Gujarat High Court
State Of Gujarat vs Desai Mittal Baldevbhai on 4 February, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 643 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 11509 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 643 of 2021
With
R/LETTERS PATENT APPEAL NO. 644 of 2021
In
SPECIAL CIVIL APPLICATION NO. 11509 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 644 of 2021
In
SPECIAL CIVIL APPLICATION NO. 11509 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
==========================================================
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 No
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
DESAI MITTAL BALDEVBHAI
==========================================================
APPEARANCE IN LPA NO.644/2021:
MR KM ANTANI, AGP for the Appellant(s) No. 1
MR KB PUJARA(680) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
APPEARANCE IN LPA NO.643/2021:
MR PREMAL JOSHI, ADVOCATE for the Appellant(s) No. 1
MR KB PUJARA, ADVOCATE, for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 04/02/2022
CAV JUDGMENT
Page 1 of 20
Downloaded on : Fri Feb 11 20:11:21 IST 2022
C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Learned Single Judge by his judgment and order dated 24th January, 2020 allowed the Special Civil Application filed by the private respondent herein. It was directed to include the name of the respondent-original petitioner as next available candidate satisfying the merit of cut-off marks in the Socially & Educationally Backward Class (Female category), and to appoint the petitioner on the post of Deputy Section Officer/Deputy Mamlatdar, Class-III with all consequential benefits etc. 1.1 These two Letters Patent Appeal arise from the aforesaid judgment and order of learned Single Judge. Letters Patent Appeal No.643 of 2017 is preferred by original respondent No.2-Gujarat Public Service Commission, whereas the other Appeal is filed by the State-original respondent No.1, seeking to call in question the said judgment and order.
1.2 Since both the Appeals are from the same judgment and order of the learned Single Judge involving the same facts and the identical issues, they were heard together and are being treated for final disposal by this common judgment.
2. Heard learned advocate Mr.Premal Joshi for the appointment in Letters Patent Appeal No.643 of 2021 and learned Assistant Government Pleader Mr.K.M. Antani for the appellant in the Letters Patent Appeal No.644 of 2021, as well as learned advocate Mr.K.B. Pujara for respondent-original petitioner in both the Page 2 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 appeals, at length.
2.1 The principal prayers made in the Special Civil Application were,
(a) for direction to the respondent to include the petitioner's name as Socially & Educationally Backward Class (SEBC) (Female) with 148 marks for the purpose of Deputy Section Officer/Deputy Mamlatdar, Class-III and to give appointment on the post;
(b) for setting aside all the actions which resulted into denial of appointment to the petitioner;
(c) for direction to make appointments of 65 SEBC female candidates and total 195 SEBC candidates on the post in question, in addition to the meritorious SEBC candidates finding place on their own merit in the total list of 376 vacancies notified for open category.
3. Stating the relevant facts, the Gujarat Public Service Commission (GPSC) issued Advertisement No.51/2014-15 dated 12th March, 2015 to undertake the process to fill up posts of Deputy Section Officer/Deputy Mamlatdar, Class-III. Total 733 vacancies were notified, out of which 376 were for General, 55 for Scheduled Caste, 107 for Scheduled Tribe and 195 were for the category Socially & Educationally Backward Class (SEBC). As per the Notification dated 09th April, 1997, 33% statutory reservation for women is required to be provided for in each category. Accordingly, in the unreserved category and SC and ST category, vacancies for women in reservation were 125, 18 and 34 respectively. In Page 3 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 the SEBC category, 65 posts were required to be filled in by SEBC female candidates.
3.1 The petitioner belonging to SEBC category, possessing the qualification of Bachelor of Pharmacy, applied for the post. She was to fare and was to be considered in SEBC (Female) category. The screening test was held on 25th June, 2005, which was cleared by the petitioner. The main examination held on 29th May, 2016, was comprised of three papers of 100 marks each. Petitioner appeared in the main examination. The results were published on 28th October, 2016. The Part-I list contained the name of successful candidates for appointment on 733 vacancies. The Part-II was waiting list of 368 candidates. Such two lists of total selectees and wait listed candidates were published by the GPSC on 21st November, 2016.
