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2017 DIGILAW 1754 (GUJ)

Govindbhai v. Desai VS State of Gujarat

2017-10-12

A.S.SUPEHIA

body2017
JUDGMENT : A.S. SUPEHIA, J. 1. By way of present petition, the petitioners have prayed for quashing and setting aside the merit/selection list prepared by the respondent No. 3 herein dated 31.08.2010 as well as Government Resolution dated 18.05.2009 in so far as the same is not in consonance with the original advertisement dated 14.02.2009. 2. By way of amendment, the petitioners have also prayed to declare the entire selection process of Gujarat Police Sub Inspector (Unarmed) Class-III is illegal in view of violation of rule 11 of the Rules, and further be pleased to quash and set aside the consequential merit list prepared at Annexure "E" to the petition. 3. Ms. Shivangi Rana, learned advocate for the petitioners does not press the prayer so far as challenge to Government Resolution dated 18.05.2009 (in fact Notification dated 18.05.2009) laid down the Recruitment Rules i.e. the Gujarat Police Sub-Inspector (Unarmed), Class-III, Competitive Examination Rules, 2009. 4. The brief facts of present petition are as under:- Pursuant to the advertisement dated 14.02.2009, the petitioner applied for the appointment to the post of Police Sub Inspector (Unarmed), Class-III. Thereafter, the aforesaid advertisement was amended by the advertisement dated 31.05.2009. The petitioner thereafter, appeared for the physical examination on 05.03.2010 and written examination in the Month of June, 2010. It is the case of the petitioners that the physical examination was scheduled in February, 2010, however, the same was revised and taken in the month of March, 2010. Thereafter, they received their mark-sheets in the month of September, 2010. The petitioner was declared pass in the written examination which was held in the month of June, 2010. 5. Ms. Shivangi Rana, learned advocate for the petitioners has submitted that the petitioners' came to know that marks of physical examination was not given to the present petitioners in view of the subsequent dated 31.05.2009. She has stated that the respondent has changed criteria given in the original advertisement dated 14.02.2009 by awarding no marks in the physical examination. She has stated that in the original advertisement dated 14.02.2009, it is mentioned that there will be a preliminary physical examination, and thereafter, there will be main examination, which will consist of written, oral as well as physical examinations. 6. Ms. She has stated that in the original advertisement dated 14.02.2009, it is mentioned that there will be a preliminary physical examination, and thereafter, there will be main examination, which will consist of written, oral as well as physical examinations. 6. Ms. Shivangi Rana, learned advocate, has contended that subsequently by the notification dated 18.05.2009, the criteria of recruitment was changed and amended advertisement dated 31.05.2009 was issued by the respondent authorities, wherein the marks of physical examination was not considered. She has also stated that as per the Gujarat Police Sub Inspector (Unarmed) Class-III Competitive Exam Rules, 2009, the respondent authorities have fixed the minimum qualifying marks as prescribed under Rule 11 of the Rules and the same has resulted into serious prejudice to the petitioner. She has stated that if minimum qualifying marks were fixed, the merit list would have been entirely different, and candidates who would have secured less than the minimum qualifying marks, would not have been called for in the interview. She has contended that entire merit list is required to be quashed and set aside, as the respondent authorities have changed criteria of recruitment during the process of selection. In support of the contention, she has relied on the judgment of Hon'ble Apex Court in the case of K. Manjusree Vs. State of A.P. & Anr., reported in AIR 2008 SC 1470 , wherein it is held that if the selection committee wants to prescribed minimum marks for interview, it should to do before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before commencement of selection process, it cannot either during the selection process or after the selection process, and an additional requirement that the candidates should also secure minimum marks in the interview. 7. Ms. Shivangi Rana, learned advocate has also relied on the judgment rendered in the case of Himani Malhotra Vs. High Court of Delhi, reported in AIR 2008 SC 2103 for the proposition of law that prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. 