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Gujarat High Court · body

2015 DIGILAW 411 (GUJ)

Jayesh Ramlal Brahmbhatt v. State of Gujarat

2015-04-09

R.P.DHOLARIA, V.M.SAHAI

body2015
Judgment R.P. Dholaria, J. 1. The present writ petition in the nature of Public Interest Litigation has been filed by the present petitioner ventilating the grievance that while undertaking the recruitment process by respondent No. 2-Gujarat Public Service Commission ("the Commission" for short) previously floated advertisement No. 25 of 2013-14 for recruitment of 30 vacancies of Chief Officer (Municipality), Class-III by holding selection process in two stages i.e. by holding preliminary written examination and thereafter main written examination. It was also further made it clear in the advertisement itself that those candidates who will be appearing in the preliminary written examination, the result or marks obtained in the preliminary written examination shall not be counted for the final selection. Precisely, intention was clear from the beginning on the part of the Commission for holding the preliminary written examination for short listing the candidates and those who are qualifying in the preliminary written examination shall only be entitled for appearing in the main written examination. It was also made clear that the result of the main written examination shall be considered for selection. The petitioner has contended that in spite of the aforesaid advertisement which was very lengthy and all the details were provided but suddenly the Commission scrapped the main written examination and new third stage of viva-voce is made the sole basis of selection for the post by scrapping the main written examination. The said procedure is introduced in the midst of selection procedure after declaration of result of the preliminary written examination. Therefore, the petitioner has contended that in the midst of the recruitment process, the Commission has adopted the aforesaid procedure which is not in the original advertisement and is clearly in violation of Arts. 14, 16 and 21 of the Constitution of India. It is not permissible under the provisions of law or rules to deviate from the procedure once laid down in the advertisement and in the midst of selection process, the Commission changed the stage of procedure for selection. 2. In order to substantiate the aforesaid contention, the petitioner has also produced on record the new advertisement changing the aforesaid procedure for recruitment by the Commission at Annexure-A to the petition which has been published in the daily newspapers Sandesh and Gujarat Samachar on 28-10-2014 which reads as under: "The advertisement for Chief Officer (Municipality) Class-III was given on 2-8-2013. In order to substantiate the aforesaid contention, the petitioner has also produced on record the new advertisement changing the aforesaid procedure for recruitment by the Commission at Annexure-A to the petition which has been published in the daily newspapers Sandesh and Gujarat Samachar on 28-10-2014 which reads as under: "The advertisement for Chief Officer (Municipality) Class-III was given on 2-8-2013. The advertisement number is 25 of 2013-14. The same was in two phases, (i) Preliminary Examination and (ii) Main Examination. It was declared that those candidates who are declared successful in the preliminary examination were required to appear in the main examination. In this regard, preliminary examination was held on 19-1-2014 and the provisional list was published on 20-6-2014. In the appointment of these posts, the procedure under the Recruitment Rules is only by way of oral interview. Considering the same, now there is no necessity to hold the main examination. Kindly take note of this. In view of this, the Public Service Commission has published the result on 20-6-2014 and the eligible successful candidates whose names were declared and would have been otherwise eligible to appear in the main examination. Processing the application of the successful candidates, four candidates are found to be ineligible. Therefore, now 109 candidates remain. They are required to be called for the personal interview. Their names are to be published by the Public Service Commission on the website. The same is now published on 21-10-2014. The eligible candidates for oral interview will be informed accordingly and detailed programme will be intimated to them." 3. Ultimately, the petitioner has prayed to issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the impugned advertisement dated 28-10-2014 published in Sandesh and Gujarat Samachar daily newspapers which is at Annexure-A to the petition. The petitioner has also prayed to quash and set aside the result of the preliminary written examination declared by respondent No. 2. 4. We have heard Mr. Mahesh Bhavsar, learned Counsel for the petitioner, Mr. P.K. Jani, learned Additional Advocate General assisted by Mr. Vandan Baxi, learned A.G.P. for respondent Nos. 1 and 3 and Mr. D.G. Shukla, learned Counsel for respondent No. 2. 5. 4. We have heard Mr. Mahesh Bhavsar, learned Counsel for the petitioner, Mr. P.K. Jani, learned Additional Advocate General assisted by Mr. Vandan Baxi, learned A.G.P. for respondent Nos. 1 and 3 and Mr. D.G. Shukla, learned Counsel for respondent No. 2. 