Gujarat High Court
Bhavneeta Rajeshkumar Darji vs State Of Gujarat on 16 March, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/12701/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12701 of 2016
With
CIVIL APPLICATION NO. 1 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 12303 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12441 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12617 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12762 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 13056 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 13679 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14425 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 15553 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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BHAVNEETA RAJESHKUMAR DARJI
Versus
STATE OF GUJARAT
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Page 1 of 31
C/SCA/12701/2016 CAV JUDGMENT
Appearance:
MR PC KAVINA, SR. ADVOCATE WITH MR SP MAJMUDAR(3456) for the
PETITIONER(s) No. 1
MS. SHIVANGI M RANA(7053) for the PETITIONER(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MR MANAN
MEHTA, AGP (99) for the RESPONDENT(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR DG SHUKLA(1998)
for the RESPONDENT(s) No. 2
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 1,2
NOTICE SERVED(4) for the RESPONDENT(s) No. 1,2
==========================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/03/2018
CAV JUDGMENT
Nine petitions captioned above were heard together and are treated for disposal by this common judgment as they constitute a group, involving similar facts and identical issues.
2. The petitioners were the aspirants for appointment to the post of Assistant Public Prosecutor. Having fared unsuccessful in the recruitment process by unable to meet with the qualifying criteria for selection, they filed the present petitions seeking to set aside the declaration of result by the respondent Gujarat Public Service Commission, as also to get set aside the consequential steps including the preparation of final selection list. The further prayer made was to declare that the prescription of minimum qualifying marks in the viva voce test was illegal. The petitioners want themselves to be considered as duly selected candidates for the appointment to the posts.
Page 2 of 31 C/SCA/12701/2016 CAV JUDGMENT2.1 Each of the petitioners stood unqualified as could not obtain minimum qualifying marks in the viva voce and personality test. The petitioner of Special Civil Application No.12701 of 2016 got 269 marks in the written test but could score 17 marks in the viva voce which was below the minimum qualifying 25 marks. She belonged to S.E.B.C. Category. Special Civil Application No.12303 of 2016 was filed by 15 petitioners who also having been not been able to score 25 marks in the oral test, stood unsuccessful. Same was the reason for disqualification of the three petitioners of Special Civil Application No.12617 of 2016.
2.2 Four were the petitioners in Special Civil Application No.13056 of 2016 who obtained 237, 260, 292 and 267 marks in the written test, but having got 20, 13, 12 and 20 marks respectively in the viva voce, they were declared failed. Petitioners of Special Civil Application No.12762 of 2016 and Special Civil Application No.15553 of 2016 had incurred disqualification on the same count. The petitioner of Special Civil Application No.12441 of 2016 obtained 298 marks in the written examination but only 18 marks in the viva voce. The petitioner of Special Civil Application No.14425 of 2016 got 297 marks in the written examination but failed to obtain minimum marks in the oral test, resultantly treated disqualified; same happened in case of petitioner of Special Civil Application No.13679 of 2016.
3. Detailing of relevant fats of the case Page 3 of 31 C/SCA/12701/2016 CAV JUDGMENT necessarily reflects on the important aspects of the dispute, and often implicitly responds to the contentions in the controversy. The facts, therefore, may be stated. The Gujarat Public Service Commission (GPSC) issued advertisement on 12th February, 2014 inviting applications for recruitment to 554 posts of Assistant Public Prosecutor, Class II. Looking at the figures of the category-wise posts to be filled in, total posts in General Category were 288 out of which 86 posts were for women. 39 posts were in Scheduled Caste category inclusive of 12 for women of that category. For Scheduled Tribe category there were 78 posts and out of them, 23 were for women. 149 posts inclusive 45 for women were for Socially and Educationally Backward Class. Amongst the total posts, there was also reservation provided for physically handicapped and Ex-servicemen.
3.1 Instruction 7 in the advertisement outlined for the benefit of the candidates the details of examination to be conducted in the recruitment process. Part I written examination was to consist of five different question papers of total 700 marks relating to the subjects of languages of Gujarati and English, different branches of law, the law of pleadings, and the Constitution of India. Part II examination was to be the viva voce and personality test comprising of 75 marks. The Commission had fixed 25 marks as minimum qualifying marks out of total 75 marks under Rule 12(3) of the recruitment rules.
