Gujarat High Court
Gadhavi Narendrakumar Hinglajdanji vs State Of Gujarat on 24 August, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4373 of 2022
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 4373 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 4665 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 4665 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 729 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 13490 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 15021 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15021 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GADHAVI NARENDRAKUMAR HINGLAJDANJI & 6 other(s)
Versus
STATE OF GUJARAT & 20 other(s)
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Appearance:
Page 1 of 61
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C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022
In SPECIAL CIVIL APPLICATION No. 4373 of 2022
MR KB PUJARA(680) for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 1
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
MR DG SHUKLA(1998) for the Respondent(s) No. 4
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
for the Respondent(s) No. 11,13,16,18,19,20,21,7,8,9
MR. SUDHIR I. NANAVATI, ADVOCATE FOR SALMAN S KHAN(9496) for
the Respondent(s) No. 10,12,14,15,17,5,6
In CIVIL APPLICATION No. 1 of 2022 in SCA No. 4373 of 2022
MR. P.H.PATHAK, ADVOCATE for the Petitioner
MR.UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
Respondent-State
In SPECIAL CIVIL APPLICATION No. 4665 of 2022
MR.G.M.JOSHI, SENIOR COUNSEL WITH MR.VYOM SHAH, ADVOCATE
for the Petitioner(s) Nos. 1-9, 10.
MR.UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,17
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
for the Respondent(s) No.5-6, 7,9,11,14,16-18,19.
MR. SUDHIR I. NANAVATI, ADVOCATE FOR SALMAN S KHAN(9496) for
the Respondent(s) No.3,4,8,10-12,13,15.
In CIVIL APPLICATION No. 1 of 2022 in SCA No. 4665 of 2022
MR.G.M.JOSHI, SENIOR COUNSEL WITH MR.VYOM SHAH, ADVOCATE
for the Petitioner(s)
In SPECIAL CIVIL APPLICATION No. 729 of 2016
MR. SHALIN MEHTA, SENIOR COUNSEL WITH MS. SHIKHA PANCHAL,
ADVOCATE for the Petitioner(s) No. 1,2 &3
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
MR. D.G.SHUKLA, ADVOCATE for the Respondent(s) No.4
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
for the Respondent(s) No.27
MR.NIRAD BUCH, ADVOCATE for the Respondent(s) No. 6
MR.SUDHIR I. NANAVATI, ADVOCATE FOR MS.ANUJA S NANAVATI,
ADVOCATE FOR the Respondent(s) No. 5, 7, 11, 13, 17, 20-25, 26, 30.
MRS. BHAVINI N.BUCH, ADVOCATE FOR THE RESPONDENT(s) No. 6, 8.
MR. SANDEEP R. LIMBANI, ADVOCATE FOR THE RESPONDENT(s) No.
12-18, 19-28, 29, 31.
In SPECIAL CIVIL APPLICATION NO. 13490 of 2022.
MR. SHALIIN MEHTA, SENIOR COUNSEL WITH MS. DIMPLE A. THAKER,
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C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022
ADVOCATE FOR the Petitioner(s) Nos. 1-2, 3
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
MR. SUDHIR I. NANAVATI, ADVOCATE FOR SALMAN S KHAN(9496) for
the Respondent(s) No.5,6,10,12-14,15,17,19.
In SPECIAL CIVIL APPLICATION NO. 15021 of 2017
MR.MANISH S SHAH, ADVOCATE for the Petitioner(s) No.1.
MR. UTKARSH SHARMA, AGP, FOR THE Respondent(s) No. 1
MR. D.G.SHUKLA, ADVOCATE for the Respondent(s) No.4
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
for the Respondent(s) No.5-6, 7-12,13,17-22,23,28,30.
In CIVIL APPLICATION NO. 1 of 2018 in SCA No. 15021 of 2017
MR. S.N.SHELAT, SENIOR ADVOCATE WITH MR VAIBHAV A VYAS(2896)
for the APPLICANT
MR.UTKARSH SHARMA, AGP, for the STATE.
MR. D.G.SHUKLA, For the Respondent.
MR. MANISH S SHAH, For the Respondent.
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 24/08/2022
CAV JUDGMENT
1 All these petitions filed under Article 226 of the Constitution of India, essentially deal with the interpretation of the Range Forest Officer, Class-II, Recruitment Rules, 2008. In focus especially is Rule 5 of the said rules which provides that a candidate appointed by direct selection to the post of Range Forest Officer, Class-II, shall be required to undergo a walking test of 25 kilometers in case of a male candidate and 16 kilometers in case of a female candidate within four hours duration. Page 3 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 2 The petitioners of Special Civil Application No. 4373 of 2022, 4665 of 2022 and 13490 of 2022 are Range Forest Officers, who after their successfully undertaking the examination process under the Assistant Conservator of Forest / Range Forest Officer's Competitive Examination Rules, 2008, found their names in part-I of the merit list. Subsequently, on appearing at the walking test and having succeeded at the first attempt, they have assailed the stand of the State in giving the private respondents in the respective petitions a second chance to undertake a walking test. It is their case firstly, that there is no provision for a second attempt at a walking test and therefore the appointments of the private respondents based on such a second attempt is an appointment de-hors the rules. Secondly, even if a second attempt was permissible, the placement of the private respondents in the seniority list based on the order of merit pursuant to the merit list preceding the walking test is flawed. These private respondents having been Page 4 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 appointed after a second walking test on dates subsequent to the dates of petitioners appointment should rank junior to the petitioners in accordance with Clause 13 of the Government Resolution dated 22.01.2009.
3 Prior to filing of these petitions, certain unsuccessful candidates who had undertaken the first walking test assailed the second attempt given to the private respondents who were on the merit list prepared in accordance with the Examination Rules. They had approached the Court at a time when the private respondents were given the opportunity to take the second walking test in the year 2016. These petitions are Special Civil Application No. 729 of 2016 and Special Civil Application No. 15021 of 2017.
4 In other words, the case of all these petitioners is common i.e. the challenge to providing a second chance at the walking test to the private respondents who are Page 5 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 common in all these petitions.
5 Facts of Special Civil Application No. 4373 of 2022, 4665 of 2022 and Special Civil Application No. 13490 of 2022 in brief are as under:
5.1 The Gujarat Public Service Commission issued an advertisement on 01.03.2010 for 47 posts of Assistant Conservator of Forest, Class-II, and 120 posts of Range Forest Officers, Class-II. By a Notification dated 25.09.2014, the GPSC declared the result in two parts, part-I, contained the merit list of 167 candidates and part-II, contained list of unsuccessful candidates, 333 in number.
5.2 The merit list was revised and published on 23.01.2015. The list was a subject matter of challenge in Special Civil Application No. 13857 of 2014 and allied matters. On 11.06.2015, the select list was set aside and the GPSC was directed to prepare a fresh list on the basis Page 6 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 of the directions contained in the judgement. The GPSC, prefered Letters Patent Appeal No. 1108 of 2015 in Special Civil Application No. 14330 of 2014 which was admitted on 28.07.2015 and the implementation of the judgement dated 11.06.2015 was stayed. A Civil Application No. 9690 of 2015 was moved by candidates who had cut off marks higher or equal to 429 marks and who were on the merit list. They requested the Court that such 81 candidates who are even otherwise on merit be permitted to be appointed by operating the merit list and the interim stay be modified. The Division Bench on 23.09.2015, modified the order and the GPSC was directed to forward the names of such 81 candidates from the list published on 25.09.2014.