3.2 It is the case of the petitioner that in preparing the selection list of 733 candidates as also in preparing the wait-list, the well recognised principles of reservation policy were not followed. While the petitioner's name figured in the separate list of 2980 candidates, it is submitted that had the GPSC published the category-wise list properly following the policy of reservation in the appointments to be made, the name of the petitioner would have been in the selection list or at least in the wait-list.
3.3 Figures on the record of the petition (Annexure-C collectively) are the aforesaid lists one Page 4 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 of successful candidates recommended for appointment, and the other containing the names of the candidates kept in the waiting list. They were the common lists prepared, although indicating the category-general or reserved, as the case may be, against the name of the respective selected or wait list candidate, but grouping all together. As far as the SEBC (Female) category was concerned, the qualifying standard in terms of cut-off marks was indicated. The cut-off mark for this category was 148 marks, mentioning further that it was for the candidates having birth dated upto 16th June, 1986.
3.4 It is the grievance of the petitioner that she as SEBC (Female) also secured 148 marks, yet was not included either in the selection list or in the waiting list. It was stated that at the time when actual appointment orders were issued by the State Government, 13 SEBC (Male) candidates and 11 SEBC (Female) candidates did not join. At this juncture, it was further stated, that respondents operated the waiting list, but instead of giving appointments to the SEBC female candidates on 11 vacancies which occurred as above in the SEBC (Female) category, 11 SEBC male candidates were appointed. This aspect has not been disputed.
3.5 The petitioner's case is that she was entitled to be appointed on the post as the vacancies had become available. It is the case that the respondents were obliged to have the intake of 65 SEBC (Female) in the SEBC category to implement the Page 5 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 women's reservation.
3.6 It was a noticeable event that the selection list published on 21st November, 2016 was modified by the Gujarat Public Service Commission on the same date. By this modification, a candidate named Ms.Pooja Bhatiya figuring at Serial No.644 in the waiting list was taken out from the said serial number and came to be placed in the list higher at Serial No.308A. This candidate belonged to SEBC (Female) category.
3.7 The Notification dated 21st November, 2016 providing for modification in the selection list including as above in respect of placement of abovenamed candidate, is reproduced hereinbelow for its entire contents.
"GUJARAT PUBLIC SERVICE COMMISSION No.:CCE-81-2014-15-MAIN-CNF Partial Modification The following partial modification is made in the result of Deputy Section Officer/Deputy Mamlatdar, Class-III, Advertisement No. 51/2014-15, Main Examination published on 28.10.2016.
I.
Merit Category published Modification in
No. in the result the category
96 GF SEBC
115 G SEBC
160 SEBCF GF
179 SEBCF SEBC
331 SEBC SEBCF
390 SEBC SEBCF
404 SEBC SEBCF
Page 6 of 20
Downloaded on : Fri Feb 11 20:11:21 IST 2022
C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022
525 GF SEBCF
555 SEBCF GF
II. The entry of recommendation list of successful candidates of Annexure-I at Sr.No.644 is deleted and the name of this candidate is kept at Sr.No.308A in the waiting list at Annexure-II.
III. The entries of recommendation list of successful candidates of Annexure-I at Sr.No.725 and 726 are deleted and the name of these candidates are kept at Sr.No.314A and 314B respectively in the waiting list at Annexure-II.
IV. In place of above three candidates, the names of three candidates from waiting list of Annexure-II at Sr. No. 1, 337 and 341 are included in the merit list for recommendation for appointment to the Government at Merit No. 410A, 733A and 733B respectively in Annexure-I as shown in the appended Statement-I. V. The entries of successful candidates at Sr.No. 441 and 442 should read as 442 and 441 respectively.
VI. With reference to the above modification, the qualifying standards of S&EBC (Female) read as 149 marks (Up to Birth Date 22-05-1993) and of ST (Female) 122 marks (Up to Birth Date 15-12-1989).
VII. The entry of candidate from waiting list of Annexure-II at Sr. No.32 is deleted ab-initio from the mains examination due to non submission of Application."
