and supported the submissions of the learned Counsel for the GPSC. Ms. Dimple Thakkar, learned Advocate who appears for one Mr. Keyur Patel submitted that the applicant of Civil Application No. 2 of 2016 (OLD No. 3733 of 2016) in Letters Patent Appeal No. 1110 of 2015 Page 68 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) for joining party is claiming his right as he has scored 426 marks and is above the cutoff marks in the new revised list. She submitted that the original petitioner of Special Civil Application No. 2125 of 2014 was claiming a right as per the old list of 25.09.2014.
According to her, the applicant can be considered in the 21 left out seats if the GPSC would succeed in the appeals.
9.1 Mr. Gautam Joshi, learned Counsel appears for the Civil Applicant of Civil Application No. 1 of 2016 (Old No. 13096 of 2016).
He has submitted that the applicant is a female candidate of general category and has scored 346 marks, above the cut off marks for SEBC (Female) and that she has been listed at Sr. No. 150 in the list dated 25.09.2014 and at Sr. No. 151 in the revised new list. He further submitted that the applicant of Civil Application No. 13096 of 2016 is similarly situated as the applicants in Civil Applications in which this Court has passed order dated 14.10.2015 that is above cutoff marks in SEBC category for whom there is no question of further relaxation of marks. The applicant is also entitled to the appointment like the candidates appointed who have scored more than the cutoff marks of SEBC.
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10. Mr. Kanva Antani, learned AGP has appeared for the State.
He would draw the attention of the Court to the provisions of Articles 309 and 320 of the Constitution of India and submit that under Article 309 of the Constitution it is for the State to legislate for making Rules for the purposes of recruitment whereas for the purposes of conducting examination it is within the domain of the Public Service Commission under Article 320 of the Constitution of India. The concept of recruitment envisages 2 streams (i) Selection and (ii) Appointment. Selection is undertaken by the Public Service Commission whereas appointment is made by the State. Mr. Antani would invite the attention of the Court to the Examination Rules and submit that it is within the powers of the Commission to formulate a policy and the decision of the Commission shall be final.
ANALYSIS
11. As reproduced hereinabove, the major bone of contention that this Court in these Appeals is called upon to decide is whether the method, procedure and the basis followed and adopted by the GPSC Page 70 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) for determining the qualifying standards (described by the GPSC as "cutoff marks") and by adopting such criteria which was not declared and informed to the candidates amounted to changing the rules of the game. The second consequential issue that, therefore, deserves consideration is whether it was open for the GPSC to transfer the quota reserved for female candidates to male candidates. The question whether transfer of quota of candidates possessing special qualification is an issue which will be dealt with in course of a separate LPA which is still pending consideration.
12. Before we embark on this journey of taking a decision on the issue, it will be in the fitness of things to have a bird's eye view of the relevant rules of recruitment that govern the recruitment in question. Rules governing the recruitment of ACF are Assistant Conservator of Forests in Gujarat Forest Service, Class II Recruitment Rules, 2007 ( for short 'Rules of 2007'). Those rules provide for recruitment to the service either by way of promotion and by direct selection on the basis of a result of a competitive examination held for such purpose. Rule 2 of the Rules of 2007 reads as under:
Page 71 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) "2. Appointment to the post of Assistant Conservator of Forests, Class II, shall be made either,
a) by promotion of a person of proved merit and efficiency from amongst the persons who
i) have worked for not less than five years in the cadre of Range Forest Officer, ClassII;
ii) have passed the prescribed departmental
examination; and
iii) have passed the qualifying examination for computer knowledge as may be prescribed by the Government in accordance with the provision of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967:
Provided that where the appointing authority is satisfied that a person having the experience specified in clause(i) is not available for promotion and that it is necessary in the public interest to fill up a post by promotion even of a person having experience for a lesser period, it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two third of the period prescribed in clause(i).
b) by direct selection on the basis of the result of the competitive examination held for the purpose." Page 72 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) 12.1 Amendments have been made to the Rules of 2007 in the years 2008 and 2009 which may not be relevant for the present controversy. For the purpose of rules governing recruitment of RFO, the rules are known as Range Forest Officer Class II Recruitment Rules, 2008. The appointments are made either by promotion of a person through proved merit and efficiency or by direct selection of a person holding prescribed qualifications. The examinations for the purposes of recruitment to these posts that of ACF and RFO is governed by the Examination Rules, as stated in the earlier part of the judgement known as The Assistant Conservator of Forest, Class II/ Range Forest Officer Competitive Examination Rules, 2008. The Rules provide as under:
"2. Definitions: In these rules, unless the context otherwise requires.
(a)"Commission" means the Gujarat Public Service Commission;
(b)"Examination" means the Combined Competitive Examination for recruitment to the post of Assistant Conservator of Forest / Range Forest Officer and includes Page 73 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the Preliminary Examination, Main Examination and an interview test referred to in rule 4;
(c) xxx xxxx xxxx (d) "Prescribed" means prescribed by the regulations made by the Commission;" XXX XXX XXX
3. Holding of Examination. (1) The Commission shall hold a combined competitive examination for selection of candidate on receiving of the requisition from the Government, for the aforesaid post. The dates and the place of the examination shall be decided by the Commission.
4. Nature of Examination. (1) The examination shall be in two successive stages namely.
(i) Preliminary Examination (Objective type) for selection of Candidates for Main Examination,
(ii)Main Examination (Written and Interview Test) for final selection of candidate.
XXX XXX XXX
9. Order of Preference. (1) The names of the candidates shall be Page 74 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) arranged by the commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main examination (written and Interview 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;
Provided that where the vacancies reserved for the candidates belonging to Scheduled Castes or Scheduled Tribes or Socially and Educationally Backward Classes cannot be filled up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up for the deficiency in the reserved posts;
10.Conditions for Eligibility. (1) A Candidate shall not be qualified for admission to the Examination unless he is,
(a) a citizen of India, or
(b) a subject of Nepal, or
(c) a subject of Bhutan, or
(d) a person of Indian origin who has migrated from Pakistan, Myanmar, Sri Lanka, East African Countries of kenya, Uganda, the United Republic of Tanzania, Zambia, Malawi, Zaire, Ethopia and Vietnam, with the intention of permanently settling in India;
(2) A candidate who is required to produce a Certificate of eligibility, may be allowed to appear in the examination or Page 75 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) interview conducted by the Commission and he may also be appionted provisionally subject to the production of eligibility certificate.
