Gujarat High Court
Ghansdhyam Ranchhodbhai Nadiya vs Addi General Manager(Hr) on 15 March, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18515/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18515 of 2016
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GHANSDHYAM RANCHHODBHAI NADIYA
Versus
ADDI GENERAL MANAGER(HR)
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MR.VINOD C THAKER(6678) for the PETITIONER(s) No. 1
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 15/03/2018
ORAL ORDER
Heard Mr.Vinod C. Thakkar, learned counsel for the petitioner and Mr.Deepak R. Dave, learned counsel for the respondent.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"(B) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction, commanding the respondent authorities to consider the petitioner's claim as a general category candidate on the basis of merit in the competitve examination for the post of Vidhyut Sahayak (Junior Assistant) in Dakshin Gujarat Vij Company Limited.
(C) Your Lordships be pleased to issue and interim order of stay against the respondent no.1, 2 and 3 preventing the operation and execution of present selection list of Dakshin Gujarat Vij Company Limited as it is erroneous because of not adjusting the petitioner's claim against the open category instead of the reserved category.
(D) Pending hearing and final disposal of this petition, the Hon'ble Court may be pleased to keep one post vacant for the post of Vidhyut Sahayak (Junior Assistant) in Dakshin Gujarat Vij Company Limited for the petitioner pursuant to the advertisement dated 20.09.2004 Surat."Page 1 of 13 C/SCA/18515/2016 ORDER
3. The following facts emerge from the record of the petition:
3.1 That, "Dakshin Gujarat Vij Company Limited" (hereinafter referred to as "the respondent Company" for short) invited applications for the posts of 'Vidhyut Sahayak (Jr. Assistant)' in the year 2014 mainly for meter reading and billing works at field offices for fixed remuneration at st nd Rs.6,500/- p.m. for 1 year, Rs.7,250/- p.m for 2 year and Rs.8,000/- p.m. for 3rd year.
3.2 That according to the petitioner as he was qualified for the said post, he applied on-line for the same and as per communication dated 03.02.2016 issued by respondent No.1 as per the Circular issued by Government of Gujarat dated 19.01.2000. That as per the judgment of this Court delivered in Letters Patent Appeal No.1480/2013 and allied matter, all those candidates who belong to the reserved category if they avail the benefit of age realization, but secure more marks than the general category candidates in written test are not entitled to be considered for general category vacancies and such cases are required to be considered for reserved category vacancies.
3.3 That the petitioner applied under the provisions of the Right to Information Act and demanded copies of merit list and list of appointed candidates belonging to S.C, S.T, O.B.C, S.E.B.C and General Candidates. It is further the case of the petitioner that he secured 59 marks in competitive examination. The petitioner has further reiterated some facts in paragraph 3 and has referred to Government of Gujarat's Circular dated 29.01.2000 and the judgment rendered in LPA No.1298/2013.
3.4 It is further the case of the petitioner that the petitioner has applied under the reserved category by taking benefit of age relaxation as per the criteria of reserved Page 2 of 13 C/SCA/18515/2016 ORDER category candidates and appeared in the examination with the benefit of relaxation in age and relaxation in percentage marks in graduation. As the petitioner did not fulfill the criteria of unreserved criteria, the petitioner was not appointed on the post of Vidhyut Sahayak as per the guidelines of Government.
3.5 That last scheduled caste candidate, who was appointed on the post of Vidhyut Sahayak has secured 69 marks. The aforesaid contention is based upon the communication dated 10.05.2016. It is also averred that how the information was received by the petitioner and the petitioner has also relied upon the judgment of the Apex Court in the case of R.K.Sabharwal Vs. Union of India [1995 (2) SCC 745]. It also appears that the petitioner had also approached National Commission for Scheduled Castes, New Delhi, however, in opinion of this Court, in order to decide the controversy which is raised in this petition further elaboration of such fats is not necessary.
4. On the aforesaid factual matrix, the petitioner has filed present petition and has raised the following grounds:
4.1 That the selection list declared by the respondent Company is illegal, erroneous, arbitrary and bad in law and contrary to the facts and circumstances of the case and evidence on record.
4.2 Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Jitendrakumar Singh Vs. Union of India [2010 (3) SCC 119] and contended that since the standard of selection based on merit of the candidate in the standard for selection created on selection test followed by the interview and thus, such relaxation cannot deprive a reserved category candidate as a general category candidate on the basis of merits in the competitive examination. Hence, the ratio laid down by the Hon'ble Supreme Court in the above cited case squarely applies Page 3 of 13 C/SCA/18515/2016 ORDER to the case on hand.
4.3 That respondent No.1 has materially erred in considering the subsequent circulars dated 29.01.2000 and 23.07.2004 and the same are in conflict with the earlier Government Resolution dated 11.12.1986 and thus, has materially erred in not rightly interpreting those Circulars.