5.3 As a result of the modification so made, in accordance with the recruitment rules, a call letter was issued on 01.10.2015 to 48 candidates to undertake a walking test on 05.10.2015 at 7:00 a.m at Indroda Park Gir Foundation, Gandhinagar. The private respondents Page 7 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 had appeared in the walking test and failed. The petitioners had passed in their first attempt. Based on the walking test, the petitioners were appointed by orders dated 10.11.2015 and 28.01.2016 respectively.
5.4 At the walking test on 05.10.2015 of the 48 candidates, 46 remained present, 19 were declared successful and 26 were unsuccessful and one had withdrawn from the test. The private respondents were a part of the unsuccessful candidate or had withdrawn or remained absent. Since the private respondents had failed at their attempt at the walking test, despite there being no provision for a walking test, a second opportunity to appear at the walking test on 16.01.2016 was arranged. That action of the State in giving a second opportunity to these private respondents became a subject matter of challenge in Special Civil Application No. 729 of 2016 and 15021 of 2017, albeit by unsuccessful candidates whose names did not figure in part -I of the Merit List. In Special Civil Application No. Page 8 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 729 of 2016, orders were passed on 13.01.2016 where the second opportunity was assailed and on 18.01.2016 the Court, after hearing the parties, passed an interim order that the authorities were not to send the names of those candidates who did not clear the walking test in the first attempt for the purpose of training. Subsequently, the petition was admitted by an order dated 09.04.2018 and appointments of those who had cleared the second walking test was made subject to further orders.
5.5 It is the case of the petitioners therefore, argued through the counsels namely Shri Shalin Mehta, learned Senior Advocate appearing for the petitioners in Special Civil Application No. 729 of 2016 with Special Civil Application No. 15021 of 2017 with Special Civil Application No. 13490 of 2022 that it is not open for the private respondents to contend that there was no sufficient notice for conducting the walking test on 05.10.2015. Since the advertisement was issued in the year 2010 and the notification of successful candidates Page 9 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 was issued on 25.09.2014, the aspirants had sufficient time to be ready for a walking test and lack of sufficient notice as pleaded was misconceived.
5.6 Mr.Mehta, learned Senior Advocate, would further submit that the petitioners of Special Civil Application No. 729 of 2016 had a locus though unsuccessful, as they were impleaded as party respondents in the Letters Patent Appeal filed by the GPSC.
5.7 Mr.Mehta, learned Senior Advocate, would further submit that under the Recruitment Rules the process was a composite exercise inasmuch as, a candidate had to pass by qualifying the standards in terms of physical standards, he had to appear in the main examination (written), appear at the interview and thereafter in order to be appointed, undertake a walking test.
5.8 Mr.Mehta, learned Senior Advocate, would further submit that reading of Rule 5 of the Recruitment Rules Page 10 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 would indicate that there was no second chance provided for a walking test. He would submit that the stand of the State in the reply justifying holding a second test on the ground that the test was conducted at a short notice of 48 hours, large number of posts were lying vacant and that representations were so received and even the IFS Rules provided for an opportunity of a second walking test, were justifications contrary to the rule position.
6 As far as Special Civil Application No. 4373 of 2022 is concerned, Mr.K.B.Pujara, learned advocate for the petitioners, would submit as under:
6.1 He would invite the Court's attention to the order dated 18.01.2016 and order dated 09.04.2018 passed in Special Civil Application No. 729 of 2016 with Special Civil Application No. 15021 of 2017 where the Court had specifically observed that admittedly, there was no provision in the Rules or an administrative instruction allowing a second walking test and the appointments of the private respondents was subject to the outcome of Page 11 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 these petitions. As the order further observed that their appointment letter shall indicate that their appointment shall be subject to further orders of this Court. In other words, the private respondents, though appointed, such appointments were subject to the outcome of these petitions.
6.2 Mr.Pujara, learned advocate, would also invite the Court's attention to the order of the Division Bench dated 23.09.2015 drawing the Court's attention to para 5 of the order which reiterated that the appointment was subject to the result of the proceedings and the appointment and joining by the concerned candidates shall not create any right in favour of the respective candidates for claiming seniority with a particular date. Even by a subsequent order dated 14.10.2015, a similar rider was mentioned. 6.3 Mr.Pujara, learned advocate, would further submit that it is evident from the communication dated 01.10.2015 issued by the Under Secretary of the Forest Page 12 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Department that a walking test of the 48 candidates must be held on the basis of a recommendation made by the GPSC so that appointments could be made. It was on this basis, that a call letter was issued on 01.10.2015 and all candidates were informed through an SMS. 46 candidates remained present at the walking test out of which 19 were successful. Appointment orders were issued to these successful candidates on 10.11.2015.
6.4 Mr.Pujara, learned advocate, drawing the atttention of the Court to a letter dated 13.10.2015, written by the Principal Chief Conservator of Forest to the Principal Secretary, to submit that as per the Recruitment Rules, a walking test was mandatory and a representation made by some respondents asking for a second chance was misconceived and the provision of a second chance provided in the Recruitment Rules of Indian Forest Service cannot be compared with the Recruitment Rules of Gujarat Forest Service. He would therefore submit that when the statutory recruitment rules made under the Page 13 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 proviso of Article 309 of the Constitution of India do not provide for giving a second chance to the candidates who failed in the first test, the appointments of such candidates, on they taking a second exam, is appointment contrary to law. Completely overlooking the stand of the department, a second test was held on 16.01.2016 where the private respondents were given a chance and they passed in the second attempt.
6.5 Mr.Pujara,learned advocate,would submit that reading Rule 5 of the Range Forest Officer Recruitment Rules, clearly indicates that a candidate appointed by direct selection shall be required to undergo a walking test. Such a mandatory provision cannot be given a go-by when there is no stipulation of a second chance. Inspite of the opinion of the Principal Chief Conservator of Forest, such a second test was held.
6.6 Mr.Pujara, learned advocate, would submit that the appointments of the private respondents is in violation of Page 14 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Rule 8 & 9 of the Gujarat Civil Service (Classification & Recruitment) Rules, 1967. He would submit that these rules provide that appointments to any service or a post shall be made from amongst the persons satisfying the conditions prescribed in these Rules. He would also rely on Rule 11 of the Rules which provides that a Certificate of Physical Fitness is a pre-requisite for appointment. Rule 11 of the Gujarat Civil Services (General Conditions of Service Rules), 2002, in appendix 3, clearly provides that selected candidates for the posts of Gujarat Forest Service should be examined by the Medical Board, especially as to the physical fitness of these candidates. A certificate of fitness has to be given in the prescribed form.
6.7 Mr.Pujara, learned advocate, would submit that the stand of the State Government firstly, that the candidates had requested for giving a second chance, secondly that they did not get sufficient notice and that the posts were lying vacant and as there is a provision for giving two Page 15 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 chances in the Indian Forest Service Rules are reasons unacceptable in law. He would submit that the aspect of short notice is misconceived. The advertisement was on 01.03.2010 and the note in the advertisement specifically stated that the recruitment will be subject to the Rules and the candidates were therefore aware that walking test is a part of selection. The results were declared four years thereafter and the walking test was held after sending an SMS from the mobile phone. The stand of the State Government that it has taken a decision on file to give a second chance of walking test is not supported inasmuch as, no such decision is placed on record. 6.8 Mr.Pujara, learned advocate, would submit that as per the G.R dated 22.01.2009, para 11 thereof does provide that in case of direct recruits selected through GPSC ordinarily the seniority shall be as per the order of merit. However, the present is not an ordinary case but of appointments of candidates made on different dates based on walking test, the second being contrary to the Page 16 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Rules and therefore, the seniority should be governed by para 13 of the G.R which provides for arranging seniority on the basis of date of continuous officiation on regular basis.
