Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 191 (GUJ)

Desai Mahendrabhai Iswerbhai v. State Of Gujarat

2021-03-03

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, these petitioners 36 in numbers have prayed for the following reliefs : “21(A) Your Lordships may be pleased to allow this Special Civil Application. (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ or direction or order directing the respondent authorities to permit the petitioners to take part in the process of promotion/recruitment to the post of PSI Unarmed Class-III (Mode-III) and further be pleased to direct the respondent authorities to permit the petitioners to participate in all stages of the said promotion process, and thereafter to issue the necessary orders of promotion once they fulfill and clear all the stages of the said process successfully; (C) By way of interim relief, this Hon’ble Court may be pleased to direct the respondent authorities to accept the application form of petitioners for the process of the promotion/recruitment pursuant to the advertisement at Annexure A of the petition and to permit the petitioners to participate in all the stages of the said promotion/recruitment process, in the interest of justice; (D) Pass any such other and/or further orders that may be though just and proper, in the facts and circumstances of the case.” 2. The petitioners are stated to be Assistant Sub Inspectors who are in service and having experience in Police Department of more than approximately 20 years. Since the authorities are not permitting the petitioners to participate in the process of promotion to the posts of PSI which has been initiated pursuant to the advertisement dated 26.06.2020, have invoked extra ordinary jurisdiction of this Court. By virtue of Notification dated 27.01.2020 the examination rules have been framed by the Home Department, State of Gujarat, which are known as Police Sub-Inspector (Unarmed) Class-III (Departmental Examination) Rules, 2019. By virtue of Notification dated 27.01.2020 the examination rules have been framed by the Home Department, State of Gujarat, which are known as Police Sub-Inspector (Unarmed) Class-III (Departmental Examination) Rules, 2019. It is further asserted in the petition that the recruitment rules to the post of PSI has been framed by virtue of Notification dated 03.03.2020 by the Home Department, State of Gujarat, and by taking aid of these Rules, the petitioners have submitted that they are the Head Constables and Assistant Sub-Inspectors and since they have service of more than 20 years, the action of the authority in not permitting to fill up the forms in the said process of promotion to the post of PSI is arbitrary, illegal and unsustainable and quite contrary to the fact of the Rules. 3. This petition appears to have been presented on 25.02.2021 and has come up for consideration before this Court on 01.03.2021, wherein, Mr. Kamlesh Kotai, learned advocate for the petitioners after arguing for some time has requested for some accommodation to get the proper instructions from his clients and accordingly, time was granted and, the matter is placed for considering further on 02.03.2020. Learned advocate Mr. Kotai, has chosen to argue the matter further. Hence, with the aforesaid background, the hearing has taken place of the present proceedings. 4. Mr. Kamlesh Kotai, learned advocate for the petitioners has submitted that these petitioners are having experience of approximately more than 20 years in Police Department itself and on the basis of the Rules which are framed for promotion to the posts of PSI, the authorities are under obligation to allow the petitioners to appear in the said process of accepting their forms. It has been asserted that similarly situate persons who were serving on the post of Head Constable and Constables having approximately 20 years service in the department have been permitted to participate in the process and as such, these petitioners also deserves to be given equal treatment by allowing them to participate in the process. It has been asserted that similarly situate persons who were serving on the post of Head Constable and Constables having approximately 20 years service in the department have been permitted to participate in the process and as such, these petitioners also deserves to be given equal treatment by allowing them to participate in the process. A reference is made to few of the petitions which are mentioned in para 7 of the petition memo but without supplying details thereof, by referring to the same, a request is made to grant the relief as prayed for and at least as a interim measure they may be permitted to appear in the process of promotion/recruitment in view of the advertisement which has already been issued on 26.06.2020. By referring to brief circumstance from the facts, a request is reiterated to grant the relief as these petitioners are having adequate experience in the department. After arguing for some time a pointed query was raised by the Court whether strictly speaking they fulfilled the eligibility criteria or not. Learned advocate Mr. Kotai was not in a position to give a clear answer and thereafter when the Court expressed the opinion, learned advocate Mr. Kotai has requested for some accommodation to get proper instructions as to whether the petitioners want to withdraw the petition or to invite an order on merit and thereafter, has requested that the petition may be disposed of on merit. 