Gujarat High Court
Dhruva Nishith Manilal vs Guajrat Public Service Commission & on 15 July, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, R.P.Dholaria
C/LPA/3068/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 3068 of 2010
In SPECIAL CIVIL APPLICATION NO. 6259 of 1991
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DHRUVA NISHITH MANILAL....Appellant(s)
Versus
GUAJRAT PUBLIC SERVICE COMMISSION & 1....Respondent(s)
==========================================================
Appearance:
MS HARSHAL N PANDYA, ADVOCATE for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 15/07/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) Page 1 of 21 HC-NIC Page 1 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT
1. The challenge in this appeal under Clause 15 of the Letters Patent is the order dated 3.9.2010 passed by the learned Single Judge in Special Civil Application No.6259 of 1991 whereby the main prayers of the petitioner; (i) to treat the impugned orders at AnnexureI and AnnexureL dated 25.07.1991 and 31.08.1991, respectively as illegal, unconstitutional, without jurisdiction, null, void and of no effect whatsoever; (ii) to direct the respondentGujarat Public Service Commission to produce relevant data as to appointment to the post of Section officer beginning from 29.09.1996 in each of the categories with names of the recruits and dates of appointments; and (iii) to allow the petitioner to appear in the written examination to be held on 14th/15th September, 1991 for the post of Section Officer and to let him to appear in the subsequent interview for the post in case he is successful in the written examination, came to be rejected.
2. As basic facts leading to rise of this Letters Patent Appeal are necessary, and they are set out as under:
"The petitioner joined the service as a direct recruit Assistant on 24.9.1984 and the next higher post from Assistant is that of Section Officer. For the post of Section Officer ClassII in the Secretariat Cadre Rules were framed by Notification dated 29.9.1966 in exercise of powers conferred by the proviso to Rule3 Article 309 of the Constitution of India, and the above recruitment Rules are for the post of Section Officer ClassII in the Secretariat Service. The appointment to the post shall be made either by promotion or by direct selection in Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT the ratio of 3:1. Further criteria were prescribed by way of appointment, no further appointment by way of promotion to be made from among persons of proved merit and efficiency from the Assistant in the Subordinate Secretariat Service. That appointment by direct selection shall be made on the result of the competitive examination held by Gujarat Public Service Commission in accordance with law. The above Rules also prescribed minimum educational qualifications, age and period of probation, etc."
3. AnnexureI was pertaining to the probationary Section Officers (Probation) Rules 1966.
4. By Notification dated 25th February, 1983 by General Administration Department, State of Gujarat again in exercise of proviso to Article 309 of the Constitution of India, in suppression of the existing recruitment Rules for the post of Section Officer ClassII in the Secretariat Service, Rules of 1983 came into force where procedure was prescribed that such recruitment shall be by direct selection or by promotion or by special selection from amongst the persons working as Assistant and graduate having completed at least five years of regular continuous service and have passed certain departmental examination.
5. Rule 2 provided as under:
"Appointment to the post of Section Officer shall be made either:
(a) by direct selection on the basis of the result of the competitive examination held by the Gujarat Public Service Commission; or
(b) by promotion of a person of proved merit and efficiency on Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT senioritycummerit basis from amongst the persons working as Assistants in the Upper Division of the Subordinate Secretariat Service who have passed the Departmental Examination prescribed for the purpose of promotion to the post of Section Officer, irrespective of the fact whether such persons fall or do not fall under clause(c); or
(c) by special selection from amongst the persons working as Assistants, who are graduates and have completed at least five years regular continuous service and have passed the Special competitive Examination held by the Gujarat Public Service commission in accordance with the rules prescribed by the State Government in that behalf, from time to time and also have passed the Departmental Examination meant for the purpose of promotion as Section Officer:
Provided that the Assistants, who complete five years regular continuous service on the last day of the month in which the Special competitive Examination for promotion as Section Officer is held shall be eligible to appear in the said examination."
