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2016 DIGILAW 1180 (GUJ)

Thorat Nayan Hemchandra v. State Of Gujarat

2016-06-24

R.SUBHASH REDDY, VIPUL M.PANCHOLI

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JUDGMENT : R. Subhash Reddy, J. Original petitioner in Special Civil Application No. 3532 of 2013 has filed this Letters Patent Appeal under Clause-15 of the Letters Patent, aggrieved by the C.A.V. judgment of the learned single Judge dated 5th November, 2015 passed in the said petition. 2. The aforesaid Special Civil Application is filed under Article 226 of the Constitution of India, praying for the following reliefs: "(a) to admit this petition and to issue Notice for final disposal on returnable date; (b) to quash and set aside the impugned action of the respondent no.3 in wrongfully placing the name of the respondent no.4 herein in the selection list dated 15.3.2013 as per Annexure-F for the post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department) and in placing the present petitioner in the waiting list, though the respondent no.4 is not possessing the requisite experience as per the Advertisement dated 17.10.2011 at Annexure-A; (c) to direct the respondents and particularly the respondent no.3 to exclude the name of the respondent no.4 from the selection list and to place the present petitioner in the selection list for the post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department) pursuant to the Advertisement dated 17.10.2011 at Annexure-A, and to give appointment to the petitioner on that basis; (d) Pending the hearing and final disposal of this petition, be pleased to stay the operation of the impugned selection list for the post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department) published by the respondent no.3 - GPSC on 15.3.2013 as per Annexure-F; (e) Pending the hearing and final disposal of this petition, be pleased to restrain the respondent nos. 1 and 2 from giving appointment to respondent no.4 on the post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department) pursuant to advertisement dated 17.10.2011 as per Annexure-A; (f) Pending the hearing and final disposal of this petition, be pleased to direct the respondent nos. 1,2 and 3 to place on record the relevant recruitment rules for the post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department), with a copy to the petitioner; (g) to grant any other appropriate and just relief/s including the costs of this petition;" 3. The appellant who is the original petitioner has studied and passed B.P.Ed. and M.P.Ed. The appellant who is the original petitioner has studied and passed B.P.Ed. and M.P.Ed. He was originally appointed as Assistant Programme Officer in the District Sports Officer under respondent nos. 1 and 2 on 17.9.1990. Thereafter, he was promoted as District Sports Officer under respondent nos. 1 and 2 on 5.7.2004 and since then, he is working as such. 4. 3rd respondent-Gujarat Public Service Commission has issued Advertisement No. 96/2011-2012 dated 17.10.2011, inviting applications to fill up one post of Youth Board Officer, Class-I (under Youth, Service and Cultural Activities Department of the government). In pursuance to the said advertisement, the appellant applied for the said post. Recruitment to the post of Officer in State Youth Board, Class-I, is governed by the Rules framed by the Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India. The said Rules are titled as Officer in State Youth Board Recruitment Rules, 1970. As per the said Rules, Officer in State Youth Board can be appointed by way of transfer of an officer from Gujarat Educational Service Class I (Administrative Branch); or by promotion of a person of proved merit and efficiency from amongst the officers working in the Gujarat Educational Service, Class II (Administrative Branch); or by direct selection. As per Rule-3 of the said Rules, a candidate, to be eligible for appointment to the post of Officer in State Youth Board, Class I, must have three years' experience in organisation of youth and cultural activities. There are also other eligibility criteria prescribed in the aforesaid rules. As much as the dispute involved in this matter relates to the eligibility criteria of 4th respondent under Rule 3(d) of the Rules, we deem it appropriate to extract the entire Rule-3 of the Rules. "3. To be eligible for appointment to the post mentioned in rule 2, by transfer or promotion or be direct selection candidate must - (a) be not more than 35 years of age : (b) have a Bachelor's degree in Arts, Science, Commerce or Law or an equivalent examination : (c) have a degree of Diploma in Physical Education of a recognised University or Institution. (d) have about three years experience in organisation of Youth and Cultural Activities. (d) have about three years experience in organisation of Youth and Cultural Activities. Provided that the upper age limit may be relaxed in case of person already in the service of the Government of Gujarat in accordance with the provisions contained in the Gujarat Civil services Classification and Recruitment-Genera, Rules 1967. Provided further that the upper age limit may