5. In response to this, the Court has permitted the learned Assistant Government Pleader to submit on behalf of the authority with respect to the claim of the petitioners to give equal treatment since the learned Assistant Government Pleader was already served with the advance copy. 5.1. Mr. Meet Thakkar, learned Assistant Government Pleader appearing on behalf of the respondent authority has submitted that none of the petitioners are having any adequate experience as required under the Rules which are having statutory effect and further after referring to the relevant clauses contained in the Rules as published vide aforesaid Notifications, a stand is taken by the learned Assistant Government Pleader that there are three modes of promotion which are prescribed in the Notification and the case of the petitioners would fall within Rule 2(a)(i). Thus, after referring to said Rules, Mr. Thus, after referring to said Rules, Mr. Thakkar, learned Assistant Government Pleader has submitted that with respect to the promotional avenues to the post of Police Sub-Inspector (Unarmed) Class-III, none of the petitioners are appearing to have fulfilled the criteria and as such, the authority must not have allowed the petitioners to fill in their forms. In addition thereto, Mr. Thakkar, learned Assistant Government Pleader has also submitted that now the process has already been over and there is no question of giving any special treatment to the petitioners simply because these petitioners have presented their petition before the Court. The claim for equality is also not tenable in view of the effect of statutory Rules and even if by inadvertence or lack of assistance if some of the petitioners on earlier occasion must have been allowed, but that would not permit the petitioners to claim any equality. It has been further contended that the scheduled date has already been lapsed long back and as such, there is no distinguishable circumstance to give special treatment to the petitioners and as such no relief be granted to the petitioners. 5.2. It addition thereto, it has been specifically contended that a very laconic petition is presented before the Court. As per the relevant Rules, whether these petitioners are fulfilling the eligibility criteria or not is also not spelt out and in the general form it has been stated that the petitioners are having 20 years experience in the Police Department and in which cadre what kind of experience is available to the petitioners is not spelt out in the petition. Further in para 9 it has been mentioned that since the petitioners are having approximately 20 years of experience, they will be qualified to the post of PSI (Unarmed) Class-III as per the Rules and as such on the basis of laconic submissions, no equitable relief be granted to the petitioners. Hence, the petition being devoid of merit, deserves to be dismissed. 6. Having heard the learned counsel for the respective parties and having gone through the controversy involved in the present petition, the following circumstances are not possible to be unnoticed by the Court. 6.1. The brief averments which are made in the petition on oath are that the petitioners are Assistant Sub-Inspectors who are in service and having experience in Police Department of more than approximately 20 years. 6.1. The brief averments which are made in the petition on oath are that the petitioners are Assistant Sub-Inspectors who are in service and having experience in Police Department of more than approximately 20 years. This specific averment is made in para 3 of the petition and thereafter in para 9 of the petition, it has been averred that as far as the present petitioners (Head Constables) are concerned, they are serving in the department since more than approximately 20 years, and, therefore, also they will be qualified to the post of Assistant Sub-Inspector (Unarmed) Class-III as per the Rules, however, they are not promoted to the said post and then a grievance is raised that though they are well experienced, they have not been permitted to fill up the forms in the process of promotion to the post of Police Sub-Inspector (Unarmed) Class-III pursuant to the advertisement dated 26.06.2020. Now on the basis of this submission made in brief, as if there are almost similarly situated to other petitions, a contention is raised to the effect that there are several persons similarly to the petitioners have been permitted in earlier writ petitions and, therefore, they may be given equal treatment, but then, whether these petitioners are eligible to claim equality or not would be reflected from the relevant rules, which are meant for promotion/appointment to the post of Police Sub-Inspector (Unarmed) Class-III. 6.2. The first Notification which is attached to the petition at page 34 is a Notification dated 27.01.2020 wherein, in exercise of powers conferred under Clause( b) of Section 5 of the Gujarat Police Act, 1951 and in supersession of all the