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2023 DIGILAW 1132 (GUJ)

Chiragkumar Champaklal Salvi v. State Of Gujarat

2023-11-08

NIKHIL S.KARIEL

body2023
ORDER : 1. Heard learned advocate Mr. Shivam Majmudar on behalf of the petitioner, learned AGP Mr. Sahil Trivedi for respondent-State and learned advocate Ms. Yogini Parikh on behalf of the respondent-Public Service Commission. 2. By way of this petition, the petitioners interalia challenge the decision of respondents in not preparing a waiting list pursuant to the selection process in the cadre of Medical Officers, Class-II conducted by the respondent-Public Service Commission. 3. Learned advocate Mr. Majmudar on behalf of the petitioner would submit that originally, the respondents had advertised for combined selection to the post of Medical Officer etc. vide advertisement No.137/20-2021, required the candidates to submit their applications on or before 31.03.2021. According to learned advocate Mr. Majmudar, having advertised for a combined selection, for filling up 75 posts, the respondent-Public Service Commission had thereafter vide corrigendem dated 23.02.2023 interalia cancelled the advertisement in so far as 75 posts of tutors which were advertised and whereas the said advertisement remained in force only for filling up of 1000 posts of Medical Officers, Class-II. According to petitioner, the petitioner having appeared in the selection process, and though having secured reasonable marks, since the respondent No.3 did not publish a waiting list, the petitioners have been seriously prejudiced. 4. It is submitted on behalf of the petitioners that the respondent No.3, had published a Notification dated 3.04.2023 whereby it was interalia clarified that as per the Competitive Examinations Rules 2019, more particularly, Rule 19(4) no waiting list would be prepared by the Commission. Learned advocate Mr. Majmudar on behalf of the petitioner would draw the attention of this Court to the Combined Competitive Examinations Rules dated 12.07.2019 and would submit that the Rules would be applicable only when the examination is a combined competitive examination and whereas according to learned advocate, since the selection for posts other than the post of Medical Officers, Class-II have been cancelled, therefore, the Combined Competitive Examination Rules would not be applicable. Learned advocate would also in that regard draw the attention of this Court to Government Resolution dated 27.07.2018 and would submit that in case the advertisement was for a solitary cadre then the said instructions in the said Government Resolution would apply, more particularly, according to the learned advocate the said Government Resolution interalia envisaging that in a selection process for one cadre then a waiting list has to be prepared. Learned advocate would submit that the respondents having not prepared the waiting list and having carried forward the vacancies which remained unfilled on account of candidates not joining or candidates joining and having resigned mid way, therefore, this Court may direct the respondents to prepare a waiting list and to give effect to the same. 5. This application is vehemently objected by learned advocate Ms. Yogini Parikh on behalf of the respondents. Learned advocate Ms. Parikh at the outset would submit that the submissions on behalf of the petitioners is absolutely misconceived. Learned advocate would submit that while the Rules i.e. the Combined Competitive Examination Rules, prescribes the manner and method in which the recruitment for the said posts are to be conducted, yet, nowhere does the Rules states that the Rules would remain inforce only if the selection is a combined selection and whereas if the selection were for a single post of the various posts named in the recruitment rules itself then the said rule would not be applicable. Learned advocate would further submit that in so far as the Government G.R. dated 27.07.2018 is concerned, the same, are general instructions of the State with regard to selection process which are being carried out and whereas the learned advocate would submit that a general instructions of the State, would not have any overriding effect over a recruitment rule prepared by the State in exercise of proviso to Article 309 of the Constitution of India. Learned advocate Ms. Yogini Parikh in support of her contention would rely upon an observations of Division Bench of this Court vide decision dated14.06.2023 in Letters Patent Appeal No.517/2023. 6. Learned AGP Mr. Sahil Trivedi would submit that since the issue is between the petitioner and the Public Service Commission, the State may not have much to say and whereas learned AGP would not dispute the legal position that a recruitment rules under Article 309 of Constitution may not have any overriding effect over general instructions issued by the State. 7. In rejoinder, learned advocate Mr. 7. In rejoinder, learned advocate Mr. Majmudar would submit that undoubtedly the legal position that the rules made under Article 309 of Constitution may have an overriding effect, but at the same time, learned advocate would submit that on facts, the recruitment rules would not be applicable, more particularly, the Recruitment Rules according to learned advocate would be applicable only if the selection is of a combined nature and whereas if a solitary cadre is advertised and the selection is for such a solitary cadre then the government instructions in the Government G.R. would be applicable. Thus submitting learned advocate Mr. Majmudar would request this Court to issue appropriate directions to the respondents. 