3.2 As per the stand of the respondent - GPSC on Page 4 of 31 C/SCA/12701/2016 CAV JUDGMENT the basis of the aforesaid Rule, qualifying standard of minimum marks was fixed for different categories to be obtained in the written examination was in the following manner - (a) Un-reserved (General) Category
- minimum 35% means 245 marks out of total 700 marks,
(b) Un-reserved (General) Category Female and Reserved Categories (except Reserved Category Female) 10% lower than that of 35% for the Un-reserved (General) Category, that is 32% means 224 marks out of total 700 marks, and (c) Reserved Categories Female 10% lower than that of 32% for the Reserved Category Common, that is 29% means 203 marks out of total 700 marks.
3.3 It was unequivocally mentioned in the advertisement that a candidate eligible to be called in interview was required to obtain minimum 25 marks in the viva voce and that the candidate securing less than the said minimum marks would not be liable to be selected. It was further clarified in express terms that irrespective of the higher marks of whatever extent obtained in the written test, unless minimum 25 marks were secured in the viva voce and personality test, the candidate would not be treated as eligible to the post. Thus regardless of the marks obtained in the written test, only if a candidate obtains the minimum qualifying marks in oral and personality test, he or she would stood qualified.
3.4 The written examination was conducted on 03rd May, 2014 and 04th May, 2014. All 3632 candidates appeared and the result thereof was published on 04th Page 5 of 31 C/SCA/12701/2016 CAV JUDGMENT June, 2015. Upon the result of the written examination, 1517 candidates were provisionally declared eligible for oral test. The said result was treated as provisional subject to scrutiny to find out whether the candidates satisfied the eligibility criteria to be called for viva voce test. After such scrutiny, the Public Service Commission declared first list on 23rd October, 2016 short-listing 1398 candidates, and also declared the second provisional list of 22 candidates eligible for viva voce test. It was declared that one of the candidates was not found eligible for viva voce test after scrutiny. Out of 22 candidates in the second provisional list, 18 candidates were treated as eligible and the candidatures of four were rejected. The Commission received objections from 118 candidates who were treated ineligible, out of whom, one candidate was declared eligible upon submission of the documents required. Three further candidates were called for the viva voce test pursuant to the orders passed by this Court in writ petitions. After undergoing such process of listing, short-listing, scrutinising and finalising the list of eligible candidates, the Commission finally called 1455 candidates for viva voce and personality test.
3.5 The viva voce and personality test was conducted between 21st April, 2016 and 23rd June, 2016. In that test, 1455 candidates, which was three times the vacancies for the post in question, were called by sending individual intimations. They were informed that 25 marks were prescribed as minimum Page 6 of 31 C/SCA/12701/2016 CAV JUDGMENT qualifying marks for the said oral test. Two boards or committees were constituted by the respondent - GPSC for conducting viva voce and personality test. The interview committee consisted of eminent persons in the field including Justice S.M. Soni (Retired), Justice B.G. Karia (Retired), Shri B.S. Parikh (Retired Judge, City Civil Court), Shri P.J. Dholakia, former Legal Secretary and former State Election Commissioner, Gujarat as well as Shri D.M. Vyas and Shri S.M. Belani, both Joint Secretaries, Legal Department, who were the government representatives.
3.6 Final result was declared on 04th July, 2016 showing names of 543 candidates as successful candidates. The details of the category-wise marks obtained by the last recommended candidate in the aforesaid select list dated 04th July, 2016 indicate that the marks obtained by the last recommended candidate in the Unreserved (General) Category was 306 and the marks obtained by the last recommended female candidate in the said Unreserved Category was
293. For S.E.B.C. Category the last recommended candidate had got 273 marks whereas the female in that category recommended last had got 252 marks. In Scheduled Caste Category these marks were 299 and 276 for the female candidate last recommended. In the Scheduled Tribe Category it was 251 and 236 respectively.
3.7 The recruitment process was governed and regulated by the statutory rules framed by the State Page 7 of 31 C/SCA/12701/2016 CAV JUDGMENT Government in exercise of powers conferred by Proviso to Article 309 of the Constitution, which are called the Assistant Public Prosecutor in the General State Service, Class II Recruitment Rules, 2008, published under Notification dated 05th August, 2008. By another Notification published on 06th August, 2008, the Assistant Public Prosecutor, Gujarat General State Service Class II Recruitment (Examination) Rules came to be published.
3.8 Rule 12 of the said Rules deals with the nature of examination, providing as under.
"Rule 12 Nature of Examination.- (1) The examination shall be in two parts as shown in Appendix. Part I shall be written examination and Part II shall be Viva-Voce and Personality Test.
(2) - The Commission shall fix the qualifying marks to be obtained by a candidate in Part I of the examination in Appendix and shall call only those candidates who fulfill qualifying standard for Viva-
voce and Personality Test:
Provided that candidates belonging to the Scheduled Castes, Scheduled Tribes or Socially and Educationally Backward classes including Nomadic Tribes and Denotified Tribes, may be summoned for viva-voce and Personality Test by applying relaxed standard in Part I of the examination. If the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be called for viva-voce and Personality Test on the basis of the qualifying standard of general category in order to fill up the vacancies reserved for such categories.