7. Ms. Shivangi Rana, learned advocate has also relied on the judgment rendered in the case of Himani Malhotra Vs. High Court of Delhi, reported in AIR 2008 SC 2103 for the proposition of law that prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if for minimum marks are not prescribed vive-voce before the commencement of selection process, the authorities concerned, cannot either during the selection process or after the selection add an additional requirement/qualification that candidate should also secure minimum marks in the interview. 8. In view of the aforesaid submissions, learned advocate for the petitioner has urged that present petition may allowed and the entire selection/merit list may be set aside. 9. Per contra, Mr. Soni, learned AGP has stated that in the subsequent amended advertisement dated 31.05.2009, the respondent authorities have specifically mentioned in the notification dated 18.05.2009, he has stated that the petitioner cannot contend that the aforesaid notification was not in the knowledge of them. 10. Relying the affidavit filed by the respondent authorities, he has submitted that the physical test was held only for the purpose of eligibility of appearing in the preliminary examination as per the aforesaid Rules, 2009. 11. Learned AGP has contended that the candidate, who is unable to get the minimum qualification in each event will automatically get disqualified and will not be able to participate in the next event. Also in Point No. 4 it is clearly specified that the candidates who qualified in all the physical events will then have to undergo physical measurements as specified in the Recruitment Rules. These candidates who have the minimum physical measurement will be eligible for participating in the written examination. Learned AGP has submitted that call letters were also sent to the candidates calling them for participating in physical examination. These points were also clearly specified in the call letters sent to the candidates. It is also specified that candidates who have passed all physical events would be allowed to go for the physical measurement examination. 12. Learned AGP asserted that after indicating pass/fail the candidates were made to sign in the form. These points were also clearly specified in the call letters sent to the candidates. It is also specified that candidates who have passed all physical events would be allowed to go for the physical measurement examination. 12. Learned AGP asserted that after indicating pass/fail the candidates were made to sign in the form. Thus the fact that physical examination was only for the purpose of pass/fail and was only of qualifying nature was well within the knowledge of candidates. He has stated that the contention raised by the petitioner that they were not aware about the notification dated 18.05.2009 is misconceived, as helpline center was operational during office hours in DGP office having phone No. 23254231 FROM 25.03.2010 to 15.09.2010 for clarifying any doubt regarding examination process. He has stated that the advertisement was also given in local daily newspapers on 31.03.2010, 04.04.2010 and 21.04.2010 starting the helpline number. 13. Learned AGP has also stated that the contention of the petitioners that the recruitment criteria is changed during selection process is also misconceived since in the present case, the petitioners recruitment is undergone after advertisement dated 31.05.2009 and the notification dated 18.05.2009. He has stated that the petitioners were very well aware about the conditions and after participating the same they cannot challenge the selection on the ground that no minimum marks of vive-voce was prescribed in the recruitment process as per the Rules, 2009. 14. In support of his contention, Mr. Soni, learned AGP has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Union of India and Others vs. S. Vinodh Kumar and Others, reported in 2007 8 SCC 100 for the proposition of law that the candidates who had taken part in the selection process knowing fully well the procedure laid down there were not entitled to question the same. He has also relied on the judgment rendered by the Hon'ble Supreme Court in the case of Sadananda Halo and others vs. Momtaz Ali Sheikh and others, reported in 2008 4 SCC 619 . 15. I have heard learned advocates for the respective parties. 16. The facts not in dispute are that the respondent authorities issued an advertisement dated 14.02.2009 for the recruitment to the post of Gujarat Police Sub Inspector (Unarmed) Class-III. 15. I have heard learned advocates for the respective parties. 