8. Heard learned advocate for the respective parties who have not submitted anything else. The principal contention on behalf of the learned advocate for the petitioner being that the examination rules i.e. the Combined Competitive Examination for recruitment to the post of Medical Officer, Class-II, Gujarat Medical Services, Class-II, Gujarat Health Services, Class-II, Tutor, Class-II, Municipal Health Officer, Class-II and Insurance Medical Officer (Alopathy) Class-II, not being applicable to the selection in question since the examination was for one post only and not a combined examination for multiple posts. 8.1. In this regard, at the outset, this Court seeks to refer to advertisement to the selection in question and whereas it would appear that while the advertisement was for a total of 1075 vacancies of which 1000 vacancies were advertised for the post of Medical Officer, Class-II whereas rest of the vacancies were advertised to the post of Tutor in of various subjects. It also appears that the respondent Public Service Commission, vide a Corrigendum dated 23.02.2023 had cancelled the selection process in so far as Tutors are concerned whereas the selection of Medical Officers had remained as it is. 9. Considering the submission of learned advocate Mr. Majmudar while it would appear that the entire crux of the submission is on a premise that while the advertisement was for two different posts, the subsequent selection being for a single post therefore the Combined Recruitment Examination Rules would not apply. In the proposition seems attractive on the first blush out on a deeper consideration the same cannot be accepted. The reason being that the original advertisement contemplated a combined examination for two different posts, i.e. post of Medical Officer Class-I] and Tutor Class-II. In the proposition seems attractive on the first blush out on a deeper consideration the same cannot be accepted. The reason being that the original advertisement contemplated a combined examination for two different posts, i.e. post of Medical Officer Class-I] and Tutor Class-II. While the Advertisement was issued nearabout March 2021, the examinations were held on 19/09/2021. The personal interviews were held between 30/01/2023 to 17/03/2023. The notice cancelling the selection qua the post of Tutor had been issued on 23/02/2023. Thus, till a very advanced stage of the selection process, the selection remained as a combined selection as per the Combined Recruitment Examination Rules. Under the said circumstances, because of an exigency if one of the post was taken out of the purview of the selection, yet the selection would not lose its essential character of being a combined selection. To further elaborate selection to the post of Tutor had been cancelled after the interview process had started. The Combined Examination Recruitment Rules, interalia envisage the procedure for holding the combined recruitment process and whereas the interview for short listed candidates would be the penultimate stage before the results were declared. The selection procedure upto the stage of interview being carried out as per the Combined Examination Recruitment Rules, the respondent GPSC was bound to follow the procedure prescribed in the said Rules till conclusion of the recruitment process. The procedure as done following the Rules in question would not be permitted to be undone on account of the selection for one of the two posts being cancelled. Accepting the submission on part of the learned counsel would mean that while the entire selection process was conducted as per the Rules in question, the said Rules would pale into insignificance at the stage of preparation of the waiting list. Such a submission cannot be countenanced. 10. In so far as G.R. dated 27.07.2018, since this Court has taken a view that the Combined Competitive Examination Rules would be applicable to the recruitment process in question, therefore, this Court does not require to delve into whether the said G.R. would be applicable or not, suffice it to state that the legal position as regards the Recruitment Rules under Article 309 of the Constitution of India holding primacy over an executive instructions, being a position no more res integra, nothing further requires to be stated on the said count. 11. 11. In this view of the matter, more particularly, since it appears that the Recruitment Rules being the Combined Competitive Examination for recruitment to the post of Medical Officer, Class-II, Gujarat Medical Services, Class-II, Gujarat Health Services, Class-II, Tutor, Class-II, Municipal Health Officer, Class-II and Insurance Medical Officer (Alopathy) Class-II, was the Rules which had governed the recruitment process, therefore, the respondents having followed the mandate of the said Rule of not preparing a waiting list, no error could be stated to have been committed by the respondents and whereas in the considered opinion of this Court, no interference whatsoever is required. Hence, the present petition stands disposed of as being meritless. Interim relief, if any, stands vacated.