XXX XXX XXX
17.Commission's decision final. (a) No candidate shall be allowed to appear at the Main Examination unless the Commission is satisfied that candidate is eligible in all respect and has complied with all the requirements including the payment of requisite fees.
(b) The decision of the Commission as to the eligibility of a candidate for admission to the main examination shall be final and the candidate who has not been permitted to appear in any stage of the examination by the commission shall not be allowed to appear at remaining stage of the examination.
XXX XXX XXX 19.Appearance to Main Examination. (a) The candidates
who have obtained minimum qualifying marks as may be fixed by the Commission in the Preliminary Examination shall be allowed to appear in the Main Examination subject to satisfying the eligibility criteria.
(b) The candidates who have obtained minimum qualifying marks as may be fixed by the Commission in the Main Page 76 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Examination (Written) shall be called for interview test. Provided that candidates belonging to the Scheduled Castes, Scheduled Tribes or Socially and Economically Backward Class may be, allowed to appear in the Main Examination (Written test) or, as the case may be called for interview test by relaxing the standard in the Preliminary Examination or, as the case may be, in the Main Examination (Written) if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be available for the Main Examination (written) or, as the case may be, for interview test on the basis of the qualifying standard fixed for general category in order to fill up the vacancies reserved for such categories."
12.2 From the reading of the aforesaid examination rules, 2008, what is evident is that the examinations for the purposes of recruitment to these posts is to be held by the GPSC. It is a combined competitive examination for recruitment to the post. The examination is in two successive stages namely (i) preliminary (objective type) for selection of candidates for main examination (ii) Main examination (written and interview test) for final selection of a candidate. Rule 9 indicates that the name of the candidates have to be arranged by the Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main Page 77 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) examination and in that order the Commission shall recommend the qualified candidate for appointment to the extent of the number of vacancies to be filled in. The proviso indicates that where there are vacancies reserved for candidates belonging to SC, ST or SEBC and if such vacancies cannot be filled up on the basis of the qualifying aggregate marks fixed for the general category, the Commission may relax the standard of aggregate marks to make up for the deficiency in the reserved posts. Rule 19 indicates that the candidates who have obtained minimum qualifying marks, as may be fixed by the Commission in the preliminary examination, shall be permitted to appear in the main examination subject to satisfying the eligibility criteria. Clause (b) of rule 19 provides that the candidates who obtain minimum qualifying marks as may be fixed by the Commission in the main (written) exam shall be called for the interview test. The proviso indicates that the candidates belonging to reserved categories may be allowed to appear in the main examination or as the case may be called for the interview by relaxing the standard if sufficient number of candidates of these communities are not likely to be available for main examination or as the case may be for the interview test on the basis of qualifying Page 78 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) standard fixed for general categories in order to fill up the vacancies for such categories.
13. For the sake of brevity, though it may amount to burdening the record, we cannot help but reproduce the reasoning of the learned Single Judge on the basis of the affidavitinreply of the GPSC to show how they have worked out reservation in context of qualifying marks of 10% reservation.
"18.2 On this count, it is pertinent that for the purpose of determining the qualifying standard the respondent GPSC first pickedup the General / Unreserved Category and took into account total number of vacancies in that category. Thereafter the respondent GPSC started from the candidate at the top in the common merit list (i.e. the candidate with highest marks) and, while descending, it started identifying only male candidates belonging to the said / particular category and proceeded in descending order by taking into account marks of only male candidates in that particular category (i.e. excluding all female candidates/marks obtained by female candidates in that category) and continued to descend in similar manner until it reached the male candidate who, depending on the number of notified vacancies in the particular category, would be the last male Page 79 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) candidate required to fillup the vacancies in that particular category. The marks secured by such last male candidate of that particular category are treated and adopted and applied by GPSC as the qualifying marks/standard (what is described by GPSC as cutoff marks) for the respective category. The procedure and method followed by GPSC is explained by it in paragraphs No.6.2 to 6.4 of its affidavit dated 23.2.2015 filed in SCA No.14849 of 2014 and it is further explained in para No.2 of its additional affidavit dated 24.2.2015.
18.3 Besides this even in the notification dated 25.9.2014 GPSC itself has admitted and stated that: The candidates at Rank No...... ST being female candidates have been selected after relaxing the minimum qualifying standard prescribed for male candidates of their respective categories. (Emphasis supplied) 18.4 From the details mentioned in said affidavits it has emerged that for combined (i.e. ACF + RFO) 84 position of unreserved / general category, 26 position are reserved (@ 30% of total number of notified vacancy for the said category) for female candidates and for selecting female candidates for said position, the marks secured by the male candidate in general category whose name is listed at Sr.No.78 in the general / common merit list is treated as the marks of last candidate in Page 80 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) general / unreserved category (though only 58 position / vacancies are to filledup) and the marks secured by the said male candidate at Sr.No.78 is recognized as minimum qualifying marks/standard for the female candidates in general / unreserved category on the premise that the said candidate at Sr.No.78 is last male candidate to enter the selection list in genera/unreserved category and the said marks are then adopted and applied as benchmark for selection of female candidates and for complying the reserved quota. In response to the query, the learned counsel for GPSC submitted and clarified that the standard/basis which came to be fixed, settled and adopted in above mentioned manner (as qualifying marks/standard) is treated as yardstick and benchmark for all purposes including the process and purpose of fillingup the reserved quota for women in other three categories as well and for the candidates seeking selection in the quota reserved for persons holding special qualification.
18.5 It is relevant to mention that the stage of finalizing selection list and declaring successful candidates was reached after crossing three stages of screening. It is also relevant to note that the respondent GPSC also did not adopt the marks secured by a candidate in particular category regardless or irrespective of the fact that such last candidate is male candidate or female candidate but the respondent GPSC consciously started the process by picking up the marks secured Page 81 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) only by male candidates in respective categories and proceeded going downwards while taking into account the marks secured by only male candidates and it consciously opted for and adopted marks secured by such last male candidate as the qualifying standard."
13.1 The working of reservation as demonstrated by the learned Single Judge in para 18.2 which is reiterated above is at complete variance of working of reservation in female category as held in the case of Tamannaben Desai (supra) so confirmed by the Apex Court in the case of Saurav Yadav (supra). Para 56 of the decision in the case of Tamannaben Desai (supra) which explains proper and correct method of implementing horizontal reservation for women reads as under:
"56. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.