6. Rule 3 prescribed the ratio for the appointment to the post of Section Officer as 3:15:2 in accordance with the modes of recruitment provided in Clauses (a), (b) and (c) of Rule 2. The eligibility criteria was prescribed for direct selection in Rule 4 and the period of probation was two years as per Rule
5. Other such conditions relevant for the purpose of appointments were also prescribed.
7. By Notification dated 21st June, 1991 earlier Rules of 1983 came to be amended but these Rules are to be called The Section Officers (ClassII in the Secretariat Service Recruitment Amendment) Rules 1991. However, as per Rule 1 (ii), the Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT above Rules shall be deemed to have come into force on and from 25th February, 1983. By virtue of these Rules a proviso came to be inserted after Rule 3 of Recruitment Rules 1983 and the backlog of vacancy accumulated between the period of and from 29th September, 1966 till 24th February, 1983 shall be carried forward for the purpose of making recruitment in the cadre of Section Officers (ClassII) in the Secretariat Service by way of direct selection or promotion as the case may be.
8. In the backdrop of Rules as above, the petitioner made the prayers before the learned Single Judge by invoking exercise of powers under Article 226 of the Constitution of India to which reference is already made herein above.
9. For the sake of convenience order passed by learned Single Judge is reproduced herein below:
"This is one such case wherein the petitioner, after having pleaded in no uncertain terms in para3 of the petition that, 'the 1983 Rules, which came to be amended in the year 1991 by way of insertion of proviso to Rule3 of the Section Officers (ClassII in the Secretariat Service), Recruitment Rules, 1983, the Rules will stand amended with effect from 29.09.1966', in rejoinder, under the guise of making alternative plea, it is contended that, 'vacancy for a semi direct recruit can be said to have arisen even if the new quota Rule is applied from 25.02.1983, without conceding that to be the case'.
2. The present petition is filed praying that:
9. (A) To treat the impugned orders at Annexures 'I' and 'L' as illegal, unconstitutional, without jurisdiction, null, void and of no effect whatsoever;Page 5 of 21
HC-NIC Page 5 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT (B) To direct the respondent Commission to produce the relevant data as to appointment to the post of Section Officer beginning 29.9.1966 in each of the categories with names of the recruits and dates of appointments;
(C) Direct the respondent Commission to allow the petitioner to appear in the written examination to be held on 14th/15th September1991 for the post of Section Officer and to let him appear in the subsequent interview for the post in case he is successful in the written examination;
(D) To consider the petitioner's case for appointment on the post of Section Officer under the G.P.S.C. on a vacancy for SemiDirect Recruits i.e. graduate assistants on the basis of his performance in the selection i.e. written test and the interview and appoint him on the same date on which other persons selected under the present selection to be held from 1491991 onwards are appointed.
3. The case pleaded by the petitioner in the petition in very specific terms is that, 'in Section Officers (ClassII in the Secretariat Service), Recruitment Rules, 1983 appointment to the post of Section Officer is provided in Rule2 of. Earlier, the appointment to the post of Section Officer was governed by 1966 Rules, a copy of which is produced at AnnexureA. These Rules came to be replaced by 1983 Rules. In 1966 Rules, the ratio prescribed for promotion and direct recruits was 3:1. By 1983 Rules, it was deemed proper to have three sources for recruitment to the post of Section Officer. To bring in that change, 1983 Rules were framed'.
3.1 Rule2 is relevant for our purpose, which reads as under:
2. Appointment to the post of Section Officer shall be made either:
(a) by direct selection on the basis of the result of the competitive examination held by the Gujarat Public Service Commission; or
(b) by promotion of a person of proved merit and efficiency on senioritycummerit basis from amongst the persons working as Assistants in the Upper Division of the Subordinate Secretariat Service who have passed the Departmental Examination prescribed for the purpose of promotion to the post of Section Officer, irrespective of the fact whether such persons fall or do not fall under clause (c) ; or
(c) by special selection from amongst the persons working as Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT Assistants, who are graduates and have completed at least five years' regul continuous service and have passed the Special Competitive Examination held by the Gujarat Public Service Commission in accordance with the rules prescribed by the State Government in that behalf, from time to time and also have passed the Departmental Examination meant for the purpose of promotion as Section Officer:
Provided that the Assistants, who completed five years' regular continuous service on the last day of the month immediately preceding the month in which the Special Competitive Examination for promotion as Section Officer is held shall be eligible to appear in the said examination.
3.1 The aforesaid three sources were then prescribed a ratio, which is found in Rule3 of the said Rules, which reads as under:
3. Appointment to the post of Section Officer shall be made in the ratio of 3: 15 : 2 in accordance with the modes of recruitment provided in clauses (a), (b) and (c) of rule 2, respectively.