6.9 Mr.Pujara, learned advocate,would rely on the following decisions:
1 M.P.High Court's judgement rendered in W.P.No. 11821 of 2008 in the case of Jakir Khan vs. State of M.P. 2 Karnataka High Court's D.B Judgement rendered in W.P. No. 1158 of 2018., in the case of State of Karnataka vs. Mr.Syed Zohaibulla.
3 M.P.High Court's D.B judgement rendered in W.P.No. 8848 of 2011, in the case of Naresh Nigam vs. State of M.P. 4 Judgement rendered by the Hon'ble Supreme Court in the case of Bedanga Talukdar vs. Saifudaullah Khan, reported in 2011 (12) SCC 85.
5 State of Odisha vs. Sulekh Chandra Pradhan, Page 17 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 reported in AIR 2022 SC 2030.
6 State of Odisha vs. Prasana Kumar Sahoo., reported in 2007 (15) SCC 129.
7 Order of the Central Administrative Tribunal, Principal Bench, New Delhi dated 13.01.2021 rendered in O.A No. 1078 of 2015 with M.A No. 994/2015.
8 Director General, Central Reserve Police Force vs. Cpl. Sunil Singh., reported in AIR 2017 SC 4039.
9 B.V.Nagarajan vs. State of Karnataka., reported in 1979 (4) SCC 507.
10 V.Sreenivasa Reddy vs. Govt of A.P., reported in AIR 1995 SC 586.
11 Mohammed Faizal K vs. D.Sali., reported in AIR 2018 SC 288.
12 Bhupendra Nath Hazarika vs. State of Assam., reported in AIR 2013 SC 234.
7 Mr. Gautam Joshi, learned Senior Advocate appearing with Mr.Vyom Shah, learned advocate in Special Civil Application No. 4665 of 2022, in addition to Page 18 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 the submissions made by Mr.Pujara,learned advocate, would submit that the candidates at the time of document verification were made to sign an undertaking that if the candidates failed to clear the physical test as per the provisions of the Recruitment Rules, their appointment would be liable to be cancelled. Such undertaking was signed by all the candidates including the private respondents.
7.1 Mr.Joshi, learned Senior Advocate, in support of his submission would rely on a decision of the Hon'ble Supreme Court in the case of Union of India & Ors., vs. Mahendra Singh., reported in 2022 SCC online SC 909, to submit that the Rule has to be interpreted in the language that it has been formulated. A different language cannot be used.
8 Mr.S.I.Nanavati, learned Senior Counsel, appeared for the private respondents in Special Civil Application No. 729 of 2016 , 4373 of 2022, and 4665 of 2022 and Page 19 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 made the following submissions:
8.1 He would submit that it is not right for the petitioners to contend that there was sufficient notice of the walking test. It was only after the Division Bench modified the order on 24.09.2015 that the call letters were issued on 01.10.2015. The walking test was to be held at Indroda Park Gir Foundation. The walking test was required to be undergone only after their appointment. The candidates were informed by a letter dated 01.10.2015 as well as an SMS on 03.10.2015. The letter dated 01.10.2015 was posted on 06.10.2015 by ordinary post, after, the date fixed for walking test. The SMS of 03.10.2015 was received at around 5:30 p.m that was a Saturday. The test was scheduled on Monday 7:00 a.m. Thus, they were given less than two days. The surface of the track had 19 slopes as compared to the second test where it was held on an air strip. 26 candidates were unsuccessful which indicated the failure of the walking test and it was therefore, requested by the Page 20 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 private respondents that a second opportunity be given.
Even the Indian Forest Service Rules provides for a second chance. Accordingly, a second walking test was fixed on 16.01.2016 at Ahmedabad Aviation Aeronautics Limited, Air Strip, Mehsana.
8.2 Mr.Nanavati, learned Senior Advocate would further submit that the petitioners of SCA NO. 729 of 2016 and 15021 of 2017 have no locus inasmuch as they were even otherwise unsuccessful candidates.
8.3 Mr.Nanavati,learned Senior Advocate, would further submit that walking test is a qualifying test and there is no bar in conducting a second walking test. Even the amended recruitment rules published by the government vide Notification dated 22.06.2020 provide for one more chance in the walking test. Therefore, a harmonious reading makes it clear that there was no error on the part of the government in permitting a second chance. Page 21 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 8.4 Mr.Nanavati, learned Senior Advocate, would further submit that the appointments made in the year 2016 are challenged after more than six years. So far as the challenge to seniority is concerned, he would submit that with regard to determination of seniority it is very clear that as per clause 10 and 11 of the G.R, seniority of candidates appointed by direct selection has to be determined on the basis of the merit list. Undisputedly, the private respondents are more meritorious. Clause 3 of the Appointment Orders of the petitioners specifically provide that seniority will be determined as per merit rank in the select list of the GPSC.
9 Mr.S.N.Shelat, learned Senior Advocate, appearing with Mr.Vaibhav Vyas, learned advocate for the private respondents in the respective special civil applications, would make the following submissions:
9.1 As far as petitions of 2016 and 2017 are concerned he too would submit that the petitioners have no locus to Page 22 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 challenge the appointments of the respondents since they were unsuccessful candidates. Having failed they were not even eligible for appointment or undertake walking test. In support of his submissions he would rely on the following decisions:
