Gujarat High Court
Shyamjibhai Bhimabhai Vakil vs State Of Gujarat & 29 on 29 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16297/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16297 of 2015
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SHYAMJIBHAI BHIMABHAI VAKIL....Petitioner(s)
Versus
STATE OF GUJARAT & 29....Respondent(s)
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Appearance:
MR D M AHUJA, ADVOCATE for the Petitioner(s) No. 1
Mr SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1
MR SHASHIKANT S GADE, ADVOCATE for the Respondent(s) No. 12 - 13 ,
16 , 23 - 24
MR YM THAKKAR, ADVOCATE for the Respondent(s) No. 5 - 6 , 10 , 21
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4 , 7 - 9 , 11 , 14 - 15 ,
17 - 20 , 22 , 25 - 30
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/03/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioner desirous of being appointed as a Company Commander with the Home Guards, has prayed for the following reliefs: 6(A) to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to set aside result dated 03rd September, 2015 and direct respondent Nos.1 to 4 to hold fresh examination for the post of Company Commander through Gujarat Public Service Commission and/or Gujarat University for free and fair examination;
(B) to direct respondent No.2 to consider the application of the petitioner dated 23rd May, 2014 for being selected on the post of Company Commander on condition of passing of examination at a later date for the said Rank;
Page 1 of 7HC-NIC Page 1 of 7 Created On Sat Apr 02 00:51:14 IST 2016 C/SCA/16297/2015 ORDER (C) Pending the admission hearing and final disposal of this petition, to stay the execution, implementation and operation of result dated 03rd September, 2015 for the post of Company Commander;
(D) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted;
2. The facts of this case may be summarized as under: 2.1 The petitioner is a practicing advocate. He appeared in a written examination conducted for the purpose of recruitment as a Company Commander. It is not in dispute that he failed in the written Examination. The recruitment is of the year 2015 and has been completed. After being unsuccessful in clearing the written examination, he has filed this writapplication alleging few irregularities and illegalities in the conduct of such Examination and the recruitment process.
3. A detailed affidavitinreply has been filed on behalf of the respondent no.3 interalia stating as under: "7. Succinctly the facts of the present case are epitomizing herein under. The petitioner was appointed as a Home Guard in the year 1991 thereafter the petitioner got promoted to the post of Platoon Commander in the year 2011 after passing the necessary examinations. Thereafter the petitioner has appeared for the examination for the rank of Company Commander.
8. I respectfully say and submit that by way of this petition the petitioner had contended that the result declared on 03.09.2015 is to be quashed and set aside. The answering respondents respectfully submit that the petitioner as the unsuccessful candidate who has failed in the examination. Furthermore, it is respectfully submitted that the candidate appeared in the examination for the rank of Company Commander was required to pass 4 papers in written examination out of which the petitioner passed only 3 papers therefore the petitioner is not eligible to be hold the rank of Company Commander as he is failed to clear examination.
9. At this juncture, it is pertinent to note that it is settled position of Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Apr 02 00:51:14 IST 2016 C/SCA/16297/2015 ORDER law that an unsuccessful candidate cannot approach to the Hon'ble Court by filing the appropriate writ petition, challenging the recruitment process and the method of selection.
10. I respectfully submit that the detailed marks secured by the petitioner were consisting of 3 tests 1st written, 2nd field and 3rd personal interview examinations. In the instant case, the petitioner have cleared 2 test (field test as well as the personal interview test) but, however, the petitioner has filed to clear 1st written test therefore he is not qualified to be promoted to the post of Company Commander.
11. By way of this petition, the petitioner has contended that he was a trainer for various Home Guards and that he has good experience in comparison to the persons who are declared pass. The petitioner has also further contended that the other candidates who are not well versed with the vernacular language i.e. (Gujarati) are also being selected. The petitioner has contended that the respondent No.5 to 21 have left the examination room even before half time due to inability to understand Gujarati language, yet they have been declared pass. The petitioner has contended that the result is unfair. The answering respondent respectfully submits that the said contention of the petitioner is totally a mislead.
12. I respectfully submit that the petitioner has filed to pass the examination and therefore, such contentions have been made without any base and justification. As it is mentioned above the detail elaboration of marks secured by the petitioner is mentioned wherein it is crystal clear that the petitioner has failed to pass in one of the paper out of 4, therefore, he has been declared not qualified. The rest of the said contention of the petitioner is baseless and therefore, they are categorically denied.
13. By way of the petition the petitioner contended that the respondent No.16 does not have the required height. The answering respondent submit that the respondent No.16 possesses the required height and that has been also examined during office hours and the height was examined by the deponent officer and it was found to be proper, which is the minimum required height. Therefore the contention of the petitioner is totally baseless and the petitioner is trying to mislead the Hon'ble Court by placing the incorrect details. At this juncture it is pertinent to note that the minimum requirement of the height as per the Rules is 5'4". The detail of the respondent No.16 is annexed herewith and marked as AnnexureRI.