3.2 To complete the sequence, this Rule3, prescribing ratio between three different sources of appointments, came to be amended by a notification issued by the General Administration Department dated 21.06.1991, a copy of which is produced at AnnexureC to the petition. This notification is made effective right from the inception of 1983 Rules, which is found in subclauseii) of Clause1 of the said notification, which reads as under:
ii) They shall be deemed to have come into force on and from the 25th February, 1983.
3.3 The proviso which is sought to be added by this notification is in Clause2 of that notification, which reads as under: Provided that the backlog of the vacancies accumulated between the period on and from the 29th September, 1966 till the 24th February, 1983 shall be carried forward for the purpose of making recruitment in the cadre of Section Officers (Class II in the Secretariat Service) by way of direct selection or promotion as the case may be.
Page 7 of 21HC-NIC Page 7 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT
4. Taking into consideration the aforesaid Rules, there cannot be any doubt that 1983 Rules provided for three different sources and these three different sources were to provide candidates in the ratio prescribed in rule3. Not only that, even backlog vacancies were to be filled in the same ratio, as provided in 1983 Rules and not in the ratio prescribed under 1966 Rules. Despite this, the case pleaded by the petitioner, as set out in paras2, 3 and 4, is as under:
2. The petitioner states that the post of Section Officer was formerly known as Officer Superintendent. The State of Gujarat was created on 151960. The post of Section Officer was available in the Secretariat as well as with the respondent commission. Initially, the State of Gujarat had not framed any Recruitment Rules for the post of Office Superintendent. The rules framed in by the erstwhile State of Bombay were followed by the State of Gujarat till September 1966. The rules applicable till September1966 did not provide for any ratio between Direct Recruits and Promotees. The State of Gujarat framed rules by notification dated: 29.09.1966, providing for the ratio of 3:1 between the Promotees and Direct Recruits. There was no provision for SemiDirect Recruits at that time. A true copy of the recruitment rules framed for the first time by the State of Gujarat is annexed herewith and marked as Annexure'A'.
3. The petitioner submits that the Recruitment Rules at Annexure 'A' were amended by notification dated:2521983, whereby the new ratio of 3:15:2 was provided; 3 for Direct Recruits, 15 for Promotees and 2 for SemiDirects. Thus, the quota of Direct Recruits remained the same. But it was split into two parts. A true copy of the 1983 amendment is annexed herewith and marked as Annexure 'B'. The perusal of the Recruitment Rules at Annexure 'A' and amendment Annexure 'B' make it clear that these enactments were prospective in their operation. By the latest amendment to the Statutory Rules issued by notification on 2161991, it was clarified that the backlog of the vacancies accumulated from 29.9.1966 to 24.2.1983 was to be carried forward. By this amendment a proviso was added to Rule3 of the 1983 Rules. Thus, the latest amendment makes the operation of the ratio rule of 3:15:2 effective from 29.9.1966, when the Recruitment Rules at Annexure 'A' were issued for the first time. A true copy of the notification dated:2161991 is annexed herewith and marked as Annexure 'C'.
4. The petitioner submits that the collective reading of the Rules at Annexure 'A', 'B' and 'C' leaves absolutely no room for doubt that the ratio of 3:15:2 was to be operative from 29.9.1966 and not from an earlier date, or subsequent thereto. From 29.9.1966, however, the ratio was to be 3:15:2 after the backlog between the Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT Direct Recruits and Promotees was accounted for. What this means that there was no ratio rule prior to 29.9.1966 and there was no question of operating the same. So, the appointments made up to 29.9.1966 were to be accepted as validly made without reference to any ratio rule whether they were made by erstwhile State of Bombay or by the successor State of Gujarat. It also means that vacancies that had arisen from 29.9.1966 and onwards, as far as the Direct Recruits are concerned, they were to be split up in the ratio of 3:2, 3 for Direct Recruits and 2 for SemiDirect Recruits. Thus, the net effect was that the Promotees retained their posts, carried forward or otherwise; but vacancies of the Direct Recruits were divided into two categories as stated hereinabove. It may also be mentioned that the rules at Annexure 'A', 'B' and 'C' are followed by both Gujarat Public Service Commission as well as State of Gujarat. However, as far as appointments in the Gujarat Public Service Commission are concerned, the vacancies are worked out separately and the ratio rule is also applied separately. All the same, as far as the selection process is concerned, it is held by the Gujarat Public Service Commission for the Section Officers in the Secretariat as well as in the Gujarat Public Service Commission. The examination are held jointly and their interviews are also held jointly.
