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2004 DIGILAW 644 (GUJ)

Kalpen Kanubhai Patel v. G. P. S. C.

2004-09-23

K.A.PUJ

body2004
JUDGMENT : K.A. Puj, J. Heard Mr. Prithvisingh Jadeja, learned advocate appearing for the petitioner and learned A.G.P. Mr. Hasit Dave appearing for the respondent Nos. 2 & 3. This petition is filed under Article 226 of the Constitution of India seeking direction from this Court to the respondents to put the name of the petitioner in the merit list at Sr. No. 4 or 5 or to quash and set aside the complete selection list and to prepare it afresh considering the educational qualification, academic career and experience of all the candidates as per Annexure A. The petitioner has also prayed for the interim relief to maintain status quo qua the petitioner and to restrain the respondents from terminating or transferring the petitioner. 2. xxx xxx xxx. 3. It is the case of the petitioner that the petitioner is a Doctor by profession and possesses Doctorate in Pathology and Bacteriology. The petitioner's qualification is M.D. and his educational career has also been exceptionally well. The petitioner has got very high percentage of marks in M.B.B.S. course and though the petitioner had enough chances to opt for gynecology, the petitioner opted for Pathology & Bacteriology, being his choice. It is the case of the petitioner that the respondents have prepared the merit list in illegal, arbitrary, unjust and mala fide manner. Though the petitioner was selected, the petitioner was put in the merit list at Serial No. 21 and hence the petitioner has challenged the said preparation of merit list in the present petition on the ground that it is contrary to the statutory rules framed by the State of Gujarat. The petitioner has also made several allegations of mala fide regarding nepotism and favouritism. The respondents have not followed the criteria which has statutory force in preparing the merit list. For the post of Tutor, qualification required is only M.B.B.S. But with a view to see that even competent persons come and select this job of Tutor, the State Government issued one Notification under Article 309 of the Constitution of India by which it has been made clear that once the person holding Doctorate degree and experience as a Tutor will be given preference and will have a better chance for selection for the said post. There are 20 persons who are ahead of the petitioner in the said merit list and out of these persons, the qualification and experience of 18 persons are less than the qualification and experience of the petitioner and hence, their names were wrongly put ahead of the petitioner's name in the merit list. The petitioner has, therefore, prayed that petitioner's name should be placed ahead in the merit list and in the alternative, the said merit list be cancelled and direction may be issued to prepare a fresh merit list. 4. Mr. Prithvisinh Jadeja, learned advocate appearing for the petitioner has submitted that proper procedure has not been followed while preparing the merit list and petitioner was treated discriminately and intentionally his name was put behind other persons on the merit list. He has further submitted that no written test was held and selection was done only on the basis of the oral test which is not just and proper and contrary to the law laid down by this Court as well as by the Apex Court. He has further relied on the decision of the Hon'ble Supreme Court in the case of Ajay Hasia, A.I.R. 1981 S.C. 487 wherein it is held that so far as possible, the practise of conducting oral test be avoided. He has further submitted that what weightage could be given to the oral test has also been explained by various decisions. Considering the averments made in the petition which have not been controverted and relying on the decided case law, Mr. Jadeja has submitted that the petition be allowed. 5. Mr. Hasit Dave, learned A.G.P. appearing for respondent Nos. 2 & 3 has submitted that proper procedure has been followed while preparing the selection list. There is proviso in the recruitment rules which provides that preference may be given to a candidate having post-graduate qualification and also to one who has previous teaching experience or who has published original research work in the subject concerned in a recognised journals. The said proviso was also kept in the advertisement published by the Commission. The said proviso, however, contains preferential qualification and mere preferential qualification by itself does not entitle the petitioner to be selected. The said proviso was also kept in the advertisement published by the Commission. The said proviso, however, contains preferential qualification and mere preferential qualification by itself does not entitle the petitioner to be selected. He has further submitted that according to Gujarat Civil Service Classification and Recruitment (General) Rules, 1967, in rule 9, it has been stated that appointment to any service or post included in the State Service shall be made by the State Govt. or by an