Rules made in this behalf, the Government of Gujarat framed Rules to provide for regulating the conditions of service of persons appointed to the post of Assistant Sub-Inspector (Unarmed) Class-III in Gujarat State Police Service and insofar as they relate to passing of departmental examination for promotion to the post of Police Sub-Inspector (Unarmed) Class-III. These Rules have a statutory flavour which is not disputed even by the learned advocate for the petitioners and as such, the relevant Rules applicable to the controversy, the Court has taken note of it. Rule 3 of these Rules relate to conditions for eligibility and availability of chances which reads as under : “3. These Rules have a statutory flavour which is not disputed even by the learned advocate for the petitioners and as such, the relevant Rules applicable to the controversy, the Court has taken note of it. Rule 3 of these Rules relate to conditions for eligibility and availability of chances which reads as under : “3. Conditions for eligibility and availability of chances: (1) The candidate possessing the requisite requirements under the relevant recruitment rules of Police Sub-Inspector (Unarmed) Class-III, shall eligible for admission to the Examination: Provided that, Assistant Sub-Inspector (Unarmed), Class-III, who has completed three years in the Gujarat State Police Service on the last date of accepting the application from shall be eligible to appear in the Examination. (2) To be eligible for promotion to the post of Police Sub-Inspector (Unarmed), Class-III, a person shall be required to pass the Examination within a period of three years and within three chances from the date of his completing three years continuous service after his regular appointment tot he lower post: Provided that, in case of person who has a last chance, if the period for passing the examination as provided in these rules, expires before the date of holding of the next Examination, the said period shall be deemed to have been extended until the date of the declaration of the result of the Examination so held: Provided further that, a person belonging to the Schedule Castes or Scheduled Tribes may be given one more chance which shall have to be availed of within a period of one year from the date of the expiry of the specified period. (3) If a person fails to pass the Examination referred to this rule within the specified period and specified chances, he shall notwithstanding such failure, be eligible to appear at any time in the Examination on payment of an examination fee as may be determined by the Government from time to time and if passes the said Examination, he shall be eligible for promotion. Provided that person shall not be entitled to claim seniority over those persons who have passed the Examination earlier than him and also have been promoted regularly to the higher post before he became eligible for such promotion on passing the Examination.” 6.2. Rule 6 of the Rules deals with Syllabus and mode of examination, whereas Rule 7 relates to appearance in examination. Rule 6 of the Rules deals with Syllabus and mode of examination, whereas Rule 7 relates to appearance in examination. Sub-rules (1) and (5) of this Rule 7 since relevant is quoted hereunder: “(1) A person who desires to appear at the Examination shall submit his application in the form as specified in Appendix-C to the concerned Head of Department for enlisting his name as a candidate for such examination at least sixty days before the date of the commencement of the examination. (5) The Board shall admit the candidate to the Examination on the strength of the certificate issued by the concerned Head of Department that he is eligible to appear at such Examination.” 6.3. In addition to the aforestated Rules in brief, there is one another Notification issued by the Home Department, Sachivalaya, Gandhinagar, State of Gujarat again in exercise of powers conferred under Clause(b) of Section 5 of the Gujarat Police Act, 1951 and in supersession of Rules made in this behalf, the Government of Gujarat has made Rules to provide for regulating the recruitment to the posts of Police Sub-Inspector (Unarmed) Class-III in the subordinate service of the Police Department. These Rules are last in line and again same has got the statutory force, which is not in dispute. Rule 2 is dealing with the appointment to the post of Police Sub-Inspector (Unarmed) Class-III which is prescribing practically three modes of filling up the posts. One mode by promotion of a person who possessed “good” benchmark for being considered fit for promotion within the zone of consideration whereas, second mode is by way of promotion on the basis of the result of Special Competitive Examination of person who possess “good” benchmark for being considered fit for promotion within the zone and third mode is prescribed to fill up direct selection on the basis of competitive examination held for the purpose. Since these modes are relevant to the controversy raised in the petition, are reproduced herein under : “2. Appointment to the post of Police Sub Inspector (Unarmed) Class-III, in the subordinate service of the Police Department shall be made either: (a) by promotion of a