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2015 DIGILAW 886 (GUJ)

Geeta D. Chandiramani v. State of Gujarat

2015-09-08

SONIA GOKANI

body2015
JUDGMENT : Sonia Gokani, J. Rule. The formal service of notice of Rule is waived by learned Assistant Government Pleader Shri Rashesh Rindani on behalf of the respondent No.1-State and Shri Premal Joshi, learned counsel, on behalf of the respondent No.2-Gujarat Public Service Commission. The Rule is fixed forthwith upon consent of the parties. 2. The petitioner has approached this Court seeking a writ of mandamus or any other appropriate writ, being aggrieved by the action of the respondent-Gujarat Public Service Commission (hereinafter referred to as ‘the respondent-GPSC’) in not accepting the documents for oral interview from the petitioner on the ground that they were submitted belatedly by eight days. The total number of posts advertised were 554. The petitioner had applied under General category. It is her case that she submitted her on-line application on April 16, 2015 for the post of Assistant Public Prosecutor. She was called for written test by sending a Short Message Service (SMS) on her cellphone and her Seat Number was 101004875. She appeared in the written test conducted on 03rd May and 04th May, 2105 and she was succeeded. She is a practicing advocate at City Civil and Sessions Court at Ahmedabad and she was a ranker all throughout in her studies. It is her say that on July 09, 2015, she came to know that though she cleared the written test and needed to submit her testimonials to the respondent-GPSC on or before July 01, 2015. She could do it so only on July 10, 2015. However, by way of communication dated July 22, 2015 addressed by the Section Officer of the respondent-GPSC, she was communicated that the same is not accepted as the scheduled time limit was over. It was intimated to her that the last date of submission of testimonials was July 01, 2015 and there was a delay of nine days in submitting those documents. 3. It is the say of the petitioner that she was, in no manner, communicated personally by the respondent-GPSC and, therefore, she missed out the opportunity of being appointed on the said post though she was having good merit. 4. An affidavit-in-reply is filed by the Deputy Secretary of the respondent-GPSC, wherein he has not disputed that the petitioner had applied online for the post of Assistant Public Prosecutor. 4. An affidavit-in-reply is filed by the Deputy Secretary of the respondent-GPSC, wherein he has not disputed that the petitioner had applied online for the post of Assistant Public Prosecutor. It is also their say that the application and the challan are to be sent with enclosures to the respondent-GPSC through speed post or to be handed over personally in the office of the respondent-GPSC. The petitioner was qualified in the written test and the provisional list also has been prepared. She was required to appear for personal interview and the result of the written test was published on June 04, 2015, but the said list was published on the website of the respondent-GPSC and at the same time, on the notice published by the respondent-GPSC, as per condition No.3, the candidates whose roll numbers appeared in the provisional list were instructed to forward their application along with enclosures to the office of the respondent-GPSC on or before June 15, 2015. Meanwhile, the respondent-GPSC released an advertisement on June 09, 2015 in four daily newspapers viz. 'Gujarat Samachar', 'Sandesh', 'Divya Bhaskar' (Ahmedabad Edition) and 'Divya Bhaskar' (Surat, Vadodara and Rajkot Edition), so also in 'Gujarat Mitra' (Kachchh-Bhuj Edition) for extending the time limit for submitting the application along with the prescribed enclosures between June 22, 2015 to July 01, 2015. According to the respondent-GPSC, out of 1517 successful candidates, total 1416 applications with enclosures have been received. About 101 candidates did not submit their applications along with enclosures. 5. The rejoinder affidavit also has been filed where the petitioner has contended once again that the respondent-GPSC had sent an SMS on April 19, 2015 at 13-00 hours, which had specified the advertisement number and other details calling the petitioner for written examination. There was no information from the respondent-GPSC through an SMS or through any letter about her clearing the written test. It is also her say that when she contacted the respondent-GPSC, their office instructed that the message was sent through 'whatsapp' cellphone application. It is the say of the petitioner that she does not have a 'smart cellphone' and in absence of any SMS or personal notice, the rejection has come. She has no knowledge of any advertisement published in any of the newspapers as she does not subscribe for any newspaper. It is also her say that the process of interview has not commenced till date. 6. She has no knowledge of any advertisement published in any of the newspapers as she does not subscribe for any newspaper. It is also