Gujarat High Court
Roshni Purshottambhai Solanki vs State Of Gujarat on 2 August, 2021
Bench: A.S. Supehia
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12115 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair
copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made NO
thereunder ?
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ROSHNI PURSHOTTAMBHAI SOLANKI
Versus
STATE OF GUJARAT
======================================================
Appearance:
MR ABHISHEKKUMAR C MALVI(9941) for the Petitioner(s) No. 1
MR CHETAN K PANDYA(1973) for the Petitioner(s) No. 1
MR DHARMESH DEVNANI, AGP(1) for the Respondent(s) No. 1
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 02/08/2021
ORAL JUDGMENT
(1) RULE. Mr.Devnani, learned Assistant Government
Pleader for respondent No.1-State, and Mr.Shivang
J. Shukla, learned advocate for respondent No.2-
Gujarat Public Service Commission appear and waive
service of notice of rule for the respective
respondents. Though notice was served, none appears
on behalf of respondent No.3.
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
(2) The present petition has been filed by the
petitioner, inter alia, for the following prayers:
"A) To issue a Writ of Mandamus and/or Certiorari
and/or any other writ, order or direction quashing
and setting aside the recommendation of the Gujarat
Public Service Commission dated 04/07/2019 at
Annexure-A to appoint respondent No.3 to the post of
Deputy Superintendent of Police and not recommending
the petitioner for her 1st choice for the post of
Deputy Superintendent of Police in connection with
advertisement No.40/2018-19 at Annexure-B.
B) To issue a Writ of Mandamus and/or Certiorari
and/or any other writ, order or direction directing
the Respondent Nos.1 & 2 to consider and appoint the
petitioner to the post of Deputy Superintendent of
Police in connection with advertisement No.40/2018-
19 with effect from 04/07/2019 and with all
consequential benefits, the date on which the
petitioner was offered the post of Assistant
Commissioner of State Tax."
(3) The brief facts of the case as are enumerated
from the writ petition are that the petitioner
belongs to Scheduled Caste category having
educational qualification of B.Pharm, M.Pharm,
Ph.D. and LL.B. and at the time of filing the
present petition, the petitioner was 33 years old.
(3.1) The Gujarat Public Service Commission (GPSC)
by a public advertisement No.40/2018-19 called for
applications from the candidates for various posts
of Class-I and Class-II categories, which were to
be filled-up through the competitive examinations.
Petitioner had given the first choice to the post
of Deputy Superintendent of Police, the second
choice to the Gujarat Administrative Service and
the third choice to the post of Assistant
Commissioner of State Tax.
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
(3.2) The petitioner appeared in the preliminary
examination and was declared successful candidate
amongst 4997 candidates. The petitioner secured 95
marks, whereas the cut-off marks for the General
Category Female and Schedule Caste category female
was 90.15. The petitioner then appeared in the main
examination conducted for 4997 candidates and was
declared successful in the preliminary examination
conducted on 21.10.2018. The petitioner was
declared successful in the main examination and
secured total 477.75 marks and secured 43rd Rank,
whereas respondent No.3 secured 461.75 marks and
secured 110th Rank.
(3.3) It is the grievance of the petitioner, that,
though the she had given the first choice to the
post of Deputy Superintendent of Police, she was
recommended for her third choice for the post of
Assistant Commissioner of State Tax, whereas
respondent No.3 had been recommended for the post
of the Deputy Superintendent of Police being her
second choice.
(3.4) Clause 15 of the impugned notification dated
04.07.2019 suggests that though the petitioner had
secured better rank than respondent No.3, she has
not been granted her first choice on the ground
that the petitioner had availed benefit of
relaxation in age / cut-off marks in P.T. or main
written examination as per Government Circulars
being GAD No.PVS-1099-MM-13-G4 dated 29.01.2000 and
No.PVS-2010-03-900-G4 dated 23.07.2004.
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
(3.5) By an order No.VVK/502019/1310/TH.3 dated
27.11.2019, the petitioner received the appointment
for the post of Assistant Commissioner, State Tax.
(3.6) Aggrieved by the action of the respondent
authority, the petitioner made a representation for
considering the petitioner for the post of Deputy
Superintendent of Police instead of Assistant
Commissioner, State Tax, wherein the petitioner had
made it clear that the petitioner did not avail any
relaxation on the ground of caste or being a member
of Schedule Caste.