16. The facts not in dispute are that the respondent authorities issued an advertisement dated 14.02.2009 for the recruitment to the post of Gujarat Police Sub Inspector (Unarmed) Class-III. The advertisement contained Clause 9, wherein it is stated that the competitive examination will be held in two phases and there would be physical examination comprising 100 marks and candidate has to obtained minimum 50 marks in physical examination. In the interview examination, total 50 marks was prescribed subsequently, aforesaid advertisement was modified on 31.05.2009, wherein it was prescribed that the recruitment process will be held as per the notification dated 18.05.2009 laying down the rules for the recruitment of Gujarat Police Sub Inspector (Unarmed) Class-III. It was stated that for the physical examination preliminary examination and viva voce marks will be determined by the Recruitment Board. 17. After issuance of the advertisement, i.e. 31.05.2009, the petitioners were issued call letters and they appeared in physical examination on 05.03.2010 and written examination in the month of June, 2010. Thus, it cannot be said that the recruitment criteria is altered by the respondent authorities during the selection process of the petitioner. The selection process commenced after the issuance of advertisement dated 31.05.2009 which prescribed all the recruitment process will be governed by the notification dated 18.05.2009 laying down the rules of recruitment to the post of Gujarat Police Sub Inspector (Unarmed) Class-III. The petitioners had undergone recruitment process and having become unsuccessful they have challenged the marks of vivo test and in that view of the matter, as observed by Hon'ble Supreme Court in the case of S. Vinod Kumar (Supra) the candidate who had taken part in the selection process knowing fully well the procedure laid down therein are not entitled to question the same. The respondent authorities had taken all due care and caution for removing anomalies in the recruitment process by issuance of press note and also by issuing helpline number. The petitioners could have clarified all their doubts by contacting respondent authorities, but they had not chosen to do so. 18. In this view of the matter, it cannot be said that petitioners were kept in dark and they were not aware about the recruitment rules dated 18.05.2009. The petitioners could have clarified all their doubts by contacting respondent authorities, but they had not chosen to do so. 18. In this view of the matter, it cannot be said that petitioners were kept in dark and they were not aware about the recruitment rules dated 18.05.2009. The prayer of the petitioner suggests that the petitioner is seeking quashing and setting aside of the entire merit/selection list prepared by the respondent No. 3 comprising of all candidates who participated the selection process and not a single candidate is made party in the present petition. As observed by the Hon'ble Supreme Court in the case of Sanandhalo (Supra), in Paragraph No. 63, the Apex Court has observed that "Similarly we are not satisfied with the course taken in inviting the objections of the selected candidates who were never bothered to be made parties to the writ petitions. This Court in All India SC & ST Employees' Assn. V.A. Arthur Jeen has stressed the necessity of joining the selected candidates as party in paras 13 and 14 of its judgment, referring to the reported decisions in Prabodh Verma v. State of Uttar Pradesh and A.M.S. Sushanth v. M. Sujatha. In these cases, this Court has stressed the necessity of the selected candidates being joined as a party at least in the representative capacity. 19. Similarly, in the case of Ranjankumar Vs. State of Bihar and others, reported 2014 AIR SCW 2968, the Hon'ble Supreme Court has held that:- "12. In view of the aforesaid enunciation of law, we are disposed to think that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners. 16. In Union of India & Ors. v. S. Vinod Kumar & Ors. [16], the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. 17. Thus, the twin contentions proponed by the learned counsel for the appellant deserve acceptation and, accordingly, we allow the appeals and, ex consequenti, the judgment and order passed by the Division Bench in the batch of appeals and the judgment and order passed by the learned Single Judge in C.W.J.C. No. 2130 of 1999 are set aside. 17. Thus, the twin contentions proponed by the learned counsel for the appellant deserve acceptation and, accordingly, we allow the appeals and, ex consequenti, the judgment and order passed by the Division Bench in the batch of appeals and the judgment and order passed by the learned Single Judge in C.W.J.C. No. 2130 of 1999 are set aside. There shall be no order as to costs." 20. It is not the case of the petitioners that the respondent authorities had no power to fix the criteria of the selection. Thus, in view of the aforenoted observations of the Hon'ble Supreme Court and considering the facts of the case, I am of the considered opinion that no case is made out by the petitioners calling for any interference of this Court for setting aside the entire merit list/selection list. The present petition stands dismissed. Rule is discharged.