her say that the process of interview has not commenced till date. 6. The petitioner, a party-in-person, is permitted to address the Court being advocate practicing in the City Civil and Sessions Court at Ahmedabad. She has alleged fervently that non-issuance of the notice personally has seriously prejudiced her right. She has further alleged that if the respondent-GPSC could send an SMS at the earlier point of time before the written examination was conducted, there could not have been any hitch for the respondent-GPSC in sending such SMS after the petitioner cleared the written examination. Mere advertisement in the newspapers may not suffice the purpose, especially when the petitioner was not subscribing to any newspaper; and as she had no clue of the outer limit, she had submitted the application late by nine days and it may not prejudice her right, which she has earned after succeeding in the written examination. 7. A contrario sensu, Shri Premal Joshi, learned counsel appearing for the respondent-GPSC, has urged that the public advertisement in the newspaper should be construed as sufficient notice to the candidate. It is urged that if out of total 1517 candidates, 1416 candidates have submitted their applications with enclosures, it should be presumed that such notice is sufficient to put the candidate to notice. It is submitted by Shri Joshi that so far the process of interview has not been initiated and it is only at the stage of scrutinising the testimonials. He has further urged that if this Court is of the view that additional mode is to be adopted by the respondent-GPSC, the same can be done from the next advertisement, however, in the present case, the selection process that has been done by the respondent-GPSC may be considered and construed to be sufficient. 8. Shri Rashesh Rindani, learned Assistant Government Pleader, appearing for the respondent-State, has contended that when in all the recruitment processes, the public advertisements are being issued in the newspaper, it may be held sufficient. It is not to defeat anyone's right that such mode is adopted, but it is on account of the practice that is time-proven that the respondent-GPSC has followed it. 9. It is not to defeat anyone's right that such mode is adopted, but it is on account of the practice that is time-proven that the respondent-GPSC has followed it. 9. This Court has taken assistance of the learned counsel Shri K.B. Pujara and the learned counsel Shri A.S. Supehia, who have assisted the Court by urging that the recruitment bodies have far greater responsibility, if the meritorious candidates are left out and cannot participate only on account of non-service of individual notice. It should be viewed very seriously. The approach of the recruiting authority should not be such whereby they would not have any obligation towards those candidates appearing in the examination. 10. The learned counsel Shri K.B. Pujara has urged that this Court in the case of Pragnaben M. Patel v. District Primary Education Officer and another, reported in 2003 (2) GLH 617, had specifically held that the individual notice to the candidate by registered post A.D. is a must. According to him, in the time of advancement of technology, it is feasible for the authority to adopt more than one means to intimate the candidates and in such circumstances, publication of advertisement through newspapers alone may not suffice the purpose. According to the learned counsel Shri Supehia, a candidate would have legitimate expectation once he/she succeeds in the examination. At that stage, not to serve such candidate individual notice and to bank upon the public advertisement may not sufficiently serve the purpose. He has also urged that the future of many bright candidates may take a toll if such arbitrary approach is permitted by the Court. 11. Having considered the submissions of both the sides and having also considered the material on record, this Court is of the opinion that the action of the respondents of rejecting the application of the petitioner along with enclosures and testimonials deserves interference. 12. It is an undisputed fact that the petitioner has succeeded in the written examination conducted by the respondent-GPSC. The result of such examination was published on June 04, 2015. The time was given for submitting the testimonials by the respondent-GPSC upto June 15, 2015. However, subsequently the advertisement came to be released on June 09, 2015 in the daily newspapers, which have wide circulation. Such period came to be extended from June 21, 2015 to July 01, 2015. 13. The petitioner applied with enclosures on July 10, 2015. The time was given for submitting the testimonials by the respondent-GPSC upto June 15, 2015. However, subsequently the advertisement came to be released on June 09, 2015 in the daily newspapers, which have wide circulation. Such period came to be extended from June 21, 2015 to July 01, 2015. 