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2006 DIGILAW 682 (GUJ)

MOHANSINH CHIMANLAL RAO v. STATE OF GUJARAT

2006-10-11

H.K.RATHOD

body2006
( 1 ) HEARD the learned advocate, Mr. Paresh Upadhyay, on behalf of applicants and learned Advocate General, Mr. Kamal Trivedi with learned A. G. P. , Mr. L. B. Dabhi, appearing on behalf of respondent No. 1. ( 2 ) THE brief facts which have been narrated in the Civil Applications are relevant, therefore, same have been quoted as under :-"3. It is respectfully stated that, it is learnt that, the result of the said written examination is now declared by the authorities of the Police Department and successful candidates are informed through respective Superintendent of Police vide intimation dated 28/9/2006. It is further respectfully stated that the applicant is not called for the subsequent stage of examination like physical test/interview etc. which are scheduled from 9/10/2006 onwards, since the result of the applicants are kept in the sealed cover and the same is not be opened until the matter is finally heard. 4. It is respectfully stated that under the circumstances has become necessary for the present applicant to pray to this Honourable Court to take up the main matter for final hearing so that the present applicant can participate in the subsequent stage of the selection process, if they have cleared the first stage or in the alternative other appropriate relief can be granted to the applicants by the Honourable Court. 5. The applicant craves leave to add, amend, alter and/or rescind any of the paragraphs of this application as and when necessary. PRAYERS6. The applicant respectfully prayers that in the facts and circumstances as stated above and which may be urged at the time of hearing of this application, the Honourable Court may be pleased to :- (A) take up the main petition for final hearing before 9/10/2006, (B) or direct the respondent authorities to permit the present applicant to participate in the subsequent stages of selection process for the post of Police Sub Inspector pending final disposal of the petition, or (C) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case. ( 3 ) IT is also necessary to refer the order passed by this Court (Coram : Hon ble Mr. Justice M. R. Shah) in group of Civil Application No. 6674/2006 dated 9/6/2006. ( 3 ) IT is also necessary to refer the order passed by this Court (Coram : Hon ble Mr. Justice M. R. Shah) in group of Civil Application No. 6674/2006 dated 9/6/2006. The relevant paras are quoted as under :-By way of this applications, the respective applicants original petitioners have prayed for an appropriate interim order restraining the opponents original respondents from holding departmental examination scheduled to be held on 11/6/2006 pursuant to the circular dated 4/6/2006 (Annexure A to the applications ). Accordingly, ad-interim order is prayed to direct the opponents original respondents to permit the applicants original petitioners to appear in the departmental examination scheduled to be held on 11/6/2006 pursuant to the circular dated 4/6/2006. It is the contention on behalf of the respective applicants original petitioners that the respective applicants have challenged Rule 2 (C) of Police Sub Inspector (Unarmed Branch Class III) Recruitment Rules, 2003 (hereinafter referred to as "the Recruitment Rules for convenience) and in the meantime, now the opponents original respondents have proposed to hold departmental examination for promotion as contemplated under Rule 2 (C) of the Recruitment Rules. He has also further submitted that if the examination is held and if ultimately the applicants original petitioners succeed, their respective Special Civil Applications will become infructuous. He has also further submitted that if ultimately the main Special Civil Applications preferred by the applicants are allowed and it is held that the case of the respective applicants are required to be considered, in that case either fresh examinations are required to be held and/or the examination which is scheduled to be held on 11/6/2006 are required to be quashed and set aside. It is also further submitted by Mr. Upadhyay, learned advocate appearing on behalf of the respective applicants that it will not be proper for the applicants to pray interim relief restraining the respondents from holding examination on 11/6/2006. It is also further submitted by Mr. Upadhyay, learned advocate appearing on behalf of the respective applicants that it will not be proper for the applicants to pray interim relief restraining the respondents from holding examination on 11/6/2006. However, the interest of the applicants can be protected if the applicants are permitted to appear in the said examination without prejudice to the rights and contentions of either parties and subject to the ultimate outcome of the main Special Civil Applications and/or all further orders and their results can be kept in a sealed cover and they will not claim may equity subsequently on the ground that they are permitted to appear in the examination and that they will also not file any applications and/or pray in future till the main Special Civil Applications are heard, that sealed cover be opened. Mr. Upadhyay, learned advocate appearing on behalf of the respective applicants has relied upon the interim order passed by the learned Single Judge of this Court (Coram : A. L. Dave, J) in Special Civil Application No. 14349 of 2003 and other allied matters dated 11/3/2004. He has further submitted that the aforesaid order dated 11/3/2004 is passed after considering the order passed by the Division Bench of this Court in Letters Patent Appeal No. 866 of 1998 in Special Civil Application No. 3509/1998. The applicants are opposed by Mr. Dipen Desai, learned A. G. P. appearing on behalf of the opponents original respondents. He