authority duly empowered in that behalf by the State Govt. either- (a) On the result of the competitive examination held for the purpose, (b) By direct selection, or (c) By promotion, or (d) By transfer, from amongst the persons satisfying the condition prescribed in these rules and other rules, if any, relating to the recruitment to such service or post. He has further submitted that the recruitment rules for the post in question provide to fill in the post either by promotion or by direct selection. In case of direct selection where there is no provision for written examination, the Commission adopts one of the following two alternatives:- (I) only oral test/personal interview and (II) Elimination test followed by Personal Interviews. For this purpose, only eligible candidates are being called for interview. When the number of eligible candidates is very large, the Commission holds an elimination test, with a view to reduce the number of candidates to be interviewed/called for interview. In the instant case, a note was inserted in advertisement No. 7 that "if necessary the Commission may arrange elimination test so as to decide who should be called for personal interview." But against 40 posts, only 129 applications were received by the Commission and hence, it was not necessary to hold elimination test for this post. Applying the said procedure consistently, an oral interview programme was arranged to assess a candidate's overall intellectual and personal qualities, candidate's initiatives, resourcefulness, capacity for clear logical presentation, intellectual and moral integrity and on that basis, the selection list was prepared. 6. xxx xxx xxx. 7. Mr. Dave has further submitted that the contention of the petitioner that candidates having no experience have been put ahead of him is also not correct as the most of the candidates who have been selected were possessing experience as residents or Tutors which carry a teaching experience. 8. Mr. 6. xxx xxx xxx. 7. Mr. Dave has further submitted that the contention of the petitioner that candidates having no experience have been put ahead of him is also not correct as the most of the candidates who have been selected were possessing experience as residents or Tutors which carry a teaching experience. 8. Mr. Dave has further submitted that the instances quoted by the petitioner were not supported by any material evidence and they are also not true. He has, therefore, submitted that there was no infirmity in the selection list was prepared by the Commission. The selection list was prepared in the year 1986 and 18 years have passed. Even at the tome (sic.) of the admission of the petition, the petitioner has not pressed for interim relief and over the span of 18 years, the selection list must have been exhausted or lapsed and this petition should not, therefore, be allowed at this stage. 9. After having heard learned advocate appearing for the petitioner and learned A.G.P. for respondent Nos. 2 & 3, the Court is of the view that the selection list was prepared on the basis of the rules prescribed and on the basis of the actual performance of the candidates found by the Selection Committee. Since there was no provision in the rules for holding the written test for the purpose of selection of the candidates, the Commission has not committed any error in preparing the selection list on the basis of the performance of the candidates in the oral test and/or personal interview. Even otherwise, the selection list of 1986 by this time must have been exhausted and/or lapsed. If the petitioner was so serious about that, he must have moved for early hearing of the petition. On specific query being raised by the Court, neither the learned advocate appearing for the petitioner nor learned A.G.P. were in a position to state as to what is the present position with regard to the selection list. The Court is, therefore, of the view that it must have been exhausted and implemented and proper effect might have been given to the selection list. It is the settled legal position that a candidate does not have any vested right to have his name at any particular rank in the selection list. The Court is, therefore, of the view that it must have been exhausted and implemented and proper effect might have been given to the selection list. It is the settled legal position that a candidate does not have any vested right to have his name at any particular rank in the selection list. Since the grievance of mala fides raised in the present petition is not substantiated by any documentary evidence or even the same was not pressed into service by the petitioner, the Court does not find any infirmity in the selection list prepared by the Commission. The relief sought for by the petitioner in the present petition cannot therefore be granted after the expiry of period of more than 18 years, especially when the Court is of the view that there is no infirmity in the selection list prepared by the Commission. The petition is, therefore, dismissed. Rules discharge without any order as to costs. Rule discharged.