(3) The commission shall fix the qualifying marks to be obtained by a candidate in the Viva-Voce and Personality Test;
(4) The candidate shall be required to attend the written part of the examination and Viva-Voce and Personality Test at his own expenses;
(5) If the candidate, who is qualified for the Viva-
Voce and Personality Test, fails to attend the Viva-
Page 8 of 31 C/SCA/12701/2016 CAV JUDGMENTVoce and Personality Test, shall not be eligible for selection."
4. Heard learned senior advocate Mr.Percy Kavina assisted by learned advocate Mr.S.P. Majmudar, learned advocate Mr.Vijal P. Desai, learned advocate Mr.H.M. Acharya, learned advocate Mr.S.D. Mansuri and learned advocate Mr.Anal Jain for the respective petitioners in different petitions, learned Government Pleader Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Mr.Rasesh Rindani for the respondent - State and learned Advocate General Mr.Kamal Trivedi assisted by learned advocate Mr.D.G. Shukla and learned advocate Mr.Premal Joshi for the respondent - Gujarat Public Service Commission.
4.1 In their submissions collectively made, learned advocates for the petitioners called in question the regularity and legality of the recruitment process undertaken. Their submission was that the petitioners were more meritorious having obtained higher marks in the written examination than those candidates who were selected, still however the petitioners were kept out of the merit-list and were not selected. It was submitted that the last selected candidate scored 202 marks in the written test, against which marks of all the petitioners in the written test were higher. It was harped that only on the ground that petitioners could not obtain minimum qualifying marks in the viva voce test, they were arbitrarily excluded from the purview of selection.
Page 9 of 31 C/SCA/12701/2016 CAV JUDGMENT4.2 The basic premise of the submission of the petitioners and the principal contention was that the prescription of 25 minimum qualifying marks for the viva voce test was illegal and such minimum marks could not have been prescribed and applied to act upon the exclusion of the petitioners from the select list on that basis. The contention was furthered by submitting that by disregarding the candidatures of the persons like the petitioners who had obtained higher marks in the written test but ousting them on the basis of the non-obtaining of minimum marks in the viva voce test, the entire process was rendered arbitrary. It was submitted that in the viva voce marks, the different-heads were not specified and that convenient selectivity was adopted by the interview committee in making the selection.
4.3 Amongst the petitioners, those who were female candidates, raised in their petition, additional contention that less number of women candidates were selected than the number mentioned in the advertisement. It was submitted that the women candidates were not selected eventhough amongst them there were candidates who had obtained 25 or more marks in the oral interview as per the minimum prescription. It was contended that 33 seats were filled in by the male candidates which ought to have gone to female candidates. 133 women candidates were selected, however as per the submission of the petitioners, total 166 female candidates ought to have been selected. The contention on the above score was more confined in the pleadings of the petitions Page 10 of 31 C/SCA/12701/2016 CAV JUDGMENT rather than elaborately canvassed in the submissions in the course of hearing of the petitions. Be as it may.
5. The aforementioned last submission about filling up of the women's quota needs to be set at rest by dealing with them at the threshold as in view of the explanation and answer given by the Public Service Commission in its affidavit-in-reply, this contention stands outrightly meritless. Referring from the affidavit-in-reply filed by GPSC in Special Civil Application No.12762 of 2016, it is given out that in view of rules called Gujarat Civil Services (Reservation of Post for Women) Rules, 1997, 30% of the seats are required to be reserved for women belonging to Scheduled Caste, Scheduled Tribe, Socially and Economically Backward Class, Unreserved category. Circular dated 22nd May, 1997 issued by the General Administration Department provided that in case of non-availability of the women candidates, the posts could be filled in by placing the male candidates. The respondent - Commission had taken a policy decision in the year 2001 to select the women candidates after relaxing 10% of the minimum qualifying standard prescribed for the male candidates in the respective categories. This criteria is applied universally in all selection processes by the GPSC as a settled practice.