"PROPER AND CORRECT METHOD OF
IMPLEMETING HORIZONTAL RESERVATION
FOR WOMEN.
No. of posts available for recruitment. ..... 100
Social Reservation quota (50%)
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C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Open Competition (OC) ... 51 Scheduled Caste (SC ) ... 12 Scheduled Tribe (ST) ... 17 Socially and Educationally Backward Classes (SEBC) ... 20 Horizontal Reservation for Women (33% in each of the above categories) OC ... 17 SC ... 04 ST ... 06 SEBC ... 07 Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates don't join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.
Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in OC quota.
In the Step 2 List of OC category, if there are 17 women Page 83 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after item no. 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List list becomes final.
Step 4: Move over to Scs. From the Step 1 List, after item no. 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.
Step 5: Do a check for horizontal reservation in the Step 4 List of Scs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after item no.
51, and pick the first 2 SC women. As soon as 2 such SC Page 84 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) women in Step 1 List are found, they are to be brought up and added to the Step 4 List of Scs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of Scs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC. Step 6: Repeat steps 4 and 5 for preparing list of Sts. Step 7 Repeat steps 4 and 5 for preparing list of SEBCs."
13.2 Even the Apex Court in the case of Saurav Yadav (supra) approved the decision in the case of Tamannaben Desai (supra).
Para 36 of the decision in the case of Saurav Yadav (supra) reads as under:
"36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai29 contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Page 85 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes - Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs."
14. What is evident from reading the Examination Rules of 2008 is that, while preparing the merit list and recommending the name of the qualified candidates for appointment, the Commission has to arrange the names in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main Written Examination and Interview Test. Rule 19 of the Examination Rules envisages the discretion of the Commission to prescribe qualifying standards. The minimum qualifying standards have to be fixed by Page 86 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the Commission in the preliminary examination prior to the main examination and then while calling for the interview on the basis of the main examination. On facts, it has been found on reading the result dated 25.09.2014 that the Commission has introduced 10% qualifying standards after preparing the Common Merit List for purposes of working out female reservation based on the aggregate marks of "last male candidate" in each category. The learned Single Judge has specifically held in para 25 of the order that he is not going into the question whether the Commission had power or not what was observed is that what had been done was that the power had been used without nexus and it was not sustained about the manner in which the process was held. Para 25 at the cost of repetition is quoted hereunder:
"25. For the foregoing reasons and in light of the facts, the impugned method and procedure followed by GPSC and the basis adopted by GPSC for fixing / determining the qualifying standard as well as the qualifying marks/standard determined and settled and adopted by GPSC are not sustainable and deserve to be set aside and are consequently set aside and as corollary all subsequent and consequential decisions and actions by GPSC which are taken in pursuance of and on the basis of such qualifying standard (decided in Page 87 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) impugned method) fall and stand vitiated. At this stage, it is necessary to further clarify that the action of determining qualifying marks / standard and/or the action of allowing relaxation therein are, essentially, not sustained on account of the manner in which the said process is carried out and the basis which GPSC adopted and not for want of power. The action of allowing relaxation is not sustained also because it is tainted with vice of discrimination and the error of not applying relevant factors and not for want of power.
[Emphasis Supplied]
15. Referring to the file notings produced by Mr. Shukla and read before us in context of the opinion of the Advocate General dated 06.10.2001 quoted above, what is evident is that female reservation is envisaged under the statutory rules, then in force by virtue of the Notification of 09.04.1997. Even subsequent amendment of the rules on 14.06.2012 would indicate that the explanation to the rules are in the spirit of the judgement of this court in the case of Rajesh Kumar Daria (supra). The reservation of posts for women has to be done in consonance with the manner and method as envisaged under the Notification dated 14.06.2012. Rule 3, the amended rule of that Page 88 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) notification is reproduced hereunder:
"3. Manner of applying reservation of posts for women (1) The reservation of posts for women shall be horizontal and compartmentalized and women selected on merit within the vertical reservation quota in any category mentioned in clause (a) to (d) of rule 2 shall be counted against the horizontal reservation for women within that category.
Explanation:
(i) Horizontal and compartmentalized reservation means respective quota of posts reserved in favour of women under Clause (3) of article 15 of the Constitution of India made in public services and posts in connection with the affairs of the state that interlocks with the vertical reservation.
(ii) Vertical reservation means reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes under clause (4) of article 16 of the Constitution of India.
(2) The reservation of posts for women mentioned in rule 2 shall be applied
(i) by first filling up the quota of the categories Page 89 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) mentioned in clause (a) to (d) of rule 2 in order of merit; and then
(ii) finding out the number of candidates among them who belong to the respective reservation category and if the number of candidates in such lists is equal to or more than the number of special reservation quota of women, then it shall not be necessary for further selection towards the reservation quota of women. Only if there is any shortfall of the women candidates in any such category, the requisite number of women belonging to such category shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to such category."
16. Reading of the aforesaid provision makes it abundantly clear that if there is a shortfall of women candidates, the requisite number of women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to such categories. The working of Commission in preparing the merit list of 25.09.2014 is in direct contravention of this provision. By introducing the so called policy decision of 10% relaxation vizaviz the last male candidate in each category, the said policy decision has worked in direct conflict of the Reservation Rule under Article 309 of Page 90 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the Constitution of India namely the Women Reservation Rules.
Consequentially, the action of transferring the deficit posts filled in -
21 in number by male candidates, therefore, in our opinion is not sustainable and has rightly been set aside by learned Single Judge.
We concur with the said view.
17. The Circular dated 22.05.1997 envisages a position of filling in a post of a female reserved category candidate by a male only in the event a female candidate is not available. In the facts of the present case, what has been found by the learned Single Judge and which has been so demonstrated by the pleadings on record, especially the affidavitinreply of the GPSC is that the merit list has been so operated contrary to the manner in which it is explained in the case of Tamannaben Desai (supra).
18. As far as the decision cited by Mr. Shukla in the case of Dr. Mehta Rakshaben (supra), reproduction of relevant para of the decision in the case of Dr. Mehta Rakshaben (supra) shall be pertinent. Para 18 of the said decision is reproduced hereinbelow:
Page 91 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) "18. The reservation of female candidates in open category cannot be equated with the reservation made for SCST or OBC in any recruitment. The reservation of female candidates is reservation within the reservation as well as reservation for open category. Therefore, when the reservation is there in the open category, in normal circumstances, it is also open to the recruitment authority to fix up the same merit, may be between male candidates or female candidates and between equal merits, priority may be given to the female candidates for offering appointment or for inclusion in the select list.
