Gujarat High Court
Thakkar Ashokkumar Kirtilal vs State Of Gujarat on 14 July, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16797 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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THAKKAR ASHOKKUMAR KIRTILAL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 14/07/2021
ORAL JUDGMENT
Heard learned advocate Mr.K.B.Pujara for the petitioner, learned Assistant Government Pleader Mr.Meet Thakkar for the respondent Nos.1 and 3 and learned advocate Mr.Premal Joshi for the respondent No.2 through video conference.
1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Meet Thakkar waives service of Page 1 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 notice of rule for the respondent Nos.1 and 3 and learned advocate Mr.Premal Joshi waives service of notice of rule for the respondent No.2.
2. Having regard to the controversy raised in this petition in narrow compass, with the consent of the learned advocates for the respective parties the same is taken up for hearing today.
3. By this petition, the petitioner has challenged the action of non-appointment to the post of Taluka Development Officer on the ground of physical disability.
4.1. The brief facts of the case are that the petitioner who belongs to General Open category is suffering from Locomotor Disability of Post Polio Paralysis (Right) Lower Limb-one Leg Affected (Right), having permanent Physical Impairment of 40%. The petitioner has passed B.Pharm.
4.2. The State Government initiated recruitment through Gujarat Public Service Commission for the posts of Gujarat Administrative Service Class-I and Class-II vide Advertisement No.9/2014-15 dated 10.06.2014 for total 351 vacancies comprising of 59 vacancies of Class-I and 292 vacancies of Class-II, out of which 11 vacancies were reserved for Physically disabled persons.
4.3. The notified vacancies were subsequently increased to total 460 comprising of 84 vacancies of Class-I and 376 vacancies of Class-II, out of which Page 2 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 12 vacancies were reserved for Physically Handicapped candidates (for short 'PH candidates'). As per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act, 1995') the respondents are required to reserve 3% vacancies for PH candidates. Accordingly, 14 vacancies out of 460 vacancies were to be reserved for PH candidates.
4.4. The petitioner successfully passed the preliminary examination and thereafter also passed the written examination and therefore was called for oral interview on 11.05.2017 and he also opted for the post of Taluka Development Officer. The name of the petitioner appeared at Serial No.393 in the selection list of 460 candidates published on 28 th July, 2017 and the petitioner was recommended for the post of Government Labour Officer, Class-II which was his preference No.9 instead of being recommended for the post of Taluka Development Officer, Class-II which was his preference No.4 given by him at the time of oral interview.
4.5. The petitioner made a representation dated 14th August, 2017 before the respondent No.2-Gujarat Public Service Commission to appoint him as Taluka Development Officer on the post reserved for PH candidates. It was contended by the petitioner that instead of reserving three posts for PH candidates out of 100 posts of Taluka Development Officer, Class-II only two posts are reserved which is contrary to the provisions of Section 33 of the Act, Page 3 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 1995 and secondly, not offering the post of Taluka Development Officer, Class-II to the PH candidate having Locomotor Disability is also contrary to the Government Resolution dated 3rd February, 2014 which was issued prior to the advertisement dated 10th June, 2014. It was also submitted that out of the 12 posts reserved for PH candidates, number of post reserved for PH candidates for the cadre of Taluka Developemetn Officer is only two as against that the respondents have selected only seven candidates out of total reserved category of 14 PH candidates and therefore the petitioner was entitled to be appointed as Taluka Development Officer.
4.6. The petitioner has therefore filed this petition in the Month of September, 2017. This Court (Coram:
Hon'ble Mr.Justice S.G.Shah as his Lordship was then) passed the following order on 13.09.2017 :
" NOTICE, returnable on 25.9.2017.
Learned AGP waives service of notice for the respondent - State.
One post of Taluka Development Officer (TDO) is to be kept vacant.
Direct service is permitted upon rest of the respondent/s."
