LPA/1/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1 of 2008 In SPECIAL CIVIL APPLICATION No. 22069 of 2007 With LETTERS PATENT APPEAL No. 43 of 2008 In SPECIAL CIVIL APPLICATION No. 27249 of 2007 To LETTERS PATENT APPEAL No. 44 of 2008 In SPECIAL CIVIL APPLICATION No. 18609 of 2007 with CIVIL APPLICATION Nos. 1/2008; 692/2008 & 728/2008 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= ASHA M. BARASARA - Appellant(s) Versus GUJARAT PUBLIC SERVICE COMMISSION & 2 - Respondent(s) ========================================================= Appearance : MR KB PUJARA for Appellant, MR DG SHUKLA for Respondent(s) : 1, MS ML SHAH AGP BY DS for Respondent(s) : 2, MR BHASKAR P TANNA, Sr Advocate with MR Nikhil S Kariel Advocate on behalf of Tanna Associates for Respondent(s) : 3, ========================================================= LPA/1/2008 2/14 JUDGMENT CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 11th FEBRUARY 2008 ORAL JUDGMENT {Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) These three Appeals preferred under Clause 15 of the Letters Patent arise from the common judgment and order dated 13th December, 2007 passed by the learned Single Judge in so far as the above Special Civil Applications Nos. 22069 of 2007; 27249 of 2007 & 18609 of 2007 are dismissed. The appellants before this Court are the writ petitioners in the above Special Civil Applications. The matters arise from a common subject i.e., the competitive test held by the Gujarat Public Service Commission [hereinafter referred to as, “the Commission”] for recruitment to the posts of District Education Officer and equivalent Class-I posts [Administrative Branch] under the Government of Gujarat. The Appeals are, therefore, with the consent of the learned advocates, heard and decided by this common judgment. Recruitment to the posts of District Education LPA/1/2008 3/14 JUDGMENT Officer and equivalent Class-I posts in the Gujarat Educational Service [Administrative Branch]-Class I is governed by the statutory rules made under Article 309 of the Constitution of India known as the Gujarat Educational Service [Administrative Branch] Class-I Recruitment Rules, 2002. The Commission, by advertisement published on 17th March, 2006, invited applications from qualified candidates for appointment to 14 posts in the Gujarat Educational Service [Administrative Branch] Class-I. Of the said 14 vacancies, six were reserved for Scheduled Tribes, and Socially & Educationally Backward Class candidates, 8 vacancies were available for common merit candidates [non-reserved categories]. Of the said 8 vacancies, two were reserved for women candidates and of the four vacancies reserved for socially & educationally backward class candidates, one was reserved for a woman candidate. The said advertisement also contained general terms and conditions. Under Clause [6] of the said general terms, the candidates were informed about the manner of recruitment. It was specifically mentioned that selection would be based on oral interview [viva LPA/1/2008 4/14 JUDGMENT voce]. In case of comparatively large number of applicants, a preliminary test would be conducted. The scrutiny of the candidates would be in order of merit at the said preliminary test. The appellants before this Court are the candidates who had, in answer to the above referred advertisement, applied for appointment to posts in Gujarat Educational Service [Administrative Branch] Class-I but have not succeeded in selection. It is not disputed that each appellant was eligible for appointment to the Gujarat Educational Service [Administrative Branch] Class-I. The challenge to the non-selection of the appellants is three fold. The first challenge is in respect of reservation for women candidates. The allegation is that adequate number of vacancies are not reserved for women candidates. Against 14 vacancies advertised, four vacancies ought to have been reserved for women candidates – three of them for common merit candidates. The reliance is placed on the Gujarat Civil Services [Reservation of Posts for Women] Rules, 1997 [hereinafter referred to as “the Rules of 1997”]. The second challenge to the impugned LPA/1/2008 5/14 JUDGMENT recruitment is in respect of the written preliminary test. Challenge is two fold : First; in absence of specific provision made in the recruitment rules, the preliminary written test could not have been held. Second; if the written test is held, the resultant selection should have been made on the combined result of written and oral test. The selection could not have been based solely on the result of the oral interview. The third challenge is in respect of individual cases. The allegation is that though the concerned applicants had secured minimum cut off marks in the written test, they had not been called for