IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6456 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VIKRAMSINH AMARSINH Versus STATE OF GUJARAT, NOTICE TO BE SERVED THROU. -------------------------------------------------------------- Appearance: MR PRABHAKAR UPADHYAY FOR MR MUKESH H RATHOD for Petitioner DELETED for Respondent NoS. 1-2 MR DHAVAL VYAS FOR MR DD VYAS for Respondent Nos.3-4,6 RULE SERVED for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 11/12/2002 C.A.V. JUDGEMENT 1. The petitioner has, by invoking the jurisdiction of this Court under Article 226 of the Constitution of India challenged the decision of respondent No.6 of not selecting the petitioner for the post of driver. The petitioner has prayed for an issuance of an appropriate writ directing the respondent Nos.3 to 6 to start with a fresh selection process in accordance with law, for the post of driver. As an interim measure, the petitioner has prayed for an interim direction directing the respondent Nos.3 to 6 not to appoint any candidate as driver on the basis of selection or to keep one post as vacant by maintaining a status-quo. 2. The petitioner was working as work-charged Watchman under the respondent No.5 on regular basis on and from 19.01.1980. It is the case of the petitioner that he knows driving the vehicle and that he is possessing the Heavy Driving Licence since 16.12.1976 and thus, he has three years' experience of driving the vehicle. 2.1 The respondent Nos.2 and 3 had published an advertisement inviting applications from eligible candidates for the post of driver. The petitioner had filled-in form for the post of driver and submitted it to the respondent No.3. The applications received by respondent No.3 were processed and screened and ultimately, a list of candidates was prepared for calling them to appear for the trade test of driver and also for oral interview. The petitioner had received a call-letter dated 19.11.1987 [Annexure-A, at pages 13 & 14]. From the record, it appears that, a Selection Committee has finalized the process of preparing a select list of eligible successful candidates for being appointed on the post of driver. That Selection Committee was consisting of the respondent No.3 i.e. District Development Officer, President and Secretary. It is the case of the petitioner that first, he appeared at the trade test of driver and, thereafter, he was called for an oral interview. The petitioner appeared before the aforesaid Selection Committee for an oral interview. It is alleged by the petitioner that the oral interview lasted only for two minutes and within a moment Selection Committee told the petitioner "you can go". It is further alleged by the petitioner that the aforesaid Selection Committee wanted to recruit their own persons instead of senior and daily-rated employees, who were working since 5 to 10 years as drivers. It is further alleged that the whole selection process was bad. There is no guideline issued in respect of fixation of minimum marks for passing the trade test as well as oral interview and that no standard of passing marks was fixed. It is further alleged that no detailed result is declared by the Selection Committee. 2.2 It is the case of the petitioner that though he was a qualified employee with all necessary requirements, he has not been considered and selected on the post of driver. He has come with a case that in past the Officers of respondent Nos.3, 4 and 5 had taken work of driving the vehicles from him. He has placed reliance on a certificate dated 20.08.1987 [Annexure-B, Page 15] issued by the respondent No.5. As per the certificate, he had worked satisfactorily by driving two different vehicles on different dates. The petitioner has come with an allegation that he has come to know from the Office of respondent Nos.4 and 5 that he has not been selected by the Selection Committee and that the said decision of the Selection Committee is bad, arbitrary, malafide and against the Articles 14 and 16 of the Constitution of India. The petitioner relies on one Government Circular dated 16.05.1984 issued by the Department of Panchayat of State of Gujarat, copy of which is produced at Annexure-C at page 16. As per this Government Circular dated 16.05.1984, the State Government has decided that the employee of Class IV can be given appointment for the post of driver by giving relaxation in the age, provided he fulfills other requirements for the post of driver, as per Recruitment Rules for the post of driver and further provided tht he is eligible for the said post and such employee of Class IV can be directly appointed as driver. 2.3 It is the case of the petitioner that it was necessary for the Selection Committee to provide guideline for independent selection. The Selection Committee was required to prescribe the passing standard for oral interview and also for the trade test. The Selection Committee was required to provide the headwise marks for each test and also to provide for total marks to pass the selection tests. It is alleged by the petitioner that in this case, the Selection Committee did not prescribe any marks for passing two different tests, testwise. The Selection Committee did not prescribe total minimum marks for passing, both the tests so as to take candidates on the selection list. In absence of such, prescription of headwise marks for each test and total marks to pass both the tests, the Selection Committee acted in arbitrary and capricious manner and thus the selection process adopted by the Selection Committee is bad in eye of law. The petitioner has placed reliance on a case of A. K. Shimpi & others Vs. State of Gujarat and others, reported in 1983 G.L.H. 36. 2.4 It is the case of the petitioner that he has challenged the action and decision of the Selection Committee wherein the respondent No.2 is a party to it. The respondent No.2 is a main authority to decide the final selection. It appears from the record that during the pendency of this petition, the petitioner, with leave of this Court amended the petition by adding the District Panchayat Selection Committee, as respondent No.6, in cause title of the petition. 