5. Learned Advocate Ms.Bhaya for respondent No.1 invited attention of the Court to the reply filed, wherein the aforesaid contentions are answered. Paras4 and 7 of the reply are relevant, which read as under:
4. At the out set, I submit that the petitioner has challenged legality and validity of decision of the Commission as contained in its communication dtd.25.7.91 and 31.8.1991 at Annexures 'I' and 'L' to the petition respectively. I respectfully submit that the petitioner is claiming to be considered for promotion to the post of Section Officer, in the quota of SemiDirect Recruits. The rules applicable at the relevant time qua the vacancies available for the said post is to be considered. I submit that originally recruitment to the post of Section Officer was governed by the Recruitment Rules published under Notification dated 29.9.1966. In the said rules the appointment to the post of Section Officer could be made either by promotion or by direct selection in the ratio of 3:1. There was no provision for making appointment by Semi Direct Recruitment. I submit that the mode of appointment by Semi direct Recruitment was introduced under the Notification dated 2591983 and the ratio for direct recruit, promotion and Semi Direct Recruit was specified as 3:15:2. I submit that Notification dated 25.2.1983 has been produced by the petitioner at Annexure 'B' to the petition and I Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT am producing earlier Notification dt: 2991966 at Ann.'1' to this Affidavit.
I submit that that after 25.2.1983 there had been 16 occasions to fill up the post of Section Officer and out of those 16 vacancies 3 are filled in by way of direct recruitment, 12 are filled in by way of promotion and 1 is filled in by Semi Direct Recruitment. The statement showing the position of vacancies against the quota and appointments thereon for the period of 196061 to 198283 and 198384 to 1991 is enclosed herewith and marked as ANNEXURE 'II' to this affidavit.
5. xxxx
6. xxxx
7. With reference to para 3 and 4 of the petition, I do not admit contention of the petitioner that the ratio of 3:15:2 came into force w.e.f. 29.9.1966. I submit that the ratio which includes the recruitment by Semidirect has come into force only from the date of issuance of the Notification dtd. 25.2.1983. I beg to point out that it has been clarified in the Notification dt.21.6.1991 that the backlog of vacancies accumulated should be carried forward since the Scheme of Semi Direct Recruitment was not in existence prior to 25.2.1983, the question of carrying forward vacancy for Semi direct Recruitment does not arise.
6. That being so, the petitioner ought to have amended the petition even if alternatively he wanted to submit the case which is now contended by filing rejoinder.
7. In absence of any case being pleaded, the case pleaded in the petition is found without any merit and hence, the petition fails and the same is dismissed. Rule is discharged. No costs."
10. At the outset, learned counsel for the appellant Ms.Harshal Pandya would contend that the order neither record facts of the case nor deal with any contention raised by the petitioner much less any reasoning or finding and on this ground alone appeal deserves to be allowed by setting aside the order and to remand the case for taking decision afresh.
Page 10 of 21HC-NIC Page 10 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT However, considering the fact that writ petition was filed in the year 1991 and decision was rendered on 3rd September, 2010 and this appeal came to be admitted on 24th February, 2011 it is deemed proper to hear the appeal on merits and therefore, it is taken up for hearing. The learned counsel for the parties have canvassed their submissions extensively.
11. Learned advocate for the appellant would contend that having been appointed in the year 1984 as direct recruit Assistant, the petitioner completed more than five years in service and being a graduate assistant was eligible to compete in the examination for the post of Section Officer to be held on 14th/15th September, 1991 by respondentCommission. Ms.Harshal Pandya, learned advocate for the appellant contended that while issuing notice in the writ petition on 6th September, 1991 adinterim relief was granted whereby respondentCommission was directed to permit the petitioner to appear in the examination on 14th/15th September, 1991. Finally, the writ petition came to be admitted by issuing Rule on 4.9.1992. It appears from the record that later on Civil Application No.8633 of 1998 was filed wherein order dated 1st April, 2010 was passed whereby respondentGujarat Public Service Commission was directed to place the seal cover in question on the next date of hearing i.e. on 6th April, 2010. The above seal cover was placed on record and was considered accordingly.