5. To appreciate the controversy, we deem it necessary to extract Rule 3 of the Gujarat State Municipality Chief Officer Service Recruitment and Absorption and Conditions of Service Rules, 1996 ("the Rules" for short) which reads as under: "(3) Recruitment to all posts in Grade III of the Service shall be made by direct selection." 6. It is not disputed that the present selection is held by direct recruitment and not by promotion. Rule 3 of the Rules provides that recruitment to all Class-III group posts shall be made by direct selection. No particular procedure is prescribed for holding the direct selection. Therefore, it was always open for the Commission to hold the selection by holding preliminary written examination, main written examination and viva voce test or holding the preliminary written examination and main written examination or to hold preliminary written examination and viva-voce test only. Whatever method, the Commission decides to be best was permitted to be adopted by the Rules as the Rules of the Commission would be applicable for holding such selection. 7. The Commission in its wisdom for recruitment to the post of Chief Officer (Municipality) Class-III decided to conduct the preliminary written examination and main written examination. The purpose of preliminary written examination was to short list the candidates so that only meritorious candidates may appear in the main written examination. The viva-voce test was not provided by the Commission for these posts as based on the main written examination, the selection could have been made by the Commission strictly in accordance with the merit list prepared by the Commission and eliminating discrimination or bias which may have taken place in case where mere are viva-voce tests. We are hastened to add that we do not mean to say that wherever viva-voce test is taken, element of discrimination or bias is there, but in all fairness, the Commission decided to hold only two examinations viz., preliminary written examination and main written examination. In pursuance of the advertisement, large number of candidates applied i.e. 84937 candidates applied. We are hastened to add that we do not mean to say that wherever viva-voce test is taken, element of discrimination or bias is there, but in all fairness, the Commission decided to hold only two examinations viz., preliminary written examination and main written examination. In pursuance of the advertisement, large number of candidates applied i.e. 84937 candidates applied. Out of which actually only 27897 candidates appeared in the preliminary written examination and the result of the preliminary written examination was declared on 20-6-2014 and only 113 candidates could clear the preliminary written examination and these 113 candidates were to appear in the main written examination. Before the result of preliminary written examination could be declared, the Chairman of the Commission retired and new Chairman joined the Commission on 5-6-2014 and after declaration of the result of the preliminary written examination, the Secretary of the Commission had retired and new Secretary took over the charge on 9-7-2014. Some members of the Commission also retired and new members stepped in, in the Commission. 8. After declaration of the result of the preliminary written examination, a meeting of the Commission was held on 30-7-2014 wherein modalities for holding the main written examination was decided and it was resolved to take two question papers i.e. one comprising of Gujarati and other comprising of English assigning 100 marks to each subject. The Commission also resolved to add one more paper regarding suitability, personality and reasoning of the candidates appearing in the main written examination. It was also resolved to hold the main written examination for 300 marks consisting of Gujarati, English and Reasoning Abilities. 9. Learned Counsel appearing for the Commission could not produce any record on the basis of which the meetings of the Joint Secretaries/Deputy Secretaries were held on 6-8-2014 for seeking opinion as regards to make deviation from initial advertisement No. 25 of 2013-2014. We have also looked into the record with the help of Mr. P.K. Jani, learned Additional Advocate General and Mr. D.G. Shukla, learned Counsel for the Commission, but we could not find any resolution or the meeting of the Commission on the basis of which, the report was called from the Joint Secretary dated 6-8-2014. 10. We have also looked into the record with the help of Mr. P.K. Jani, learned Additional Advocate General and Mr. D.G. Shukla, learned Counsel for the Commission, but we could not find any resolution or the meeting of the Commission on the basis of which, the report was called from the Joint Secretary dated 6-8-2014. 