be relaxed in the case of candidate possessing exceptionally good qualifications or experience or both." 5. As per the Recruitment Rules, 3rd respondent-Gujarat Public Service Commission has adopted the procedure to fill up the post by way of direct selection. The appellant who is working as Sports Officer, has applied to the post along with necessary certificate of experience issued by the 2nd respondent and he was issued call letter dated 11.2.2013, to appear for oral interview on 2nd March, 2013. It is the case of the appellant that he has performed very well in the oral interview, however, in the result declared by the Gujarat Public Service Commission on 15.3.2013, 4th respondent has been placed in the selection list, whereas the appellant has been placed in the wait list at Sr. no. 1. 6. Mainly the selection of 4th respondent is questioned by the appellant in the Special Civil Application on the ground that though he is not fulfilling the eligibility criteria as contemplated under Rule 3(d) of the Rules, he was selected. It is pleaded that the appellant is placed in the wait list at sr. no.1, instead, he ought to have been selected in place of the 4th respondent. 7. At the first instance, when the Special Civil Application was listed for hearing, the learned single Judge had ordered to maintain status quo, by that time, the 4th respondent was not appointed pursuant to his selection. By further order dated 11th December, 2013, while issuing Rule, earlier order of status quo was ordered to be continued, thus, during the pendency of the writ-petition, the said order continued and the 4th respondent was not appointed, and further even during the pendency of this appeal, in view of the interim order passed by this Court, the 4th respondent was not appointed pursuant to his selection. Separate affidavits in reply are filed on behalf of respondent nos. 1 and 2, respondent no.3 and respondent no.4. In the affidavit in reply filed on behalf of respondent nos. Separate affidavits in reply are filed on behalf of respondent nos. 1 and 2, respondent no.3 and respondent no.4. In the affidavit in reply filed on behalf of respondent nos. 1 and 2, while denying various allegations made by the appellant in the writ-petition, it is averred that the recruiting agency, viz. Gujarat Public Service Commission had verified all the requirements of the candidate selected to the post of Youth Board Officer and after the verification, had selected the 4th respondent. Precisely they have stated that they have no role to play. At the same time, it is further pleaded that organising youth and cultural activities is to be accepted with a wider connotation since the Commission of Youth and Cultural Activities itself carries the same name and yet it organises sport activities for villages, schools, women, disabled etc. It is further stated in the affidavit in reply that when the respondent no.3-GPSC confronted with the issue of work experience parameters for Youth Board Officer, the Commissioner, Youth Services and Cultural Activities, vide letter dated 29th January, 2012 and 6.7.2012 clarified the matter and action was taken in light of such clarification. 8. On behalf of respondent no.3-Gujarat Public Service Commission, affidavit in reply is filed, inter alia stating that the appellant and the 4th respondent had applied for the post of Youth Board Officer, Class I pursuant to Advertisement No. 96/2011-2012, dated 17.10.2011 issued by respondent no.3. While denying various allegations made by the appellant in the writ-petition, it is stated in the affidavit in reply that pursuant to the said advertisement 18 candidates were called for interview who were having above said educational qualification and experience and all the said 18 candidates were possessing Degree or Diploma in Physical Education and having experience of over three years in organisation of youth and cultural activities. It is stated that 4th respondent possesses the qualification of B.A., B.P.Ed and M.P.Ed. and also experience of organisation of youth and cultural activities on and from 1.7.1992. It is stated that the 4th respondent had submitted various certificates from which it could be gathered that he has such experience. At the same time, in specific terms it is admitted that the appellant petitioner is also having requisite qualification and experience. and also experience of organisation of youth and cultural activities on and from 1.7.1992. It is stated that the 4th respondent had submitted various certificates from which it could be gathered that he has such experience. At the same time, in specific terms it is admitted that the appellant petitioner is also having requisite qualification and experience. However, it is stated that as the appellant had secured 55 marks and the 4th respondent had secured 65 marks, the 4th respondent was selected by the respondent no.3 and the appellant's name had been included in the wait list at Sr. No. 1. 