However, if a reasonable relaxation is given for considering more number of female candidates for entering the zone of consideration, the same also cannot be said as arbitrary or unreasonable. In the present case, it appears that for the male candidates GPSC has provided cutoff mark in open category at 152, whereas for female candidates, such standard of cutoff mark is lowered down and is fixed at 134, which has resulted into inclusion of about seven more female candidates in the zone of consideration for interview. Therefore, when the attempt is made for permitting entry of more female candidates in comparison to the posts available for female candidates, the action cannot be said as frustrating or contrary to the policy for reservation made for female candidates. Further, it is an admitted position that none of the petitioners, not called for interview, has secured 134 or more marks at the elimination test. Therefore, the cut Page 92 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) off mark is relaxed for female candidates to enter the zone of consideration for interview. "
18.1 In the facts of the said case, the court found that when an attempt is made for permitting entry of more female candidates in comparison to the posts available for female candidates, the action cannot be said to be frustrating or contrary to the policy of reservation made for female candidates. In other words, the policy was approved as it worked in favour of female reservation whereas in the facts of the present case, the learned Single Judge found that it worked in contravention or constriction of the policy of reservation and therefore even the learned Single Judge held and rightly so that the decision in the case of Dr. Mehta Raksha (supra) would not be applicable to the facts of the present case.
18.2 Even in the decision in the case of Prajapati Ishawarbhai Joitaram (supra), the learned Single Judge rightly held that the decision would not be applicable to the facts of the case. The question there was also in relation to horizontal reservation but was in context of providing for qualifying standards for entering the zone for the purposes of interview and not after the entire exercise based Page 93 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) for filtering on the basis of the examination, in the context of the present rules, especially Rules 9 and 19, was over. The judgment, therefore, would not be applicable. Paragraphs no. 4 to 6 of the decision in the case of Prajapati Ishwarbhai Joitaram (supra) read as under:
"4. However, the principal contention raised on behalf of the appellants is that the cutoff marks for the purpose of inclusion in the select list or waiting list should have been fixed by the respondents at the time when the written examinations are held and it is not open to the respondents to fix the cutoff marks at the later stage. It was also submitted that even if the cutoff marks are fixed by the respondents for the respective category of the candidates in the case of horizontal reservation for ExServicemen, in order to accommodate all Ex Servicemen upto the post advertised, it is required for the respondents to go below the cutoff marks and offer employment for the purpose of selection. The learned counsel in support of his submission, has relied upon the decision of the Apex Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission reported at (2007) 8 SCC 785 for explaining the method and manner of applying the horizontal reservation and the selection of the candidates by application of horizontal reservation.
5. Whereas, on behalf of the respondents, it has been submitted that initially the cutoff marks were not prescribed for the simple Page 94 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) reason that it would be unknown as to how many candidates may pass the written examination. It is only after the written examination is conducted, if the interview is to be taken, normally the number of candidates who may be called for interview, may be three times the number of post advertised and therefore, the cutoff mark is to be treated as that of the person who is last in such list for the purpose of interview. Whereas in case of posts wherein interview is not provided and the selection is to be made on the basis of the performance at the written test, keeping in view the number of vacancies and the available candidates, the cutoff mark is being provided. It was submitted that so far as the appellants herein are concerned, who are in the category of ExServicemen, for which there is reservation of 10% in horizontal manner, initially, there was no relaxation provided. However, subsequently, as the Division Bench of this Court vide order dated 19.12.2012, passed in the present appeal, observed for consideration on the aspect of relaxation, the Recruitment Board has considered the same and relaxation has been granted to the extent of 5% so far as ExServicemen are concerned in comparison to the cutoff marks of the candidates of the respective category, be it General, SC, ST or SEBC, as the case may be. It was submitted that for the purpose of inclusion of the name of any candidate who is falling in the horizontal reservation, such candidate has to meet with the criteria of cutoff marks provided for the respective category subject to relaxation for ExServicemen and if the candidate is to be considered scoring less than the cutoff marks, it would adversely affect the merits of the selection and ultimately efficiency of the Page 95 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) candidate concerned and such would adversely affect the administration. It was submitted that the facts and figures which are given by way of the affidavitinreply in the present LPA makes it clear that all care has been taken by the respondents to see that all candidates of the reserved category are included in the list, but subject to the requirement that one has scored marks above the cutoff marks provided for such category with the relaxation of 5% for Ex Servicemen which is in the present case.
6. The first aspect of providing cutoff marks shows that the recruitment process is governed by the Police SubInspector, Class III Level Cadres Posts (Combines Competitive Examination for Director Recruitment) Rules, 2011, ( Recruitment Rules for short) copy whereof is produced as annexure with the affidavitinreply dated 05.11.2012 filed by Shri Ashish Bhatia, Chairman of Recruitment Board. Therefore, so far as the recruitment to the post of Police Inspector is concerned, it would be governed by the aforesaid Recruitment Rules. Rule 4(2)(c) of the Recruitment Rules reads as under:
"The candidates who qualify in the written examination shall be called for an interview. The number of candidates called for interview shall ordinarily be three times the number of requisioned."
Therefore, if the number of candidates to be called for interview by express language of the Recruitment Rules should be equivalent to three times the number of post advertised. Only those candidates who Page 96 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) stand on merit upto three times the number of vacancies will be required to be called for interview and under these circumstances, the last candidate in the list who secured particular marks at the written test could be termed as qualifying marks/cutoff marks of the candidates for the post of Police Inspector. Therefore, if the respondents have fixed the qualifying marks accordingly keeping in view the said aspects, it cannot be said that there is no power or authority with the recruiting board to provide for qualifying marks. It is hardly required to be stated that fixation of qualifying marks for entering into the select list and/or waiting list is essentially the domain of recruiting agency or the authority conducting the examination. For example, if the number of posts are 50 and the candidates appearing at the written test are 500 and about 300 candidates have passed the written test, that does not mean that all the 300 candidates would be eligible for the purpose of interview. It is open to the recruiting agency or the authority conducting the examination to fix the cutoff marks which is popularly known as qualifying marks for the purpose of entering in the zone of consideration for the purpose of interview. In the present case, it is three times the number of posts advertised. Therefore, it is only after the result of the written test, the recruiting agency may be in a position to know that how many candidates are to be interviewed and the qualifying marks or the cutoff marks may be fixed. Such cannot be termed as beyond the power or competence of the recruiting agency for providing of the cutoff marks or qualifying marks for the purpose of interview."