14. By way of this petition the petitioner contended that the respondent No.18 is real brother of SubInspector considering Mr. J.K. Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Apr 02 00:51:14 IST 2016 C/SCA/16297/2015 ORDER Desai and therefore, due to his physical blood relation, he has been declared passed. The answering respondent respectfully submits that is totally false and baseless. There is no logical explanation and justification to allege that being a blood relative candidate cannot appear in the examination. The answering respondent clarifies that the respondent No.18 selected on its own merits and being qualified he has been declared pass in all 3 test. Therefore, the said contention of the petitioner baseless and preposterous.
15. By way of this petition the petitioner has contended that the made allegation against respondent No.23 and 24 for which I state that earlier when exam date was fixed the said respondent No.23 and respondent No.24 who had applied within time did not had copy of few certificates, however the date of examination was postponed and in the meanwhile the respondent No.23 and 24 submitted certificates and rectified the error. Therefore, the respondent No.23 and 24 had made the application within time and after scanning the application it was found that few of the documents were missing. Therefore, respondent No.23 and 24 were asked to produce the lack in certificates but no favoritism to the respondents No.23 and 24 is made as alleged. The said contention of the petition is totally baseless and without any justification. The petitioner has merely contended that by relying upon the examination list. The answering respondents respectfully submit that the respondent No.23 and 24 cannot figure in the examination list that (the application were received last due to some technical reasons) separately it was considered due to some missing documents advertently. Their names were rectified and the respondents No.23 and 24 were found eligible and therefore their name was subsequently in the list.
16. By way of the petition, the petitioner had contended that the all the candidates who have been selected, did not possess the requisite required experience. Thus, it is rousingly contended by the petitioner that large scale of irregularities and unfair means is being adopted. The answering respondent respectfully submits that the said contention is totally baseless and without any justification. The answering respondent further respectfully submits that it is wishywashy contention of the petitioner that none of the respondents possess the qualification, is totally unjustified contention made by the petitioner.
17. Furthermore, I respectfully say and submit that the petitioner has contended without supporting any justification further be it noted that the petitioner has failed in the examination.
18. I respectfully say and submit that there were 2 examinations which were conducted by the deponent officer. First for the Divisional Commander test and second for the Company Commander test. The Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Apr 02 00:51:14 IST 2016 C/SCA/16297/2015 ORDER petitioner applied in the Company Commander test in which total 110 applications were received by the deponent officer out of which 84 applications were sanctioned, out of which 26 applications were rejected. At this juncture, it is also pertinent to note that in the Company Commander test 75 candidates were appeared in the examination, out of which 9 candidates did not appear in the examination. The list of the candidates who are called in the examination is annexed hereiwth and marked as ANNEXURERII. Out of 75 candidates 67 candidates passed the examination. 8 candidates failed which includes the petitioner. A copy of the pass candidates as well as the fail candidates is annexed herewith and marked as ANNEXIRERIII.
19. I respectfully say and submit that the petitioner was permitted to appear in the examination. Furthermore, the petitioner appeared in the field test with chest No.645. In the field test, the petitioner has scored 89 marks out of 150 marks. In the oral interview the petitioner has scored 34 marks out of 50 marks. In the written examination which consisted of four papers, in the first examination i.e. Administration, the petitioner scored 24 marks out of 75 marks. In the Accounts paper the petitioner scored 48 marks out of 75 marks. In the store paper the petitioner scored 42 marks out of 75 marks. In the law, the petitioner scored 47 marks out of 75 marks. As it is apparent that the petitioner has failed in Administration examination by scoring 24 marks (though the cutoff marks was 38). Therefore, the petitioner did not possess the eligible criteria.
20. I respectfully say and submit that the examination was conducted under the chairmanship of the Shree Ashwinkumar J. Sikligar then Nayab Commandant General, Shree B.V. Rana as member, and Shree I.V. Solanki and S.L. Patel as members. I respectfully say and submit that the aforementioned was conducted as per the circular dated 22/07/1993. Copy of the same circular is annexed herewith and marked as ANNEXURE RIV to this reply.
21. I respectfully say and submit that the eligibility criteria for holding the rank as Company Commander are honorary base. The eligibility criteria for the Company Commander rank are laid down in the circular dated 30.11.2010 specifically in paragraph no.8. A copy of the said circular is annexed herewith and marked as ANNEXURE RV to this reply.
22. I respectfully say and submit that the examination is conducted as per the circular of the Head Quarters, Home Guards. Therefore, all the examinations are conducted in accordance with law. All the contentions and allegations of the petitioner totally and absolutely erroneous.
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23. In light of the aforesaid contention, the petition is deserves to be dismissed in limine."
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4. On behalf of some of the appointees who have been impleaded as the party respondents, affidavitinreply has been filed.
5. In view of the affidavitinreply filed by the State Government, no case as such is made out by the petitioner to cancel the entire Exam and direct the authorities concerned to hold a fresh Exam.
6. Mr. Ahuja, the learned counsel appearing for the petitioner submitted that at times, a person is appointed as a Commander on the condition that he will have to clear the Exam in future. That may be a practice or the policy of the State Government. However, it would be within the discretion of the authority to do so. It would be open for the petitioner to make such a request.
7. I am told that such request has been made. If such request has been made, the authorities shall look into the same and take an appropriate decision in accordance with law.
8. With the above, this writapplication is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Apr 02 00:51:14 IST 2016