(4) Learned advocate Mr.Chetan K. Pandya for the
petitioner has submitted that the petitioner was
aged about 33 years as on 31.07.2018 and,
therefore, there was no question of availing age
relaxation on the ground that the petitioner is a
member of Schedule Caste. In other words, the age
criteria as per the advertisement was not less than
20 years of age and not more than 35 years of age
as on 31.07.2018, hence it was fulfilled by the
petitioner. It is submitted that the petitioner
secured 95 marks in preliminary examination / P.T.,
whereas the cut-off marks for the General Category
Female and Scheduled Caste Category Female was
90.15 and, therefore, there was no question of
availing relaxation in the cut-off marks for
preliminary examination / P.T.
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
(4.1) Learned advocate for the petitioner has
further submitted that the petitioner secured
477.75 marks in the main written examination,
whereas the cut-off marks for the General Category
Female was 442.50 marks and the cut-off marks for
the Scheduled Caste Category Female was 454 and,
therefore, there was no question of availing
relaxation in the cut-off marks for the Main
Written Examination. It is submitted that the
petitioner had given the first choice for the post
Deputy Superintendent of Police, the second choice
to the post of Gujarat Administrative Services and
the third choice to the post of Assistant
Commissioner, State Tax. It is submitted that even
then the petitioner has been recommended for her
third choice, though she is entitled for
preferential choice of the first post of Deputy
Superintendent of Police and Gujarat Administrative
Services.
(4.2) Learned advocate for the petitioner has also
submitted that respondent No.2-GPSC had made
factual errors while not recommending the
petitioner for her preferential post, though she
secured 43rd rank and 477.75 marks, whereas
respondent No.3 had secured 110th rank and 461.75
marks and, therefore, the petitioner ought to have
been offered for her first choice and not
respondent No.3. It is submitted that respondent
No.2-GPSC has wrongly placed reliance on Government
Resolution No.PVS-1099-MM-13-G4 dated 29.01.2000.
In other words, the Government Resolution does not
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
apply to the petitioner as the petitioner did not
avail any relaxation being member of the Scheduled
Caste or Women Candidate of Reserved Category.
(4.3) Reliance is placed by the learned advocate
for the petitioner on the judgment and order dated
05.08.2020 passed by the Division Bench of this
Court in Letters Patent Appeal No.1910 of 2019
along with allied matters in which it is held that
all women, irrespective of whether they belong, or
do not belong, to the reserved category are
entitled to compete for posts earmarked in favour
of women under the General Category. There is no
reservation for posts in the General Category, and
horizontal reservation in favour of women in the
General Category is available to be filled up from
amongst all women irrespective of their caste
status. The posts, reserved in favour of General
Category (Women), are available for all women from
the State of Gujarat, and that would include women
belonging to the reserved categories such as OBCs,
SCs and STs, and women who do not. It is submitted
that the case of the present petitioner is squarely
covered by the aforesaid judgment.
(4.4) Finally, learned advocate for the petitioner
has submitted that even the General Administrative
Department has issued Government Resolution dated
02.09.2020 making it clear to follow the directions
issued by the Division Bench of this Court in the
aforesaid judgment and order dated 05.08.2020. It
is submitted that the respondent No.2-GPSC ought
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
not to have recommended the name of respondent No.3
to the post of Deputy Superintendent of Police, who
is at 110th rank and instead ought to have
recommended the petitioner to the post of Deputy
Superintendent of Police, who secured 43rd rank.
Accordingly, learned advocate for the petitioner
has urged that the present petition may be allowed
as prayed for.
(5) Per contra, learned advocate Mr.Shivang J.
Shukla appearing for the respondent No.2-GPSC has
submitted that the petitioner is not entitled to be
appointed on the post of Deputy Superintendent of
Police, as per the cut-off marks specified in
provisional result. It is submitted that as the
petitioner has obtained 95 marks against the cut-
off marks of 120 fixed for the General Male
Category which is common category in the
preliminary examination and hence, the petitioner
is considered against her respective reserved
category. Moreover, it is submitted that the post
as claimed by the petitioner is not reserved for
Scheduled Caste Category and hence, the petitioner
could not be considered for the claimed post in her
reserved category too.
