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12.2 At this stage, it is relevant to mention that in response to the query by the Court (which arose in view of the contentions by the petitioner) as to whether any minimum marks as qualifying marks or any benchmark was fixed at the stage when written test and/or interview were conducted and whether candidates were informed about such minimum marks or qualifying standard or not, Mr. Shukla, learned advocate for the respondent - GPSC, submitted that at any stage, until the stage of oral test (interview) got concluded, such qualification standard was not fixed and was never declared and was not informed to the candidates. He also clarified that the qualification standard was determined by respondent - GPSC only after initial/first merit list on the basis of aggregate marks of all candidates who appeared in the written test and oral test was prepared. Mr. Shukla, learned advocate for the respondent - GPSC, also submitted that initially, the respondent - GPSC had declared and notified the selection list by notification dated 25.9.2014 which was subsequently corrected (so as to rectify certain inadvertent mistakes) vide notification dated 16.10.2014 and then GPSC noticed that while preparing the select list / result dated 25.9.2014 (corrected on 16.10.2014), the guidelines and procedure laid down by Hon'ble Apex Court in case of Ramesh Ram (supra) was not followed and that therefore, the respondent - GPSC, on its own, started the process of revising the select list (which was already declared and notified on 25.10.2014) and prepared another, (i.e. the revised) selection list by following the guidelines and observations by Hon'ble Apex Court in case of Ramesh Ram (supra). With reference to the contention against applying 10% relaxation for filling up 30% reserved posts / vacancies for female candidates, Mr.Shukla, learned advocate for the respondent - GPSC, submitted that the respondent - GPSC is following the said method since about 2001. He submitted that the respondent - GPSC is following the said method so as to maintain minimum standard of efficiency among the female candidates in the matter of selection of female candidates so as to maintain minimum efficiency level. According to learned counsel for the respondent - GPSC it first considered vertical reservation starting from open merit category and combined vacancies for the said two posts in respect of the said category were taken into account and thereafter in descending order, the marks obtained by "male candidates" in open / general category were taken into account. According to Mr. Shukla, learned advocate, the respondent GPSC descended up to the last male candidate and took into account the marks obtained by the said last male candidate of general / unreserved candidate category and adopted the marks obtained by said male candidate as qualifying standard and applied the said standard for filling up the posts in horizontal reservation for female candidates in general / unreserved category as well as other three categories. Learned counsel further submitted that after thus fixing the qualifying standard, GPSC allowed 10% relaxation in the said standard so as to accommodate female candidates on reserved quota. With regard to the contention in light of the decision in case of Jitendra Kumar Singh learned counsel submitted that the said decision deals with the situation in light of the provision referred to in the said case which is not available and applicable in present case. He also submitted that the decision and actions are in consonance with the judgments in case of Ramesh Ram and Rajesh Kumar Dariya. With regard to reservation for female candidates and for candidates with special subjects learned counsel reiterated the details mentioned in GPSC's affidavits. Thus, even according to the respondent GPSC, the marks obtained by "male candidates" in respective category, i.e. general (unreserved) category, SC category, ST category and SEBC category have been picked up and adopted as qualification marks for the respective category and then for operating and complying horizontal reservation, the respondent GPSC determined the qualification standard / benchmark for female candidates in respective category by relaxing the marks obtained by male candidate (who would occupy the last post in his respective category). The learned counsel for GPSC also relied on the affidavit filed in response to SCA No.14894/2014, wherein it is averred, inter alia, that:

13. On behalf of the successful candidates, who, as mentioned earlier, joined the proceedings by preferring application seeking permission to join the proceedings of this group of petitions and are represented by Mr. Yagnik, learned advocate, it is submitted that the said selection list dated 25.9.2014 do not warrant interference and may not be set aside as prayed for by the petitioners. Mr. Yagnik, learned advocate for successful candidates submitted that there is no factual or arithmetical error in the selection list and that even the petitioners have not raised any allegation about any factual or arithmetical error. He further submitted that there are no allegations of mala fide. Mr.Yagnik, learned advocate submitted that any person amongst the petitioners who has not secured equal marks or more marks than the selected candidates in respective category or less marks than the petitioners (candidates of respective category) is not selected and that is not even the allegation or claim by the petitioners. It is also claimed that there is no factual or arithmetical error and none of the petitioners has secured marks more than the marks of selected candidates and that, therefore, there is no justification to grant the relief prayed for by the petitioner and to disturb the selection list. Learned advocate for the successful candidates also opposed the contention raised by the petitioners in Special Civil Application No.14849 of 2014 and submitted that the meritorious reserved category female candidates who, on their own merits and without availing benefit of reservation secured place in open merit category will, for implementation of horizontal compartmentalized reservation for female candidates, continue in the open merit category and are not required to be shifted or migrated to respective reserved category and that and they should not be migrated or their category should not be changed to respective reserved category for calculating compliance of horizontal reservation. Otherwise it would amount to drawing distinction between male and female meritorious reserved category candidates and it would amount to gender discrimination against meritorious reserved category female candidates. He also submitted that the horizontal reservation should not be implemented by frustrating vertical reservation. Learned advocate for successful candidates submitted that the application of 10% relaxation by the respondent GPSC for implementation of horizontal reservation cannot be considered as change of rules / criteria in the midstream. He also submitted that by virtue of Rule 9 of the ACF and RFO Competitive Examination Rules, 2008, power to relax qualification standard of aggregate marks is conferred on the GPSC and that, therefore, its said action is not without authority or contrary to the rules. According to learned advocate for the respondent GPSC, the decision as regards the extent of relaxation for making up deficiency in respect of social or special reservation, is GPSC's prerogative. Mr. Yagnkik, learned advocate for the successful candidates relied on the same provision with regard to the GPSC's impugned action of adding 7% marks in marks obtained by the candidates possessing special qualification viz. degree of Bachelor of Science with Forestry as special subject in written test and interview respectively and submitted that the said decision and actions by the respondent GPSC are not arbitrary or without authority of law. The learned advocates for GPSC for the successful candidates and learned advocate for GPSC submitted that the petitions may be rejected.

