VIMALA KUMARI BALVIR SINGH POONIYA v. STATE OF GUJARAT
2024-06-24
A.S.SUPEHIA, MAUNA M.BHATT
body2024
DigiLaw.ai
ORDER : 1. The present appeal being Letters Patent Appeal No. 549 of 2024 filed under Clause 15 of the Letters Patent is directed against the judgment and order dated 18.01.2024 passed in the captioned writ petition being Special Civil Application No. 9365 of 2021, whereby the learned Single Judge has rejected the writ petition. 2. Learned Senior Advocate Mr. Gautam Joshi has submitted that the learned Single Judge has fallen in error in rejecting the writ petition by not appreciating the certificates, which were produced by the appellant along with the application pertaining to her experience. Learned Senior Advocate Mr. Joshi has invited attention of this Court to Clause A(B)(iii) of the advertisement and has submitted that in fact the appellant satisfies 3 years experience as she has worked on a post, which is connected with Social Service in Private Sector. In order to support his contention, he has pointed out the certificate at Page No. 38 issued by Micro Housing Finance Corporation Limited for the period from 16.05.2016 to 10.11.2017, wherein the appellant has worked as Management Trainee/Executive - Grade-B. He has also pointed out the certificate at Page No. 39 issued by Aanugree Academy dated 28.09.2020, wherein it is stated that she was working with the said institution from 28.03.2018 till the issuance of the certificate i.e. 28.09.2020. 3. Today, when the matter is taken up for hearing the appellant has tendered an additional affidavit placing further documents, which were not part of the writ petition before the learned Single Judge. It is contended that the Gujarat Public Service Commission, in the earlier and subsequent recruitment process undertaken for various posts, has considered the objections raised by the unsuccessful candidates and after considering the same, their names were also deleted from the list of unsuccessful candidates and subsequently, they were appointed to the respective posts. It is submitted that in the present recruitment process, no such procedure is followed. Thus, it is urged that the present appeals be allowed by quashing and setting aside the impugned action of the respondent authorities as well as the order and judgment passed by the learned Single Judge. 4. Per contra, learned advocate Mr. Chaitanya Joshi appearing for the respondent No. 2 - Gujarat Public Service Commission (GPSC) has submitted that the order passed by the learned Single Judge does not require any interference and the same is appropriate.
4. Per contra, learned advocate Mr. Chaitanya Joshi appearing for the respondent No. 2 - Gujarat Public Service Commission (GPSC) has submitted that the order passed by the learned Single Judge does not require any interference and the same is appropriate. Learned advocate has asserted before this Court that the appellant does not fulfill the requisite experience, as required under the advertisement. It submitted that in this regard, the GPSC had consulted the State Government however, the State Government has responded that her experience on the post, as mentioned in the certificate, cannot be considered. 5. We have heard learned advocates appearing for the respective parties. 6. The entire case of the appellant hinges on Clause A(B)(iii) of the advertisement. The Gujarat Public Service Commission - respondent No. 2 issued the advertisement dated 09.06.2021 inviting the applications from the candidates for filling up the post of Dowry Prohibition Officer cum Protection Officer, Class-2. The said advertisement specifically contains the following clauses specifying the education qualification experience and the same are as under: “(A) Educational Qualification and Experience: (A) A post Graduate Degree in Social Work or Sociology or Psychology obtained from any of the Universities established or incorporated by or under the Central or State Act in India or any other educational institute recognized as such or delcared to be a deemed University under Section 3 of the University Grants Commission Act, 1956; or possess an equivalent qualification recognized by the Government. (B)...... (i) At least three years’ experience of Social Work or Social Administration in Government or Local Bodies or Government Undertaking Board or Corporation on the post which can be considered equivalent to the post not below the rank of a Senior Clerk, Class-III in the Subordinate Service of the Directorate of Social Defence. (ii) At least three years’ experience of Social Work or Social Administration or in the filed related to Social Service of the Registered Non-Government Organisation. (iii) At least three years’ experience on the post connected with Social Services in the Private or Public Sector Organisation which can be considered equivalent to the post not below the rank of Senior Clerk, Class-III in the Subordinate Service of the Directorate of Social Defence.” 7.