10. Though, the Commission floated the second advertisement scrapping the main written examination and introduced viva-voce test as a mode of selection on the basis of note put up by the Joint Secretary on which the opinion of learned Counsel for the Commission was taken and the procedure of selection were changed, while the procedure for recruitment process was going on and preliminary written examination has already been held. 11. We have perused the first advertisement as well as the second advertisement dated 28-10-2014. We have also perused the Rules of 1996, more particularly, Rule 3 wherein only mode of selection prescribed is by way of direct selection and no detailed procedure is provided under the rules as regards as to how direct recruitment or direct selection shall be carried out by the selection body i.e. Commission. 12. In absence of any details as regard to direct selection, initially, respondent No. 2-Commission thought it proper to make selection procedure by conducting examinations in two stages i.e. preliminary written examination for short-listing of the candidates and the main written examination for preparing the select list for recommending selection for appointment on the post of Chief Officer (Municipality) Class-III on the basis of the merit list. Thereafter, second advertisement was floated. In our view, the second advertisement is clearly in violation of any Rules so far prescribing mode of selection by holding only viva-voce test of the candidates. The second advertisement says that the rules provide for holding direct selection by viva-voce test only. This is wrong. The Rules do not provide for selection process by way of viva-voce test, but the Rules only provide for direct selection. Either the State Government has to satisfy the Commission and in absence of any specification by the State Government, the Commission may in its wisdom decide as to what procedure they will apply for conducting direct recruitment for making appointment on the post of Chief Officer (Municipality) Class-Ill. Either the State Government has to satisfy the Commission and in absence of any specification by the State Government, the Commission may in its wisdom decide as to what procedure they will apply for conducting direct recruitment for making appointment on the post of Chief Officer (Municipality) Class-Ill. Since, the State Government has not prescribed any method by which direct selection was to be made, therefore, in our opinion, it is open to the Commission to make direct selection either on the basis of the preliminary written examination, main written examination and viva-voce test, or preliminary written examination for short listing the candidates and the main written examination without there being any viva-voce test or by holding the preliminary written examination and viva-voce test. It appears that the Commission in its wisdom, to avoid any controversy with regard to marks awarded in the viva-voce test or in the selection process decided to hold the examination by adopting the method of preliminary written examination and main written examination to ensure fairness to all the candidates. In the preliminary written examination, 113 candidates qualified. The Section Officer put up note that 180 candidates has to be called for the purpose of holding viva-voce test. It appears that somebody might have been left out and not cleared the examination, and therefore, this procedure was adopted for increasing number of candidates to qualify the main written examination. We do not wish to say anything further. Once, the mode of holding recruitment was decided by the Commission, it was not open to the Commission to change or deviate from the Recruitment Rules under which they were holding the examination. Similar view has been taken by the Supreme Court in 2014 (5) SCC 774 , Bishnu Biswas v. Union of India. Therefore, we are of the considered opinion that the second advertisement issued by the Commission scrapping the main written examination and calling only those candidates who have qualified in the preliminary written examination for appearing in the viva-voce test only was totally illegal and cannot be maintained. 13. In the result, this writ petition succeeds and is allowed. Therefore, we are of the considered opinion that the second advertisement issued by the Commission scrapping the main written examination and calling only those candidates who have qualified in the preliminary written examination for appearing in the viva-voce test only was totally illegal and cannot be maintained. 13. In the result, this writ petition succeeds and is allowed. The second advertisement floated in Sandesh and Gujarat Samachar daily newspapers dated 28-10-2014 which is at Annexure-A to the petition is quashed and set aside as well as the decision, if any, that may have been taken on the basis of the same, is hereby quashed and set aside. Any result prepared on the basis of the second advertisement by the Commission shall stand quashed. The Commission is hereby directed to conduct the main written examination of those candidates who have qualified in the preliminary written examination within a period of three months from today and declare the result within a period of one month thereafter. The total process be completed within a period of four months from today. Subject to the aforesaid observations, the writ petition in the nature of Public Interest Litigation stands finally disposed of. The parties shall bear their own costs. Petition Allowed.