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Gujarat High Court · body

2019 DIGILAW 354 (GUJ)

Sureshbhai Mayarambhai Danidhar v. A. M. C.

2019-04-09

A.S.SUPEHIA

body2019
ORDER : 1. By way of the present writ petition, the petitioner has prayed a direction to the respondent-Corporation to appoint the petitioner on the post of Assistant Sanitary Sub-Inspector with effect from the date on which the candidate at serial No.16 is appointed with all consequential benefits like wages and other physical and fringe benefits flowing from such appointment and has further prayed for setting aside the impugned action of deletion of the name of the petitioner from the select list. 2. The brief facts of the case are that the respondent- Corporation issued an advertisement dated 14.06.2006 inviting the applications for filling up the post of Assistant Sanitary Sub- Inspector on a fixed pay of Rs.2,500/-. Out of 53 posts, 11 were reserved for Scheduled Tribes, 40 for Socially and Educationally Backward Class and 02 were unreserved. The advertisement required the candidate to submit the documents mentioned hereinbelow: (a) A duly authorized caste certificate. (b) The certified copies of educational qualification, age and experience. 2.1 The petitioner is belonging to Socially and Educationally Backward Class. He has obtained degree of B.Com. with 42% and has passed the Sanitary Inspector Diploma Examination in second attempt by securing 58% marks. 2.2 The petitioner appeared in the selection process. The Staff Selection Committee was constituted by the respondent-Corporation as per the provisions of the Bombay Provincial Municipal Corporations Act, 1949 and prepared a merit list on the basis of giving preference to the different examinations given by the candidates. Accordingly, out of 100 marks, 10 marks were fixed for SSC Examination, 60% marks were prescribed for Sanitary Inspector Diploma, 20% for HSC and 10% marks for science graduates. Initially, it was decided to deduct two marks per trial with respect to each examination. 3. Learned advocate Mr.Joshi appearing for the petitioner submitted that, however the norms were changed on the ground of administrative inconvenience and it was decided that in the event of more than one trial in any of the qualifying examination, the marks would be treated as 35% marks and accordingly, the list was prepared. He has submitted that the respondent prepared a select list and wait list, in which the petitioner’s name appeared at serial No.16 with the merit at 56.95 marks. He has submitted that the respondent prepared a select list and wait list, in which the petitioner’s name appeared at serial No.16 with the merit at 56.95 marks. He has submitted that the procedure adopted by the respondent-Corporation for assigning 35% marks to those candidates, who have qualified the examination in more than one trial, is adopted by the Selection Committee after the merit list was prepared. 3.1 Mr.Joshi has submitted that the advertisement did not provide any such conditions nor had invited the candidates to supply all the mark-sheets of the previous examinations. He has submitted that thus, the procedure adopted by the Selection Committee is illegal and unjustified. He has relied on the judgment of the Supreme Court in the case of K. Majusree Vs. State of Andhra Pradesh & Anohter, (2008) 3 SCC 512 . Thus, he has submitted that the respondent is directed to appoint the petitioner to the post of Assistant Sanitary Sub-Inspector. He has fairly considered that the petitioner will not claim the back wages. 4. Learned advocate Mr.Munshaw appearing for the respondent- Corporation has submitted that as per the norms prescribed by the Selection Committee, the qualifying marks of the petitioner is to be considered as 35% marks since he has passed the examination of Sanitary Inspector Diploma in the second attempt. He has submitted that since the petitioner did not furnish the attempt certificate in respect of the said examination, the petitioner was placed at serial No.56 in the merit list. 4.1 Mr.Munshaw has submitted that the petitioner was required to inform that he has cleared the aforesaid examination within two attempts and since he did not furnish the requisite information that he has cleared the examination of Sanitary Inspector Diploma in the second attempt in his application, the Staff Selection Committee decided to place him at serial No.56 instead of serial No.16 of the merit list. 4.2 Mr.Munshaw has further submitted that the Selection Committee, as per the requirement or practice keeping in view the practical requirement and availability of the qualified candidates which are required to be decided, are being fixed and norms of assessment by stating that the candidate who has cleared the examination in the second attempt, has to be assigned 35% marks. Thus, he has submitted that the petitioner was rightly denied to be appointed on the post of Assistant Sanitary Sub-Inspector. 