1 Dr.Umakant Saran vs. State of Bihar & Ors., reported in AIR 1973 SC 964.
2 Ayyubkhan Noorkhan Pathan vs. State of Maharashtra & Ors., reported in AIR 2013 SC 58.
9.2 He would further submit that petitions Special Civil Application No. 4373 of 2022 and 4665 of 2022 have been preferred by less meritorious candidates and so also Special Civil Application No. 13490 of 2022. On the aspect of delay and laches and acquiescence on the part of the petitioners in asmuch as, the challenge to the appointments is made after six years, Mr.Shelat, Learned Senior Advocate would rely on a decision in the case of Chairman, State Bank of India vs. M.J.James, reported in AIR 2022 SC 582.Page 23 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 9.3 On merits, Mr.Shelat, learned Senior Advocate, would submit that the Rule 5 requires a candidate to undergo "a" walking test is mandatory. The contention of the petitioners that there can be only one walking test is not legal. A second opportunity can be offered to a failed candidate. That was done as a result of the reasons assigned by the State and as argued by Mr.S.I.Nanavati, learned Senior Advocate, regarding short notice and a difficult track. He would submit that in accordance with Article 14 a fair opportunity ought to be provided to the examinee. It was therefore thought fit to have a second walking test on a flat surface rather than a walking track in the first test which had 19 slopes. Rule 5 does not contemplate that a walking test is a pre conditon for eligibilty for appointment. It is only after the candidates are selected for appointment that a walking test is offered. Rule 5 requires to undergo "a" walking test. Article "a" is indeterminate article. It cannot suggest that there can only be one walking test. Reliance is placed on a decision in the case of Gujarat University vs. Krishan Page 24 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Ranganath Mudholkar, reported in AIR 1963 SC 703, para 16 of which reads as under:
"16. By the first paragraph of cl.(27) power is conferred to promote the development and use of Gujarati or Hindi or both as a medium of instruction. That clause is not in its expression, grammatically accurate. It should, if it had been drafted in strict accordance with the rules of grammar, have stated that the University was invested with power to promote the use of Gujarati or Hindi or both as a medium or media of instruction and examination. The use of the expression "promote" suggests that power was conferred upon the University to encourage the study of Gujarati and Hindi and their use as media of instruction and examination. It does not imply that power was given to provide for exclusive use of Gujarati or Hindi or oboth as a medium or media of instruction and examination and that inference is strengthened by the indefinite article "a"before the expression "medium of instruction". The use of the expression "a medium of instruction" clearly suggests that Gujarati or Hindi was to be one of several media of instruction, and steps were to be taken to encourage the development of Gujarati and Hindi and their use as media of instruction and examination. From the use of the indefinite article "a" it is abundantly clear that power to impose Gujarati or Hindi as the medium of instruction and examination to the exclusion of other media was not entrusted to the University. It may be noticed that if the expression "promote the use of Gujarati or Hind as a medium of instruction and examination" was intended to mean "to promote the exclusive use of Hindi of Gujarati", a similar interpretation would have to be put on the use of the expression "to promote the development of Gujarati and Hindi", thereby ascribing to the Legislature an intention that no other languages beside Gujarati Page 25 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 and Hindi were to be eveloped. Use in the provison of the definite article "the" in relation to English as medium of instruction further supports this view. When the Legislature enacted that English was to continue as the medium of instruction and examination in certain subjects it merely provided for continuance of an existing and accepted exclusive medium of instruction. It is common ground, that in the University of Bombay the exclusive medium of instruction was English, in the various affiliated colleges in the region or area over which the Gujarat University acquired authority. By the provisio to Cl.(27) therefore the Legislature provided that use of Gujarati or Hindi or both as a medium or media of instruction was to be promoted thereby indicating that Gujarati or Hindi or both was or were not to be the exclusive medium or media but to be adopted in addition to the accepted medicum viz. English, for instruction and examination, whereas under the proviso in respect of the subjects prescribed, English was to be the only medium for the periods specified. Clause (28) which confers authority upon University "to do all acts and things whether incidental to the powers aforesaid or not as may be requisite in order to further the objects of the University and generally to cultivate and promote arts, science and other obranches of learning and culture" confers additional powers which though not necessarily incidental to the powers already conferred by cls.(1) and (27) were intended to be exercised to further the objectd of the University. But if the object of the University by cl. (27) was not to authorise the imposition of Gujarati or Hindi or both, as an exclusive medium or media it would be straining the language of cl.(28) to interpret it as exhibiting an intention to confer upon the University by using the somewhat indefinite expression 'requisite in order to further the objects"
power to provide for such an exclusive medium." Page 26 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 [2014] 223 Taxman 189 (Kar) Commissioner of Income Tax vs. Khoobchand M.Makhija (para13) The context in which the expression "a residential house" is used in Section 54 makes it clear that, it was not the intention of the legislation to convey the meaning that it refers to a single residential house. If that was the intention, they would have used the word "one". As in the earlier part, the words used are buildings or lands which are plural in number and that is referred to as a residential house", the original asset."
9.4 Under the General Clauses Act, Section 13-B also provides that the words in singular shall include plural. Therefore,there is no bar on holding the second test. 9.5 The government has amended the Rules on 22.06.2020. Rule 6 expressly provides for a second opportunity. In support of his submission he would rely on the decision rendered in the case of V.M.Salgaocar & Bros (P) Ltd & Anr vs. Commissioner of Income Tax & Ors., reported in (243) ITR 383. The Supreme Court has held in paragraph 20 that the amended provisions can certainly give guidance to interpret existing provisions.
Page 27 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 9.6 He would submit that there has to be a purposive interpretation of the Rules and if the Rules are silent, the government can fill up by administrative orders. He would rely on the following decisions :
"4.4 Purposive Interpretation AIR 2009 SC 792 Mahalaxmi Sugar Mills Co. Ltd vs. Union of India (Para 64) "52. In Bharat Petroleum Corporation Ltd vs. Maddula Ratnavalli and ors. [(2007) 6 SCC 81], this Court held:
'The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer, Stephen (2005): Active Liberty:
Interpreting our Democratic Constitution, Knopf (Chapter on Statutory Interpretation - pg 99 for Reasonable Legislator Presumption).'
53. The provision of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [see Oriental Insurance Co. Ltd v. Brij Mohan and Ors. [2007 (7) Scale 753].
If the rules are silent, Government can fill up by administrative order.
2013 (16) SCC 147 Union of India vs. Ashok Kumar Aggarwal. (para 36 to 38).
If the rules are silent, executive order can fill up the Page 28 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 lacuna.
JT 2007 (5) SC 128.
M.Srinivasa Prasad and Ors vs. Comptroller and Auditor General of India and ors. (para 12).
"but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
9.7 Mr.Shelat, learned Senior Counsel, would submit that even if the officers have indicated that there cannot be a second test, internal democracy would require consideration and if a final decision is taken, it cannot be faulted. The High Court cannot interfere unless the decision is vitiated by error apparent of law. It was contended that the officers have indicated that there cannot be a second test on the file. The administrative machinery requires to consider all the pros and cons when the decision is to be arrived at, that is the internal democracy within the department. The ultimate decision would be governed on the basis of all the considerations. Internal notings have no efficacy. It is a final decision of the State Government which is relevant. He relied on the following decisions :
Page 29 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 " AIR 1987 SC 1554 State of Bihar vs. Kripalu Shankar (para 18).
Before the decision is taken by the Government, the decision making process has to be conducted through agency of officials and the authority. On the basis of the opinions, the Government takes a decision. Internal notings on the file are not relevant. Giving second opportunity is a decision of the Government.
AIR 2019 SC 4517 Municipal Council Neemuch vs. Mahadeo Read Estate & Ors., (para 14,15,16 and 17) The Court has considered the limitation of judicial review.
"17. It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e., when the error is apparent on the face of the record and is self evident. The high Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice."
9.8 Mr.Shelat, learned Senior Counsel, would distinguish the decisons cited by Mr.K.B.Pujara, learned advocate, and submit that in the decision of the Madhya Pradesh High Court, the rule was a rule of eligibility. This Page 30 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 was not so in the Gujarat Rules. The Karnataka High Court judgement does not deal with the contentions raised before this Court.
10 Mr.Utkarsh Sharma, learned Assistant Government Pleader, would adopt the extensive submissions made by the learned Senior Advocates appearing for the private respondents and also in addition thereto,would extensively refer to and rely upon the affidavit-in-reply filed on behalf of the State Government. He would make the following submissions:
10.1 Referring to the submissions made, he would submit that the petitioners of Special Civil Application No. 729 of 2016 and Special Civil Application No. 15021 of 2017 have no locus standi. They are not meritorious as the other private respondents. Having once participated in the process and having placed in the seniority list no challenge should be entertained at this belated stage after six years. He would refer to the list of dates and Page 31 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 events.
10.2 Mr.Sharma, learned AGP, relying on Rule 5 of the Recruitment Rules would submit that since the first test was conducted at short notice, posts were vacant and there was a provision in the IFS Rules for a second test, that the competent authorities thought it fit to give a second opportunity. He would rely on the contents of the reply. He would submit that the government resolution dated 22.01.2009 specifically provides for seniority being in accordance with the merit rank. Two attempts are provided for now in the amended rules of 22.06.2020, and therefore, there is no illegality committed by the State.
The rejection of the representation by the State on 14.03.2022 is just and proper.