(iii) At least three years’ experience on the post connected with Social Services in the Private or Public Sector Organisation which can be considered equivalent to the post not below the rank of Senior Clerk, Class-III in the Subordinate Service of the Directorate of Social Defence.” 7. A plain and simple reading of the aforementioned clause(iii) of the advertisement on which the reliance is placed by the applicant will clarify that a candidate is required to possesses 3 (three) years experience in the post connected with Social Services in Private or Public Sector Organization, which can be considered equivalent to the post not below the rank of Senior Clerk Class-III in the Subordinate Service of the Directorate of Social Defence. The appellant along with her application in order to establish that she possess 3 years experience, as required in the aforesaid clause, has produced two certificates (i) issued by Micro Housing Finance Corporation Limited, wherein it is specified that she has worked as a Management Trainee/Executive - Grade-B for the period from 16.05.2016 to 10.11.2017. The responsibility and her role prescribed in the said certificate is “Customer Service, Counseling, Co-ordination with Employees and Administrative Department”, and (ii) issued by Aanugree Academy dated 28.09.2020 certifying that she has worked as an employee in the said Academy from 28.03.2018 till the date as a Center Manager. The certificate is issued on 28.09.2020. It specifies that her responsibilities include “Center Administration, Trainer, Counselor and Recruitment and Selection, Coordinate with Employees and Head Office.” 8. The learned Single Judge, after hearing the respective parties and considering the aforesaid certificates, has held as under: “7.1. Before answering the said question, it requires to be observed as regards the contention of learned advocate for the petitioner that there are candidates who do not possess the requisite qualification as per the recruitment rules, yet, they have been appointed and whereas, the case of the petitioner is not considered. In this regard, firstly it requires to be noted that there are no averments in the petition with regard to any such candidates who have been selected in the present selection process. Furthermore, more importantly, it is by now a well settled position of law that Article 14 could not be directed to be implemented in its breach i.e. to say that a writ cannot be sought for to direct the State Authorities to commit an illegal act.
Furthermore, more importantly, it is by now a well settled position of law that Article 14 could not be directed to be implemented in its breach i.e. to say that a writ cannot be sought for to direct the State Authorities to commit an illegal act. While the petitioner is claiming breach of Article 14 by stating that in case of other candidates the Public Service Commission has committed some illegality and whereas, it is contended that a writ may be issued in her favour directing the Public Service Commission to commit the same illegality in favour of the present petitioner. Such a request cannot be countenanced. A writ would not be issued to direct the State or any authorities under the State to do an illegal act. The contention that since the respondents have committed some illegality in case of other candidates and therefore, the certificates in favour of the petitioner were also required to be considered for the said reason, cannot be countenanced and is hereby rejected. 8.1. As seen from the experience criteria required, it would appear that Clause-B(i) is with regard to experience in local bodies or government undertakings which would not be relevant in case of the present petition so there is no discussion required on the said score. 8.2. Insofar as Item No. B(ii) is concerned, the experience is in filed related to social service of registered nongovernmental organization. It is not the case of the petitioner that either of the organizations in which the petitioner had worked, was a non-governmental organization in that sense and therefore, there would not be any requirement to consider the case of the petitioner from the said perspective. 8.3. Thus, the case of the petitioner for considering her experience is required to be viewed from the perspective of Item No. B(iii) which inter alia requires three years’ experience on post connected with social services in the private or public sector organization which can be considered equivalent to post not below the rank of Senior Clerk, Class- III in subordinate service of the directorate of social defence. Now, while the term social services has not been explained, yet, it would essentially mean that the candidate should be engaged in activity which would be closely connected with providing social services in any private or public sector organization. 8.4.
Now, while the term social services has not been explained, yet, it would essentially mean that the candidate should be engaged in activity which would be closely connected with providing social services in any private or public sector organization. 8.4. Viewed from the perspective of the said requirement, it would appear that the petitioner does not possess the required qualification. The reason for coming to such a conclusion being that as while the petitioner worked as a Management Trainee/Executive-Grade-B with one Micro Housing Finance Corporation Limited for a year approximately, yet, the responsibility of the petitioner was with regard to customer service, counseling, coordination with employees and administrative department. The above responsibilities of the petitioner would be considered to be closely related with the administration of the organization itself and whereas, it could not be by any stretch of imagination stated that the responsibility of the petitioner was connected with the social services. 8.5. Insofar as the certificate issued by Aanugree Academy which is being heavily relied upon by the petitioner where the petitioner had worked for two years approximately, while it would appear that in the offer of employment given to the petitioner as well as the job description of the petitioner as Centre Manager, it would appear that the petitioner was required to work with children suffering from psychological difficulties and was required to coordinate with CSR mobilization and organizing seminars etc. and whereas, the job description also entail supporting mentally challenged children from lowest income group of the society etc. yet, it would appear that all these services would be closely connected with the core activity of the academy that was running a peripheral educational module for children namely ‘Aloha’ and ‘Brainy’. It would not appear from the certificates annexed with the petition that the academy was in any way connected to social work and whereas, the entire focus of the academy more particularly corelatable to the responsibility assigned to the petitioner was with regard to business development of the academy and nothing else. 8.6. At this stage, reliance would be placed by this Court upon observations made by the learned Coordinate Bench in case of Mulabhai Harchandji Patel (supra) as relied upon by learned advocate for the respondent. Paragraph Nos. 10 and 11 being relevant for the present purpose, are reproduced hereinbelow for benefit: “10.