has further submitted that so far as the cases contemplated under Rule 2 (C) of the Recruitment Rules is concerned, it is with regard to the promotion and for promoting a person, experience is required and therefore, experience of 5 years as Head Constable or Assistant Sub- Inspector is provided, which is neither illegal nor arbitrary in any manner. It is also further submitted that as on toady Rule 2 (C) of the Recruitment Rules which is challenged by the respective applicants in the main Special Civil Application is in operation and the main Special Civil Application s are yet to be heard even for admission. He has also further submitted that unless and until the said Rule 2 (C) of the Recruitment Rules is set aside, any order permitting the applicants herein original petitioners to appear in the ensuing examination will be contrary to Rule 2 (C) of the Recruitment Rules. He has also further submitted that unless and until the said Rule 2 (C) of the Recruitment Rules is set aside, any order permitting the applicants herein original petitioners to appear in the ensuing examination will be contrary to Rule 2 (C) of the Recruitment Rules. Submitting accordingly, he has requested to dismiss the applications. Heard the learned advocates appearing on behalf of the respective parties and considered the material produced on record. Having heard the learned advocates and considering the material on record, it is not in dispute that the respective applicants - original petitioners have challenged Rule 2 (C) of the Recruitment Rules in so far as it prescribes minimum 5 years experience as Head Constable by way of preferring the aforesaid Special Civil Applications wherein notices have been issued by this Court and (Coram : D. H. Waghela, J) and the said Special Civil Applications are now adjourned to 23/6/2006. In the meantime, the opponents original respondents have now proposed to hold departmental examination for considering promotion as contemplated under Rule 2 (C) of the Recruitment Rules on 11/6/2006 and if ultimately the applicants original petitioners succeed in their respective Special Civil Applications, their cases will have to be considered and the respondent authority either will have to take afresh departmental examination or examination which is scheduled to be held on 11/6/2006 might be required to be set aside. If the fresh examinations/additional examination is taken, then it can be said that the applicants herein original petitioners will not be given treatment which will be given to those candidates who have appeared in the examination scheduled to be held on 11/6/2006, as for them other question paper will be there. Under the circumstances and to avoid any further complication and/or multiplicity of proceedings and with a view to see that the main Special Civil Applications preferred by the respective applicants original petitioners may not become infructuous, if the applicants are permitted to appear in the examination which is scheduled to be held on 11/6/2006 without prejudice to the rights and contentions of both the sides and without creating equity in favour of the applicants original petitioners and their results are kept in a sealed cover and on conditions which are suggested by the learned advocate appearing on behalf of the respective applicants, the ends of justice would be met. Therefore, by way of interim order, during the pendency and final disposal of the aforesaid Special Civil Applications preferred by the respective applicants original petitioners, the opponents original respondents are directed to allow the respective applicants herein original petitioners to appear in the ensuing departmental examination which is to be beheld on 11/6/2006 without prejudice to the rights and contentions of both the sides and subject to the ultimate outcome of the aforesaid main Special Civil Applications. As agreed by the learned advocate appearing on behalf of the respective applicants, the applicants original petitioners will not claim any equity in their favour by allowing them to appear in the ensuing departmental examination. The respondents are further directed that the result of the applicants original petitioners will be kept in a separate sealed cover so that the same may be considered at the time of hearing of the aforesaid main Special Civil Applications preferred by the applicants herein. If is also agreed by the learned advocate appearing on behalf of the applicants original petitioners that till the main Special Civil Applications are finally heard, they will not pray/submit before the Court for opening of the sealed cover and to consider their case accordingly. It is also made clear that this interim order is passed subject to the ultimate outcome of the aforesaid main Special Civil Applications preferred by the applicants herein original petitioners, the hearing of which is kept on 23/6/2006. ( 4 ) THE opponents have filed Affidavit-in-Reply against the present civil applications. The affidavit-in-reply is filed by one Mr. V. K. Gupta, Additional Director General of Police (Admn), Gujarat State, Gandhinagar, wherein para 4 and 5 quoted as under :" (4) I respectfully say that as per the direction of this Honourable Court (Coram: Hon ble Mr. Justice M. R. Shah), total 24 candidates were allowed to appear in the written examination held on 11/6/2006. For ready reference, the relevant extract of the said order is reproduced hereunder:". . . . Justice M. R. Shah), total 24 candidates were allowed to appear in the written examination held on 11/6/2006. For ready reference, the relevant extract of the said order is reproduced hereunder:". . . . If the applicants are permitted to appear in the examination which is scheduled to be held on 11/6/2006 without prejudice to the rights and contentions of both the sides without creating equity and in favour of the applicants