person who possess “good” benchmark for being considered fit for promotion within the zone of consideration as laid down in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 from amongst the persons, who. (i) have worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed), Class-III, in the subordinate service of the Police Department; (ii) have passed the departmental examination as may be prescribed by the Government; (iii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules 2006; and (iv) possess a valid heavy/light motor vehicle driving licence as on date of promotion; Provided that where the appointing authority is satisfied that a person having the experience as specified in sub-clause (I) above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such persons who possesses experience of a period of not less than twothirds of the period specified in sub-clause (ii) above; or (b) by promotion on the basis of the result of the Special Competitive Examination of a person who possess “good” benchmark for being considered fit for promotion within the zone of consideration as laid down in Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 from amongst the persons, who; (i) have worked for not less than five years combined or separately in the cadre of Assistant Sub-Inspector (Unarmed), Class-III or Head Constable (Unarmed), Class-III, in the subordinate service of the Police Department; or (ii) have worked for not less than fifteen years combined or separately in the cadre of Assistant Sub Inspector (Unarmed), Class-III or Head Constable (Unarmed), Class-III, or constable (Unarmed), Class-III, in the subordinate service of the Police Department; and (iii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; (iv) have passed the special competitive examination in accordance with the rules prescribed by the Government; and (v) have passed the Higher Secondary School Certificate Examination (Standard-XII, 10+2 pattern) or Secondary School Certificate Examination (Standard XI, old pattern conducted by the State's Secondary and Higher Secondary Examination Board or possess an equivalent qualification recognized as such by the Government and (vi) possess a valid heavy/light motor vehicle driving licence as on date of promotion; or (c) by direct selection, on the basis of the result of the competitive examination held for the purpose.” 6.4. These Rules are prescribing the ratio for such appointment and as such Rule 3 has provided ratio as 2:3:5. Rule 3 reads as under : “3. Appointment by promotion, by Special Competitive Examination and by direct selection shall be made in the ratio of 2:3:5 respectively.” 6.5. The aforesaid Rules are clearly stipulating that in first mode prescribed in Rule 2 in clause (a) is requiring a candidate who has worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed) Class-III in the subordinate service of the Police Department and has also prescribed that a candidate must have passed the departmental examination as may be prescribed by the Government and must have passed the qualifying examination for computer knowledge in accordance with law in consonance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules 2006 and must possess valid heavy/light Motor Vehicle driving licence as on date of promotion and as such the aforementioned requirement must be satisfied by the candidate who is seeking promotion to the post of Police Sub-Inspector (Unarmed) Class-III. 6.6. Similarly, mode 2 has also prescribed certain eventuality which are stipulated in clause (b) of Rule 2 which is already quoted herein above and one of the most relevant criteria which is prescribed is that in addition to the “good” benchmark and on the basis of the result of the Special Competitive Examination, a candidate must have worked for not less than five years combined or separately in the cadre of Assistant Sub-Inspector (Unarmed) Class-III, in the subordinate service of the Police Department or must have worked for not less than fifteen years combined or separately in the cadre of Assistant Sub Inspector (Unarmed) Class-III as referred to in (ii) of clause (b). These are the aforesaid basic requirement for a candidate who is inclined for promotion to the post of Police Sub-Inspector (Unarmed) Class-III. 6.7. Now, in the context of the aforementioned circumstance the advertisement which has been issued by the authority on 26.06.2020, it has been clearly stipulated in clause 2 and 3 that as on last date of filling up the forms, a candidate must have completed three years in unarmed ASI cadre would be eligible to appear in departmental promotion examination. 6.7. Now, in the context of the aforementioned circumstance the advertisement which has been issued by the authority on 26.06.2020, it has been clearly stipulated in clause 2 and 3 that as on last date of filling up the forms, a candidate must have completed three years in unarmed ASI cadre would be eligible to appear in departmental promotion examination. Clause 3 of the advertisement has also prescribed that as on 15.07.2020, unarmed ASI must have atleast three years experience and only those candidates who are possessing such experience of three years as ASI are called for submissions of their applications. Simultaneously, with regard to other mode of promotion, descriptions have been provided which is reflecting on page 29. 