4.7. The respondent No.1-State Government being aggrieved by the ex-parte interim order passed by this Court along with other similar matters where such orders were passed, preferred Letters Patent Appeal before the Division Bench wherein, the aforesaid order was initially stayed by the Division Bench and subsequently, the following order was Page 4 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 passed :
"4. In view of the broad consensus between the learned advocates appearing for the respective parties, all these Letters Patent Appeals are disposed of by continuing the earlier ad-interim relief granted by this Court in respective Civil Applications in respective Letters Patent Appeals, by which, the respective orders granting ex-parte ad-interim relief granted by the learned Single Judge came to be stayed. The same is directed to be continued till the learned Single Judge passes appropriate order after bi-partite hearing. All the contentions which may be available to the respective parties are kept open to be considered by the learned Single Judge. The learned Single Judge to pass appropriate order in the main Special Civil Applications in accordance with law and on merits and after giving opportunity of being heard to both the parties without in any way being influenced by the present order.
With this, the present Letters Patent Appeals stand disposed of. In view of disposal of the Letters Patent Appeals, the respective Civil Applications stand disposed of."
5.1. Learned advocate Mr.Pujara for the petitioner submitted that the Gujarat Public Service Commission has accepted that the petitioner is suffering from 40% of physical disability and therefore the case of the petitioner was required to be considered as per the provisions of Section 33 of the Act, 1995.
5.2. Learned advocate Mr.Pujara relied upon the decision of the Supreme Court in case of State of Punjab and Others V/s. Manjit Singh and Others reported in 2003 (11) SCC 559 in support of the claim of the petitioner to consider his case for appointment to the post of Taluka Development Officer.
5.3. Learned advocate Mr.Pujarat thereafter relied upon the averments made in the additional affidavit filed on behalf of the petitioner to point out that in the reply of the Gujarat Public Service Commission dated 24.10.2017 it is admitted by the Gujarat Public Service Commission that the petitioner is having Page 5 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 physical disability and as the petitioner was not eligible as per the advertisement where only two categories of physical disability were to be considered for the appointment, the case of the petitioner could not be considered for the appointment to the post of Taluka Development Officer, Class-II.
5.4. Learned advocate Mr.Pujara further submitted that out of the total 100 posts of Taluka Development Officers, the respondents have actually filled up only 77 vacancies by notification dated 01.11.2017 and therefore 23 vacancies are still available in the same cadre.
6.1. On the other hand, learned advocate Mr.Premal Joshi appearing for the respondent No.2-Gujarat Public Service Commission submitted that the Gujarat Public Service Commission has published the advertisement after receipt of the requisition from the State Government and to decide about the reserved post is within domain of the State Government and not within the jurisdiction of the Gujarat Public Service Commission.
6.2. Learned advocate Mr.Joshi therefore submitted that the State Government through letter dated 01.05.2015 increased the posts of Taluka Development Officer from 60 to 100 and accordingly, fresh requisition was forwarded to the Gujarat Public Service Commission and two posts were reserved for Locomotor Disability and as the two posts reserved Page 6 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 for Locomotor Disability were already filled up and as per the requisition only two posts were to be kept reserved for physically disabled candidates, accordingly, as per the requisition, two posts were reserved for physically disabled candidates to be filled up either by blind candidates or candidates having low vision and hearing defect. It was therefore submitted that the Gujarat Public Service Commission has acted upon the requisition received from the State Government only.
7.1. Learned Assistant Government Pleader Mr.Meet Thakkar appearing for the respondent Nos.1 and 3 submitted that the petitioner is not entitled to be appointed as Taluka Development Officer as there are two other PH candidates having Locomotor Disability are already appointed and are working on the same post and therefore by communication dated 29.04.2015, the Gujarat Public Service Commission was informed to issue the advertisement for appointment of 100 candidates whereby, in item No.3, Column Nos.GHH 1, 2 and 3, the PH persons mentioned in the said column were requested to be recruited and accordingly, the Gujarat Public Service Commission by communication dated 12.10.2017 has recommended the candidate having disability of blindness namely Ms.Komal Pravinbhai Ganatra at serial No.85. It was therefore submitted by learned Assistant Government Pleader Mr.Thakkar that the petitioner is not entitled to be posted as Taluka Development Officer.