Page 11 of 21HC-NIC Page 11 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT
12. Therefore, according to learned counsel for the appellant as per the notification dated 21st June, 1991 by which proviso came to be inserted by which it was provided that the accumulated vacancies between the period on and from 29th September, 1966 till 24th February, 1983 should be carried forward for the purpose of making recruitment in the cadre of Section Officer (ClassII) by way of a direct selection who are having five years of experience. The quota fixed in the ratio of 3:15:2 for direct recruits, promotees and semi direct recruits. The petitioner became eligible to appear in the examination and upon clearing such examination, he was eligible for interview and appointment. However, various contentions raised about availability of 22 posts for the period between 22nd September, 1966 and 24th February, 1983 and such posts were filled in namely, 20 by promotions and 2 by direct recruitment and thereafter, for the period between 25th February, 1983 and 1st March, 1990, 11 posts were filled up by promotion, 3 by direct recruitment and 1 by semi direct recruitment and only post that has gone to semi direct was of one Shri P.S. Kantesaria and the said post was not advertised.
13. It is further submitted by learned counsel for the Gujarat Public Service Commission that 15 vacancies of Section Officers were available during the period i.e. 29.9.1966 to 24.2.1983, and by applying ratio between direct and Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT promotees as 1:3, 3 direct Section Officers and 20 promotees were appointed, whereas actual vacancies available 3 direct Sections Officers and 12 promotees. Thus, in quota of promotees, 8 vacancies were in excess. The above number of vacancies and relevant appointments is reflected in partA. From 25th February, 1983 onwards the ratio between, recruit direct promotee and semi direct Section Officer came into force, which is 3:15:2. For this period number of vacancies available till date namely, the date on which writ petition was filed were 16 for the posts of Section Officers and vacancies filled in by direct recruitment3, and promotees :7 and semi direct1. According to notification dated 21.6.1991 which is shown in partC as on today was under B2 and A3. If the above table is seen, quota by promotees was in excess of 8 vacancies and so far as the semi direct recruit is concerned deficit is only for one vacancy.
14. In view of the above, it is contended that the petitioner being eligible and qualified to be recruited for the post of Section Officer in the quota specified for semi direct recruit ought to have been considered by Gujarat Public Service Commission and by order impugned rendered by the learned Single Judge having not considered any of the above aspects, is required to be set aside.
15. Mr.D.G. Shukla, learned advocate for respondent No.1 Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT Gujarat Public Service Commission having relied on language of the Rule particularly of Recruitment Rules for the post of Section Officer vide Notification dated 25th February, 1983 by which ratio of 3:15:2 was prescribed for the post of Section Officer earmarked for direct recruit, promotees and semi direct respectively and Notification dated 21st June, 1991 by which Recruitment Rules of 1983 came to be amended but it was granted retrospective effect as it came into force with effect from 25th February, 1983. It is submitted that claim of the petitioner before the learned Single Judge was against the vacancies accumulated between period from 29th September, 1966 till 24th February, 1983 and during the above period, the petitioner was not in the service of Public Service Commission as he was appointed as direct recruit Assistant in the year 1984 and could not have claimed in the vacancies accumulated for the above period. It is further submitted that by filing affidavit inreply in the writ petition nature of vacancies available during the said period were placed on record alongwith AnnexureII, in the form of statement showing the position of number of vacancies against the quota and appointments thereon for the period of 196061 to 198082 to 1983 to 1984 meaning thereby before the Rules of 1983 were introduced and after amendment of the above Rules in the year 1991 but retrospectivity was given from 1983. It is further submitted that it was clarified in the Notification dated 21.6.1991 that the backlog of vacancies accumulated should be carried Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT forward since the scheme of semi direct recruitment was not in existence prior to 25.2.1983 and therefore, the question of carrying forward vacancy for semi direct recruitment never arose.
16. Inter alia, it is submitted that even after permitting the petitioner to appear in the examination for the post of Section Officer, the merit list as per the total marks of written examination, viva voce test, three candidates were to be considered for the post in question in Gujarat Public Service Commission in which the petitioner figured at Serial No.2 as per his rank in the merit list and there being one post available and was held by Shri Upadhyay Girishchandra Chandrashanker. Thus, on simple interpretation of Recruitment Rules of 1983 and 1991 as well as on competing merit pursuant to the order passed by this Court allowing the petitioner to appear in the examination, order passed by learned single Judge does not deserve any interference.