3.8 The petitioner highlighted with reference to the above event of shifting the name of an SEBC (Female) category candidate that there was no separate waiting list prepared for SEBC (Female) category candidates. In the context, it is the further say of the petitioner that in preparing the lists and giving appointments, principles laid down by the Supreme Court in Rajesh Kumar Daria v. Rajasthan Public Service Commission [(2007) 8 SCC 785] were disregarded. It was submitted that though the petitioner had have to her credit the same 148 Page 7 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 marks, and though further vacancies were available, she was denied the appointment, while said Ms.Pooja Bhatiya shifted as above was given appointment.
4. On behalf of the appellant-GPSC as well as State Government, which also plunged into the fray feeling aggrieved to assail the impugned order, the very submissions which were advanced before learned Single Judge to contest the petition, were canvassed. The contentions raised in the affidavit-in-reply were re-raised. Appellant-GPSC inter alia contended that upon declaration of the result of the main examination the qualifying standard for Female candidate in SEBC (Female) category whose date of birth fell upto 16th June, 1986, was 148 marks. It was the case of the authorities thereafter that the qualifying standard to be applied was 149 marks for the candidates having date of birth subsequent to 16th June, 1986 and since the petitioner had secured 148 marks and her date of birth was 06th October, 1992, she was not entitled to be considered for appointment. It was sought to be denied that respondents had filled up 11 SEBC (Female) vacancies from amongst the SEBC (Male) candidates.
4.1 Thus, according to the respondents, the petitioner did not stand qualified in SEBC (Female) category she having obtained 148 marks, therefore not included in the waiting list. It was stated that there was only one female candidate who was recommended to the State Government by GPSC for appointment. It was a ground raised by the State also Page 8 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 that the petitioner was not placed in the list of successful candidates or in the wait list but her name was posted in the separate list. It was contended that in the facts and circumstances of the case, there was no right much less enforceable right for the petitioner to get the appointment.
4.2 On behalf of the original petitioner-the respondent herein, following facts and aspects were highlighted and emphasized.
(a) There were illegalities in preparation of selection list and waiting list which were prepared in the defiance of the principles of reservation as laid down and interpreted by the Supreme Court, due to which the petitioner belonging to SEBC (Female) category was wrongfully excluded;
(b) 35 SEBC male candidates and 14 SEBC female candidates who were selected on merit within first 376 candidates in the open category were wrongfully considered against the vacancies of reserved quota, consequentially less number of vacancies remained available in the reserved category, including reserved category of SEBC (Female);
(c) GPSC did not include 98 candidates of SEBC category and minimum 33 candidates of SEBC category while preparing waiting list. According to submission, the GPSC was required to prepare the waiting list of the half number of notified vacancies category-wise;
Page 9 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022
(d) Both Ms.Pooja Bhatiya and the petitioner had 148 marks in the same SEBC (Female) category and the exclusion of petitioner was wrongful;
(e) 13 SEBC male candidates and 11 SEBC female candidates did not join, the vacancies arisen thereby were required to be filled up by the candidates belonging to same category standing next in merit.
4.2.1 Reliance was placed on the decision of the Apex Court in Jay Narain Ram v. State of U.P. [AIR 1996 SC 703] to submit that petitioner was entitled to appointment on 11 vacancies become available in SEBC (Female) upon non-joining of candidates in the said category.
4.3 Learned Single Judge took into consideration various factual aspects in relation to category-wise vacancies, the reservation policy, the rules of horizontal reservation to be applied in the SEBC (Female) category and the factum that said Ms.Pooja Bhatiya belonging to SEBC (Female) candidate came to be appointed from the waiting list having been shown higher at serial No.308A as per the modified list, and on all such basis granted relief to the petitioner.
4.3.1 Learned Single Judge referred to Resolution dated 22nd May, 1997 of the Government to notice that it provided that only when there is unavailability of SEBC female candidates, the vacancy may be transferred and SEBC male candidate may be appointed. From the affidavit-in-reply of the authority, the Page 10 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 factum of 64 persons having been not joined out of 733 vacancies was established. It was the further position obtained that 13 SEBC (Male) and 11 SEBC (Female) vacancies were available to be filled in.