5. Thus, he has submitted that the petitioner was rightly denied to be appointed on the post of Assistant Sanitary Sub-Inspector. 5. I have heard the learned advocates for the respective parties. The respondent-Corporation issued the advertisement dated 14.06.2006 inviting the applications for filling up the post of Assistant Sanitary Sub-Inspector on a fixed-pay of Rs.2,500/-. The advertisement specifically provided that the candidates are required to be submitted (a) duly authorized cast certificate; and (b) the certified copies of the educational qualification, age and experience. The advertisement is absolutely salient on the aspect of providing the attempt certificate. 6. A perusal of the resolution dated 11.09.2006 passed by the Staff Selection Committee reveals that the criteria of fixing 35% marks has been adopted only on the ground of administrative inconvenience and it was decided that the earlier norms, which provided for deduction of two marks for every trial of the candidate while adopting the qualification, has been altered after the merit list was prepared. 7. The Staff Selection Committee has specifically altered the criteria after preparation of the merit list in order to rearrange the merit list after changing the norms i.e. from the deduction of two marks for each attempt to 35% marks. It is specifically observed by the selection committee that since the candidates have not annexed all the mark-sheets, it was very difficult to calculate the same and hence, it was decided that if a candidate has secured the degree/diploma in more than one attempts, he will be assigned 35% marks in the merit. 8. Thus, unquestionably, the selection criteria has been altered after the preparation of merits from deduction of two marks for every trial to assigning the minimum 35% marks. 9. At this stage, it would be apposite to refer to the observations made in paragraph Nos.27 and 33 by the Supreme Court in the case of K. Majusree (supra): “27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum m arks only for written examination and not for the oral examination. In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum m arks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them - P.K. Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Oriss. 33. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.” 10. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.” 10. The Supreme Court has enunciated that where the rules do not prescribe any procedure, the selection committee may also prescribe the minimum marks. But if the selection committee wants to prescribe the minimum marks for interview, it should do so before the commencement of the selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of the selection process, it cannot either during or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. 11. In the instant case, the selection criteria has been altered by the Selection Committee for preparing fresh merit list. The merit list was already prepared on the basis of earlier norms which provided for the deduction of 02 marks and the criteria is only altered on the ground of administrative inconvenience. A selection criteria cannot be altered on the ground of administrative inconvenience. The approach of the respondent-Corporation is against the doctrine of fair play and equity and needs to be deprecated. The candidates will never anticipate that their appointments will be scuttled on the changed criteria on the basis of administrative inconvenience. 12. Under the circumstances, the respondent authority since has acted in complete defiance of the decision enunciated by the Supreme Court and has altered the merit of the petitioner, such action of the respondent in altering the merit of the petitioner from serial No.16 to serial No.56 is hereby quashed and set aside. The respondent is hereby directed to appoint the petitioner to the post of Assistant Sanitary Sub-Inspector with effect from the date on which the candidate at serial No.16 is appointed. However, it is clarified that the petitioner will only be entitled to back wages as per the statement made by the learned advocate Mr.Joshi. The petitioner will be assigned the seniority from the date of the candidate at serial no.16 was appointed. It is clarified that entire period shall be treated as notional and the regular increments, which are granted to the candidate at serial No.16, shall be considered and accordingly his pay fixation shall be done. The petitioner will be assigned the seniority from the date of the candidate at serial no.16 was appointed. It is clarified that entire period shall be treated as notional and the regular increments, which are granted to the candidate at serial No.16, shall be considered and accordingly his pay fixation shall be done. Necessary orders in terms of the observations of this Court shall be passed within a period of 06 (six) weeks from the date of the receipt of this order. Petition stands allowed. Rule made absolute.