5.1 The minimum qualifying standard in case of last candidate in Unreserved (General Category) was fixed at 306 marks. After providing relaxation of 10% Page 11 of 31 C/SCA/12701/2016 CAV JUDGMENT thereof, the minimum qualifying standard for the female candidate came to be 293 marks. There were 86 posts for Unreserved General Female candidates and all these posts were filled-in by the female candidates only who had secured 293 or more marks. All the petitioners belonging to the category of Female (General) failed to get minimum qualifying 293 marks, and they were not selected. For instance, the details of five such female candidates - the petitioners of Special Civil Application No.12762 of 2016, were as under. None of them were qualified for want of meeting the qualifying standards of 293 marks. Petitioner No.1 obtained 263 marks in the written test plus 25 marks in the viva voce but her total was 288; petitioner No.2 obtained total 285 marks comprised of 256 in written and 29 in oral; petitioner No.3 also could not match up the 293 marks having obtained total 283 marks. The petitioner Nos.4 and 5 obtained 277 and 288 marks in total comprised of marks obtained in written test as well as viva voce. Accordingly their names stood in the unsuccessful candidates (details given in paragraph 4.10 of affidavit-in-reply by the GPSC in SCA No.12762 of 2016).
5.2 The total number of vacancies advertised were 554 out of which 166 posts were reserved for female candidates in all categories. As per Circular dated 22nd May, 1997 issued by General Administration Department pursuant to Notification dated 09th April, 1997 it is provided that if the female candidates are not available, posts could be filled-in by male Page 12 of 31 C/SCA/12701/2016 CAV JUDGMENT candidates. Following this policy which is constantly followed, in view of availability of only 143 qualified female candidates, the remaining 23 posts were filled-in by 23 male candidates. The qualifying standard to be applied to the female candidates were relaxed by 10% to fix the qualifying standard at 293 marks, however if no female candidates became available meeting with the said prescribed standard, it could not be insisted upon that merit may be lowered down and by sacrificing the merits further, women candidates only be appointed. The procedure adopted for exhausting the women quota candidates by the Commission could be said to be the correct which conformed the principles laid down in decisions including in Hemlata R. Joshi v. G.P.S.C. Being Special Civil Application No.5733 of 2004 decided on 11th March, 2005 as confirmed in Letters Patent Appeal No.649 of 2005 on 17th March, 2006, and in Asha M. Barsana v. Gujarat Public Service Commission [2008 (3) GLR 2462].
5.3 Thus in view of above clear facts and considerations the contention about non-exhaustion of quota for women candidates stands answered leaving the contention devoid of merits.
6. Another was also an argument in vain, yet somehow raised with high degree of vociferousness and vehemence, hence deserves to be dealt with and disposed of. By filing Civil Application No.16551 of 2017 (old number), it was sought to be submitted that as per the say of the GPSC in additional affidavit Page 13 of 31 C/SCA/12701/2016 CAV JUDGMENT dated 21st November, 2017, the Commission had decided on 14th May, 2015 to fix minimum qualifying marks to be obtained by the candidate in Part I - the written examination. It was submitted that GPSC had not produced any evidence in support of such say and that therefore, applicant - petitioner had filed an application under the Right to Information Act, 2005 seeking certain documents. Supply of documents was denied by the respondent - GPSC. The petitioners asked for direction against the GPSC in this regard.
6.1 All of the petitioners herein were called for viva voce test. Therefore, a high-pitched contention on their part that since the cut-off marks in the written test were not indicated in advance, falls flat. It was with a self-fallacious stance when it was contended on behalf of the petitioners that a prejudice had occurred or that a kind of right was violated by the GPSC in not declaring the qualifying marks for Part I written test in advance as none of the petitioners were excluded for being called in the interview as they satisfied the cut-off line fixed in the category concerned.
6.2 The decision in State of U.P. v. Rafiquddin [1987 (supp) SCC 401] deserves a reference here. Noticeable and noteworthy, therein was a contention raised, as is raised in the present case, that the petitioners-candidates ought to have been given prior notice about the minimum marks. The Apex Court answered the contention in negative observing that in a competitive examination it is not possible nor Page 14 of 31 C/SCA/12701/2016 CAV JUDGMENT necessary to give notice to the candidates about the minimum marks which the Commission may determine for the purpose of eliminating the unsuitable candidates. It was held that the rule of natural justice cannot be import and cannot be applied.
6.3 An acceptable explanation-cum-answer is also available from the additional affidavit-in-reply filed by the GSPC wherein it is stated inter alia that the Commission took decision on 04th June, 2015 to determine the number of candidates for viva voce test by fixing further qualifying standard of cut-off marks on the basis of the prevalent practice. The practice was, it was stated, to call for three times the number of candidates against number of posts to be filled-in in each category which was as per office order dated 14th October, 1996 whereunder the Commission had taken the policy decision under Rule 24 of the GPSC Procedure Rules, 1962. It was stated that this practice is followed consistently right from the inception.