11 Considering the submissions made by the learned respective Senior Advocates, and the Assistant Government Pleader Mr.Sharma, at the outset, the chronology of dates as set out in the affidavit-in-reply, Page 32 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 reads as under:
Sr. DATE PARTICULARS No. 1 1.3 2010 Advertisement No:209/2009-10 by GPSC for post of ACF (Class-II) and RFO (Class-II) 2 30.5.2010 Preliminary examinations (OMR Sheet) (Screening Test) were conducted.
3 07.08 2010 Result of Prelims.
4 Date of Mains examination declared i.e., 19.2.2011 by GPSC.
5 17.02.2011 Exams postponed due to oral order dated 17/2/2011 in Special Civil Application 526/2011 6 27/05/2013 Mains Examination to 2/6/2013 7 21/5/2014 Results Of Mains Examination 8 16/06/2014 Oral Interview to 31/07/2014 9 25/09/2014 Final result was published wherein two lists (1) of successful candidates of 167 number of candidates and the (2) list of 333 Page 33 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 unsuccessful candidates number was published (if required, the same may be placed at the time of hearing).
10 Lots of petitions were filed challenging the final list on various grounds. Therefore, GPSC revised the list at its own.
11 23.01.2015 Revised list was published wherein
successful candidates (167
number) and another list of
unsuccessful candidates (338
number) was published.
12 23.9.2015 The appeals against above SCA
were pending and in the meantime,
in one of the Civil Application
No.9690/2015, order was passed,
by which, GPSC was directed to
forward the name of 81 candidates
from the list published on
25.9.2014.
13 28.9.2015 Accordingly, GPSC forwarded the
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C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022
proposal of 81 candidates to the
Government Out of which 48
candidates were allocated as RFO
and 33 were allocated as ACF. It is
pertinent to note that, since there
is no Clause in the Recruitment
Rules for walking test for Assistant
Conservator of Forests, Class-II,
necessary further recruitment
action for the 33 ACF was
undertaken.
14 05.01.2015 Walking test was conducted for 48
RFO (in which 20 had cleared, 26
did not clear walking test and 2
had remained absent)
15 05.10.2015 Out of the above 20 candidates who
& had cleared the walking test,
07.10.2015 necessary further action for
appointment was undertaken,
whereas other candidates made
representation to reconsider their
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case.
16 7.11.2015 Above representation was
considered by the State
Government at the highest level
and It was decided to give a second
opportunity and accordingly,
second walking test was conducted
on 16.01.2016.
17 19.1.2016 Result of the above second walking
test in which 28 candidates
appeared, out of which 22 were
declared as passed, 04 were
declared as failed and 02 remained
absent.
11.1 The GPSC had issued an advertisement for the posts including that of the Range Forest Officer. The advertisement is on record. The note to the advertisement indicates that the recruitment to the posts of Assistant Conservator of Forest and that of the Range Forest Officer will be in accordance with the Recruitment Rules.
Therefore, a candidate applying for the post of Range Page 36 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Forest Officer was put to notice of the procedural steps that were needed to be undertaken before he was appointed.
11.2 The Recruitment Rules of 2008 for the post of Range Forest Officers provide that the appointment of the Range Forest Officer, Class-II, shall be made either by promotion or direct selection. To be eligible for appointment by direct selection, a candidate was expected to be of a particular age, possess a particular Degree and also possess minimum physical standards as required under the rules. Rule 5 which is the rule under scrutiny provides that a candidate appointed by direct selection shall be required to undergo a walking test of 25 kilometers in case of a male candidate and 16 kilometers in case of a female candidate within four hours. Rules 6 to 8 talk about the requirement of an appointed candidate to undergo training, then be on probation and during the period of probation passing of qualifying examination of computer knowledge. Rule 9 talks of a selected candidate Page 37 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 required to pass departmental examination. The rule reads as under:
"5 A candidate appointed by direct selection shall be required to undergo a walking test of 25 kms in case of a male candidate and 16 kms in case of a female candidate within four hours duration. 6 A candidate appointed by direct selection shall be required to undergo traning for a period as prescribed by the Government for the Range Forest Officer Course at Forest Rangers College. 7 A candidate appointed by direct selection shall be on probation for a period of two years. 8 A candidate appointed by direct selection shall, during his probation period, be required to pass the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006.
9 A selected candidate shall be required to pass Departmental Examination and an examination in Gujarati or Hindi or both in accordance with the rules prescribed by the Government.
10 A candidate appointed by direct selection shall, during his probation period be required to undergo pre-service training and to pass the post training examination in accordance with the Gazetted Officers Pre-service Training and Examination Rules, 1970."
11.3 From the dates reproduced hereinabove what is evident is that after the notification of 25.09.2014, by which a merit list was prepared of successful candidates being shown in part-1 and unsuccessful candidates shown Page 38 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 in part-2, came a situation where it was necessary to hold a walking test. This was in accordance with Rule 5 of the Rules. It has come on record that a communication by the medium of a letter dated 01.10.2015 was addressed to all the 48 candidates asking them to appear at 7:00 a.m on 05.10.2015 at Indroda Park for a walking test. An SMS was also sent on the mobile phones which were received by them on 03.10.2015 at 5:30 p.m. A walking test was accordingly held. Of the 48, 46 remained present. 02 candidates abstained. Of the remaining 46, 19 candidates were successful 26 remained unsuccessful and one voluntarily left the test. In all therefore, 26 candidates remained unsuccessful. The 19 selected candidates who passed the walking test on 05.10.2015 were issued orders of appointment on 10.11.2015 and 28.01.2016 respectively. On a representation being made by the unsuccessful candidates, the State, despite an unequivocal opinion by the Principal Chief Conservator of Forest on 13.10.2015, that the Recruitment Rules did not envisages a second chance which was only available Page 39 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 under the IFS Rules, a walking test was organized to be held on 16.01.2016. Based on the result of the second walking test, the private respondents were appointed vide appointment orders dated 01.06.2016 and 02.08.2017. 11.4 Rule 5 if read in its plain and simple meaning would indicate compliance of one stage of several stages before a formal appointment takes place. That is evident on reading the rules conjointly. After a competitive examination and based on merit, the GPSC prepared a list of recommending the names for appointment. It was based on this recommendation that the candidate appointed by direct selection was required to undergo walking test which was held on 05.10.2015. If a harmonious reading of the rules 5 to 10 are made, it will be safe to presume that the term appointed 'has to be read in tandem with the term selected candidate, employed in the subsequent rules'. It is only after a walking test is undertaken that the candidate is sent for training after which an appointment is made on probation Page 40 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 and during the probation the qualifying examination must be passed. The submission therefore of the petitioners of Special Civil Application No. 729 of 2016 that undergoing a walking test is a composite process of appointment may not entirely be accepted, however, it is clear that unless and until a candidate selected / appointed undertakes the walking test he cannot be posted as a Range Forest Officer. This is also apparent from reading the rules of recruitment in confirmity with the Gujarat Civil Services (General Conditions of Service) Rules, 2002, wherein, Rule 11 provides for a Certificate of Physical Fitness as a pre-requisite of physical fitness for substantive appointment. In the note of Rule 11(2), it is stated that the rules for medical examination of the candidates as to their physical fitness for government service have been embodied in appendix III. Rule 11 of the AppendixIII makes special provision for selected candidates for the post of Gujarat Forest Service which requires a certification that the candidates are fit for rough out door work in the Forest Department.