4.3.2 Learned Single Judge observed to record findings of fact inter alia thus, "8. On an entire over view of the select list and the waiting list, which is annexed at Annexture `C' to the petition, what is evident is that 35 male SEBC candidates and 14 Female SEBC candidates who have been appointed on merit are counted categories against and though reserved the respective petitioner was available and eligible to be included in the waiting list, has not been so included. That 10 posts of SEBC (Female) candidates were available on such candidates not joining has been supported by way of the communication dated 20.4.2017."
4.3.3 Learned Single Judge then proceeded to observe that keeping in view the principles enunciated in Rajesh Kumar Daria (supra), the GPSC could not have counted 14 female candidates appointed on open category who occupied the reserved post in the SEBC (Female) category, due to which the shortfall in that category of SEBC (Female) resulted, and that requisite number of women should have been taken by deleting the corresponding number of candidates with a view to fulfill the criteria of women's reservation. It may be added here that in order to complete the quota of appointment in the SEBC (Female) category also, it was necessary to post available candidate on merit from SEBC (Female). It was already-factually-falsified stand of the GPSC that there was no other female candidate available in the waiting list.
Page 11 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 4.3.4 Learned Single Judge then highlighted the aspect of operation of waiting list by the respondents by reshuffling the name of SEBC female candidate Ms.Pooja Bhatiya and then appointing her as only SEBC (Female) candidate available. Decision of the Supreme Court in State of Punjab v. Manjit Singh [(2003) 11 SCC 559] and in State of Jannu & Kashmir v. Sat Pal [(2013) 11 SCC 737] taking a view that apparently the petitioner was available and entitled to be included in the waiting list in the category concerned and therefore it was not permissible for the GPSC and the State to appoint 10 male candidates against available vacancies in the reserved category of SEBC (Female) to exclude the petitioner who was otherwise held the requisite marks.
4.3.5 The decisions of the Supreme Court in Manjit Singh (supra) and Sat Pal (supra) relied on by learned Single Judge hold that the Public Service Commission could not have fixed any cut-off marks in respect of the reserved category candidates which would have resulted into rejection of the available candidates qualified and standing on merits available to be appointed on the vacancy. The facts in Manjit Singh (supra) were inter alia that Punjab Public Service Commission in the year 1997 proposed to recruit 500 Medical Officers, Class-I, out of which 125 were reserved for Scheduled Caste candidates including 50% posts therefrom Sikhs, Balmikis etc., and the rest were general candidates. In the mode of selection, the Commission conducted written screening test in order to shortlist the number of candidates Page 12 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 to bring a particular ration per vacancy. For general category, 45% marks were fixed and for Scheduled Caste candidates, 40% cut-off marks were fixed for consideration. 50% posts, that is 62 posts which were reserved for Sikhs, Balmikis, etc., only 27 persons belonging to those category applied.
5. Having noticed the conspectus of facts and the compass of rival submissions as above, it surfaces as an admitted position that when appointments were offered pursuant to the selection of candidates for the vacancies in question, 13 SEBC male candidates and 11 SEBC female candidates, who were offered appointments, did not join for some reason. The vacancies thereby arose and 11 SEBC female were required to be brought from the same category on merits, to be appointed. The name of the petitioner was not sent.
5.1 In Jay Narain Ram (supra), the factual basis before the Apex Court was as under.
"... the appellant is a reserved candidate belonging to Scheduled Castes. In view of the admitted position that four posts were reserved in the Finance Department in category 1 mentioned earlier and 4 selected candidates appeared to have not joined in the service, as asserted in para 11 of the S.L.P. and not specifically denied by the respondents in the counter- affidavit in para 6 as referred to earlier, it is clear that the appellant also is the 4th candidate in the order of merit would have been selected, had there been a requisition by the State Government for appointment of the reserved candidates." (Para 6) 5.1.1 In the context of the above facts it was held, Page 13 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 "Right to seek appointment to a post under Article 14 read with Articles 16(1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the P.S.C. to recommend the next qualified persons to the posts reserved for scheduled castes. Under these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional, Therefore, the respondents are not justified in denying the claim of the appellant for the appointment to the above post." (Para 7) 5.1.2 Thus, the case before the Supreme Court was one where subsequent to the duly selected candidate not opting to join, the next four candidates qualified and standing in merit were not considered for appointment on the ground that there was no requisition by the State Government to the Public Service Commission for preparation of waiting list. The Supreme Court in terms held that there existed for the candidates waiting in the merit to be appointed even in absence of requisition.