Page 7 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 7.2. Learned Assistant Government Pleader Mr.Thakkar further submitted that once the process of advertisement is completed as per the prescribed procedure and guidelines, the vacant post for any reserved or unreseved category would be carried forward to next recruitment process and therefore, the petitioner cannot be granted any appointment to the post of Taluka Development Officer as claimed in this petition.
7.3. Learned Assistant Government Pleader Mr.Thakkar thereafter submitted that as per the Government Resolution dated 15.02.2001, when the name of the petitioner was not recommended at the relevant point of time by the Gujarat Public Service Commission for the aforesaid reasons, the petitioner now cannot be given the post of Taluka Development Officer even though the petitioner is fulfilling the criteria of disabled person.
8. This matter was heard in part and this Court passed the following order on 29th June, 2021 :
"Heard learned advocate Mr.K.B.Pujara for the petitioner, learned Assistant Government Pleader Mr.K.M.Antani for the respondent-State and learned advocate Mr.Premal Joshi for the respondent No.2 through video conference.
Learned Assistant Government Pleader Mr.Antani prays for time to place on record the details with regard to the existing number of physically disabled persons having Locomotor Deficiency in the cadre of Taluka Development Officer on the date of advertisement dated 10th June, 2014 so as to justify the averments made in paragraph No.7 at Page No.205 of the further affidavit filed on behalf of the respondent No.3.
Stand over to 14th July, 2021.
To be listed on top of the Board"Page 8 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021
C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021
9. In response to the aforesaid order, the respondent No.3 filed the further affidavit-in-reply stating as under :
"4.2. As on 07.01.2014 the vacancics in the cadre of TDO stood at 417. The total cadre strength thereof was 601 of which 150 were earmarked to be filled through Direct recruitment. Thus, a total of 4 posts were reserved for PH category (in accordance with GR dated 15.02.2001).
As on 07.01.2014, from amongst the 4 posts reserved for PH category, 2 posts were found vacant and the remainder of the posts were occupied by Shri D.N.Satani and Ms. Ila G. Gohil, suffering from locomotor disability.
4.3. In light of the vacancies in the cadre of TDO, all together 100 vacant posts (including 2 vacant posts of PH Category) on the cadre of TDO were reported through a requisition sent by the Panchayat Department to the General Administrative Department in the State Government on 29.04.2015. The General Administrative Department subsequently forwarded the requisition of the Panchayat Department to the Gujarat Public Service Commission (GPSC).
4.4. It is the above requisition received by the GPSC which culminated into the recruitment in question. Appropos the above facts, it is most respectfully submitted that since Shri D.N. Satani and Ms. Ila G. Gohil, were already holding the post of PH category (locomotor disability), the two posts of the PH category vacant as on the date of requisition (which culminated into the recruitment in question) were resolved to be offered to the PH suffering from low vision and having cognitive disability and accordingly advertised in the recruitment in question. After the selection to the recruitment in question was held, recommendation for appointment on PH category was made of Ms. Komal Ganatra suffering from low vision, but she did not join.
5. Appropos the above facts, it is most respectfully submitted that since Shri D.N. Satani and Ms. Ila G. Gohil, were already holding the post of PH category (locomotor disability), the two posts of the PH category vacant as on the date of requisition (which culminated into the recruitment in question) were resolved to be offered to the PH suffering from low vision and having cognitive disability and accordingly advertised in the recruitment in question.
6. After the selection to the recruitment in question was held, I recommendation for appointment on PH category was made of Ms. Komal Ganatra suffering from low vision, but she did not join.
7. On 17.01.2017, 8 posts were requisitioned for appointment to the Post of TDO, where none were earmarked for PH category, on 17.04.2017 the cadre strength was revised to 375 (from 601).
8. On 17.04.2018 again the cadre strength of TDOs was revised from 375 to
376. Once again on 30.04.2018, the cadre strength of TDOs was revised to 377. From amongst the said 377 posts 125 were earmarked for direct recruitment. As per GR dated 15.02.2001, 3% of 125 i.e. 3 posts were reserved for PH category.
9. On 12.07.2018, 32 posts were requisitioned for appointment to the post of TDO which included 3 posts for the PH category. Recruitment was held pursuant to Page 9 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 the said requisition on 09.11.2019, and candidate Shri Jagdish Soni suffering from Low-Vision disability was recommended for appointment.