Page 41 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 11.5 That the second walking test scheduled on 16.01.2016 was a subject matter of challenge before this Court and this Court had issued notices by orders dated 13.01.2016 is evident from the order sheets in Special Civil Application No.729 of 2016 and 15021 of 2017. Orders dated 13.01.2016, 18.01.2016 and 09.04.2018 read as under:
Order dated 13.01.2016 passed in SCA No. 729 of 2016 "For recruitment to the 47 posts of Assistant Conservator of Forest - Class II and 120 posts of Range Forest Officer - Class II, the petitioners had applied in response to the public advertisement issued by Gujarat Public Service Commission. After process of recruitment, the notification dated 25.9.2014 was issued declaring the result of the competitive examination for both the posts of Assistant Conservator of Forest (Class II) and Range forest Officer, (Class II). The same was challenged before this Court by preferring SCA No. 13857 of 2014 and allied matters and this Court (Coram:
Mr.K.M.Thaker, J) vide its judgment and order dated 11th June, 2015 had allowed the petition. The same was challenged before the Appellate Forum by preferring LPA No. 1108 of 2015 where initially this Court on 28th July, 2015, the Court had stayed further implementation and execution and operation of the impugned judgment and order passed by the learned Single Judge in SCA No. 14330 of 2014 . The Appellate Forum vide its order dated 23rd September, 2015 passed in Civil Application No. Page 42 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 9690 of 2015 modified the order of stay given against the operation and implementation of the order of the learned Single Judge as well as stay of further recruitment process and permitted the GPSC to forward the name of the candidates up to serial No. 81 in the list published on 25.9.2014 to the Government for appropriate consideration and for offering appointment in accordance with law, subject to the outcome of the LPA No. 1108 of 2015 and allied appeals. In relation to those candidates (up to Sr.No. 81 in the list) the physical /walking test is conducted by the respondent -authority which is mandatory and part of the requirement of the recruitment process. It is pointed out that out of total number of candidates whose walking test is conducted, certain candidates have remained unsuccessful and the respondent -State has decide to avail another opportunity on 16th January, 2016 to these unsuccessful candidates which is impermissible under the rules.
Learned Senior Counsel Mr. Shalin Mehta appearing with Ms. Vidhi Bhatt, learned advocate for the petitioners has submitted that petitioners approached the LPA Bench and were directed to challenge the said action independently and hence, this petition. There is a wrong interpretation of the recruitment rules, 2008 where candidates are required to undergo the walking test only once. He has pointed out that the Central Rules, i.e. Appendix III of Rule 17 of Indian Forest Service (Examination) Rule, 2014 'provide that in case a candidate who has been called for appearing in the walking test after declaration of the result of the written part of the examination, either fails to completes the walking test within the prescribed time limit or fails to appear in the test will be given another opportunity to appear in the walking test after he/she is selected for the Indian Forest Service on the basis of final result of the examination'. Such specific opportunity Page 43 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 is missing in the rules of the State. Therefore, according to learned counsel, when challenge of the petitioners of applying the cut-off marks is before the Appellate Forum, acting contrary to the rules would seriously jeopardize the interest of the petitioners. According to learned AGP, petitioners would have no locus standi as they have not succeeded and their names do not appear in the selection list which was being directed by the Appellate Forum to be sent to the State Government by GPSC. Issue Urgent Notice returnable on 18th January, 2016. Mr. Sandeep R.Limbani, learned advocate waives service of notice for and on behalf of the respondents No. 13,19,30, and 31 .
Mr.Rashesh Rindani, learned AGP waives service of notice for and on behalf of the respondents No. 1, 2 and 3 .
At this stage, learned Senior Counsel Mr.Shalin Mehta has insisted upon the interim relief of directing the respondent -authority not to conduct the test on 16.1.2016.
In the opinion of this Court, it is not necessary at this stage to hamper the entire process inasmuch as the respondent -State is yet to disclose in its reply as to whether in fact, such second opportunity is being made available to those who are unsuccessful in the walking test and if yes, the basis thereof. The order of appointment shall follow, which is to be given to those successful candidates whose names appear in the select list. The ad-interim ex-parte relief of such a nature will not be necessary. However, his request for directing the respondent -authority not to grant the order of appointment to those who have remained unsuccessful in the first walking test shall be decided on the returnable date.
Let the matter to appear on top of the Board on 18th Page 44 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 January, 2016.
Direct service is permitted today."
Order dated 18.01.2016 passed in SCA No. 729 of 2016 " Today, the matter has been heard in respect of interim relief sought for by the petitioners. No reply is filed so far. Objection raised for and on behalf of the State by the learned GP Ms. Shah is that the petitioners do not have locus. It is further urged that the walking test since could be organized with just a day's notice and many seats are still vacant, many of them could not clear the said test, and therefore, it was deemed proper after due consideration that a second opportunity should be made available to the candidates, and hence, walking test was conducted on 16th January 2016 on the line of candidates who appeared for Indian Foreign Services.
Learned senior advocate Mr. Mehta has pointed out that if test was not permissible for the second time, it ought not to have been conducted for unsuccessful candidates as no administrative instructions or Government Resolution giving second chance are in existence. Because IFS Rules so provide would not permit the State to exercise the discretion which is not available under the rules. This also may promote discrimination and arbitrariness, according to him.
Learned advocate Mr. DG Shukla appearing for GPSC has pointed out that these very candidates have to undergo training and thereafter only question of their appointment would arise. He, however, has agreed that it is only after the walking test is cleared, a person is sent for training which is for nearly of one and half years. It is after the training that the person gets eligible for being Page 45 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 appointed as Range Forest Officer. Having heard learned advocates appearing for the respective sides and having considered the fact that the decision to conduct the walking test once again for those candidates who remained unsuccessful was essentially on three grounds viz., [a] the test having been conducted within a short notice of twenty four hours;
[b] the posts lying vacant are many in number, and [c] IFS Rules provide giving opportunity for the walking test for the second time.
Admittedly, no rule provides for conducting such test the second time for RFO.
It appears prima facie that gap is also no sought to be filled in by administrative instructions or by Government Resolution or otherwise by any backing of the law when such test could be conducted the second time allowing unsuccessful persons a second chance and whether walking test is a test to be cleared for being appointed or only a stage to be cleared for the next stage of eligibility, also would require consideration. In the opinion of this Court, till filing of the reply affidavit, prayer for interim relief is required to be considered of not considering those candidates for the purpose of training.
At this stage, admittedly, no appointment is to be made and unless successful candidate undergo the training, appointment is not given. Only successful candidates who also clear the walking test are sent for training of nearly one and half years. It would be therefore desirable to direct the respondent authorities not to send names of those candidates who did not clear the walking test in the first attempt for the purpose of training till affidavit in reply is filed by the State. The matter shall be further considered after once all details are furnished.Page 46 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022
C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Let this matter be posted for hearing on 10th February 2016. It is expected that the State shall file its reply by 4th of February 2016 and rejoinder to the same shall be moved by 8th February 2016."
Order dated 09.04.2018 passed in SCA No. 729 of 2016 with SCA No. 15021 of 2017.
"1. Heard Mr. Shalin N. Mehta, learned Senior Advocate assisted by Ms. Vidhi J.