6.8. Now in the context of the aforestated relevant Rules as well as conditions of the advertisement, if the Court peruses the averments made in the petition on oath, the petitioners have neither categorically asserted as to whether they are fulfilling this eligibility criteria or not, nor conveniently given any details and just relied upon the decision delivered by the Courts in other batch of petitions. Prima facie looking at the averments contained in the petition and in view of the submissions made by the learned advocates, it is not curled out that the petitioners have completed this requisite requirement contained in the advertisement and are also not in a position to satisfy as to whether they fulfilled the eligibility in consonance with the statutory rules and as such no legal right is visible in favour of the petitioners by virtue of which a writ of mandamus is possible to be issued by this Court. It is a trite law that unless and until the Rules are not under challenge the statutory effect of the Rules cannot be given a goby and further Courts are not in a position to modify or substitute the eligibility criteria prescribed in the advertisement for the recruitment/promotion process. Hence, the petitioners have miserably failed to establish any legal right as prima facie they have not been able to show or indicate to the Court that they are fulfilling the eligibility criteria and as such in the considered opinion of this Court, on the basis of such inadequate assertion on oath, the Court is not inclined to exercise the extra ordinary jurisdiction. 6.9. 6.9. Apart from that reliance is tried to be made on few of the decisions delivered by the Court in a different set of circumstance, but in absence of any special particulars with regard to the fact situation of those cases, it is not proper on the part of this Court to just give equal treatment as the petitioners have neither provided any full details about the facts and circumstances to which they are relying nor projected in the petition and hence, prima facie impression is created by the petitioners themselves that they are unable to justify claim of equality. Out of the aforesaid few of the orders which are tried to be relied upon by the learned advocate for the petitioners, the learned Assistant Government Pleader has drawn attention of this Court to some orders passed by the coordinate Bench of this Court, wherein the interim relief is not granted since long back the qualifying test schedule was already lapsed. One of such decision is dated 17.02.2021 rendered in Special Civil Application No. 3383 of 2021. 6.10. Yet another order which has been brought to the notice is order dated 09.02.2021 in a group of petitions headed by Special Civil Application No. 8191 in which no doubt the Court has permitted as a interim measure to appear in the ensuing departmental examination without creating any equity, but a later order which has been referred to the petitioners in the present petition has not been able to point out similarity nor has the learned counsel made any attempt to indicate to the Court that they are exactly similarly situate by pointing out the facts of the said group of petitions. The learned Assistant Government Pleader on the contrary has brought to the notice of this Court to one order passed in later point of time dated 24.02.2021 in Special Civil Application No. 3932 of 2021, in which after examining the facts of the said case, since qualifying examination was not schedule, the Court has refrain itself from giving any direction and, therefore, none of the orders which are shown to the Court are giving any assistance to the petitioners. Hence, in the background of the aforesaid facts and circumstances of the case, since the petitioners have not been able to establish merit in the petition, the Court is not inclined to issue any writ. 6.11. Hence, in the background of the aforesaid facts and circumstances of the case, since the petitioners have not been able to establish merit in the petition, the Court is not inclined to issue any writ. 6.11. Even otherwise, the learned Assistant Government Pleader has drawn attention of this Court that the examination which is said to have been fixed is in response to some other interim order passed by the Court in a different background of fact and the said examination is to be scheduled in compliance with the aforesaid interim order so that the authority may not come in conflict of the contempt and as such, when the petitioners are not fulfilling the eligibility criteria and having not established the same, it is difficult for this Court to grant a blanket interim order to permit the petitioners to appear in the examination when they have not established their right. Hence, in absence of any distinguishable material, on the basis of the brief submissions and averments made in the petition, this Court is not in a position to entertain the petition. Accordingly, the petition being devoid of merit deserves to be dismissed. 7. In view of the above, the present petition stands dismissed. With no order as to costs.