6.4 When GPSC decided to call for particular number of candidates-three times-than the posts to be filled in and decided the qualifying cut-off marks for calling such number of candidates in viva voce, such decision could not be said to be booking any error. In Prajapati Ishwarbhai Joitaram v. State of Gujarat being Letters Patent Appeal No.1350 of 2012 decided by judgment dated 20th March,2013, the Division Bench stated that it is only after the result of the written test, that the recruiting Page 15 of 31 C/SCA/12701/2016 CAV JUDGMENT agency may be in position to know that how many candidates are to be interviewed and the qualifying marks or cut-off marks may be fixed. It was observed that such could not be termed as beyond powers or competence of the recruiting agency. Similar principles were reiterated in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417].
6.5 In any view, it is not for the Court to enter into the realm of such decisions regarding fixing and applying the cut-off standard by the recruiting agency when thereby no prejudice could be shown to have been caused or no arbitrariness in that is established.
6.6 In view of all the above reasons, the insistive plea on behalf of the petitioners to direct the GPSC to furnish the information is of no avail and of no consequence for them. The petitioners may pursue their application filed under the Right to Information Act for their own sake of obtaining any information, but it has no bearing on their contention or the controversy dealt with herein. The Civil Application is not liable to be entertained in any way.
7. Right from the stage of publication of advertisement, the procedure of selection, the stages therein, the components of criteria and the condition of minimum qualifying marks required to be obtained in the viva voce and personality test was made known to the aspiring candidates. Much prior to the conduct Page 16 of 31 C/SCA/12701/2016 CAV JUDGMENT of the viva voce test, all the candidates were aware about the minimum prescription of marks that they were required to obtain 25 marks out of 75 marks to stand to be qualified. Even at the time of individually intimating the candidate to call him or her for the oral test, the information regarding minimum qualifying marks was provided by the GPSC. With clear knowledge of such requirement prescribed, the petitioners participated in the recruitment process. When after their failure to meet with the qualifying standard, they have filed the present petitions challenging the recruitment process on the various grounds including the ground of minimum prescription of marks at the viva voce test, the principle of estople, acquiescence and waiver strongly count against them, disentitling them to raise the challenge.
7.1 It is an oft-reiterated proposition that once the candidate takes part in the process of selection, he is subsequently estopped from questioning the selection process and challenging the same. The Apex Court's decision in G. Sarana v. University of Lucknow [(1976) 3 SCC 585] was a case where the petitioner had applied for the post of Professor of Anthropology in the University of Lucknow who appeared before the Selection Committee but failed to get the appointment, whereafter he filed a petition before the High Court alleging bias against him by three experts in the Selection Committee and questioning the constitution of the Selection Committee. The Supreme Court observed that Page 17 of 31 C/SCA/12701/2016 CAV JUDGMENT it was not necessary for the court to go into the question of reasonableness of bias or real likelihood of bias because the petitioner appeared before the Committee and at the relevant time did not raise any finger against constitution of the Committee. It was ruled that petitioner voluntarily appeared before the Committee and took chance of favourable view of the Committee, but when he was not able to get the appointment, he turned around his face.
7.2 Similar was the principle enunciated in Nanak Lal v. Prem Chand Singhvi [AIR 1957 SC 425] where the appellant found to have taken chance to secure a favourable report from the Tribunal but when confronted with the unfavourable report, he adopted the device of raising objection. In Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285] the Apex Court ruled that when the petitioner appeared at the examination without any protest and when he found that he would not succeed in the examination, he filed a petition challenging the examination, the High Court should not have granted any relief to such petitioner. Again in Manish Kumar Shahi v. State of Bihar [(2010 12 SCC 576] it was emphasised that the conduct of the petitioner in taking part in the selection process would clearly disentitle him from questioning the selection. It was stated that the petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name did not figure in the merit list prepared by the Commission.
Page 18 of 31 C/SCA/12701/2016 CAV JUDGMENT7.3 In Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227] the principle was reiterated stating that since the appellant had subjected himself to the allegedly faulty selection process without questioning it during the process, he could not question it later on. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309], it was 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. In Madras Institute of Development Studies v. K. Sivasubramaniyan [(2016) 1 SCC 454] the very proposition of law was summarised.