original petitioners and their results are kept in a sealed cover and on conditions which are suggested by the learned advocate appearing on behalf of the respective applicants, the ends of justice would be met. . . . ". . . . As agreed by the learned advocate appearing on behalf of the respective applicants, the applicants original petitioners will not claim any equity in their favour by allowing them to appear in the ensuing departmental examination. The respondents are further directed that the results of the applicants original petitioners will be kept in a separate sealed cover so that the same may be considered at the time of hearing of the aforesaid main Special Civil Applications preferred by the applicants herein. It is also agreed by the learned advocate appearing on behalf of the applicants original petitioners that till the main Special Civil Applications are finally heard, they will not pray/submit before the court for opening of the sealed cover and to consider their case accordingly. . . further respectfully say that the departmental promotion of ASI to Police Sub-Inspector is based on written examination. It is only after the candidate clears the written examination that he is permitted to appear in the physical fitness test and thereafter in the viva-voca. I further respectfully say that the first stage of written examination was conducted on 11/6/2006 when total 1063 candidates from all over the State, including the present applicant, appeared in the said examination. I further respectfully say that as per the aforesaid directions of this Hon ble Court and agreed to by the learned advocate of the applicant, the result of the written test of 24 applicants original petitioners in various petitions is kept in sealed cover. ( 5 ) LEARNED advocate, Mr. Paresh Upadhyay, requested for time to file rejoinder on the ground that there is factual error in the reply filed by opponents. ( 5 ) LEARNED advocate, Mr. Paresh Upadhyay, requested for time to file rejoinder on the ground that there is factual error in the reply filed by opponents. Looking to the reply, there is no factual averments which are considered to be incorrect, but almost all the facts are undisputed between the parties narrated as by the opponents. Learned advocate, Mr. Upadhyay, is not able to point out any factual error in reply which require filing of rejoinder from the applicants. The main Special Civil Application filed by present applicants, challenging the validity of Rule 2 (c) of the Police Sub Inspector (unarmed ) Branch, Class III Recruitment Rules. The petition is admitted and pending for final hearing. According to the Recruitment Rules as it is, the applicants are not eligible to appear in the examination. The applicants have no legal right to appear in any examination which has been taken by opponents unless main petition is decided in favour of the applicants. At the time of issuing rule in this group of petitions, no interim relief granted by this Court. However, once indulgence has been shown by this Court (Coram: M. R. Shah,j) in order dated 9/6/2006 as referred above. The result of written examination are in sealed cover and not to open till main Special Civil Application finally decided by this Court. The applicants are not qualified or eligible for promotion under the Recruitment Rules. The eligibility is to be decided by this Court at the time of final hearing. So long result of written examination is not opened or published, it may not clear whether applicants have passed an examination or not. In such cloud situation, to allow the applicants in further examination / test is not proper, reasonable and possible, otherwise equity will be created in favour of applicants without any justification. The efforts which have been made by applicants to allow them to appear in next examination / test which ultimately intention of applicants are to reach upto the stage of final selection. The idea of applicants are to overreach the judicial process. Such efforts cannot be encouraged by this Court by granting interim relief in favour of applicants. The applicants are not having prima facie case. Merely issuing rule cannot ipso facto suggest prima facie case. The idea of applicants are to overreach the judicial process. Such efforts cannot be encouraged by this Court by granting interim relief in favour of applicants. The applicants are not having prima facie case. Merely issuing rule cannot ipso facto suggest prima facie case. Normally in case where vires of statutory rules are under challenge, the Court is issuing rule which require final hearing but, that does not mean that applicants having prima facie case. When rule has been issued by this Court which suggest detailed hearing is required and not to decide the matter in challenge of vires of statutory rules on admission stage. The applicants were appeared in written examination and result which is not declared. In such circumstances, there is no meaning in allowing the applicants in next examination. According to interim order dated 9. 6. 2006, result of written examination is to be opened at the time of final hearing, therefore, at this juncture, the prayer made in the applications cannot be granted. Before the earlier Bench of this Court, specific statement was made by learned advocate, Mr. Upadhyay, that they will also not filed any application and made prayer in future. On that submission, earlier Bench has granted interim relief in favour of applicants to allow to appear in written examination. The applicants have no legal right to appear in next examination. The intention of the applicants is to reach by way of such installment order upto the process of selection. If petitions filed by applicants are rejected, then, there is no meaning to allow the applicants to appear in next examination. Therefore, balance of convenience is not in favour of applicants. There is no irreparable injury caused to the applicants if interim relief prayed in the present applications is not granted. If petitions are allowed, then, opponents can arrange for necessary examination for the present applicants. But in case when petitions are dismissed, then there is no meaning for such examination for the applicants. Therefore, balance of convenience is not in favour of applicants. Therefore, if interim relief is not granted it will not cause any irreparable injury / loss caused to the applicants. The stand taken by opponents being a reasonable stand relying upon interim order dated 9. 