10. As on date, from the 3 total posts of PH category 2 are vacant. Shri Jagdish Soni with Low-Vision disability is the only PH candidate on the cadre of TDO."
10.1. Relying on the aforesaid averments learned Assistant Government Pleader Mr.Thakkar submitted that as on 07.01.2014 the vacancy in the cadre of Taluka Development Officer stood at 417 and out of the total cadre strength of 601, 150 were earmarked to be filled in through direct recruitment and accordingly, four posts were reserved for PH candidates and as two posts were already occupied by PH candidates having Locomotor Disability, only two posts were reserved for PH candidates as per the requisition dated 29.04.2015 issued by the State Government to the Gujarat Public Service Commission.
10.2. Learned Assistant Government Pleader Mr.Thakkar therefore submitted that after the aforesaid recruitment process, in 2018-19 again the recruitment was held and one candidate Shri Jagdish Soni suffering from Low-Vision disability was recommended for appointment and as on date from the three posts reserved for PH category, two posts are vacant as Ms.Komal Ganatra who was selected pursuant to the recommendation of the Gujarat Public Service Commission did not join the service.
10.3. It was therefore submitted that the petitioner who is already appointed as Government Labour Officer cannot claim any right over the post of Taluka Page 10 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 Development Officer as selection of post is not a fundamental right and the petitioner is to accept the recommendation of the post on which he is selected and he cannot claim any right for particular post as per his choice once the selection process is over.
10.4. Learned Assistant Government Pleader Mr.Thakkar relied upon the decision of the Supreme Court in case of Ramesh Chandra Shah and Others V/s. Anil Joshi and Others reported in 2013 (11) SCC 309 in support of his submissions that once the petitioner has taken part in the process of selection with full knowledge that the recruitment was being made as per the Advertisement, the petitioner has waived his right to question the advertisement or the methodology adopted by the respondents for making selection. It was therefore submitted that the petitioner has no fundamental right to claim the benefit of appointment on the post of Taluka Development Officer and it was the prerogative of the appointing authority on the recommendation of the Gujarat Public Service Commission to appoint the petitioner for the post of Government Labour Officer and as such, the petition is required to be dismissed.
11. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is true that the advertisement issued by the Gujarat Public Service Commission on the requisition made by the State Government stipulated that two posts are reserved for the cadre of Taluka Development Officer having Page 11 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 physical disability. On perusal of the requisition made by the State Government dated 29.04.2015 it appears that the State Government has considered the persons having physical disability working on the post of Taluka Development Officer when the requisition was made which is contrary to the provisions of Section 33 of the Act, 1995 which reads as under :
"33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
12. As per Section 33 of the Act, 1995 which was prevalent at the relevant time when the recruitment process took place in the year 2014, there is a statutory mandate to appoint three percent persons for having physical disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision (ii) hearing impairment and (iii) Locomotor Disability or cerebral palsy in the post identified for each disability. Therefore when out of 601 posts, 150 posts are to be filled in by direct recruitment, 3% thereof would come to four posts which is to be allocated equally among the three categories of physically disabled candidates.
Therefore the requisition made by the State Page 12 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 Government considering the fact that two persons
having Locomotor Disability were already in service could not have been a criteria for issuing the advertisement. The requisition made by the State Government cannot over ride the statutory provision which prescribes the reservation of 3% vacancies for the candidates having physical disability while making an appointment in particular cadre. In such circumstances, the requisition dated 29.04.2015 is contrary to the provisions of the Act, 1995. The stand taken by the respondent-State Government that at the time of initial requirement 3% posts were kept reserved for PH candidates and in 2011, two posts were filled by the persons having disability of Locomotor and therefore only two posts for the persons having lower vision and hearing impairment are to be considered is without any basis.
13. On interpretation of the provision of Section 33 of the Act, 1995, over all reserved posts should be kept in mind out of which each physical disability stated in the said Section is to be considered for 1% mandatorily. Accordingly, the Government Resolution dated 3rd February, 2014 which prescribes for 1% reservation of each of the category is not followed by the respondent-State Government.