9. Before the learned single Judge mainly it was the case of the appellant-petitioner that organisation of sports events by the 4th respondent who is a teacher working in a primary school cannot be equated with the eligibility criteria notified under Rule 3(d) of the Rules. It was the case of the appellant that a candidate, to be eligible for appointment to the post of Officer in State Youth Board, Class I must have three years' experience in organisation of youth and cultural activities. Learned single Judge, while referring to the plea of the State Government that the phrase "organization of youth and cultural activities" denotes experience of organising of such activities anywhere in the State, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ajeet Singh Singhvi v. State of Rajasthan [1991 Supplementary (2) SCC 343]. The learned single Judge also referred to the judgment of the Hon'ble Supreme Court in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Others (1961) 3 SCR 185, wherein the Hon'ble Supreme Court has applied the rule of harmonious construction even to subordinate legislation. While accepting such plea of the Government that 4th respondent has organised sports activities, the learned single Judge dismissed the petition filed by the appellant. 10. In this appeal, it is contended by Mr. K.B. Pujara, learned counsel appearing on behalf of the appellant that eligibility criteria clearly prescribes experience of three years in organisation of youth and cultural activities. While accepting such plea of the Government that 4th respondent has organised sports activities, the learned single Judge dismissed the petition filed by the appellant. 10. In this appeal, it is contended by Mr. K.B. Pujara, learned counsel appearing on behalf of the appellant that eligibility criteria clearly prescribes experience of three years in organisation of youth and cultural activities. It is submitted that the 4th respondent is working as teacher in primary school and has not worked in organisation of youth and cultural activities, thus, he is ineligible for selection to the post of Officer in State Youth Board, Class I. It is submitted that as the rule is very clear and unambiguous, any other interpretation will permit appointment of ineligible persons. It is contended that even from the certificates produced by the 4th respondent, it is clear that the 4th respondent has organised certain sport events for one day on behalf of the school and it cannot be equated with three years' experience in organisation of youth and cultural activities. 11. On the other hand, it is submitted by Ms. Roopal Patel, learned counsel appearing on behalf of respondent no.3 - GPSC and Mr. C.B. Upadhyaya, learned counsel appearing on behalf of respondent no.4 that the 4th respondent has experience of organisation of youth and cultural activities from 1.7.1992 and he fulfils the eligibility criteria of three years' experience. In different years, he has organised sport events. In view of the same, it cannot be said that he did not possess the requisite experience to fulfil the eligibility criteria as per Rule 3(d) of the Rules. Further, reference is made to paragraph-4 in the further affidavit in reply filed on behalf of respondent no.1. With reference to the same, it is stated that the certificates dated 5.2.2007, 3.2.2008, 12.9.2011, 7.9.2009 and 10.12.2008 are the certificates issued by the concerned authorities which show that the 4th respondent has eligibility and experience which was rightly taken into consideration by the Gujarat Public Service Commission while evaluating the merits of the candidates. 12. Having heard the contentions advanced on behalf of the learned counsel of both the sides, we have perused the material on record, the judgment of the learned single Judge and also the Officer in State Youth Board Recruitment Rules, 1970 which govern the recruitment to the post of Officer in State Youth Board, Class I. 13. 12. Having heard the contentions advanced on behalf of the learned counsel of both the sides, we have perused the material on record, the judgment of the learned single Judge and also the Officer in State Youth Board Recruitment Rules, 1970 which govern the recruitment to the post of Officer in State Youth Board, Class I. 13. The whole issue revolves around the eligibility criteria as contemplated in Rule 3(d) of the Rules. From Rule 3(d), which is extracted above, it is clear that to be eligible for appointment to the post of Officer in State Youth Board, Class I, one must have about three years' experience in organisation of youth and cultural activities. In this case, it is not in dispute that the 4th respondent is working as teacher in primary school. It is true that he is possessing bachelor as well as master degree in Physical Education, but at the same time, he is working as teacher in primary school and the same cannot be said to be youth and cultural organisation. The material which is placed by the 4th respondent to fulfil the criteria is the certificates dated 5.2.2007, 3.2.2008, 12.9.2011, 7.9.2009 and 10.12.2008. The certificates dated 10.12.2008 and 7.9.2009 are the certificates issued by the District Sports Officer, Ahmedabad for the sport events which were organised by Bareja Primary School. Certificates dated 3.2.2008 and 5.2.2007 are the certificates issued by the District Primary Education Officer, Ahmedabad and Principal District Education and Training Bhavan, Ahmedabad, which were also for organising sports events as a physical training. It is also clear from the material placed on record that in response to the letters addressed by the 3rd respondent seeking certain information, vide letters dated 21.1.2012 and 6.7.2011 clarification is made by the Commissioner of Youth and Cultural Activities. From the reply affidavit filed by the respondent authorities it is clear that the 4th respondent has not worked in the organisation of youth and cultural activities and having three years' experience as contemplated under the Rules. It appears that the respondent authorities seek to extend the benefit of certificates relied on by him contrary to the plain language of the Rules. 