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19. As held by the Apex Court in the case of Inder Parkash Gupta (supra), it will be worthwhile to reproduce para 28 of the decision which reads as under:
"28. The Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said rules are statutory in nature. The Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in Page 98 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) consonance with the statutory rules. It can not take any action which per se would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut off marks."
19.1 On facts of the present case, it has been found that the procedure laid down by the Commission did not have the support of the statutory rules and therefore the decision in the case of Inder Parkash Gupta (supra) would apply on facts of the present case.
19.2 Even the decision in the case of Manjit Singh (supra), para 9 which is reproduced hereunder would indicate that the Commission would have no power to impose a qualification which was not in consonance with providing for efficiency of administration.
"9. In the present case, the stand of the appellant Commission is that for medical services where the members of service have to deal with the health and life of the people, they must have some minimum standard of efficiency and it is the bounden duty of the Commission to ensure the same. It is perhaps with this view in mind that the Commission fixed 45% minimum qualifying cutoff marks for Page 99 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) general category candidates and 40% cutoff marks for Scheduled Caste candidates. We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority or the government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for differernt posts, and frame rules for the purpose or take policy decisions which may of course not be against the law. In this context, we may refer to the provisions contained under Article 320 of the Constitution. It reads as under :
" 320. Functions of Public Service Commissions
1. It shall be the duty of the Union and the State public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
2. It shall also be the duty of the Union Public Service Commission, if requested by any two or more States to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
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3. The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters, affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State.
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C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Govt. of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State may refer to them.
Provided that the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union and the Governor as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
4. Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335.
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5. All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of Legislature of the State may make during the session in which they are so laid."
It is to be noted that under clause (3), the Union Public Service Commission or the State Public Service Commission, has to be consulted by the Government relating to methods of recruitment in civil services and for civil posts, promotions and transfers as well as about suitability of candidates etc. The consultation may also be in regard to disciplinary' matters affecting a person serving under the Government. We then find that clause (4) particularly provides that nothing in clause (3) shall require consultation of the Commission in respect to the manner in which any provision referred to in Article 16(4) may be made or the manner in which the effect may be given to the provisions of Article 335. We may peruse clause (4) of Article 16 and Article 335. They read as follows :
" 16(4)Nothing in the article shall prevent the State from making any provision for the reservation of Page 103 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
335.Claims of Scheduled Castes and Scheduled Tribes to services and postsThe claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
Article 16(4) deals with Reservations and Article 335 pertains to consideration of reservation consistent with maintenance of efficiency of the administration. As indicated earlier, clause (4) of Article 320 clearly provides that consultation of the Commission would not be necessary in the matters relating to Articles 16(4) and 335. Therefore, it would be a matter of policy to be decided by the State Government as to what Page 104 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) measures, if necessary, may be provided regarding reservations visavis maintenance of efficiency in services. Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary. No consultation with the commission, in such matters, is envisaged in view of Clause (4) of Article 320 of the Constitution."
19.2 It would also be worthwhile to reproduce para 45 in the case of P.V. Indiresan (supra) which provided that a factor which was unknown at the time of declaring examination cannot be used to disentitle a candidate who is otherwise entitled for admission.
"45. No candidate who fulfils the prescribed eligibility criteria and whose rank in the merit list is within the number of seats available for admission, can be turned down, by saying that he should have secured some higher marks based on the marks secured by some other category of students. A factor which is neither known nor ascertained at the time of declaring the admission programme cannot be used to disentitle a candidate to admission, who is otherwise Page 105 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) entitled for admission. If the total number of seats in a course is 154 and the number of seats reserved for OBCs is 42, all the seats should be filled by OBC students in the order of merit from the merit list of OBC candidates possessing the minimum eligibility marks prescribed for admission. (subject to any requirement for entrance examination.) When an eligible OBC candidate is available, converting an OBC reservation seat to general category is not permissible."
[Emphasis Supplied] 19.3 Even recently the Division Bench of this Court in Letters Patent Appeal No. 1246 of 2019 (Alpesh Surendrasinh Rathod vs. State of Gujarat) decided on 17.08.2020 was considering the issue of "horizontal reservation" and in the context of providing for qualifying marks in context of the grievance of the appellants therein, the Division Bench considering the decision in the case of Balaji Badhavath and Others (supra) cited by Mr. Shukla in the present appeals held as under:
"28. Article 16 says that all citizens shall be equal in matters relating to employment or appointment to any office under the State. In Indra Sawhney vs. Union of India reported in 1992 Supp (3) SCC 217 (reference paragraph no.'733'), Justice B.P. Jeevan Reddy speaking for the majority of Judges has clarified Page 106 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) that Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats. The argument that clause (1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts has not been accepted. The question whether clause (1) of Article 16 permits any reservation has been answered in the negative and it was observed:
"741. ...............Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality............
745. For the reasons given in the preceding paragraphs, we must reject the argument that clause (1) of Article 16 permits only extending of preference, concessions and exemptions, but does not Page 107 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) permit reservation of appointments/posts.......".
29. The observations in paragraph no.812 of Indra Sawhney (supra) are relevant for our purposes and are extracted herein below: "812 .We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making Page 108 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments.
Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."
30. Thus, it is evident that the reservation in favour of the physically handicapped, dependents of freedom fighters and Exservicemen is relatable to Article 16 (1) and can be referred to as horizontal reservation. Such reservation has been granted on the principle of reasonable classification embraced in Article 16(1) for ensuring attainment of the equality of opportunity assured by it. It is just the same as Article 14 which permits reasonable classification on the doctrine of equality enshrined in it.
31. As has been held in Indra Sawhney (supra) noted above, the persons selected against the quota of physically handicapped, dependents of freedom fighters and Ex servicemen are to be placed in the appropriate category to which they belong by making necessary adjustment so that the rule of 50% (percentage of reservation) is adhered to. The Page 109 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) horizontal reservation, thus, cuts across the vertical reservation.
32. In Anil Kumar Gupta and others vs. State of U.P. and others reported in 1995 SCC (5) 173, Supreme Court explained the procedure to be adopted regarding the vertical reservation and horizontal reservations in following terms:
"The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C. the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied in case it is an overall horizontal reservation no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom...."