14. Moreover, as per the Government Resolution dated 15th February, 2001 on which reliance is placed by the learned Assistant Government Pleader also provides for inter changeability of disability category if the PH candidates for one particular Page 13 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 category is not available. As stated in the affidavit filed on 9th July, 2021, it appears that from three total posts of PH category, two posts are vacant and only one post is filled up by Shri Jagdish Soni having Low Vision disability in the cadre of Taluka Development Officer. Thus, as on today the petitioner can be accommodated on the two vacant posts reserved for PH candidates in the cadre of Taluka Development Officer.
15. The Supreme Court in case of Ramesh Chandra Shah and Others V/s. Anil Joshi and Others reported in 2013 (11) SCC 309 while considering challenge to the advertisement after the selection process was over has held as under :
"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
19. One of the earliest judgments on the subject is Manak Lal v. Dr. Prem Chand AIR 1957 SC 425. In that case, this Court considered the question whether the decision taken by the High Court on the allegation of professional misconduct leveled against the appellant was vitiated due to bias of the Chairman of the Tribunal constituted for holding inquiry into the allegation. The appellant alleged that the Chairman had appeared for the complainant in an earlier proceeding and, thus, he was disqualified to judge his conduct. This Court held that by not having taken any objection against the participation of the Chairman of the Tribunal in the inquiry held against him, the appellant will be deemed to have waived his objection. Some of the observations made in the judgment are extracted below:
"8. If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time.
9. From the record it is clear that the appellant never raised this point before the Tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the Tribunal's report was that Shri Chhangani had pecuniary and personal interest in the complainant Dr Prem Chand. The learned Judges Page 14 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. Since we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. It seems clear that the appellant wanted to take a chance to secure a favourable report from the Tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."
20. In Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, this Court held that the appellant who knew about the composition of the Selection Committee and took a chance to be selected cannot, thereafter, question the constitution of the Committee.
21. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp. SCC 285, a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated in Madan Lal v. State of J & K (1995) 3 SCC 486 in the following words:
"9. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
22. In Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."Page 15 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021
C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021
23. The doctrine of waiver was also invoked in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was held:
"24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."
24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
25. We are also prima facie of the view that the learned Single Judge committed an error by holding that despite the non obstante clause contained in Rule 2 of the General Rules, the Special Rules would govern recruitment to the post of Physiotherapist. However, we do not consider it necessary to express any conclusive opinion on this issue and leave the question to be decided in an appropriate case."
16. However in the facts of the case, the respondents have issued advertisement contrary to the provisions of the Act, 1995. Therefore, it would be germane to refer to the the decision of the Supreme Court in the case of State of Punjab and others V/s. Majit Singh and others reported in 2003 11 SCC 559 wherein it is held as under :
"10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list upto the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cutoff marks say for example out of 10,000 if Page 16 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible upto the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks.
11. In the case in hand, it was not for the Commission to have fixed any cut- off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have the upto the mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
17. The petitioner is already selected for the post of Government Labour Officer instead of Taluka Development Officer. Therefore, the petitioner is entitled to be appointed as Taluka Development Officer considering the number of vacancies for the said post. The respondent authority could not have considered the total number of post for applying the percentage of reservation for PH candidates. Section 33 of the Act, 1995 provides for reservation of percentage of vacancies and not the reservation for percentage of total number of sanctioned posts.
18. In view of the above facts emerging from the record and in view of the decision of the Supreme Court in case of State of Punjab and Others (Supra), Page 17 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021 C/SCA/16797/2017 JUDGMENT DATED: 14/07/2021 the petition deserves to be allowed. The respondent authorities are directed to transfer the petitioner from the Government Labour Officer to that of Taluka Development Officer in the reserved category of PH candidates as if the petitioner is appointed on the said cadre from the date of his appointment with all consequential benefits. Such exercise shall be carried out within a period of 12 weeks from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No order as to costs.
Direct service is permitted.
(BHARGAV D. KARIA, J) PALAK Page 18 of 18 Downloaded on : Mon Aug 30 21:42:19 IST 2021