4.4 The petitioner has also relied upon the Government Resolution dated 23.07.2004 and has contended that the petitioner cannot be deprived of right to be considered as general category candidate on the basis of merit in the competitive examination. It is also contended that respondent No.1 has wrongly relied upon the judgment of Letters Patent Appeal No.1298/2013 and has contended that the observations made by this Court in the said matter does not apply to the case of the petitioner.
4.5 It further contended that the date of birth of the petitioner is 15.12.1985 and on the date of advertisement, the petitioner was 28 years, 9 months and 5 days old and the age limit for SC/ST was 30 years i.e. on the date of advertisement being 20.09.2014. However, it is submitted that the petitioner has not taken any relaxation in percentage of marks in graduation and therefore, claim of the petitioner deserves to be considered.
4.6. It was further contended that the respondent -
Electricity Company has committed an error on the facts and misinterpreted the age limit rules, which has resulted into miscarriage of justice and therefore, this is a fit case, wherein this Court would be pleased to exercise its power by virtue of Article 226 of the Constitution of India to enforce the rule of law. It is also contended that as provided under Article 16(4) of the Constitution, the State Government has to provide reservation for the category of person belonging to the backward class and therefore, the petitioner should be Page 4 of 13 C/SCA/18515/2016 ORDER placed at proper place in selection list instead of general category candidate as the petitioner should be given prior preference looking to his scheduled caste category.
5. In response to the notice issued by this Court, respondent No.1 has filed detailed Affidavit-in-Reply and has denied the contentions raised by the petitioner. It is pointed out by the respondent that none of the petitioner's fundamental rights have been violated by the respondent and respondent Nos. 2 and 3 have no concern whatsoever with the issue involved in this petition and thus the respondents have been wrongly joined as party. It is also contended that the petitioner after participating in the selection process and after having found that his name is not found in the merit list, present petition is filed. It is also submitted that now the selection process is over and even the appointment letters have also been issued to the selected candidates and thus, entire selection process is over and thus, if present petition is entertained, third parties would be affected without joining selected candidates.
6. Explaining the entire gamut of selection, it is contended by respondent No.1 that they invited applications in the year 2014 for the purpose of eligible candidates to the posts of Vidhyut Sahayak (Jr. Assistant) and as per the rules applicable, eligibility and qualifying criteria provides that the candidate must be under the age of 25 years for unreserved category and for reserved category candidate, 5 years is granted. It is also averred that minimum criteria for the purpose of unreserved category candidate is 55 marks at graduation level, whereas 50 marks for reserved category candidate. It has also brought on record that the petitioner applied for the said post when he was 28 years old since his date of birth is 15.12.1985 and the petitioner has obtained 50 marks at the graduation level. Thus, the case of the petitioner could be considered during selection process Page 5 of 13 C/SCA/18515/2016 ORDER because of the fact that he belongs to scheduled caste reserved category, wherein minimum qualifying marks as well as relaxation of age was provided for and considered for candidature of the present petitioner.
7. Respondent No.1 has further averred that the petitioner is aware and the same is not denied by the petitioner that the petitioner obtained 59 marks in the examination and his merit number is 506 in the selection list. Respondent No.1 submitted that last scheduled caste candidate, who has been selected on the post of Vidhyut Sahayak has secured 69 marks. It is, therefore, contended by respondent No.1 that the petitioner is far below in the merit list than the last candidate appointed for the post of Vidhyut Sahayak. It is also contended that candidature of the petitioner was not required to be considered in the general category as the petitioner was 28 years old and has already availed the age relaxation in qualifying percentage and therefore, the prayers of the petitioner that his candidature be considered against the general category candidate has no merits.
8. Respondent No.1 has also contended that the petitioner has approached this Court with distorted facts and version and as per the Circular issued by Government of Gujarat dated 29.01.2000 and 23.07.2000, those candidates, who were more meritorious and who did not avail the relaxation in age and/or in percentage have been considered as general category candidate. It is further submitted that as per the judgment of this Court in LPA No.1298/2013, subsequent Circular has been issued by Government of Gujarat, inter alia, providing that if any candidate has availed the benefit of age relaxation, then the said candidate will have to be considered against reserved category post only and such process has been followed by respondent No.1 in the selection process. It is also contended that as such procedure is well known to all and one, including the petitioner before initiation of selection process. That Page 6 of 13 C/SCA/18515/2016 ORDER the petitioner having participated in the selection process, knowing fully well the rules and regulations of the selection and also the fact that those candidates who were availed the benefit of age relaxation was not to be considered as general category candidate has filed this petition.