33. In Sunaina Tripathi vs. State of U.P. reported in 2012 (3) ADJ 463, the issue which came up before the Court was "whether horizontal reservation for women provided under the Government Order dated 26th February 1999 is restricted to Page 110 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) each of the categories or is general in nature". The Court placing reliance upon Indira Sawhney vs. Union of India 1992 Supp (3) SCC 217, Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others reported in 2007 (8) SCC 785, Anil Kumar Gupta (supra) culled out the following principles:
(i) vertical reservations cannot exceed 50% in an year;
(ii) provision of reservation made for women (dependents of freedom fighter and exservicemen) is horizontal reservation;
(iii) the proper and correct course is to fill up the general (open) category quota on the basis of merit and then fill up each of the reserved category quotas of the Scheduled Castes, Scheduled Tribes, Other Backward Class, and thereafter, find out how many candidates belonging to the special reservations/horizontal reservations have been selected on the above basis. If the quota fixed for horizontal reservation is already satisfied, in case it is an overall horizontal reservation, no further question arises and if it is not satisfied, the requisite number of the special reservation candidates under the horizontal reservation have to be taken and adjusted/accommodated against their respective Page 111 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) categories by deleting the corresponding number of candidates therefrom.
34. The Supreme Court in Public Service Commission, Uttaranchal vs. Mamta Bistand others reported in AIR 2010 SC 2613, observed that the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of the reserved category candidates. The Court placing reliance on the observations made in the case of Rajesh Kumar Daria (supra) repelled the contention:
"The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are Vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non reserved posts and if the}' are appointed to the non reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or Page 112 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide Indira Sawhney (Supra), R.K. Sabharwal v. State of Punjab, 1995 (2) SCC 745), Union of India v. Virpal Singh Chauvan, 1995 (6) SCC 684 and Ritesh R. Sah v. Dr. Y.L. Yamul, 1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled CastesWomen'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal Page 113 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women."
35. Article 16(4) contemplates vertical (social) reservation for SC/ST/OBC, which cannot exceed 50% of the total vacancies. These reservations are not communal reservation, therefore, candidates belonging to the SC/ST/OBC may compete for non reserved/open category (OC) post and if they get selected on the OC post on merit, their numbers will not be counted against the reserved quota for the respective social class. The entire reservation quota shall remain intact and be available in addition to those selected under OC.
36. The principle applicable to horizontal (special) reservation is different and distinct from the principle applicable to vertical reservation. The special reservation provided to women, Exservicemen etc., under Articles 15(3) and 16(1) is horizontal reservation. Horizontal reservation cuts across the vertical reservation, otherwise, it will be vertical reservation breaching the 50% bench mark, which is prohibited. The horizontal reservation is provided to the special class of persons i.e. Ex servicemen/dependents of freedom fighters irrespective of their social class SC/ST/OBC. Such persons on being selected in the OC or in SC/ST/OBC quota will necessarily be counted against the vacancy reserved for them on horizontal basis irrespective of the social category to which Page 114 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) they belong for the reason that the persons belonging to special class may constitute a class in themselves, but as a class they do not enjoy the benefit of vertical reservation. They have not been classified as backward class. They would, therefore, have to be adjusted in the social category to which they belong after making necessary adjustment. For instance, 10 posts of Ex servicemen are to be filled up on horizontal reservation basis and if that many number of Exservicemen are included in the merit list of selected candidates prepared vertically i.e. OC/SC/ ST/OBC, then nothing further is required to be done. But against 10 Exservicemen only 5 could make it to the merit list, then in that event 5 Exservicemen, if available, will have to be adjusted in the respective social category i.e. OC/OBC/ST/ST to which they belong by replacing the last male candidate from that category. If the suitable Ex servicemen are not available then as per the impugned rule, the vacancy is to be carried forward.
40. It is the action of the Recruitment Board at the time of document verification that has given rise to the present petition. At the time of physical verification of documents, the candidates who had qualified in PET/PST in different categories were to be called for physical verification of documents in such numbers as prescribed under the Rules. The Recruitment Board has fixed cut off marks for unreserved category and other reserved categories where there were more Page 115 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) candidates than the number of vacancies. This is a fair and reasonable approach taken by the Recruitment Board. In fact, it would be the only mode for the Recruitment Board to proceed where number of candidates who had qualified in PET/PST were more than number of vacancies in different categories. But where there were less number of candidates than the vacancies available, there would be no question of fixing any cut off marks at the stage of physical verification of documents. But surprisingly, the Recruitment Board even for the categories where there were lesser number of candidates than the posts available for that category, has fixed cut off marks equivalent to the unreserved category of male and female and all reserved categories under the vertical reservation. This meant that the candidates falling under the horizontal reservation were to compete or perform better than those selected candidates in vertical category. This is where the petitioners were aggrieved and have approached this Court. This arbitrariness is because of the instructions issued by the Recruitment Board dated 03.05.2019.
45. When the time came to call the appellants for the verification of their documents, the Board introduced the concept of qualifying marks. Clause 10 of the advertisement provides that relaxation may be given to the Exservicemen if sufficient number of candidates are unable to obtain the minimum qualifying marks. It is suggestive of the fact that the Page 116 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) relaxation, which was intended to be given as per the condition of the recruitment was in context with the minimum qualifying marks i.e. 40% as referred to above and not the qualifying marks, that may be fixed by the Board for other category of the candidates for the purpose of preparing the final select list on merit. Clause 10 in the advertisement has been provided with a purpose and with definite intention. The intention is to provide employment to the Exservicemen and to call for as many candidates as possible from the category of Exservicemen against the reserved posts. In this context, the decision of the Supreme Court referred to above in the case of P.V. Indresan and others (supra) assumes significance. The respondents faltered at this stage. The respondents relied upon Rule 6A for the purpose of providing qualifying marks applicable even to the Exservicemen. We have already quoted Rule 6A of the 1975 Rules above. It is stated therein that in the case of direct recruitment, if sufficient number of candidates belonging to the category of Exservicemen are not available on the basis of general standard to fill all the vacancies reserved for them, the candidates belonging to the category of Ex servicemen may be selected under a relaxed standard of selection to make up the deficiency in the reserved quota subject to the condition that such relaxation should not affect the level of performance of such candidates. This Rule 6A rather is apparently making a provision for Page 117 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) selecting Exservicemen under the relaxed standard to make up the deficiency. This Rule 6A cannot be read to nullify the appointment of the reserved category of Exservicemen. If the stand of the respondents is accepted, the very purpose of horizontal reservation would stand frustrated. It is settled law that the horizontal reservation has to be provided by cutting across amongst the vertical reservation and if a candidate having a right of selection under any of the horizontal reservation categories, secures lesser marks than the last candidate in the vertical reservations category, the candidate from horizontal reservation shall be pulled up for filling up the last seat in that category of vertical reservation. The benefit of horizontal reservation could not have been denied to the appellants herein merely because the last candidate in the select list was higher in merit even after providing 20% relaxation to the Ex servicemen. The provisions of Article 335 of the Constitution shall not be attracted for filling the seats amongst the reservationists of the horizontal category visavis the vertical category."