8.6. At this stage, reliance would be placed by this Court upon observations made by the learned Coordinate Bench in case of Mulabhai Harchandji Patel (supra) as relied upon by learned advocate for the respondent. Paragraph Nos. 10 and 11 being relevant for the present purpose, are reproduced hereinbelow for benefit: “10. There does not appear to be any certificate on record stating that the petitioner has the requisite experience of three years in the field of Social Work. Though the learned counsel for the petitioner has submitted that the activities carried on by the petitioner are in the nature of social work, according to the GPSC this aspect is not evident from the documents supplied by the petitioner. 11. In the considered view of this Court, the very purpose and requirement of submission of certificates, credentials and documents is to enable the recruiting body, in this case the GPSC, to come to a conclusion regarding the eligibility of the candidate and to form an opinion on the basis of the same, whether the candidate possesses the eligibility criteria as prescribed by the Rules and as stipulated in the advertisement. What is not clearly stated in the documents and credentials of the petitioner cannot be inferred by the GPSC. For the purpose of evaluating whether the petitioner possesses three years' experience in the field of Social Work, he was required to submit documents that makes this aspect clear on bare perusal of the same. To infer, by a long drawn out process of reasoning and speculation whether the duties performed by the petitioner involve experience in the field of Social Work or not, would bring in an undesirable element of subjectivity, which is to be avoided in matters of public employment, through a process of direct selection. The GPSC, which is the recruiting body, has to maintain objectivity and impartiality in order to satisfy itself regarding the aspect whether the candidate fulfills all the necessary eligibility criteria prescribed by Rules, for the post. This can only be done by scrutiny of certificates, credentials and documents and only if it is found that the candidate fulfills all the necessary eligibility criteria for the post in question, is he to be called for the interview.
This can only be done by scrutiny of certificates, credentials and documents and only if it is found that the candidate fulfills all the necessary eligibility criteria for the post in question, is he to be called for the interview. The documents should speak for themselves and in this case, looking to the material on record, it cannot be said that the decision of the GPSC, debarring the petitioner from appearing in the interview, suffers from any illegality, irregularity or arbitrariness, so as to warrant interference from this Court in exercise of its power of judicial review.” 9. In the considered opinion of this Court, more particularly as noted by the learned Coordinate Bench, the documents produced by a candidate should speak for themselves and whereas, there could not be a requirement to infer by a long drawn process of reasoning and speculation whether the duties performed by the candidate involved experience in the field of social services or not. In this regard, it would be pertinent to mention that both the organizations in which the petitioner had worked, appear to be private organizations which were engaged either in the field of housing finance or in the filed of running a franchise model children peripheral education module. It does not appear that either of the organizations were having social services as either their core function or even their ancillary function.” 9. Thus, the learned Single Judge has held that it is always within the domain of the Recruitment Agency to consider the educational qualification and requisite experience and it is further held that it does not appear that either of the organization were having Social Services as either their core function or even their ancillary function. It is within the domain and wisdom of the recruiting authority to examine the characteristic and equivalence of experience of comparative posts, and the Court cannot import its wisdom in such matter unless the impugned action appears to be absolute arbitrary and illegal. It is always open for the recruiting authority like the GPSC to prescribe the manner and method to be adopted for each recruitment in line with the recruitment rules.
It is always open for the recruiting authority like the GPSC to prescribe the manner and method to be adopted for each recruitment in line with the recruitment rules. At this stage, it would be apposite to notice that the aforementioned clause specifically mandates that an employee should have at least 3 (three) years experience on the post connected with Social Services in Private Sector or in Public Sector, which can be considered ‘equivalent to the post not below the rank of Senior Clerk, Class-III’. Thus, the equivalence clause of the posts is exclusively stipulated in Clause-III. The appellant has failed to satisfy the criterion of equivalence of post. From the certificates, we do not find that the posts in which she was working was equivalent to the rank of Senior Clerk, Class-III. 10. On the overall analysis of the facts of the case, and the findings of the learned single judge, we do not find any infirmity or illegality either in the action of the State Government or with the order passed by the learned Single Judge. Hence, the present Letters Patent Appeal fails and the same is rejected. 11. In view of rejection of the captioned Letters Patent Appeal No. 549 of 2024 in Special Civil Application No. 9365 of 2021, the second Letters Patent Appeal No. 555 of 2024 in Special Civil Application No. 463 of 2022 would also fail and is rejected since the question of change of category is not required to be examined since the issue will not survive.