interview. The learned Single Judge has rejected the aforesaid contentions raised on behalf of the appellants-writ petitioners. The learned Single Judge has observed that under the advertisement published by the Public Service Commission, the candidates were informed about the manner in which the recruitment would be made. The candidates were also informed about the holding of the elimination test; if necessary. The learned Judge has held that by responding to the said advertisement, the candidates LPA/1/2008 6/14 JUDGMENT had accepted the terms and conditions contained in the said advertisement. Having availed of the chance of selection, the candidates cannot be permitted to challenge such terms and conditions. The learned Single Judge has also examined the cut off marks for each category of candidates. It has been held that all candidates who had secured minimum cut off marks set by the Commission were called for interview. In other words, the challenge that some of the candidates who did secure the minimum cut off marks were not called for interview has been examined in detail and has been factually not found well founded. Learned advocates Messrs. Pujara & Upadhyay have appeared for the appellants. They have taken us through the entire record. They have reiterated the above referred arguments advanced before the learned Single Judge. In support of their submissions, they have relied upon the judgments of the Hon'ble Supreme Court in the matters of Government of A.P vs. P.B Vijayakumar & Anr. [(1995) 4 SCC 520]; of Valsala Kumari Devi M. vs. Director, Higher Secondary LPA/1/2008 7/14 JUDGMENT Education & Ors. [(2007) 8 SCC 533]; of Inder Parkash Gupta v. State of J & K & Ors. [(2004) 6 SCC 786]; of P. Mohanan Pillai v. State of Kerala & Ors. [(2007) 9 SCC 497]; of Madhukar Bakru Pingal v. Rajendra D. Gaikwad & Ors. [(1995) 6 SCC 42] and of Dr. Krushna Chandra Sahu & Ors. v. State of Orissa & Ors. [AIR 1996 SC 352]. Mr. Tanna has appeared for the contesting respondents i.e, the candidates who have passed in the aforesaid competitive test and have been selected for appointment to the Gujarat Educational Service [Administrative Branch] Class-I post. He has supported the judgment of the learned Single Judge. He has relied upon the judgments in the matters of Smt. Swaran Lata vs. Union o0f India & Ors. [1979 (3) SCC 165]; of Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda Collge, Bihar Sharif & Ors. [AIR 1962 SC 1210]. He has also relied upon the unreported judgments of this Court in the matters of Lilavati D. Shinol vs. State of Gujarat [Special Civil Application No. 2912 of 2001 :: Decided by one of us i.e., Ms.R.M Doshit, J. on 3rd December, 2002] and Minakshiben Sharadhchandra Raval vs. G.P.S.C [Special LPA/1/2008 8/14 JUDGMENT Civil Application No. 7486 of 1999 : Decided on 4th May, 2000 :: Coram-Ravi R. Tripathi, J.] and of Hemant R Joshi vs. G.P.S.C {Special Civil Application No. 5733 of 2004 :: Decided on 11th March, 2005 : Coram-Akil A. Qureshi, J.] confirmed in Letters Patent Appeal No. 649 of 2005 on 17th March, 2006 [Coram : Ms. R.M Doshit & S.R Brahmbhatt, JJ.]. Mr. Shukla has appeared for the Gujarat Public Service Commission. He has relied upon the averments made in the counter affidavit made by the Commission, more particularly the instructions contained in the Circular dated 14th October, 1986. He has submitted that the instructions contained in the said circular lay down the procedure to be adopted by the Commission in respect of recruitment to various posts under the State Government. In the present case also, the said instructions are scrupulously followed. He has submitted that the selection made exclusively on the basis of the performance in the oral interview is not too uncommon mode of recruitment to the public posts. The selections made solely on the result of the oral interview are upheld by the Courts time and LPA/1/2008 9/14 JUDGMENT again. In support of his submission, he has relied upon the judgment of the Supreme Court in the matter of M.P Public Service Commission vs. Navnit Kumar Potdar & Ors. [AIR 1995 SC 77]. As to the reservation for the women candidates, as recorded hereinabove, of the fourteen vacancies advertised, three vacancies were reserved for women candidates; two for common merit candidates and one for socially and educationally backward class candidate. True, the three vacancies reserved for women candidates is less than 30% of the total vacancies advertised. The Rules of 1997 provide for reservation for women candidates to the extent of 30% of the vacancies. The said rules also specifically provide that reservation should be for each category of candidates i.e., Scheduled Castes, Scheduled Tribes, Socially & Educationally Backward Classes, Physically Handicapped and common merit candidates. In