Bhatt, learned advocate for the petitioners in Special Civil Application no.729 of 2016, Mr. Manish S. Shah, learned advocate for the petitioners in Special Civil Application no.15021 of 2017, Ms. Manisha L. Shah, learned Government Pleader assisted by Dr. Venugopal Patel, learned AGP for respondents no.1 to 3, Mr. D.G. Shukla, learned advocate for respondent no.4, Mr. Sudhir I. Nanavati, learned Senior Advocate assisted by Mr. Saurabh Mehta, learned advocate for respondents no.5, 7, 11, 13, 14, 17, 20, 23, 24, 25, 26 and 30, Mr. Nirad Buch, learned advocate for respondents no.6 and 8, Mr. Sandeep Limbani, learned advocate for respondents no.12, 18, 19, 28, 29, 31 and Mr. Vaibhav Vyas, learned advocate for respondent no.27.
2. The petitioners have applied for the post of Range Forest Officer, ClassII pursuant to the advertisement given by the respondent - State dated 1.3.2010. Thereafter, the petitioners appeared for the main examination.
However, they did not qualify as per the cutoff marks.
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3. It is pertinent to note at this stage that the very result declared on 25.9.2014 by GPSC was challenged by affected persons by way of filing Special Civil Application no. 13857 of 2014, which came to be allowed by this Court (Coram: Mr. K.M. Thaker, J.) vide judgment and order dated 11.6.2015. Record indicates that GPSC preferred Letters Patent Appeal no.1108of 2015, which has been admitted by the Hon'ble Division Bench of this Court vide order dated 28.7.2015 and stay of the judgment was granted. Thereafter, Civil Application no.9690 of 2015 was filed in Letters Patent Appeal no.1108 of 2015, wherein the order dated 23.9.2015 was passed. It is also a matter of record that the petitioners of Special Civil Application no.729 of 2016 filed Civil Application no.13335 of 2015, which came to be disposed of by the Hon'ble Division Bench of this Court vide order dated 23.12.2015 and thereafter, the present petition is filed. This Court entertained the petition at admission stage and also granted stay in Special Civil Application no.15021 of 2017. As such the order dated 6.5.2016 was passed by this Court in Civil Application no.3700 of 2016 in Special Civil Application no.729 of 2016, whereby certain clarifications were made which was subject matter of challenge in Letters Patent Appeal no.1108 of 2016 preferred by the petitioners, wherein the Hon'ble Division Bench has disposed of the matter with a request to the learned Single Judge to dispose of the Special Civil Application as expeditiously as possible.
4. The fact remains that the select list on the basis of which further procedure has been undertaken by GPSC is subject Page 48 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 matter of challenge in Letters Patent Appeal no.1108 of 2015 and the petitioners have not been qualified as per the main result and have not secured the cutoff marks which is subject matter of Letters Patent Appeal no.1108 of 2016. It was contended by the learned counsel for the petitioners that if the appeal is dismissed or the judgment and order dated 11.6.2015 is modified in the Letters Patent Appeal and the cut off mark may be altered, the petitioners of these petitions would become eligible for consideration for further process and therefore, their challenge to the action of the respondent authorities and more particularly, GPSC taking second walking test on 16.1.2016 would be alive. However, the fact remains that as on date, the petitioners who have not qualified as per the cutoff marks are not qualified for further consideration for the post of Range Forest Officer.
5. In the aforesaid circumstances, the matters requires consideration. Hence, RULE. Learned counsel appearing for the respective respondents shall waive service of Rule on behalf of the respective respondents.
6. In view of the aforesaid facts therefore, the adinterim relief in terms of Paragraph 9(E) granted vide order dated 21.8.2017 in Special Civil Application no. 15021 of 2017 is vacated and modified with a further clarification that the further process as per the result of second walking test held on 16.1.2016 shall be subject to further orders passed in these petitions and that the selected candidates shall not claim any equities.
It is further provided that if the respondent authorities desire to appoint the Page 49 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 candidates who have cleared second walking test held on 16.1.2016, their appointment letter shall indicate that their appointment shall be subject to further orders of this Court. The question of locus is kept open.
Direct service is permitted."
12 Reading of the aforesaid orders would indicate that pending these petitions the appointments of private respondents were made subject to the outcome of these petitions. The private respondents were appointed in the year 2016 on dates subsequent to the petitioners of Special Civil Application No.4373 of 2022 and allied petitions. The petitions, namely, Special Civil Application Nos. 729 of 2016 and 15021 of 2017 were at the hands of candidates who even otherwise were not in the list of successful candidates i.e. in the notification part-1 dated 25.09.2014. The Court will therefore not undertake an exercise of interpreting and examining the validity of holding a second walking test on the touchstone of the language of Rule 5 at the behest of those petitioners. 13 The petitioners of Special Civil Application No. 4373 Page 50 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 of 2022 and Special Civil Application No. 4665 of 2022 and 13490 of 2022 are at the cross roads as now the same very private respondents, who are the respondents in Special Civil Application No.729 of 2016 and 15021 of 2017 and who have continued to work as Range Forest Officers for over six years are based on their higher merit are shown senior to the petitioners in the seniority list of Range Forest Officers published on 30.11.2021 as on 31.01.2020.The petitioners admittedly were lower in merit than the respondents and but for the private respondents getting a second shot at the walking test could not have been appointed. Therefore, though the petitioners' challenge to the appointments of the private respondents may be belated, the petitioners' grievance with regard to their seniority position needs to be addressed and in that endeavour, rule 5 of the Rules needs an interpretation.
14 Reiterating the fact that the rule required a candidate to undergo a walking test, nothing in the rule Page 51 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 suggests that a second chance was available. Even this Court in its order dated 18.01.2016 has specifically recorded in Special Civil Application No. 729 of 2016 that prima facie the rules are silent for a second walking test. The fact that the rules are silent is evident from an express provision providing for a second option in the IFS Rules. If the State wanted to expressly provide for a second chance of a walking test, an express provision would have been made which was not consciously made in the rules. It would have frustrated the very purpose of the rule requiring a Range Forest Officer to conform to the physical standards by taking an endurance test of walking test on a rugged terrain rather than an air strip. In face of an opinion of the Principal Chief Conservator of Forest to the contrary, the State's action of holding a second walking test is de-hors the rules of 2008. The Court is inclined to take this view particularly when it is now by way of an amendment that a proviso has been added to the new rules in the year 2020 providing for an amendment giving a second chance to the candidates to Page 52 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 undertake a walking test. That the State thought it fit to bring an amendment itself vindicates the stand of the petitioners of SCA Nos. 4373 and 4335 of 2022 that the rule as it existed did never envisage a second chance at the walking test. The authorities cited by the learned Senior Advocate Mr.S.N.Shelat, in context of the purposive interpretation of the rule and that the amended provision of rule can certainly give guidance to interpret existing provisions would, on the contrary, lead the Court to believe in favour of the petitioners. The stress led by the learned Senior Advocate Shri Shelat, on article "a" and the citations therefore relied in support thereof would be of no assistance. In fact, the very decision cited by Mr.Shelat, learned Senior Counsel in the case of Khoobchand Makhija (supra), para 17 of the judgement read as under:
"17 Therefore, we are of the view, in the facts and circumstances of this case, the acquisition of two residential houses by the assessee out of the capital gains falls within the phrase "residential house" and accordingly, the assessee is entitled to the benefit conferred under Section 54(1) of the Act. However, we make it clear that while interpreting this word, the Court or the Tribunal or the authorities have to Page 53 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 keep in mind the facts of the particular case. When we have held "a" cannot be read as singular, it also cannot be read as multiples and so as to avoid paying tax under Section 45 of the Act. Therefore, in the facts and circumstances of this case, we answer the first substantial question of law raised in favour of the assessee and against the Revenue."