19.4 In other words, even the Division Bench of this Court, considering various decisions cited before it has held that the concept of qualifying marks in "horizontal reservation" cannot work Page 118 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) in a manner so as to restrict the right of selection of a candidate who is otherwise entitled to an appointment in the horizontal category.
19.5 Thus, we are of the opinion that the GPSC at the time of preparing the final merit list, in the present case, could not have applied the criteria of minimum qualifying marks. The action of the GPSC in prescribing qualifying standard for female candidates for reserved quota on the basis of the marks secured by "last male candidate" of the respective category and then granting 10% relaxation at the time of final selection list is dehors the Statutory Rules.
20. On all these counts therefore, the directions issued by the learned Single Judge in para 57 of the decision, as quoted in paragraph no. 3.7 hereinabove, especially in (a), (b), (c), (g), (k) stand confirmed. As far as the observations made in para 57 (f) that the horizontal reservation cannot be maintained by taking away a slice from quota of vertical reserevation is held to be contrary to spirit of horizontal and compartmental reservation in light of the decision in the case of Rajesh Kumar Daria (supra). LPA No. 1187 of 2015 is Page 119 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) therefore disposed of accordingly. Remaining appeals are dismissed.
21. As far as the Civil Applications are concerned, in view of order in Letters Patent Appeal No. 1110 of 2015, Civil Application No. 2 of 2016 (OLD No. 3733 of 2016) for joining party in Letters Patent Appeal No. 1110 of 2015 is not entertained and is disposed of accordingly. By virtue of interim orders passed by this Court dated 23.09.2015 and 14.10.2015, candidates who were even otherwise eligible inasmuch as they had marks above the cut off marks and who are already appointed will be continued as such. Their appointments shall not be disturbed. Connected Civil Applications are accordingly disposed of. Civil Applicant of Civil Application No. 1 of 2016 (Old No. 13096 of 2016) is however allowed.
22. The original petitioners - respondents in the respective Appeals - the 21 female candidates in whose places male candidates were recommended and appointed under interim orders may be now appointed on their respective posts pursuant to the Order in these Appeals within a period of four weeks from the date of receipt of the copy of the writ of this Order. These appointees shall be given Page 120 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) the benefit of notional seniority from the date of joining the service of the candidates, who have been appointed pursuant to the Interim Orders of this court dated 23.09.2015. No costs.
(PER : HON'BLE DR. JUSTICE VINEET KOTHARI) CONCURRING :
1. I concur and respectfully agree with the view expressed by learned Brother Justice Biren Vaishnav. I may add the following :
2. The purpose of providing 30% Horizontal Reservation to women in the Recruitment Process for Forest Department for the post of Assistant Conservator of Forest and Range Forest Officer was to ensure appointment of women to the extent of 30% of total vacancies in each category notified by the Advertisement dated 1.3.2010. The said avowed object of appointment / presence of 30% women in the different categories in number of posts notified on 1.3.2010 was defeated by GPSC by the so called Policy Decision dated 25.10.2001 based on the opinion of learned Advocate General dated 6.10.2001 to introduce the relaxation of 10% of minimum cut off marks computed on the basis of last cutoff marks for the Male in Page 121 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) each category. This linkage of relaxation for women to Male's cutoff marks had no rational nexus to the object sought to be achieved. The reentry of males on the posts reserved for women to the extent of 30% on the basis that the women candidates even on such lower and relaxed criteria fixed of cutoff marks for women on the basis of policy decision of GPSC were not available, was nothing but taking by the left hand what was given by the right hand to the women folks in the said Recruitment Process. This was not only contrary to the law laid down by the Supreme Court in the case of Saurav Yadav (Supra) approving the Division Bench's decision of this Court in the case of Tamanna Ashokkumar Desai (Supra) which has meticulously laid down the stepwise entry of women candidates in the Horizontal Reservation in compartmentalized manner, but also such fixation of lower cutoff marks for women category by the GPSC without any prior Notification or clarity in the Advertisement or in the Rules promulgated by the State, was in our opinion self defeating exercise which violated Article 14 of the Constitution of India i.e. right of equality in consideration.
3. The said policy decision based on the opinion of the learned Advocate General in different circumstances as quoted elsewhere Page 122 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) could not be applied in the present Recruitment process for Forest Department at the time of preparation of the final recommendations for the appointments by GPSC and it was totally uncalled for. The very concept of equality without any discrimination on the basis of gender, in our opinion, was violated by linking the minimum cutoff and qualifying marks for women category to the lowest cutoff marks of the male category. This comparison and linkage per se is gender discrimination and unnecessarily views females as inferior mortals or less intelligent than males, which they are not. An independent lower cut off with relaxation, prescribed at the beginning of recruitment process could be understood but the very idea of linking it to the lowest cut off marks in Males category, in our opinion, is abhorrent and unpalatable idea. The relaxation of marks to support and ensure full entry on Horizontal Reservation for women is a State policy to ensure the equality, but not by comparing their IQ level with males as if later is superior. The Constitution not only guarantees equality without discrimination on the basis of gender but, the real equality could be achieved by making the horizontal entry of the women to the full extent of 30% of seats reserved for them, only if such 30% posts were actually filled up by the qualified Page 123 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) female candidates available in all the categories. They were all qualified and faced interviews and were not otherwise rejected. The only sledge or axe which fell on the unfortunate women folks in the present recruitment process, 21 in number, who were removed from the list of selected candidates finally on the basis of aforesaid arbitrary fixation of 10% relaxation of cutoff marks by GPSC. They were not the candidates otherwise without the merit and qualifications. Their appointment would not have breached the norms and bar of efficiency and merit through the bottom.