(5.1) Learned advocate for the respondent No.2 has
further submitted that the petition suffers from
vice of delay and latches so also the principles of
waiver and acquiescence. It is submitted that the
petitioner was declared successful in the aforesaid
advertisement dated 04.07.2019 and the appointment
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
order was issued to the petitioner by the
respective authority on 27.11.2019. It is submitted
that at that relevant point of time the petitioner
had not objected to the same and thereafter, the
petitioner has presented the present petition on
16.09.2020, which was registered on 30.09.2020. It
is submitted that in view of the aforesaid facts,
the present petition is filed at a belated stage
i.e. after lapse of more than one year from the
date of the petitioner was declared to be
successful and also after completion of whole
selection process of the aforesaid advertisement.
(6) Heard the learned advocates for the respective
parties. Respondent no.3, though served has not
entered her appearance.
(7) The marks secured by the petitioner as noted
hereinabove are not disputed. The petitioner
secured 95 marks in general category female,
whereas the cut-off marks for the General Category
Female is prescribed as 90.15 in the provisional
list published by the GPSC for those candidates who
are found eligible for written examination. Thus,
the petitioner had no need to claim reservation as
she was well within the criteria. In the written
examination she secured 477.75 marks and secured
43rd whereas, the respondent no.3 secured 461 110th
rank. The petitioner had given her first choice to
the post of Deputy Superintendent of Police,
however, she was recommended for the post of
Assistant Commissioner of Sales Tax which was her
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
3rd choice. Clause 15 of the impugned notification
dated 04.07.2019 suggests that though the
petitioner had secured better rank than respondent
No.3, she has not been granted her first choice on
the ground that the petitioner had availed benefit
of relaxation in age / cut-off marks in P.T. or
main written examination as per Government
Circulars dated 23.07.2004. The aforesaid reason is
absolutely ill-conceived, since there was no need
for the petitioner to claim reservation since she
was already satisfying the criteria of general
category women candidate. The respondents have not
produced any material on record to show that the
petitioner had sought reservation. Hence, the
reason for which she was not denied the appointment
as per her first preference is illegal and
perverse.
(8) It is also submitted by the respondent no.2,
GPSC, that she did not secure the cut-off marks of
120 prescribed for General Male, which should be
read as general category. This Court is unable to
comprehend the arguments advanced by the GPSC. The
provisional list published by the GPSC provides for
cut-off marks for appearing in the written
examination. The statement at paragraph no.2,
stipulates that for "General Male: cut-off marks
are 120, whereas for "General Female: 90.15. The
petitioner secured 95 marks. Thus, the GPSC has
misdirected itself in prescribing the cut-off marks
of "General Male" to the petitioner who is "general
female candidate".
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
(9) The Division Bench in the judgement dated
05.08.2020 rendered in Letters Patent Appeal, after
a threadbare examination of the reservation policy
meant for women has held thus:
"56 For the future guidance of the State Government, we
would like to explain the proper and correct method of im-
plementing horizontal reservation for women in a more lucid
manner.
PROPER AND CORRECT METHOD OF IMPLEMETING
HORIZONTAL RESERVATION FOR WOMEN
No. of posts available for re- ..... 100
cruitment.
Social Reservation quota (50%)
Open Competition (OC) ... 51
Scheduled Caste (SC ) ... 12
Scheduled Tribe (ST) ... 17
Socially and Educationally Back- ... 20
ward Classes (SEBC)
Horizontal Reservation for Women (33% in each of the
above categories)
OC ... 17
SC ... 04
ST ... 06
SEBC ... 07
Step Draw up a list of at least 100 candidates
1: (usually a list of more than 100 candidates
is prepared so that there is no shortfall of
appointees when some candidates don t join '
after offer) qualified to be selected in the
order of merit. This list will contain the
candidates belonging to all the aforesaid
categories.
Step From the aforesaid Step 1 List, draw up a
2: list of the first 51 candidates to fill up
the OC quota (51) on the basis of merit.
This list of 51 candidates may include the
candidates belonging to SC, ST and SEBC.
Step Do a check for horizontal reservation in OC
3: quota. In the Step 2 List of OC category, if
there are 17 women (category does not mat-
ter), women s quota of 33% is fulfilled.
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
Nothing more is to be done. If there is a
shortfall of women (say, only 10 women are
available in the Step 2 List of OC cate-
gory), 7 more women have to be added. The
way to do this is to, first, delete the last
7 male candidates of the Step 2 List. There-
after, go down the Step 1 List after item
no. 51, and pick the first 7 women (category
does not matter). As soon as 7 such women
from Step 1 List are found, they are to be
brought up and added to the Step 2 List to
make up for the shortfall of 7 women. Now,
the 33% quota for OC women is fulfilled.