9. It is specifically mentioned by the respondent that the petitioner has made false statement in the petition to the effect that the petitioner has not availed benefit of age relaxation, in fact, as stated hereinabove, the petitioner was 28 years old, but for consideration of age relaxation, his candidature would not have been considered. In fact, the petitioner has also taken the benefit of percentage of marks in graduation level. Further, similar issue was raised before National Commission for Scheduled Castes and after considering the reply of respondent No.1, entire matter has been closed and now the very action is made the basis of this petition, which is nothing but an abuse and misuse of process of law. It is further submitted that selection process provides only for written test and there is no viva test is prescribed for the purpose of selection. It is further contended that having failed to secure a place in the selection list, the petitioner is now challenging the selection process and also the circulars, on the basis of which selection has been carried out and therefore, the petitioner is now estopped from contending otherwise after taking participation in the selection process.
On the above mentioned contentions and grounds, learned counsel for the respondent Company submitted that present petition deserves to be dismissed.
10. The petitioner has also filed Affidavit-in-Rejoinder to the reply filed by the respondent Company, however, as far as the main issue involved in this petition is concerned, nothing new is brought on record except some contentions, which in opinion of this Court are totally irrelevant to the issue Page 7 of 13 C/SCA/18515/2016 ORDER involved in this petition.
11. Learned counsel for the parties have not raised any specific contention and therefore, as such have only reiterated the contentions, which are raised by learned counsel for the parties and learned counsel for the respondent Company has also heavily relied upon the Affidavit-in-Reply.
No other or further submissions are made by learned counsel for the parties.
12. Having considered the submissions made by learned counsel for the parties, it is a matter of fact that the advertisement was issued on 20.09.2014 for the post of Vidhyut Sahayak, which is part of the record. The said advertisement provides for Job Title, Qualification, Age limit in particular, which reads as under:-
1. Job title- Vidhyut Sahayak (Junior Assistant)
2. Qualification :
Gruaduate in B.A., B.Com. B.Sc, BCA, in first attempt, without ATKT in first and second year of graduation from U.G.C recognized University (in case of Semester System, there should not be ATKT in any semester/s) and having minimum,
- 55 % in final year of graduation for General Category (UR) PH candidates
- 50 % in final year of graduation for SC, ST and SEBC candidate.
For 'Grading System' minimum grade equivalent to said marks is required and candidate is directed to submit certificate issued by college/University stating the corresponding percentage obtained.
The knowledge of Computers and English language is required, which shall be assessed by the Company through Pre-employment test.
3. Age Limit (As on the date of issuance of the advertisement i.e. 20.09.2014):
Page 8 of 13 C/SCA/18515/2016 ORDER Ca Age Limit
te
go
ry
General 25 years
Category (UR)
ST 30 years
/S
EB
C/
SC
Physically 35 Years
Handicapped
Relaxation in upper age limit to following categories shall be given as under:-
Category Relaxation
Female 05 years
Candidate
Ex Armed Force 10 years
Personnel
Departments of Up to age of
Retired 40 years
Employees of
UGVCL Company
as per the
terms &
conditions of
GSO-295
4. Fees (Non-Refundable) to be paid in any branch of State Bank of India in to "power Jyoti Account No.33265984351.
Category Amount
General Rs.500.00
(UR)/SEBC/PH
candidate
ST/SC Rs.250.00
candidates
5. Remuneration:
Fixed remuneration for 1st year - Rs.6500/- p.m., 2nd year - Rs.7250/- p.m, and 3rd year - Rs.8000/- p.m, No other allowance of benefits would be admissible except coverage under personal accident policy etc as per GSO.332 dated 03.02.2003.
6. Vacancies :
Page 9 of 13 C/SCA/18515/2016 ORDERApproximately 250 vacancies (including ST/SEBC/PH/Female/General). At present there is no deficit in SC Category, however, applications from SC candidates are also invited against vacancies likely to be arise in future. The number of vacancies may vary depending up on the actual requirement.
General terms and condition:
1. The said vacancies are mainly for Meter Reading and Billing Work at field offices and they will be posted in sub- Divisions only.
2. Candidates are required to submit Online applications compulsorily.
3. ***
4. ***"
13. Even the Circular issued by respondent No.1 considering the judgment of this Court rendered in the case of Gujarat Public Service Commission through Secretary Vs. Parmar Nilesh Rajendrakumar & Ors. (LPA No.1480/2013 & allied matter), clearly spells out that those candidates who have taken the benefit of age relaxation in the competitive examination and who have obtained more marks than the general category candidates, their candidature has to be considered only as reserved category. It is a matter of fact that on the date of advertisement, the petitioner was 28 years old as he is born on 15.12.1985 and therefore, has taken benefit of age relaxation. Again referring to the advertisement, age limit as on the date of issuance of advertisement i.e. 20.09.2014, age limit for general candidate, as prescribed, is 25 years, whereas the age limit of the candidates who belong to S.C, S.T, S.E.B.C and O.B.C is 30 years. The aforesaid admitted facts, therefore, make it crystal clear that the petitioner could participate and apply for the said post only because he took benefit of age relaxation. Similarly, the petitioner has secured 50 marks in the final graduation level, which is the required percentage for S.C, S.T, O.B.C and S.E.B.C candidates. On both the points, therefore, without benefit of schedule caste category, the petitioner could not have been Page 10 of 13 C/SCA/18515/2016 ORDER held to be eligible even for applying for the post much less for consideration. Having done so, the petitioner has not even averred such facts clearly in the petition.