7.4 In more recent decision in D. Saroj Kumari v. R. Helen Thilakom [2017 (11) SCALE 366], the Supreme Court stated the principle the very principle that once a person takes part in the process of selection and is not found fit for appointment, such person is estopped from challenging the process of selection. In paragraphs 4 and 11 of the judgment, the Apex Court stated, which principle could be readily applied in the facts of the present case, thus, "As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Page 19 of 31 C/SCA/12701/2016 CAV JUDGMENT Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised." (Para 11) 7.5 Before the Division Bench of this Court in Gujarat State Road Transport Corporation v. Sisodiya Balbhadrasinh Dineshsinh being Letters Patent Appeal No.1487 of 2017 decided by judgment dated 13th October, 2017, the Gujarat State Road Transportation Corporation had issued advertisement for filling up 1503 posts of Conductor which process comprised of competitive examination of 100 marks by OMR System. 22600 candidates were called for examination on the basis of the merit marks. It was the case of the petitioner that after the examination results were published, large number of illegalities and irregularities were noticed by them. In response to the challenge by those petitioners, the very contention of impermissibility to raise challenge after participating in the examination and failing therein, was raised.
7.6 The Division Bench reiterated the proposition of law after relying on the decision in D. Saroj Kumari (supra) in these words, Page 20 of 31 C/SCA/12701/2016 CAV JUDGMENT "Thus, from the aforesaid latest decision rendered by the Hon'ble Supreme Court, it can be said that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Thus, we are of the view that the petitioners once participated in the OMR examinations without any objection having been failed to secure the minimum qualifying marks/failed to come within the zone of consideration, the petitioners are estopped from contending that GSRTC cannot conduct OMR examination in three different slots." (Para 21)
8. In view of the proposition of law emphatically propounded that once having participated in the selection process, the candidates would divest himself of right to challenge the process, the present petitions are liable to be dismissed on this sole ground that the petitioners first participated and subsequently challenged the process as they failed to sail through.
9. Now, adverting to the central contention that prescription of minimum marks in the viva voce and personality test was illegal or that it resulted into arbitrariness in selection. The prescription of minimum qualifying marks of 25 out of 75 in the viva voce test was in terms of Rule 12(3) of the Rules quoted in paragraph 3.8 hereinabove. It is to be noted beforehand that the GPSC has acted in terms of the said Rule in fixing minimum qualifying marks in viva voce and that the Rule is not under challenge.
9.1 The Supreme Court in Rafiquddin (supra) was dealing with the question of law relating to determination of seniority of members appointed as Munsifs in the Uttar Pradesh Nyayik Seva pursuant to Page 21 of 31 C/SCA/12701/2016 CAV JUDGMENT the result of the competitive examination held under the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951. Some of the unsuccessful candidates in the examination were aggrieved and wanted to consider their case for appointment on the basis of their aggregate marks irrespective of their low marks in the viva voce. It was Rule 19 of the Rules, the ambit and interpretation of which was under consideration. The contention was that clause (2) of the Proviso to Rule 19 of the Rules did not confer power on the Commission to fix the qualifying minimum marks for viva voce. The Supreme Court observed that the enacting the clause of Rule 19 provided guidance for the Commission in preparing the list of approved candidates on the basis of the aggregate marks obtained by candidate in the written as well as in viva voce test. It was observed that clause (2) of the Proviso to Rule 19 though did not expressly lay down that the minimum marks for viva voce to be prescribed, but the language used therein clearly showed that the Commission alone had the power to prescribe minimum marks in viva voce test for judging the suitability of candidate for service.
9.2 In clear terms it was opined by the Apex Court that fixing certain level of percentage mark in the viva voce test was required to assess the suitability of the candidate, " ... ... ... Commission is required to judge the suitability of a candidate on the basis of sufficiently high marks obtained by a candidate in the viva voce test, it has to fix some percentage of marks which in its opinion may be sufficient to assess the suitability of a candidate. In the absence of a fixed Page 22 of 31 C/SCA/12701/2016 CAV JUDGMENT norm, there could be no uniformity in assessing suitability of candidates in the viva voce test. The Commission had therefore power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva voce test. The viva voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected. Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service. We do not find any constitutional legal infirmity in the provision." (Para 9) 9.3 In Rafiquddin (supra), sub-clause (ii) of Proviso to Rule 19 was worded in the language as "has obtained in the viva voce test such sufficiently high marks", which was interpreted by the Supreme Court to be conferring a clear power on the Commission to fix the minimum qualifying marks which again was held necessary to adjudge the suitability of candidates.
9.4 Juxtaposing the language in Rule 19 of the Rules in the aforesaid case, with the provision of Rule 12 in case in the present case, Rule 12 is more specific and positively worded empowering the Commission to fix the qualifying marks. Under Rule 12(2), the Commission is empowered to fix qualifying marks in Part I examination. It is further provided that the Commission shall call only those candidates who fulfill qualifying standards for viva voce and personality test. In the second stage of viva voce test also, Rule 12(3) clearly says that the Commission shall fix the qualifying marks to be Page 23 of 31 C/SCA/12701/2016 CAV JUDGMENT obtained by a candidate in the viva voce and personality test.