14.1 This means that if "a" cannot be read as singular, it also cannot be read as multiples.
15 The Division Bench of this Court while permitting the GPSC to operate the list of the 81 meritorious candidates who otherwise had a higher cut off while doing so in para 5 of the order observed as under:
"5 Hence, the following order -
1) The earlier orders passed in all the Letters Patent Appeals staying the operation and implementation of the order of the learned single as well as staying further recruitment process shall stand modified to the effect that GPSC shall be at the liberty to forward the name of the candidates upto serial No.81 in the list published on 25.09.2014, wherein the last candidate is Kumari Parsana Radhika Bhimajibhai, to the Government for appropriate consideration and for offering appointment in accordance with law.
2) However, GPSC as well as the state Government shall specifically mention in the appointment order to the respective candidates that the appointment order shall be subject to final order which may be passed in LPA Nos. 1103 /15 to Page 54 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 1111/15 and their seniority shall be finalised by the competent authority as per the final order which may be passed in the above referred Letters Patent Appeals and offering of the appointment and joining by the concerned candidates shall not create any right in favour of the respective candidates for claiming seniority with a particular date." 15.1 Reading the aforesaid observations would indicate that the GPSC was at liberty to forward the name of the candidates upto serial no.81 in the list published on 25.09.2014 to the government for appropriate consideration and for offering appointment in accordance with law. Sub para 2 of para 5 indicated that the appointments will be subject to the final order in the appeal and their seniority shall be finalized by the competent authority as per the final order which may be passed in the above referred Letters Patent Appeals and offering of the appointment and joining by the concerned candidates shall not create any right in favour of the respective candidates for claiming seniority with a particular date.
16 These observations would therefore lead the Court Page 55 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 to tread with caution and balance equities in favour of both the petitioners and the private respondents inasmuch as, but for the private respondents', appointments which were based on a second walking test, the appointments can be inferred to be contrary to rules, inasmuch as, their selection / appointment post second test which was never contemplated in the rules cannot be proved. However, it cannot be lost sight of that both the respective parties / candidates figured in the list of successful candidates i.e. part -1 of the Merit List. The appointments of the respective parties have now been in force for six years. The State has even now brought an amendment in the recruitment rules providing for a second walking test. The question therefore will now have to be addressed only from the view point of the angle of the seniority in the cadre of Range Forest Officers. Admittedly, the petitioners have been appointed on the basis of they having cleared their walking test at the first attempt. Their appointments were on 10.11.2015 and 28.01.2016. The private respondents have been appointed Page 56 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 on 01.06.2016 and 02.08.2017 after the petitioners and that too after undertaking a second walking test (for which there was no provision). Though the private respondents are higher in merit as per the GPSC merit ranking and their seniority in terms of their appointment order and the resolution dated 22.01.2009, Clause 11 in particular would in their perception entitle them to a higher seniority rank, Clause 13 of the resolution dated 22.01.2009 which talks about fixation of seniority on the basis of date of continuous officiation on regular appointment is a principle that needs to be adopted for consideration of inter se seniority of petitioners vis-a-vis the private respondents. This is particularly when the private respondents have been appointed after undertaking a second walking test which was not envisaged under the rules. As observed by the Hon'ble Supreme Court in the decisions relied upon by Mr.K.B.Pujara that if appointments are made not in consonance with statutory provisions, it could be held to be bad. However, what also needs to be appreciated is Page 57 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 that the appointments have been in currency for six years. Since the appointments of the private respondents is not in consonance with the rules, in light of the decision of the Hon'ble Supreme Court in the case of V.Sreenivasa Reddy & Ors., (supra), the Supreme Court has held that for the purposes of counting seniority, appointments have to be in accordance with rules. Paras 14 and 15 of the judgement read as under:
"14 It is now well settled law that appointment/promotion must be in accordance with the Rules, direct recruitee takes his seniority from the date on which he starts discharging the duty of the post borne on the cadre While a temporary appointee appointed de hors the rules or on ad hoc basis or to a fortuitous vacancy gets seniority from the date of regular appoint- ment.
15 It is settled law by the judgment of the Constitution Bench in Direct Recruits Class II Officers Association v. State of Maharashtra, [1992] 2 SCR 900, that appointment in accordance with Rules is a condition precedent to count seniority. Temporary or act hoc or fortuitous appointments etc. are not appointments in accordance with the Rules and the temporary service cannot be counted towards the seniority. Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap, l989 Supp 1 SCC 194, Masood Akhatar Khan v. State of M.P., [1990] 4 SCC 24, D.N. Aggrawal v. State of M.P., [1990] 2 SCC 553, State of Tamil Nadu v. E. Paripoamam, [1992] Supp. 1 SCC 420, R.C. Poudyal v. Union of India, JT (1993) 2 SC 1 and at 25, Page 58 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 Excise Commissioner, Karnataka v. Sreekanta, [1993] 3 SCC 53."
16.1 Even in the case of Bhupendranath Hazarika (supra), the Hon'ble Supreme Court in paras 26 and 33 held as under:
"26 We have referred to the facts in detail and what this Court had ultimately held only for the purpose that where recruitment of service is regulated by the statutory rules, the recruitment must be made in accordance with those rules and if any appointment is made in breach of the rules, the same would be illegal and the persons so appointed have to be put in a different class and they cannot claim seniority.
XXX XXXX XXXX 33 Recently, in State of Haryana and others v. Vijay Singh and others, the question arose with regard to the fixation of seniority in the backdrop of ad hoc initial appointment made dehors the statutory rules but later on services were regularized by the State Government. The Court took note of the fact that the respondents therein were neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the Page 59 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 appointee cannot claim seniority even if his appointment is later on regularized."
17 Accordingly, Special Civil Application Nos. 729 of 2016 and Special Civil Application No. 15021 of 2017 are dismissed only on the ground of locus. As far as Special Civil Application Nos. 4373 of 2022, 4665 of 2022 & 13490 of 2022 are concerned, the petitions are partly allowed. The communication dated 14.03.2022 rejecting the objections of the petitioners on the impugned provisional seniority list dated 30.11.2021 showing the position as on 31.12.2020 is held to be bad. The respondents are directed to rearrange the seniority of the petitioners vis-a-vis the private respondents in these petitions in light of Clause 13 of the Government Resolution dated 22.01.2009 i.e. on the basis of continuous officiation on regular appointment i.e from their respective dates of appointment. In light of what is stated hereinabove as far as the petitioners and the private respondents are concerned, promotions to the higher posts shall be governed on the basis of their inter Page 60 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022 C/SCA/4373/2022 CAV JUDGMENT DATED: 24/08/2022 se seniority based on the principle of date of continuous officiation as aforesaid. Accordingly, Special Civil Application Nos. 729 of 2016 and Special Civil Application No. 15021 of 2017 are dismissed and Special Civil Application Nos. 4373 of 2022, 4665 of 2022 & 13490 of 2022 are concerned, the petitions are partly allowed with no orders as to costs.
In view of disposal of the main petitions, connected civil applications do not survive and stand disposed of, accordingly. Direct service for respondents Nos. 1 to 4 is permitted.
(BIREN VAISHNAV, J) BIMAL FURTHER ORDER After the pronouncement of judgement, Mr.Vaibhav Vyas, learned advocate for the private respondents, requests for stay of the order.
Request for stay is rejected.
(BIREN VAISHNAV, J) BIMAL Page 61 of 61 Downloaded on : Wed Aug 24 21:04:57 IST 2022