6. 2006 referred in Para. Therefore, balance of convenience is not in favour of applicants. Therefore, if interim relief is not granted it will not cause any irreparable injury / loss caused to the applicants. The stand taken by opponents being a reasonable stand relying upon interim order dated 9. 6. 2006 referred in Para. 4 wherein it was observed that applicants will not pray / submit any application for opening sealed cover and to consider their case accordingly till main SCA is finally heard. ( 6 ) LEARNED Advocate General, Mr. Trivedi, submitted that in earlier Civil Application, it was agreed by the learned advocate, Mr. Upadhyay, while making submission before this Court that it will not be proper for the applicants to pray for interim relief restraining the respondent for the earlier examination on 11/6/2006. Learned Advocate General also pointed out that it was made clear before the earlier Bench by present applicants that they will not be prayed for any equity about their result subsequently on the ground that they are permitted to appear in the examination and they will also not file any application or made prayer in future without hearing of main SCA. Learned Advocate General, Mr. Trivedi, also submitted that final test has been started today on 11. 10. 2006 and that in written examination, they are allowed to appear by this Court but, their results are in sealed cover. When sealed cover will be opened, whether they are declared pass or fail are not certain, therefore, applicants should not be allowed to appear in second test because their appearance in second test based on result of written examination. Therefore, learned Advocate General Mr. Trivedi opposed the prayer made by the applicants. He also submitted that if ultimately they are declared pass in written examination, the opponents will take separate test for the applicants within some reasonable time. ( 7 ) RECENTLY the Apex Court has examined the question of granting interim relief in such cases where petitioners proved prima facie case and also established balance of convenience and not granting interim relief amounts to irreparable loss caused to the petitioners in case of M. Gurudas and Ors. v. Rasaranjan and others, reported in 2006 (7) Supreme 289 . The relevant observations are in Para. 22 which are quoted as under :"22. v. Rasaranjan and others, reported in 2006 (7) Supreme 289 . The relevant observations are in Para. 22 which are quoted as under :"22. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue. (See : Dorab Cawasji Warder v. Coomi Sorab Warden and others, (1990) 2 SCC 117 , Dalpat Kumar and another v. Prahlad Singh and Others, (1992) 1 SCC 719 , United Commercial Bank v. Bank of India and others, (1981) 2 SCC 766 , Gujarat Bottling Co. Ltd. And others v. Coca Cola Co. and others (1995) 5 SCC 545 , Bina Murlidhar Hemdev and others v. Kanhaiyalal Kokram Hemdev and others (1999) 5 SCC 222 and Transmission Corpn of AP Ltd. (supra ). " ( 8 ) IN view of the aforesaid observations made by the Apex Court and considering the facts of this case, the applicants are not proved prima facie case before this Court for appearing in second test. The contention of the applicants are not bona fide. The question sought to be tried is not serious question and it is merely a triable issue where the vires is under challenge. ( 9 ) CONSIDERING the recruitment rules as it is, the applicants are not entitled to appear in examination. The applicants are not eligible for promotion, therefore, vires of statutory rules are under challenge. If applicants ultimately succeeds, then, their case will be considered by this Court while issuing necessary direction to the opponents. The opponents can arrange for separate test for such applicants within some reasonable time but, in case if petitions are dismissed, the whole exercise will become meaningless. Therefore, balance of convenience is not in favour of applicants and if interim relief is not granted as prayed for in the applications, it will not cause irreparable loss to the applicants. The opponents can arrange for separate test for such applicants within some reasonable time but, in case if petitions are dismissed, the whole exercise will become meaningless. Therefore, balance of convenience is not in favour of applicants and if interim relief is not granted as prayed for in the applications, it will not cause irreparable loss to the applicants. Therefore, according to my opinion, applicants are not entitled to appear in second test unless and until the result of written examination is opened by this Court. The applicants want interim order by way of second installment which ultimately reach to process of selection. Such efforts cannot be encouraged by this Court, otherwise it amounts to misuse and abuse of the judicial process only on the ground that petition is pending for final hearing. When this Court, at the time of final hearing, is competent to pass appropriate orders safeguarding the interest of the applicants, then, such interim order in an installment manner, should not have to be passed by this Court, otherwise it amounts to misuse of process of law. Therefore, there is no substance in the present applications. Hence, present applications stand rejected.