9.5 In Barot Vijaykumar Balakrishna v. Modh Vinaykumar Dasrathlal [(2011) 7 SCC 308] the case before the Apex Court was from the batch of petitions before this High Court in which validity of appointments of Assistant Public Prosecutor, Class II, made from the select list prepared on the basis of the written examination and viva voce held by the Gujarat Public Service Commission. The challenge was based on the ground that the minimum qualifying marks which was separately fixed for the viva voce, was introduced just two-three days before the commencement of the schedule of the oral test though it was not stipulated in the advertisement issued by the Commission for filling up the posts. The Supreme Court held that under the Rules it was required to prescribe separate qualifying marks for viva voce, therefore the objection could not have been taken against it. In that case marks were not mentioned in the advertisement and the GPSC informed all the candidates about minimum qualifying marks calling them for viva voce. The Court found that numerical discrepancies pointed out by the candidates did not show that there was any arbitrariness or play of bias in giving marks to the selected candidates in viva voce. Had the Public Service Commission continued with the selection process without specifying the minimum qualifying marks for viva voce, it is only such course would have been violative of the Rules, held the Court.
Page 24 of 31 C/SCA/12701/2016 CAV JUDGMENT9.6 The qualifying marks contemplated in the viva voce and personality test in Rule 12(3) for the purpose of elimination of candidates has an object to subserve of sifting out unsuitable candidate by providing appropriate yardstick to judge the suitability and to select such suitable candidates. In the process undertaken by the GPSC to recruit the Assistant Public Prosecutors, there was proper and regular observance of this criteria.
10. The allegations of bias, selective performance or arbitrariness in the interview process has to be necessarily ruled out in the facts of the case, not only on the mere ground of composition of the interview committee which was manned by eminent personalities with integrity, but also for the weighty reason of uncontroverted fact that the interview committee, while taking oral test of the candidates, was not aware of the marks obtained by the candidate at the written examination. The suitability of the candidate at the viva voce was judged and the marks at the viva voce were given to candidate without knowledge of the extent of marks he or she had earned in the written test.
10.1 The Selection Committee, as uncontrovertedly stated and submitted by learned Advocate General, had no occasion or means to see the marks obtained by the candidate in the Part I written examination who would appear before the Committee for viva voce and personality test. The Board members were allotted the board everyday on the basis of draw system. The draw Page 25 of 31 C/SCA/12701/2016 CAV JUDGMENT was carried out before few minutes of commencement of interview. The candidates were also allotted to the board for interview on the basis of the draw system. The sanctity of the process was maintained not only in respect of absence of knowledge of marks held by the interviewees in written examination, but it was never certain as to who would be the candidates to be interviewed by a particular Board.
10.2 The viva voce and personality test was conducted by the Committee comprised of eminent experts connected with the field who assessed the suitability of the candidate but without knowing the marks obtained by the interviewee in the written test. There was no room for bias to even creep in. It was not possible to locate anywhere in the process the element of arbitrariness. The whole selection was found to be based on an objective application of the criteria which comprised in examination in Part I being written test and the viva voce and personality test where the minimum qualifying standard was fixed. The fallacy is manifest in the argument which finally turn out to be rash in its nature, that by prescribing minimum qualifying of 25 marks in the interview test, those who had obtained higher marks in the written examination were deliberately not selected and that the process of interview was tainted with favourist approach.
10.3 The Apex Court in Barot Vijaykumar Balakrishna (supra), while negativing the contention about flaw in the selection process on the ground of Page 26 of 31 C/SCA/12701/2016 CAV JUDGMENT bias or the selective approach or lack of objectivity in selection, noticed to observe in paragraph 25 of the judgment that the marks obtained by the short- listed candidates in the written test were kept in sealed cover and those taken out only after oral interview of the candidates was over. At the time candidate appeared for the interview, members of the Interview Board had no means to know the marks obtained by him or her in the written test. Similar is true on facts in the case on hand.
11. The contention that in the viva voce and personality test, the interviewing committee did not allocate different marks under different heads would endlessly search for its merit. The mode and manner of awarding marks is an administrative function with which courts normally would not interfere. If the marks are awarded in a single lot, in absence of any rules for awarding marks separately under different heads, it would not vitiated the interview test. These aspects could not be brought within the realm of justitiability unless, of course, the manner of marking is found to have been chosen with oblique motive or exterior purpose. It is ultimately for the interviewing body to chose appropriate method of marking at the selection to the service concerned.