4. The power to fix cutoff marks with the GPSC is not in doubt but, the manner and point of time when it was done is questionable in the present case and cannot be sustained, since it was done at the fag end without prior knowledge and notification to public at large including the candidates, who appeared in the said Selection process.
5. We are of the considered opinion that the law as now settled by the Supreme Court and the Division Bench of this Court in the case of Tamanna Ashokkumar Desai (Supra) has to be implemented in true letter and spirit meticulously to achieve the Page 124 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) object of giving 30% reservation to women provided under the Reservation Rules promulgated by the State de facto by their actual appointments to the extent of 30% of total seats and to achieve the object of real equality for women candidates visavis the male candidates. The number of females present in Select List has to be 30% of total vacancies and their actual appointment was necessary, which has been prevented by introducing this 10% relaxation of marks with reference to bottom Male category marks illogically. The reliance placed by learned counsel for the GPSC on the previous Supreme Court decisions for admission to the medical colleges is not opportune and exactly applicable to the Recruitment Process in the present case in the Forest Department, where the question of life and health of the public at large to be handled by Doctors, who qualified in that process is not the scenario here, when the Recruitment Process for Assistant Conservator of Forest or Range Forest Officer is being considered.
6. Today, with the advancement of Education, Technology and Women Empowerment in India, the women folks are entering the public service from the post of Peon to the post of Pilots for Fighter Planes, Scientist, Doctors, CAs and Lawyers being other lot of Page 125 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) professionals and with so many IT professionals in both genders, they are doing great service to the Nation and their equality is not now a farfetched dream in our Country but a stark reality.
7. The reservation provided to women folks in the Recruitment Process as of now besides their entry on the basis of their merit by way of Horizontal Reservation cannot be permitted to be defeated by the policy decision taken on the file notings of the GPSC, as was done in the present case. Therefore, we cannot countenance the stand of the GPSC taken in the present case before us and we fully affirm the view of the learned Single Judge and with the detailed reasons and discussions given in the present Judgment by the Brother Justice Biren Vaishnav, J., with which I fully concur with the reasons and the final conclusions and with a direction to the GPSC to implement the judgment of this Court in the case of Tamanna Ashokkumar Desai (Supra) as affirmed by the Supreme Court in the case of Saurav Yadav (Supra), the GPSC should revise the Recommendations List accordingly and the consequential appointments may be given to the women category and the males who were appointed under the interim orders of this Court in 21 posts reserved and required to be filled by women Page 126 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) category in this selection process will naturally have to make way for such eligible women candidates. No equity or continuation in service can be claimed by such displaced 21 male category persons.
8. However, if the State considers it to be possible and services of such persons are required by the State, they may either be employed by the Forest Department on contractual basis and may be offered another opportunity to again compete in the fresh Selection or Recruitment Process to be held by the GPSC in the next Selection Process upon vacancies arising. However, they cannot claim any right of continuity in the service on the post of Assistant Forest Conservator or Range Forest Officer, as of now, merely because they were appointed temporarily under the interim orders of this Court, which will stand obliterated by this final judgment and no right of continuity of service can be said to have been vested with such male candidates, 21 in number, who were temporarily appointed on the posts reserved for women category subject to final decision in these Appeals and the entire process will be governed by the law laid down hereinabove and in the case of Tamanna Ashokkumar Desai (Supra) by the Division Bench of this Court as affirmed by the Page 127 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) Supreme Court in Saurav Yadav (Supra).
9. Incidentally and luckily, before we could sign off and pronounce this Judgment, we came across the Judgment of the Supreme Court pronounced on 25.3.2021 in WPC No.1109 of 2020 (Nitisha v. Union of India), in which reiterating the concern of the Supreme Court for gender equality in the case of Secretary, Ministry of Defence v. Babita Puniya & Others dated 17.2.2020, reported in (2020) 7 SCC 469 in which the Supreme Court directed grant of Permanent Commissions to Women, who were engaged in Army in Short Service Commissions (SSC) in its landmark Judgment in which the following epoch making observations were made by Hon'ble Dr.Justice D. Y. Chandrachud for the Bench, resounding the Constitutional spirit of equality without any gender discrimination in the following terms :
"Seventy years after the birth of a postcolonial independent State, there is still a need for change in attitudes and mindsets to recognise the commitment to the values of the Constitution. The submissions advanced in the note tendered to the Supreme Court are based on sex stereotypes premises on Page 128 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a "greater challenge" for women officers to meet the hazards of service "owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families" is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the "inherent physiological differences between men and women"
rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the "weaker" sex and may not undertake tasks that are "too arduous" for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officer."
In the Judgment pronounced on 25.3.2021, the same Hon'ble Judge reiterated the concern of Supreme Court in the following words :
"We must recognize here, that the structures of our society have been created by males for males. Therefore, certain structures which may appear to be facially harmless are an indication of insidious patriarchal system. A facially equal application of laws to unequal parties is farce, when law Page 129 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) is structured to cater to male standpoint. Superficial face of Equality does not stand true to the principles enshrined in the Constitution."
We cannot emphasize more or add anything more to apply the same Constitutional spirit to support our aforesaid view.
10. Before we part with, we would humbly place on record our acknowledgement of the guidance given by the judgment of the Division Bench of this Court in the case of Tamanna Ashokkumar Desai (Supra) where the Author of the said judgment (Hon'ble Mr.Justice J.B. Pardiwala, sitting with Hon'ble the Chief Justice Vikram Nath) took a view and with great respects, a correct one, even deviating from His Lordship's own view sitting singly earlier in the case of Lekhabahen Kanaiyalal Modi (Supra). That only, in our humble opinion, displays the sterling character of a Judge, who is receptive enough to change his own earlier view and render an exposition of law with axiomatic clarity by a Division Bench view in the case of Tamanna Ashokkumar Desai (Supra). We are beholden and respectfully agree with the Page 130 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022 C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021 GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s) said view in the case of Tamanna Ashokkumar Desai (Supra).
We also place on record our appreciation for the valuable assistance by all the learned Senior Counsels and other learned counsels, who appeared in the said matter.
(DR. VINEET KOTHARI, J) The Appeals are accordingly disposed of. No costs.
(BIREN VAISHNAV, J) (DR. VINEET KOTHARI, J) DIVYA Page 131 of 131 Downloaded on : Thu Jan 13 14:08:03 IST 2022