14. Fairly it is well settled that either statute or the rule is clear and unambiguous, it is to be understood in a manner where clear meaning emerges from the reading of such rule. It appears that the respondent authorities seek to extend the benefit of certificates relied on by him contrary to the plain language of the Rules. 14. Fairly it is well settled that either statute or the rule is clear and unambiguous, it is to be understood in a manner where clear meaning emerges from the reading of such rule. When rule clearly says three years' experience for organisation of youth and cultural activities, it is not open to interpret the rule in the manner which is projected by respondent nos.1, 2 and 3. In the reply affidavit filed on behalf of the respondent nos. 1 and 2, while pleading that they have no role to play, but at the same, time they have indicated their mind to show that by stating that organisation of youth cultural activities is to be accepted with a wider connotation since the Commission of Youth and Cultural Activities itself carries the same name and yet it organises sport activities for villages, schools etc. Such submission runs contrary to the objective of the Rules. When the post relates to Officer in the State Youth Board, Class I and requirement of eligibility is three years' experience in organisation of youth and cultural activities, the experience projected by the 4th respondent to the effect that as a teacher working in a primary school he has organised certain sports events of few days cannot be equated to three years' experience. Further it is also to be noticed that experience required is of organisation of youth and cultural activity. Merely by working as teacher in primary school, he must have organised sport meets etc. for few days, but the same cannot be equated to three years' experience in organisation of youth and cultural activities. Having regard to clear and unambiguous provision under Rule 3(d) of the Rules which provides eligibility criteria, we are of the view that the judgment relied on by the learned single Judge regarding interpretation of rule would not support the case of the respondents. If the eligibility criteria projected by respondent no.4 is to be accepted, it will defeat the very objective and intention of Rule 3(d) of the Rules and no purpose would be served by appointing a person who is not fulfilling the eligibility criteria. If the eligibility criteria projected by respondent no.4 is to be accepted, it will defeat the very objective and intention of Rule 3(d) of the Rules and no purpose would be served by appointing a person who is not fulfilling the eligibility criteria. We are also of the view that in view of the unambiguous legal position of the eligibility criteria, interpretation of the rule in the manner other than provided under Rule 3(d) of the Rules will defeat its very objective and the intention while making recruitment to the post of Officer in the State Youth Board, Class I. 15. For the aforesaid reasons, we are of the view that the learned single Judge has not properly construed Rule 3(d) of the Rules while examining the eligibility of 4th respondent. Thus, we are of the view that this is a fit case not only to set aside the appointment of the 4th respondent but to issue direction to the respondents to appoint the appellant-petitioner as it is admitted that the appellant-petitioner is eligible and qualified and is placed in the waiting list at sr. no.1. But for the illegal selection of 4th respondent, the appellant-petitioner is denied selection and appointment to the post of Youth Board Officer, Class I. 16. For the aforesaid reasons, the Letters Patent Appeal is allowed by setting aside the judgment dated 5.11.2015 passed by the learned single Judge in Special Civil Application No. 3532 of 2013. Consequently, we allow the writ-petition by setting aside the selection of 4th respondent to the post of Youth Board Officer, Class I (under Youth, Service and Cultural Activities Department), with a further direction to the respondents to appoint the appellant-petitioner to the post of Youth Board Officer, Class I (under Youth, Service and Cultural Activities Department) by issuing necessary orders within a period of 4 weeks from the date of receipt of this order. No costs. 17. Since the main appeal is allowed, Civil Application for stay does not survive and the same stands disposed of. Appeal allowed.