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Gujarat High Court · body

2020 DIGILAW 97 (GUJ)

Damyantiben Balwantbhai Damor v. Secretary

2020-01-20

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against judgment and order dated 29.1.2019 passed by the learned Single Judge in Special Civil Application No.6943 of 2017. 2. The background of fact generating the present appeal proceedings are that the respondent No.1 herein published an advertisement on 23.11.2016 for filling up the post of Female Health Worker (Class-III) for Morbi District Panchayat. According to the appellants, out of the 79 posts published, 55 are meant for general category, whereas 19 posts are for SEBC and 5 for SC. The appellant, being qualified for the post, applied for the same, having completed their Auxiliary Nurse Midwife Course. The appellant No.1 belongs to ST category and appellant Nos.2 and 3 belong to SEBC category and have such certificates. According to the appellants, after filling up the form, a written test was conducted by the authority on 19.2.2017. According to the appellants, 91 candidates appeared in the examination. Appellant No.1 obtained 11.600 marks, the appellant No.2 got 11.000 marks, whereas appellant No.3 obtained 13.300 marks. The first provisional list was published by the authority with 52 persons on 10.3.2017. The said list included 43 candidates from general category, 7 from SEBC and 1 of SC candidate for verification purposes. One physically handicapped (general candidate) was also included and mentioned in the list. According to the appellants, to the best of their knowledge, out of the 52 candidates, only 46 came for document verification. Since some candidates, including the appellants, have not been considered, a representation was made on 14.3.2017, on the premise that there was no cut-off in the examination provided. In the midst of the recruitment process, it is not open for the authority to prescribe cut-off. The same would change the game in between. The representation was not considered and a second provisional merit list for verification of general candidates out of 20 candidates came to be published on 24.3.2017. In the midst of the recruitment process, it is not open for the authority to prescribe cut-off. The same would change the game in between. The representation was not considered and a second provisional merit list for verification of general candidates out of 20 candidates came to be published on 24.3.2017. Aggrieved by the said action and left with no alternatives, the appellants approached this Court through the aforesaid petition under Article 226 of the Constitution of India, seeking the following reliefs : “A. Your Lordships may be pleased to issue a writ of mandamus and/or any writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to make appointments on merit of marks obtained in written test till all the posts advertise i.e. 79 are filled up without any cut-off marks. ALTERNATIVELY B. Your Lordships may be pleased to issue a writ of mandamus and/or any writ in the nature of mandamus and/or any other appropriate writ, order or direction, quashing the advertisement dated 23.11.2016 for the 79 posts (General 55, SEBC 19 and SC 5) of Female Health Workers (Class-03) for the Morbi District Panchayat and direct the respondents to do the process of appointment de novo in accordance with law. C. Pending the admission hearing and final disposal of the present petition, Your Lordships may be pleased to stay further process of appointments of the female health workers by respondent No.1.” 3. The said writ petition came to be contested by respondent No.1 - Authority. After considering the rival stand at length, the learned Single Judge was pleased to pass an order on 29.1.2019 finding no merit in the petition and the same was accordingly dismissed. It is this order of the dismissal of the petition that has been made the subject matter of the present Letters Patent Appeal, before us. 4. We have heard Shri A.S. Asthavadi, learned counsel appearing for the appellants, and Ms. Nisha Thakore, learned Assistant Government Pleader for the contesting respondent No.1. 5. Shri A.S. Asthavadi, learned counsel appearing for the appellants, has vehemently contended that it is a settled position of law that during the process of recruitment, no alteration or any prescription on eligibility is to be made that may adversely affect the candidates at large. The rules of game cannot be changed in the midst of the recruitment process. 5. Shri A.S. Asthavadi, learned counsel appearing for the appellants, has vehemently contended that it is a settled position of law that during the process of recruitment, no alteration or any prescription on eligibility is to be made that may adversely affect the candidates at large. The rules of game cannot be changed in the midst of the recruitment process. That being the settled position, the learned Single Judge has committed a serious error in not observing the said settled principles. Accordingly, the impugned order deserves to be quashed and set aside. 5.1 Shri Asthavadi has further submitted that the cut-off marks were not provided by the respondent authority. In the midst (in March, 2017), a criteria has been pressed which has adversely affected the legitimate expectations of the appellants. Since that is the position, the learned Single Judge ought not to have dismissed the petition. It has been further contended that these appellants are eligible to find a place in the selection list. It is only on account of the cut-off marks having been prescribed at a later point of time, which in itself is unauthorized, that a situation prejudicial to the appellants has been created. Such an arbitrary act ought not to have been seen lightly by the learned Single Judge, in a case of public employment. The learned counsel has further submitted that the rules of the game cannot be changed during the recruitment process. To canvass this proposition, the learned counsel has referred to various decisions (i) AIR 1987 SC 2267 (ii) AIR 2008 SC 1470 and (iii) AIR 2010 SC 3718 . By referring to some paragraphs of the aforesaid decisions, a contention is reiterated that this action on the authority’s part cannot be viewed so lightly. The learned Single Judge has not appreciated this vogue principle in its true spirit. Resultantly, the decision taken by the learned Single Judge deserves to be corrected. The learned counsel has further contended that there is no logic or reason reflected in the impugned action of prescribing or reducing the cut-off marks. Hence, such an act of arbitrariness deserves to be appropriately dealt with. Hence, repeating the request to set aside the impugned order, submissions have been canvassed vehemently. 6. To meet with the stand taken by the learned counsel, Ms. Hence, such an act of arbitrariness deserves to be appropriately dealt with. Hence, repeating the request to set aside the impugned order, submissions have been canvassed vehemently. 6. To meet with the stand taken by the learned counsel, Ms. Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the respondent authorities, has submitted that this is a case where the qualificatory criteria has not been altered in the midst of recruitment process. On the contrary, after the conclusion of the full-fledged recruitment process, when the final selection list was published, on account of necessity in a bonafide form found, the contested stand was taken by the authority, which cannot be said to be arbitrary in any form. It has been further submitted that looking to the necessity seen with respect to filling up the post of Female Health Workers, a meeting was convened of District Panchayat Service Selection Committee on 10.3.2017. It was resolved by this meeting that minimum cut-off marks were to be prescribed for candidates who have applied for different cadres. Even later a meeting was convened in the month of March, 2017, whereupon looking at the necessity, the cut-off marks were reduced to 15 with respect to all cadres. It has been contended by the learned Assistant Government Pleader, supported by Mr. Munshaw, learned counsel that there was no malafide intent, nor was any malice alleged which could permit the appellants to invoke the extraordinary jurisdiction of this Court. On the contrary, the authority is well within its powers to have found it necessary, on deliberation, to reduce the marks so as to give full effect to the recruitment process, following the said decision which was taken. It has been further submitted by the learned counsels appearing on behalf of respondent authorities, that apart from this, the authorities had even taken a decision to reduce the cut-off marks from 20 to 15. Despite that the appellants have not reached the criteria. Hence, having remained unsuccessful in the recruitment process, it is not open for the appellants to challenge or raise any grievance. Therefore, the appeal does not deserve to be entertained at the behest of the appellants. A detailed explanation as to why such necessity has arisen, has also been taken care of. Such action cannot be assailed by the appellants, having participated in the process of selection. Accordingly, the appeal is requested to be dismissed. Therefore, the appeal does not deserve to be entertained at the behest of the appellants. A detailed explanation as to why such necessity has arisen, has also been taken care of. Such action cannot be assailed by the appellants, having participated in the process of selection. Accordingly, the appeal is requested to be dismissed. 6.1 Additionally, it has been submitted that the learned Single Judge has, at length, considered the case of the appellants minutely. Keeping in view the relevant provision and the proposition of law laid down on such issue, a detailed order has been passed which does not call for any interference. Hence, the appeal is requested to be dismissed. 7. Having heard the learned counsels appearing for the respective parties and gone through the order passed by the learned Single Judge at length, we have found that the learned Single Judge has remained in close conformity with the proposition of law. By considering the effect of relevant statutory Rules, the discretion has been exercised. Hence, the order in question is a well reasoned and passed after due application of mind. The main contention raised in substance by the learned counsel for the appellants is that in the midst of recruitment process, the rules of game cannot be altered. Here it is apparently reflected that after looking at the necessity, the cut-off mark have been prescribed. In substance, the basic eligibility criteria and the qualification has not been altered. The learned Single Judge has taken the said aspect minutely and found that cut-off marks that have been reduced, cannot be said to be arbitrary. On the contrary, the same is permissible in view of Rule 10 of the Gujarat Panchayat Service (Class-3) Recruitment Examination Rules, 2012. When the authority is sufficiently couched with the power to prescribe the cut-off and when the clarificatory criteria is not altered, we are not impressed by the submission made by learned counsel for the appellants, especially since the learned Single Judge has considered the same at length. 8. So far as the reliance of the decisions delivered by the Apex Court is concerned, the same also appears to have been dealt with by the learned Single Judge. Hence, we see no other different or impressive submission for taking a different view. 8. So far as the reliance of the decisions delivered by the Apex Court is concerned, the same also appears to have been dealt with by the learned Single Judge. Hence, we see no other different or impressive submission for taking a different view. Further, the observations made by the learned Single Judge contained in Para.5 are sufficient to justify that error was committed by the learned Single Judge. We deem it proper to reproduce the same hereinafter : “5. Now undisputedly, Rule 10 of Gujarat Panchayat Services (Class-III) Recruitment (Examination) Rules, 2012, contemplates about laying down the qualifying standard or aggregate marks for the selection. The rule provides that “the qualifying standard/aggregate marks for the selection shall be determined by the Board or the Selection Committee, as the case may be, category-wise, considering the number of vacancies of respective category and merit list of candidates of the category”. Therefore, the respondent has got powers to determine the qualifying standard under the Rules. When the cutoff line was decided by the respondents specifying the marks under the said rule and when due to which the petitioners could not come up on merit to be appointed, they cannot be said to have any right to be enforced. Nor it is open to the petitioners to plead or contend that the appointment was required to be done without enforcing cut-off marks. The cut-off marks or qualifying standards were prescribed by the respondents, in light of Rule 10 of the Rules.” 9. The aforesaid conclusion and the observations made by the learned Single Judge have been made in consideration of the proposition of law laid down by the Apex Court in the decisions reported in AIR 1975 SC 1351 as well as AIR 2010 SC 3714 . That being the position, we deem it proper to not exercise our appellate jurisdiction. 10. In wake of the aforesaid discussion and the observations made by us from the record regarding the fact that the judgments relied upon are in a different background of fact, we are unable to apply the same as a straitjacket formula. The present background is altogether different. 11. 10. In wake of the aforesaid discussion and the observations made by us from the record regarding the fact that the judgments relied upon are in a different background of fact, we are unable to apply the same as a straitjacket formula. The present background is altogether different. 11. Additionally, while coming to this conclusion, we consider the observations made by the Apex Court in respect of exercise of appellate jurisdiction contained in a decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, reported in (2016) 3 SCC 340 . While considering the present case in background of the said proposition, we are not inclined to exercise our appellate jurisdiction. Further, the impugned decision has been taken by the competent authorities in due discharge of their statutory function of giving effect to public employment. In the absence of any malafides or malice, such expert’s opinion cannot be tinkered with. Resultantly, the present appeal lacks merit, the same is dismissed hereby. Notice is discharged.