List of OC category is to be locked. Step 2
List list becomes final.
Step Move over to SCs. From the Step 1 List, af-
4: ter item no. 51, draw up a list of 12 SC
candidates (male or female). These 12 would
also include all male SC candidates who got
deleted from the Step 2 List to make up for
the shortfall of women.
Step Do a check for horizontal reservation in the
5: Step 4 List of SCs. If there are 4 SC women,
the quota of 33% is complete. Nothing more
is to be done. If there is a shortfall of SC
women (say, only 2 women are available), 2
more women have to be added. The way to do
this is to, first, delete the last 2 male SC
candidates of the Step 4 List and then to go
down the Step 1 List after item no. 51, and
pick the first 2 SC women. As soon as 2 such
SC women in Step 1 List are found, they are
to be brought up and added to the Step 4
List of SCs to make up for the shortfall of
SC women. Now, the 33% quota for SC women is
fulfilled. List-of-SCs is to be locked. Step
4 List becomes final. If 2 SC women cannot
be found till the last number in the Step 1
List, these 2 vacancies are to be flled up
by SC men. If in case, SC men are also want-
ing, the social reservation quota of SC is
to be carried forward to the next recruit-
ment unless there is a rule which permits
conversion of SC quota to OC.
Step Repeat steps 4 and 5 for preparing list of
6: STs.
Step Repeat steps 4 and 5 for preparing list of
7 SEBCs."
57 The State Government as well as the GPSC shall, for all
times to come, bear in mind that the effect of horizontal
reservation, being provided under each category, is that it
is only women, who belong to the Other Backward Classes,
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
who can compete for the posts reserved for Other Backward
Classes (Women) and not women who belong to the Scheduled
Castes, the Scheduled Tribes and the unreserved category.
Likewise, it is only women belonging to the Scheduled
Castes and the Scheduled Tribes who can compete for the
posts horizontally reserved in favour of Scheduled Castes
(Women) and Scheduled Tribes (Women). A woman, not belong-
ing to the reserved category (OBC, SC and ST), is not enti-
tled to compete for posts reserved in favour of Other Back-
ward Classes (Women), Scheduled Castes (Women) and Sched-
uled Tribes (Women)."
(9.1) Thus, the Division Bench has held that the GPSC
has initially to draw a list of qualified candidates
to be selected in the order of merit. This list will
contain the candidates belonging to all the aforesaid
categories and then from the said list the candidates
of open competition which may include all the cate-
gory have to be appointed. It is held that if 33%
quota meant for women is filled up nothing more is to
be done. The petitioner had never applied for reser-
vation; hence her case was required to be considered
on the merits prescribed for general women candidate.
The contentions raised by the respondent-GPSC with
regard to delay and the petitioner having acquiesced
her claim deserves to be rejected in light of the
undisputed fact, that the petitioner was more merito-
rious then the respondent no.3, and the instant writ
petition filed by her, indubitably cannot be said to
be belated.
(10) In view of the foregoing observations, the
respondent No.2-GPSC is directed to recommend the
case of the petitioner for being appointed to the
post of Deputy Superintendent of Police within a
period of 02 (two) weeks from the date of receipt
C/SCA/12115/2020 JUDGMENT DATED: 02/08/2021
of this order. Respondent No.1-State is also
directed to issue the appointment order to the
petitioner for the post of Deputy Superintendent of
Police. Such appointment order shall be effective
from the date of appointment of the respondent
No.3. It is clarified that the intervening period
shall be counted notionally, for the purpose of pay
fixation and all other service benefits including
seniority etc.
(10.1) So far as the appointment of respondent
No.3 is concerned, this Court has not expressed any
opinion for the same and it is left open for the
respondent No.2-GPSC and the State authorities to
regulate her appointment as she has chosen not to
appear before this Court. As far as possible, the
petitioner may be appointed without disturbing the
service of respondent No.3. The aforementioned
directions shall be complied with within a period
of 03 (three) months from the date of receipt of
the writ of this order.
(11) Accordingly, the writ petition is allowed.
RULE is made absolute. Direct service is permitted.
Sd/- .
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