5.2 The reference deserves to be made to Rule 15 of the Rules called Gujarat Secretariat Assistants, Deputy Mamlatdars and Sales Tax Inspectors Recruitment (Examination) Rules, 1979, which Rule deals with arranging the names of the candidates, recommendations to be made out of qualified candidates by the Public Service Commission for appointment, about preparation of waiting list etc. 5.2.1 The Rule reads as under.
"15. (1) The Commission shall arrange the names of the candidates seriatim according to the merit taking into consideration the aggregate marks obtained by each candidate in the examination and shall prepare a list of qualified candidates. (2) Out of the qualified candidates, the Page 14 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 Commission shall recommend the names of the candidates according to the requirements for appointment to the unreserved vacant posts required to be filled in on the basis of the result of the examination :
Provided that it shall also include in this result, the names of the candidates belonging to the categories for which posts are reserved, to the extent of the number of vacancies, reserved for each category, which cannot be filled in on the basis of the general standard, in accordance with a relaxed standard, with a view to making up the deficiency in the reserved quota, subject to their fitness for appointment, irrespective of the ranks obtained by them on the basis of merit.
(3) The Commission shall also prepare a waiting list showing the names of qualified candidates about half in number the candidates recommended by the Commission under sub-rule (2) as well as reserved categories for recommending further candidates to the Government on demand.
(4) (a) The result of the examination shall be divided into three parts as under:-
Part-I.-The names of the candidates to be recommended to Government;
Part-II.-The names of the candidates to be kept on waiting list till the result of the next examination is published.
Part-III.-The names of the candidates who are not included in part I and II above.
(b) Name of the candidates contained in Parts I and II, shall be published in the Government Gazette. All the three parts of the result shall be displayed on the Notice Board of the Commission.
(5) (a) The form and manner of communication ...
... ...
(b) The Commission shall forward a copy ... ... ..."
5.2.2 Sub-rule (3) thus provides that the Commission shall prepare a waiting list showing the names of qualified candidates about half in number the candidates recommended. For unreserved category Page 15 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 under sub-rule (2) as well as for the reserved categories. The submission of learned advocate for the petitioner-candidate that 98 number of candidates in SEBC category (half of total 195) and 33 candidates in the SEBC (Female) category (half of total 65) were required to be wait listed, and that separate wait list ought to have been prepared for each category and in absence of such divisions maintained in preparing the wait list, the select list and the wait list published by the GPSC were vitiated by irregularities, stand in good stead with and in light of the providence of the Rule 15(3) above.
5.3 It is to be mentioned that even as per the advertisement in question, it was provided in paragraph No.15(4) thereof that the waiting list shall be prepared of half the number of successful candidates as per the aforesaid Gujarat Secretariat Assistants Rules, 1979.
5.4 The position therefore emerges is that while on one hand the grievance and contention is that the lists were not prepared in accordance with law and the reservation quota especially for SEBC (Female) category was not operated in accordance with the principles of applying the horizontal reservation in the said category, on factual front the admitted position was that the vacancies in SEBC (Female) category were available by virtue of 11 appointees did not join in SEBC (Female). In that view the merit in the grievance of the petitioner that she ought to Page 16 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 have been appointed in the category possessing 148 marks, deserved attention. Learned Single Judge could not have said to have erred in considering the said aspect and granting relief to the petitioner.