other words, the reserved vacancies are required to be computed on the basis of vacancies advertised in each category. There is no other way the reservation can be effected under the Rules of 1997. The contention that the reservation for women LPA/1/2008 10/14 JUDGMENT candidates ought to have been worked out as thirty per cent of the total vacancies advertised is ex facie contrary to the Rules of 1997. In the present case, against the eight vacancies advertised for common merit candidates, two vacancies are reserved for women candidates. Similarly, against 4 vacancies advertised for Socially & Educationally Backward Class candidates, one vacancy has been reserved for woman candidate. Thus, the vacancies reserved for women candidates are little less than 30% of the total vacancies. That can be the only rationale as there cannot be reservation for fraction of a vacancy. The contention has rightly been rejected by the learned Single Judge. As to the elimination test, it is well accepted procedure in respect of the recruitment to the posts under the State Government, when the number of applicants is too large compared to the vacancies advertised. The purpose of elimination test is to screen the candidates and to shortlist the candidates who can be called for interview. Not only the holding of elimination test has been upheld but it is also considered to be a healthy practice to restrict the LPA/1/2008 11/14 JUDGMENT number of candidates who will be called for interview. The very question whether in absence of a specific/express rule, the Commission can validly hold written test for shortlisting the candidates was the matter of consideration before this Court in the matter of Kandarpkumar Krishnakumar Dholakia & Ors. vs. Gujarat Public Service Commissioner & Ors. [1990 (2) GLR 1058]. The learned Single Judge upheld the action of the Public Service Commission. The said judgment was confirmed by the Division Bench in Letters Patent Appeal No. 211 of 1990 [1990 (2) GLR 1192]. As the elimination test is meant for screening the candidates, the marks obtained in the elimination test has relevance only to the extent of selection of eligible candidates who can be called for interview in order of merit. The marks obtained in the elimination test has no bearing upon the ultimate merit of the candidate concerned. The contention that the selection should not be wholly based upon the performance at oral interview also requires to be rejected. In absence of anything to the contrary in the relevant recruitment rules, LPA/1/2008 12/14 JUDGMENT the Commission is wholly justified in adopting the procedure best suited for selection of the candidates. In the present case, it is required to be noted that the selection was for the posts in Class-I service under the State of Gujarat. The relevant recruitment rules provide that the candidates should not be more than 40 years of age; they should possess a Bachelor's Degree and a Degree in teaching or education. The minimum experience required is of 7 years obtained after obtaining the required educational qualification. In other words, the candidates are atleast double graduates; not fresh out of college, are experienced personnel with a well defined personality and characteristics. It may not be right to expect such well qualified and experienced candidates to take a written test for selection and appointment in Government service. In such cases, the selection made wholly on the basis of oral interview is justified. The method of selection adopted by the Commission is neither contrary to the relevant recruitment rules nor can it be said to be arbitrary or unjust. LPA/1/2008 13/14 JUDGMENT This takes us to the last of the contentions that certain candidates who had secured minimum cut off marks at the elimination test were not called for interview. The contention has been answered by the Commission in its counter affidavit. It has been demonstrated that the entry for interviews was restricted to around three times the vacancies advertised and accordingly cut off marks were set in each category of candidates, male and female. A separate cut off marks was adopted keeping in view the vacancies available for each category. It is also demonstrated that no eligible candidate who had secured minimum qualifying marks in particular category was kept out of the interview. Since the learned Single Judge has examined the issue carefully and has upheld the submission made by the Commission, we need not re-examine individual cases in the present set of Appeals. No other contention is raised before us. For the aforesaid reasons, the Appeals are dismissed in limine. Civil Applications stand disposed of. LPA/1/2008 14/14 JUDGMENT Registry will maintain copy of this judgment in each Appeal. {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*