14. At this juncture, it would be appropriate to refer to the judgment of this Court rendered in the case of Gujarat Public Service Commission through Secretary (supra), wherein this Court has observed thus:
"18. The sum and substance of the aforesaid discussions would be that learned Single Judge has materially erred in observing and holding that the relaxation in the age to the candidates belonging to the reserved category cannot be construed as relaxation in standard the same being concession and therefore, reserved category candidates who availed the benefit of age relaxation shall have to be adjusted in the General Category vacancies. The learned Single Judge has also materially erred in not dismissing the petition on the ground of non joinder of necessary parties. The learned Single Judge has also materially erred in considering the subsequent circulars dated 29.01.2000 and 23.07.2004 in conflict with the Government Resolution dated 11.12.1986 and has materially erred in not relying upon the said circulars dated 29.01.2000 and 23.07.2004.
That the learned Single Judge has also materially erred in heavily relying upon the Examination Rules, 1979 while holding that relaxation in the age cannot be said to be relaxation in standard and it can be considered to be concession, despite the specific provisions in the statutory Recruitment Rules, 1967, 2009 and 2010 which provide and contain a specific upper age limit. That the learned Single Judge has materially erred in relying upon the decision of the Hon'ble Supreme Court in the case of Jitendrakumar Singh (supra). The learned Single Judge has also erred in not dismissing the petition on the ground of estoppel and acquiescence by the original petitioners and in not properly appreciating the fact that despite the specific clause in the advertisement inviting the applications for the post in question with respect to age relaxation and a specific clause that those reserved category candidate who avail the benefit of age relaxation shall not be entitled to apply for the General Category vacancies, they participated in the recruitment process and having failed to secure their place in the merit list, thereafter it was not open for them to challenge the same. Under the circumstances, impugned judgment and order passed by the learned Single Judge deserve to be quashed and set aside.
19. For the reasons stated above and considering the reservation policy applicable in the State of Gujarat contained in circular dated 29.01.2000 and 23.07.2004 and relevant statutory provisions i.e. Recruitment Rules, 1967, Page 11 of 13 C/SCA/18515/2016 ORDER 2009 and 2010, it is held that all those candidates belonging to the reserved category if they avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for General Category vacancies and that their cases are required to be considered for the reserved category vacancies."
15. Thus, having availed the benefit of relaxation in age as well as in percentage at graduation level, the petitioner now cannot be permitted to say that he should be considered as general category candidate. As per the case of respondent No.1, the petitioner has secured 50 marks, whereas the last candidate appointed for the said post from Schedule caste category has secured 69 marks and therefore, even on merits, the petitioner does not qualify and hence, respondent No.1 has rightly not selected the petitioner. Even the fact that the petitioner stood at Sr. No.506 in the merit list is not even denied by the petitioner. It is found that respondent No.1 has correctly followed the law laid down by the rules and the ratio laid down by this Court in Gujarat Public Service Commission through Secretary (supra) and respondent No.1 has correctly and meticulously followed the Government Resolutions issued from time to time, which are referred to in this order.
16. Having found that the petitioner is not selected in the scheduled category and after having participated in the whole selection process, present petition is filed which is thoroughly meritless and following the ratio laid down in the case of Gujarat Public Service Commission through Secretary (supra), the petitioner is not entitled to any relief, as prayed for, in this petition as averred in the Affidavit-in- Reply filed by respondent No.1 that whole selection process is over and even on the date of filing of present petition, all persons have already been appointed.
17. In light of the aforesaid judgment, reliance placed for by learned counsel for the petitioner on the judgment of the Apex Court in the case of Jitendrakumar Singh (supra) is also no avail to the petitioner. Therefore, the respondent -
Page 12 of 13 C/SCA/18515/2016 ORDERElectricity Company has rightly not considered the candidature of the petitioner, who availed the benefits of age relaxation as well as required qualification as scheduled caste category and therefore, has not been selected rightly.
For the foregoing, present petition being merit less, deserves to be dismissed and is hereby rejected in limine. No costs.
(R.M.CHHAYA, J) SUCHIT Page 13 of 13