24. So as to support the decision and action and the method and the basis adopted by it, the respondent GPSC relied on the observations in the decision dated 13.12.2007 in case of Dr. Mehta Rakshaben Kantilal v. Gujarat Public Service Commission [Special Civil Application No.25773 of 2007 and connected matters]. I have considered the said decision and observation by the Court. The observations relied on by GPSC have been made in different context and in different factual background and not while testing the method and procedure similar to the method and procedure followed by GPSC and/or the basis adopted by GPSC in the matters on hand (i.e. by adopting marks secured by only male candidates). Thus, neither the said observation nor the decision renders any assistance to GPSC to support the decision and action. Moreover, in the cited decision the relaxation did not result into restricting or reducing the intake of female candidates, as has happened in present case. The respondent GPSC also relied on the decision in case between IJ Prajapati v. State of Gujarat. So far as the said decision is concerned, it is relevant to note that in view of material difference between facts in the said case and the facts involved in cases on hand, the decision does not help the GPSC in supporting its impugned action. Besides this, GPSC relied on the said decision to support the submission that merely because qualifying marks were prescribed at later stage, it cannot be said to be illegal. In the cases on hand, it is the method, procedure and basis adopted by GPSC for determining the qualifying standard which is found unsustainable. Differently put, in the cases on hand the "qualifying standard" determined by GPSC is found unsustainable on merits (and in light of applicable Rule) and not on technical ground that qualifying standard were determined at later stage. In view of the provision under Rule 9 and Rule 10 of the Examination Rules and in vie of the Rules prescribing reservation @ 30% for female candidates and @ 25% for candidates with special qualification, the said decision does not render any assistance to GPSC in justifying its impugned action. In the above referred cases the commission did not restrict its search for marks to be adopted as qualifying standard / benchmark, to the marks secured by only male candidates (as GPSC has done in present case) and that, therefore, the said decisions do not render any assistance to GPSC in justifying its actions in present case. Further, in present case the stage for determining qualifying standard is prescribed by the Rules (i.e. Rule 9 and Rule 19) therefore in present case the GPSC's action has to be viewed from the perspective of said provision.

29.4 The GPSC adopted said criterion only on the basis of the opinion by learned Advocate General which was not given either after considering relevant rules viz. Examination Rules, Recruitment Rules applicable to selection / recruitment of ACF and RFO or the facts of the cases on hand or the purpose for relaxing the qualifying marks and also without having regard to the manner in which GPSC had determined the qualifying marks/standard (wherein GPSC granted the relaxation) and/or the fact that said opinion was given before almost 10-12 years, much less for this/specific purpose. This is one reason in light of which the action of respondent GPSC of determining and applying the said criterion (i.e. the extent/limit to which the qualifying standard should be relaxed) does not deserve to be and cannot be sustained. 29.5 Another question which stares in the face of the respondent GPSC is that why did GPSC not apply the same standard or criterion and the same limit (i.e. relaxation to the extent of 10%) in case of candidates seeking selection in the quota reserved for the candidates with special subject and instead it applied different criterion/yardstick (viz. adding 7% marks) in the marks obtained by the candidates possessing special subject / qualification in his written test and in interview (and the reasons therefore). 29.6 The said issue is the grievance of the candidates possessing special qualification (Special Civil Application No.13587 of 2014). So far as the grievance by the candidates seeking admission in the quota reserved for candidates with special qualification is concerned, it is relevant to note that in reply to one of the allegations and contentions by said petitioners viz. the allegation that GPSC had not notified the decision and action of adding 7% marks in the marks obtained by concerned candidates in written test and so also in marks secured at the interview, the respondent GPSC referred to and relied on the intimation dated 22.4.2014 and claimed that by the said intimation dated 22.4.2014, it had notified and informed all candidates that for implementing the quota reserved for the students possessing special qualification, it has decided to add 7% marks in the marks obtained by the concerned candidates in the written test and at the interview.