17. Having heard learned counsel appearing for the parties, perusal of record of the case and judgment of learned Single Judge under challenge, we are of the view that the writ petition filed by the petitioner is based on misconceived notion that he was entitled to proviso to amended Rule3 of Section Officers (ClassII in the Secretariat Service) Recruitment Rules, 1983 vide notification dated 21st June, 1991. For the sake of Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT convenience, we reproduce the above amended notification, AnnexureC at page 21:
"2. In the Section Officers (ClassII in the Secretriat Service) Recruitment Rules, 1983; after Rule 3, the following proviso shall be inserted naemly:
"Provided that the backlog of the vacancies accumulated between the period on and from the 29th September, 1966 till the 24th February, 1983 shall be carried forward for the purpose of making recruitment in the cadre of Sections Officers (ClassII in the Secretriat Service) by way of direct selection or promotion as the case may be.;"
18. By virtue of this notification, it is made clear that Rules of 1991 shall be deemed to have come into force on and from 25th February, 1983. The above declaration is in ClauseI of the notification. However, Clause2 of the very notification provide for carrying forward of backlog vacancies accumulated between the period on and from 29th September, 1966 till 24th February, 1983 for the purpose of making recruitment in the cadre of Section Officers (ClassII in the Secretariat Service) by way of direct selection or promotion as the case may be. The proviso would embrace main provision and intention of the execution framing of Rules under proviso to the Article 309 of the Constitution of India while issuing notification dated 21st July, 1991 is no doubt to give retrospective effect to Rules of 1991 but at the same time proviso is inserted after Rule3 of Section Officer (ClassII in the Secretariat Service) Recruitment Rules, 1983 and makes it abundantly clear that the backlog of Page 16 of 21 HC-NIC Page 16 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT the vacancies accumulated between 29th September, 1966 till 24th February, 1983 shall have to be carried forward for specific purpose of making recruitment in the cadre of Section Officers ClassII in the Secretariat Service only by way of direct selection or promotion as the case may be, and semi direct recruit, a clause by itself was excluded from the benefit of backlog of the vacancy as accumulated and carried forward. This proviso confers benefit upon two categories of candidates namely, direct selection or promotion as the case may be. This proviso has nexus with Recruitment Rules of 1983 inasmuch as, Rule of 1983 for the first time introduced a third Category namely, semi direct recruit by prescribing a particular quota. Therefore, executive powers are exercised in just and fair manner whose not to confer any undue benefit upon an employee who is not borne in a particular feeder cadre when the vacancies for Section Officers accrued from 29th September, 1966 till 24th February, 1983 required to be carried forward and only beneficiary would be direct recruit and promotees, who were eligible to be appointed as per erstwhile Rules of Section Officer ClassII in the Secretariat cadre was continued and followed from the State of Bombay.
19. Thus, the petitioner was not eligible and competent to claim vacancies and posts of Section Officer exclusively meant for direct recruit or promotees as the case may be in any case, a requisition was to be sent by General Administration Page 17 of 21 HC-NIC Page 17 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT Department for all the posts, which included the post of Gujarat Public Service commission also. As regards to posts in the Office of Gujarat Public Service Commission, confirmation as to the competition of the vacancies were obtained under Government letter dated 16.5.1993 and thereby a requisition showing one post of Section Officer for semi direct recruitment was sent to Gujarat Public Service Commission so direct by the Government. The said post actually was of semi direct Section Officer and one Shri Kantasaria passed the examination for semi direct Section Officer. He was appointed in the Office of Gujarat Public Service Commission. That appointment of Shri Kantasaria, who stood at serial No.1 in the entire merit list out of other five graduate Assistants serving in the Office of Gujarat Public Service Commission and therefore, the above procedure is also in accordance with law and it so visible and it so appears from the record available by opening sealed cover containing second minutes of the meetings of the Gujarat Public Service Commission:
"2nd Minutes of the meetings of the meetings of the Commission held on 9th and 10th April, 1992 to conduct the viva voce test of candidates for the posts of Section officers, gujart Secretariat Service, ClassII, held under the Section Officers, Gujarat Secretariat Service, ClassII (Special competitive Examination for Graduate AssistanceNovember, 1983 Rules.