5.5 The claim of the petitioner to be appointed on the available vacancy in SEBC (Female) category travelled in the decisive realm, more particularly when the GPSC modified the list as per partial Notification dated 21st November, 2016 referred to above. No plausible or possible, much less cogent and convincing, reason has been forthcoming as to what necessitated in the said modification, especially to reshuffle the said candidate Ms.Pooja Bhatiya to place her at Serial No.308A from Serial No.644 in the wait list and thereby to entitle her to be appointed to the available post in the SEBC (Female) category. Said Ms.Pooja Bhatiya had 148 marks. The petitioner had also secured 148 marks.
5.6 When the vacancies were admittedly available to be offered to the petitioner also, yet she was not offered or appointed, on the other hand said Ms.Pooja Bhatiya in the same category was reshuffled to earn the appointment, it struck at the root of petitioner's right under Article 14 of the Constitution read with ought-to-have-been applied principles in implementing the horizontal reservation for SEBC (Female) category in light of the above highlighted admitted facts about the preparation and operation of lists and vacancies available.
5.7 The stance of the respondents that having Page 17 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 regard to the petitioner's birth date to be beyond 16th June, 1986, cut-off mark to be applied for her was 149 becomes a consideration paling into insignificance. No rationale is available, nor could be demonstrated by the authorities as to why the said cut-off of 149 marks was mentioned in the condition of partial modification along with the providence of reshuffling of wait listed place of Ms.Pooja Bhatiya. It was the very factor which excluded the petitioner from zone of consideration in the category and which was the defence sought to be raised by the respondents to justify the denial of appointment to the petitioner, namely that with reference to the particular date of birth the cut-off marks of 149 were required to be applied.
5.8 Even otherwise, the consideration about date of birth, namely that cut-off marks would be 148 upto particular date of birth and thereafter providing that cut-off marks would be 149 for the date of birth in subsequent point of time, was a miscellaneous aspect. When substantive discrimination surfaces on facts, miscellaneous differences or unimportant considerations of such kind cannot be a ground to differentiate. The attendant miscellaneous aspect in the facts of the case where discrimination is evident, cannot be a good ground in law to justify classification. Notwithstanding such miscellaneous or insignificant consideration present, the persons would have to be grouped in a homogeneous class when their substantive rights could be enforceable on the tenets of Article 14 and concomitant rights, as in Page 18 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 the case of present petitioner, under the reservation policy.
5.9 When Equality Clause become applicable to the petitioner vis-a-vis the similarly situated said Ms.Pooja Bhatiya, the aspect of birth date could not have been employed to thwart the equal treatment to the petitioner. The factum of modification in the list, uplifting said Ms.Pooja Bhatiya to place her in the position of earning the appointment, while not considering the petitioner belonging to same category possessing the same marks, clearly amounted to meteing out discrimination to the petitioner, arbitrarily denying her the appointment to the available vacancy. In addition to the aspects raised about irregular and illegal application of reservation policy principles, there is no gainsaying that the petitioner was unfairly treated vis-a-vis said Ms.Pooja Bhatiya. On the counts mentioned above, petitioner became entitled to seek the relief.
6. In the facts of this case obtained as above and for the reasons and discussion supplied herein, we find no error in and endorse to the judgment and order of learned Single Judge allowing the petition and granting relief to the petitioner for being appointed to the post in question.
6.1 While reserving the order in these Appeals, noticing the order dated 01st October, 2021 in contempt proceedings being Miscellaneous Civil Application No.78 of 2021, we observed that "there Page 19 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022 C/LPA/644/2021 CAV JUDGMENT DATED: 04/02/2022 shall be maintained status quo in respect of the subject matter till the date of pronouncement of the judgment.". Now that the judgment is pronounced and the Appeals are dismissed, the directions of learned Single Judge in the impugned order are required to be complied with by the appellants-GPSC and the State. Therefore, it is ordered that the directions of learned Single Judge shall be complied with and the petitioner shall be given appointment as directed, within eight weeks.
7. Both the Letters Patent Appeals accordingly fail. They are dismissed. Consequentially the Civil Applications are also dismissed.
(N.V.ANJARIA, J) (ANIRUDDHA P. MAYEE, J.) ANUP Page 20 of 20 Downloaded on : Fri Feb 11 20:11:21 IST 2022