2.5 In short, it is the case of the petitioner that though he was qualified for the post of driver in all respects, he has not been selected by the Selection Committee and that the decision of the the Selection Committee of not appointing him is bad, arbitrary and malafide, as Selection Committee wanted to recruit only new persons, belonging to their group and party and thus, the said decision has violated Articles 14 and 16 of the Constitution of India. 3. From the record, it appears that, on 16.11.1990, the petitioner by seeking order of this Court, deleted the names of respondent No.1 - State of Gujarat and respondent No.2 - Development Commissioner, Panchayat Division, Gandhinagar. Though respondent No.5 was duly served, he has not filed any affidavit-in-reply. The respondent Nos.3, 4 and 6 are represented by a common learned senior Advocate Mr.D.D.Vyas. The respondent No.3 - District Development Officer has by filing an affidavit-in-reply sworn on 21.1.1988 controverted an discountanenced pleadings of the petitioner, which he has pleaded in the memo of his petition. 3.1 It is the case of the respondent No.3 that the Recruitment Rules for the post of driver are framed by the State Government. The post of driver was required to be filled-in by following procedure prescribed under the Rules. As per the relevant Rules, a District Panchayat Selection Committee [respondent No.6] was constituted for the recruitment of employees in Class III posts including the post of driver. The said Selection Committee was required to invite applications for the post of driver by publishing an advertisement for it, as per the procedure, which is prescribed by the rules. In that Rules, the qualifications of the candidates applying for a post of driver are prescribed. It is the case of the respondent No.3 that the whole selection procedure so far as it relates to the post of driver has already been complied with and selection process has already been completed. 3.2 The respondent No.3 has come with a case that the petitioner was working as a work-charged Watchman. Merely because, he was an employee of Panchayat Department, he cannot claim as a matter of right for being appointed on the post of driver, ignoring all the statutory provisions regarding the recruitment to the said post. The petitioner had made an application for the post of driver as direct recruit, in response to the advertisement published by the Selection Committee. Though the petitioner passed through selection process prescribed for the post of driver, he is not selected for the said post by the Selection Committee. It is specific averment made by the respondent No.3 that the orders of appointment have already been issued on the basis of the selection made by the Selection Committee and the candidates so appointed have started resuming their duties in due course. So far as the selection procedure is concerned, the respondent No.3 has specifically stated in para-8 of his affidavit-in-reply that the Selection Committee has made a selection strictly in accordance with the provisions of law and after having been satisfied about the merits of each candidate and after having considered the ability and suitability of each candidate, including the petitioner. It is further stated that there is no question of Selection Committee being interested in recruiting only those candidates whom the members of the Committee favoured. The respondent No.3 has specifically denied that the respondent No.3 was a party to the Selection Committee, or that he was the main authority to decide the question of final selection. It is lastly stated by the respondent No.3 that the petitioner having participated in recruitment process is now estopped from challenging the said procedure. In short, it is the case of the respondent No.3 that for making the selection of candidates for the post of driver, the Selection Committee was constituted as per the relevant rules and that Selection Committee processed the entire subject of preparing a select list of eligible candidates for being appointed on the post of driver and that Selection Committee had, while processing the said subject, strictly followed the provisions of law and had taken a decision in accordance with law. It is also the case of the respondent No.3 that as a result of screening the petitioner through the selection process, he was not found suitable for the said post of driver and, therefore, he is not selected. The respondent No.3 has requested this Court to reject the petition in limine and to vacate the ad-interim relief granted by this Court. 4. The petitioner, who is a work-charged Watchman working under the direct control of respondent No.5 was an employee of Panchayat Department. As per his case, he knows the driving of vehicles and he was possessing a Heavy Vehicle Driving Licence since 16.12.1976. From the pleadings of the petitioner, it appears that, an advertisement was published inviting applications from eligible candidates for the post of driver and in response to that advertisement, the petitioner filled-in an application form and submitted it to the concerned authority of the Panchayat Department. It is the case of the petitioner that as he was fulfilling all the requirements of eligibility to apply for the said post of driver, he was called for the trade test and oral interview. He has produced a call-letter dated 18.11.1987 issued by the Secretary of Selection Committee i.e. respondent No.6. It is at Annexure-A [page-13]. As per this call letter, the petitioner was called for practical test of driving at 2.00 P.M. on 30.11.1987. As per this call letter, the petitioner was required to appear before the Selection Committee i.e. respondent No.6 