13. The petitioner applied with enclosures on July 10, 2015. Her application was rejected on the ground of delay. In the opinion of this Court, the action of the respondents of non intimating the petitioner personally at the second stage of the recruitment process, which was crucial, surely deserves interference. The respondent-GPSC, of course, has given a publicity to the extended date from June 22, 2015 to July 01, 2015. Initial intimation to the successful candidates was on-line for submitting the testimonials upto June 15, 2015. However, no document to substantiate such argument in the affidavit-in-reply comes forth. It appears that subsequently on June 09, 2015, when the respondent-GPSC chose to extend such date upto June 15, 2015, that it had chosen to give wider publicity by publishing it in different newspapers, which is though effective mode of wider publication, but it cannot be expected that by such release of information in the newspapers, the successful candidates would be subscribing to such newspapers and also looking for such newspaper items in absence of any such specific intimation at any point of time. She applied 10 days belatedly and her claim is rejected solely on the ground of delay. 101 such candidates have not submitted their testimonials. Many of them may have suffered due to this very reason although in their absence, exact data are absent. Again, it is never in the interest of the candidates who have succeeded in the screening test to either delay the submission of testimonials or to forgo their rights on account of their absence of knowledge. No candidate would act derogatory to his own interest. However, to expect every successful candidate to continue to subscribe the newspapers without there being any description of newspaper in the initial advertisement itself or in absence of any structured mechanism, the say of the learned counsel Shri Premal Joshi appearing for the respondent-GPSC hardly requires sustenance. 14. No candidate would act derogatory to his own interest. However, to expect every successful candidate to continue to subscribe the newspapers without there being any description of newspaper in the initial advertisement itself or in absence of any structured mechanism, the say of the learned counsel Shri Premal Joshi appearing for the respondent-GPSC hardly requires sustenance. 14. In the present time, when the technology has advanced and when the respondent-GPSC itself before the written examination had intimated the candidate through an SMS the details of her number as well as the schedule of examination, there was nothing to prevent the respondent-GPSC to so do it in the case of successful candidates. It was obligatory on the part of the recruiting agency to ensure that all those who are successful should be intimated in a foolproof manner. The decision of this Court in the case of Pragnaben M. Patel (supra) insisted that the service of intimation not only through simple post, but by Registered Post A.D. It could be also noticed that though on-line application is to be filled in for the post advertised, the respondent-GPSC itself insisted that all the enclosures be sent either by Registered Post A.D. or Speed Post, or personally. In any case, if the technology could have been put to the use when the number of candidates was majuscule, it could have surely come to the rescue of the respondent-GPSC, but the number of successful candidates was reduced to only 1517. It is, therefore, necessary to intervene. 15. For the foregoing reasons, the present petition succeeds and the same is, accordingly, allowed. The impugned decision of the respondent-authority dated July 22, 2015 in not accepting the application made by the petitioner dated July 10, 2015, is quashed and set aside. So as to ensure that such complaints do not recur in future recruitment process, the respondents are further directed to take assistance of the advanced mode of technology in serving personally to the candidates either through an SMS on cellphone, the details of which are provided in the application form or an E-mail on the E-mail I.D. of the candidate, over and above the publication through newspapers as well as on the official website of the respondent-GPSC. It would be also desirable to standardise the format and the process further so as to strengthen the system which can be fall back upon the candidates. It would be also desirable to standardise the format and the process further so as to strengthen the system which can be fall back upon the candidates. It is also expected that the similar treatment be accorded to other similarly situated candidates whose applications have been rejected on the same count by the respondent-GPSC. The petitioner is directed to submit her testimonials within a week from the date of receipt of a copy of this order. The same shall be considered in accordance with the prevalent rules. Rule is made absolute accordingly. The petition stands disposed of. Before parting with the order, this Court places on record the appreciation for the services rendered by the learned counsel Shri K.B. Pujara and Shri A.S. Supehia in the matter. Petition allowed.