1. 16 candidates were called for viva voce test, out of whom 13 candidates were called for consideration for the posts in Sachivalaya Departments. Two candidates, namely, S/Shri B.L. Desai and G.C. Upadhyay, who belong to the office of the Gujarat Public Service Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT commission, had filed Special Civil Application Nos.6459/85 and 6463/85 respectively praying that they be admitted to the examination for being considered for posts in the Sachivalaya Departments. Another candidate, Shri N.M. Dhruva working as Assistant in the Gujarat Public Service Commission's officer had also filed Special Civil Application No.6259/91 challenging the Commission's decision of not admitting him to the examination for want of a vacancy in the office of the Gujarat Public Service examination. In all these there Special civil Applications, the High Court of Gujarat has directed the commission to admit the candidates to the examination and accordingly, they were also admitted to examination and called for the viva voce test. So, in all 16 candidates were called and all of the them remained present for the viva voce test.
2. The merit list as per the total marks of the written examination and viva voce test of three candidates to be considered for the post in Gujarat Public Service Commission's Office, is as Under:
Under: Sr.No. Name of the Total Marks in Total
rank candidate marks in viva voce marks
written test test (total of
col.4&5)
1 2 Shri Upadhyay 238 35 273
Girishchandra
Chandrashanker
2 1 Shri Dhruva 223 31 254
Nishit Manilal
3 3 Shri Desai 180 24 204
Babubhai
Lakhabhai
3. Shri N.M. Dhruva who is working as Assistant in the office of the Commission had filed writ petition being Special Civil Application No.6259 of 1991 against the Commission's decision of not admitting him to the examination for want of a vacancy of Section Officer in the office of the Gujarat Public Service Commission to be filled in by the Special Competitive Examination. The High Court has directed the Commission to admit him to the examination. While reiterating that there does not exist a post of Section Officer to be filled in by this method in the office of the Gujarat Public Service Commission, Shri N.M. Dhruva, was admitted to the examination as per the High Court directive. Alongwith him, S/Shri B.L. Desai and G.C. Upadhyay who Page 19 of 21 HC-NIC Page 19 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT had filed Special Civil Applications Nos.6459 of 1985 and 6463 of 1985 for being admitted to the examination for being considered for posts in Sachivalaya, were also considered for the post in Gujarat Public Service Commission as they originally belong to the Commission's office (vide Commission's decision dated 11.3.1992 in file No.ExM_SD_SO_891_H).
4. The results of there three candidates are not to be declared till final decision is taken by the High Court in the respective writ petitions filed by them. The result of S/Shri B.L. Desai and G.C. Upadhyay who claim for consideration for posts in Sachivalaya are kept in sealed cover. Similarly, these minutes should also be kept in sealed cover till the Special Civil Applications mentioned above are finally heard and decided by the High Court, as these minutes are subject to the outcome of these Special Civil Applications.
5. The results of the 13 candidates called for viva voce test for consideration against posts in Sachivalaya Department may be declared as per the minutes approved by the Commission separately.
6. Shri G.Subba Rao, Secretary to Government, G.A.D. (ARTD), Sachivalaya, Gandhinagar and Dr.J.H. Shah, Director, School of Psychology, Philosophy and Education, Gujarat University, Ahmedabad, remained present to assist the Commission as Government Nominee and Adviser respectively at the time of the viva voce test."
20. Thus, even after order passed by this Court allowing the writ petitioner to appear in the examination he is second in the merit list and therefore, not eligible to be appointed. The appointment to be made in the Secretariat of the State of Gujarat and Gujarat Public Service Commission are based on number of vacancies requisitioned by the respective departments.
21. Having examined the case on the strength of prevailing recruitment rules for Section Officer in the year 1983 as amended by notification Page 20 of 21 HC-NIC Page 20 of 21 Created On Wed Jul 20 01:24:25 IST 2016 C/LPA/3068/2010 CAV JUDGMENT of 1991 and simple interpretation of proviso inserted in the notification of 1991, the petitioner is held to be not entitled to even stake claim for the post of Section Officer in Gujarat Public Service Commission and accordingly appeal stands dismissed.
Sd/-
(ANANT S.DAVE, J.) Sd/-
(R.P.DHOLARIA,J.) Ali Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Jul 20 01:24:25 IST 2016