for an oral interview immediately after the practical test was over or at 10.00 A.M. on 1.12.1987. It is admitted fact that the petitioner appeared at both the tests, one of the practical test of driving i.e. trade test and other of oral interview. It is the case of the petitioner that when oral interview was taken it lasted only for two minutes and, thereafter, the Members of the Selection Committee informed the petitioner that his oral interview was over. As his name did not appear in the select list prepared by the Selection Committee, appointment has not been given to him and, therefore, he has filed this writ petition, mainly for following reliefs ; [A] To quash and set aside the decision of not selecting the petitioner for the post of driver. [B] To direct the respondents to hold fresh selection in accordance with law, after following the guidelines for selection and considering the resolution of Government dated 16.05.1984. As an interim measure, he has prayed for an interim relief directing the respondents not to appoint any driver in pursuance to the selection process adopted by the Members of the Selection Committee and also to keep one post vacant and direct the respondents to maintain status-quo. 5. From the record, it appears that, on 08.12.1987, this Court [Coram : J.R.Desai, J.] passed the following order : "Notice pending admission and notice as to interim relief returnable on 19.1.88. In the meantime, ad-interim relief to the effect that the appointment of driver, if any, shall be subject to the claim of the petitioner and subject to the final out come of this petition and that fact should be mentioned in the order of appointment which may be issued. Direct service permitted. 8.12.87 Sd/- [J.P.Desai,J.] 6. Thereafter, in response to the notice issued pursuant to the order dated 8.12.1987, the respondent No.3 i.e. District Development Officer appeared and filed his affidavit-in-reply sworn on 21.01.1988 and after hearing the learned advocates for both the parties, this Court [Coram : N.J.Pandya,J.] passed the following order on 17.01.1991. "Leave to amend name of Respondent No.3 granted. Rule. L.A. Shri D.D.Vyas waives the service of Rule for Respondents No.3, 4 and 6. 17.1.91 Sd/- [N.J.Pandya,J.]" 7. I have heard Mr.Prabhakar Upadhyay, learned advocate for the petitioner and Mr.Dhaval Vyas, learned advocate for the respondent Nos.3, 4 and 6 in detail at length. 8. Mr.Prabhakar Upadhyay, learned advocate for the petitioner has argued that the whole selection process is bad and that no guideline was issued by the Selection Committee in respect of marks, which were to be considered for passing the trade test as well as oral interview. He has further argued that no passing standard of particular marks was fixed for declaring the candidate as successful candidate for getting his name included in the select list, which was to be prepared by the Selection Committee. Another ground for attacking the decision of not selecting the petitioner for the post of driver is to the effect that the oral interview lasted only for two minutes and he was informed by the Members of the Selection Committee that his oral interview was over. He has argued that very few informal questions were asked to him and no substantive questions with regard to ascertaining the suitability or merits of the candidate were asked to decide, as to whether he was fit for getting his name included in the select list or not. Mr.Prabhakar Upadhyay has argued that thus, the method, which was adopted by the Selection Committee was bad, arbitrary and malafide and, therefore, the petitioner has challenged the decision of not selecting the petitioner for the post of driver. 9. As against this, Mr.Dhaval Vyas, learned advocate for the respondent Nos.3, 4 and 6 has vehemently argued that in this case, the respondent No.3 i.e. District Development Officer has filed an affidavit-in-reply, wherein he has specifically stated that as per the rules, a District Panchayat Selection Committee was constituted for the recruitment of the employees in Class III posts including the post of driver and that the said Selection Committee was consisting of a member of the Gujarat Panchayat Service Selection Board, who was nominated by the Chairman of the said Board and the President of the District Panchayat concerned and one Member of Panchayat Service or State Service, as the State Government may nominate under Section 211 of the Gujarat Panchayat Act. Mr.Vyas further argued that therefore, the entire process of selection was conducted by the Selection Committee as per the Rules and the Selection Committee had made the selection strictly in accordance with the provisions of law and after having been satisfied about the merits of each candidate and having considered the ability of each candidate including the petitioner, the select list was prepared. He has further argued that whatever averments or pleadings are made in affidavit-in-reply, are not countered or controverted by the petitioner by taking a little trouble of filing affidavit-in-rejoinder and, therefore, on reading this affidavit-in-reply, it can safely be arrived at a conclusion that the Members of the Selection Committee, which was constituted as per the rules, had exercised in preparing the select list, as per the provisions of law and that Selection Committee prepared a select list strictly in accordance with law and, therefore, it is wrong to say that the method, which was adopted by the Selection Committee is bad, arbitrary and malafide. He has further argued that it is very easy to allege that a particular act of a statutory body is arbitrary and malafide, but very difficult to prove by leading cogent and convincing evidence. Lastly, he has argued that looking to the affidavit-in-reply filed by the respondent No.3, this petition is devoid of merits and same is required to be dismissed with costs. 