11.1 The above proposition was propounded by the Supreme Court in Lila Dhar v. State of Rajasthan [1981 SCC 159] observing that it is for the interviewing body to take a general decision whether to allocate marks under different heads or to award Page 27 of 31 C/SCA/12701/2016 CAV JUDGMENT marks in a single lot. It was stated that awarding marks under different heads may lead to a distorted picture of the candidate on occasions, whereas a single lot marks given on the basis of the totality of the impression created by the candidate may project a more accurate and objective picture of the personality of the candidate.
11.2 In Anilkumar Shankarlal Joshi v. State of Gujarat [1991 (2) GLH 633], the Division Bench of this court held that even if percentage marks allocated for viva voce test was excessive, the selection cannot be invalidated unless it is demonstrated that the result of the examination got distorted. In that case, the examination taken by the GPSC was a combined examination for different posts of Class I and Class II. The written test was common, so also the oral test for all those posts and the purpose of the viva voce test was indicated to assess the suitability of the candidate. The Court opined that when various and different qualities were required to be assessed in the candidates, it was difficult to appreciate how the norms could have been fixed and circulated in advance to the candidates or to the members. Referring to Lila Dhar (supra), the Division Bench took note that the rules of recruitment process did not provide for allocation of marks under different heads. It was reiterated that there could not be any magic formula in such matters and the courts could not sit in judgment over the methods of marking adopted by the interviewing bodies unless it is proved that the method was selected with Page 28 of 31 C/SCA/12701/2016 CAV JUDGMENT oblique motive.
11.3 In view of above, there was no element of irregularity much less illegality when the interviewing committee gave overall marks to the candidates and that there was no break up of marks under different heads. It was quite proper for the respondent - Commission and its interview committee to give single lot marks to the candidate interviewed by it after assessing his/her total and overall performance. In not giving the break up of marks, there was no breach of any guidelines or rule.
11.4 In Rafiquddin (supra), the Apex Court highlighted the nature of competitive examination, attaching importance to select the suitable candidate by adopting procedure of examination and the manner thereof.
"A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality." (Para 12)
12. The Assistant Public Prosecutors in the subordinate courts hold important position in the administration of criminal justice system. Their role is no less significant. Their responsibilities are manifold and extend beyond merely representing the State in the criminal cases. They are integral part of the criminal justice process and are expected to possess certain objective qualities. They are public Page 29 of 31 C/SCA/12701/2016 CAV JUDGMENT prosecutors who have to negotiate and confront with delicate situations and stand true to the cause they are handling in all trying circumstances. The quality of integrity, intelligence, commitment and sincerity towards duties are important traits to be needed in their personality. Therefore judging them with such character in the viva voce and personality in the context of qualities required in them, is prime concern. It is only rational, therefore that the recruitment process included a viva voce test for which prescribed a minimum qualifying marks. Having regard to the nature of the posts to be filled in and the persons to be selected to the post, such prescription is eminently rational. The subordinate criminal courts suffer from a functional paralysis for want of availability of adequate numbers of Assistant Public Prosecutors, which become matter of greater concern because of scarcity of quality members.
12.1 Therefore, the emphasis given on personality test by prescribing minimum qualifying marks therein was a purposive provision prescribed in the process of recruitment, by which method, the suitability to the post of Assistant Public Prosecutor could be properly judged. While the personality test or interview is a recognised manner trite for judging the suitability of candidate in particular when the post in question required special qualities in the to-be-appointee.
13. Lastly, let us refer to the decisions relied Page 30 of 31 C/SCA/12701/2016 CAV JUDGMENT on by the petitioners so as to notice how they are miserably not applicable to the facts of the case. Decision in Hemani Malhotra v. High Court of Delhi [AIR 2008 SC 2103] was sought to be pressed into service in which a case was that the minimum mark for viva voce was prescribed after the written test was conducted and in that context the Court held that it was not permissible. Another decision of the Division Bench in Hiteshkumar K. Chauhan v. Union of India through General Manager, Western Railway [2008 (2) GLR 1545] was relied on. It was a case where the candidates scoring very high mark in the written test were given abnormally and abysmally low marks in the viva voce which was found to be an outright act of favouritism. Such is not the case here. Furthermore in that case, the candidates were not intimated about the minimum marks fixed for the oral test. The said decisions operated in the entreily different context of facts, applicability whereof wholly stand displaced in the present case, in light of the principles of law discussed as emanating from judicial pronouncements referred to hereinabove.
14. In view of above discussion and reasons, none of the contentions raised by the petitioners could hold good. There is no merit in the petition, the relief cannot be granted. All the petitions are hereby dismissed. Notice is discharged in each of the petitions with no order as to costs. Also dismissed is the Civil Application.
(N.V.ANJARIA, J) Anup Page 31 of 31