10. It is pertinent to note that the petitioner has not challenged the entire process of preparing a select list of candidates for being appointed on the post of driver. On reading clause (A) of para-6 of the petition, it is clear and certain that the petitioner has challenged only the decision of not selecting him for the post of driver and, therefore, he has prayed for to quash and set aside that only decision of not selecting the petitioner for the post of driver. Though Mr.Prabhakar Upadhyay has argued at length on the point that the Selection Committee did not issue any guidelines in respect of marks, which would be considered for passing the trade test and oral interview and that no standard of particular marks was fixed for passing the entire test including trade test and oral interview, the petitioner has not challenged the entire process of preparing a select list of candidates for being appointed on the post of driver. The entire process of preparing the select list commences right from giving advertisement, inviting applications from eligible candidates to last stage of preparing of select list on the basis of which orders for appointment of selected candidates came to be issued. This entire process is not challenged. There is very limited challenge from the side of the petitioner with regard to a decision of not selecting the petitioner for the post of driver. The petitioner has not produced an advertisement pursuant to which, he submitted his application form for the post of driver. The petitioner has stated in para-4 of his petition that it was necessary for the Selection Committee to provide guidelines for independent selection. He has not referred to any rules with regard to recruitment of driver. The respondent No.3 has stated in para-3 of his affidavit-in-reply that according to the Rules framed by the State Government in exercise of the powers conferred on it by the Gujarat Panchats Act, 1961, the post of driver is required to be filled-in, by following the procedure prescribed under the Rules. This fact is not controverted by the petitioner by filing an affidavit-in-rejoinder. Mr.Dhaval Vyas has furnished a xerox copy of relevant Rules framed by the State Government. These Rules are known as "The Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967 [for short "Rules"]. Notification with regard to the Rules was published by issuing Notification No.KP/966/PRR 71/67 dated 14.8.1967. This Notification has been published in Government Gujarat Gazettee dated 17.8.1967 at page-213. We find these Rules at page-332 of the Jindal's Gujarat Local Acts, Volum-IV. As per Clause (h) of Rule 2 of the Rules, Selection Committee means the District Panchayat Service Selection Committee constituted under sub-sec.(2) of sec.211. Section 3 speaks for two classes of Panchayat Service, [i] Superior Panchayat Service; and [ii] Inferior Panchayat Service. As per the affidavit-in-reply filed by the respondent No.3 i.e. District Development Officer, the post of driver is falling in category of Class-III service. Mr.Vyas has argued that these Rules were strictly followed, while preparing the select list. To assist the Court, Mr.Vyas has furnished a copy of advertisement by which the applications were invited for the post of driver from eligible candidates. A copy of that advertisement No.1/86 dated 1.12.1986 is furnished to this Court and as per this advertisement, the eligibility criteria for the post of driver are prescribed. They are [i] candidate should have passed the examination of Standard IV; [ii] candidates should have a driving license to drive a Heavy Vehicle, since five years before 1.12.1986, [iii] candidate should possess experience of three years to drive the vehicle and [iv] good knowledge with regard to mechanism of the vehicles. It cannot be gain-said that the application of the petitioner for the post of driver was processed and ultimately, the call-letter was sent to him to appear before the Selection Committee for trade test and oral interview. The Rules do not prescribe any marks to be allotted for trade test and oral interview. The Rules do not prescribe a standard of particular marks to be secured by successful candidate whose name can be included in the select list. It may be noted that the petitioner has not challenged the virus of the Rules referred to hereinabove. Ruel-9 of the Rules prescribe procedure to be followed in regard to appointment to posts in Panchayat Service. The respondent No.3 has stated in para-8 of his affidavit-in-reply as follows :- "I say that the Committee has made the selection strictly in accordance with the provisions of law and after having been satisfied about the merits of each candidate and having considered the ability of each of the candidates including the petitioner. I say that there is no question of the Committee being interested in recruiting only those candidates whom the Membors of the Committee favoured. I deny that the selection process of the said Committee is in any manner bad." As said earlier, the petitioner has neither countered nor controverted the case pleaded by the respondent No.3 in his affidavit-in-reply by filing his affidavit-in-rejoinder and, therefore, the respondent No.3 has satisfied this Court that the Selection Committee has followed the method strictly in accordance with the provisions of law. The powers conferred on this Court under Article 226 of the Constitution of India are extraordinary, plenary, prerogative, equitable and discretionary. In view of the well settled principles of law on the point of powers conferred on this Court under Article 226 of the Constitution of India, this Court cannot sit in appeal against the decision of the statutory authority, which is challenged in writ petition. This court has to examine the decision only on the point as to whether any provisions of law has been infringed by the statutory authority or whether the principles of natural justice qua the petitioner have been infringed or not.