Gujarat High Court
Darshanaben Kanaiyalal Rathod vs State Of Gujarat on 30 March, 2021
Bench: Sangeeta K. Vishen
C/SCA/17897/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17897 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
DARSHANABEN KANAIYALAL RATHOD & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
VYOM H SHAH(9387) for the Petitioner(s) No. 1,2
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 30/03/2021
ORAL JUDGMENT
1. With the consent of the learned advocates for the
respective parties, the captioned writ petition is taken up for
final hearing.
2. Issue Rule. Mr. Rohan Shah, learned Assistant
Government Pleader waives service of rule on behalf of the
respondent no.1 - State and Ms. Roopal Patel, learned
advocate waives service of rule on behalf of the respondent
C/SCA/17897/2017 JUDGMENT
no.2 - Gujarat Public Service Commission (hereinafter referred
to as "the GPSC").
3. By this petition, inter alia, under Article 226 of the
Constitution of India, the petitioners have prayed for direction
to the respondent no.1 to appoint the petitioners on the posts
that have fallen vacant in the category of Socially
Educationally Backward Class (hereinafter referred to as "the
SEBC") as the petitioners are entitled for the same.
4. The facts, as can be culled out from the record of the
captioned writ petition, are as under:-
4.1 GPSC had issued an advertisement, inviting applications
for lecturers for various subjects. Being eligible, the petitioners
have applied for the post of lecturer for the subject of
Computer Engineering (Class-II). Thereafter, the petitioners
were called for the written examination which was scheduled
to take place on 13.7.2014; the petitioners appeared and
successfully cleared the same. Only successful candidates
were called for the oral interview, including the petitioners
which was followed by declaration of result by the GPSC on
8.8.2016, containing the select list and wait list, in accordance
with the advertisement.
4.2 GPSC had prescribed the cut off marks 35 and 31 for
SEBC open and SEBC female candidates respectively. Both the
petitioners have secured 32 marks which were more than the
cut off marks prescribed for SEBC female candidates. The
petitioners were placed at serial nos. 1 and 2 respectively in
the waitlist of the SEBC female category. According to the
petitioners, GPSC had selected 27 male candidates in the SEBC
C/SCA/17897/2017 JUDGMENT
category and 15 candidates in the SEBC female category. In
spite of the fact that there were three posts vacant in the
category of SEBC and despite the fact that the petitioners have
secured more marks than the cut off marks, the petitioners
were not offered appointments on the posts of lecturer for the
subject of Computer Engineering. Being aggrieved by the non-
selection, the petitioners have preferred the captioned writ
petition with the aforementioned prayer.
5. GPSC has through its Deputy Secretary, filed a detailed
reply, inter alia, stating that for the post of the lecturer for the
subject of Computer Engineering, (Class-II), against total 50
posts of SEBC category, 15 posts were kept reserved for SEBC
female candidates and after conducting the selection process,
42 SEBC candidates were recommended, out of which 27 were
male and 15 were female candidates.
5.1 It is the say of the GPSC that both the petitioners have
obtained equal marks, that is, 32. Since 15 female candidates
had obtained more marks than the petitioners, all the 15 posts
earmarked for female candidates were filled up accordingly.
Further, the last candidate figuring in the select list of SEBC
female category was also having 32 marks, but, being elder to
both the petitioners, her name was included in the select list
as per the governing Rules and therefore names of the
petitioners were kept in the waiting list.
5.2 Reply further states that appointment of 7 general
category candidates and 3 SEBC category candidates, were
cancelled and for filling up of the said vacant posts, the State
Government had addressed a communication dated 17.4.2017
requiring GPSC to send the names of the candidates from the
C/SCA/17897/2017 JUDGMENT
waitlist. GPSC therefore, vide letter dated 24.5.2017 sent the
names of 7 general category candidates; however, no
recommendation could be sent for 3 posts of SEBC (common)
category because, in the waitlist, names of only female
candidates were available, who had passed the examination
availing of the relaxed standards which was 31 marks whereas
passing standard for SEBC (common) was 35 marks. The
candidates in the waiting list had secured less than the cut off
marks of 35 and therefore the waiting list could not be
operated. Therefore, the posts which had fallen vacant against
SEBC (common), no candidates were recommended. While
operating the list, doctrine of "even to even replacement" has
to be applied, meaning thereby, names of those candidates
have to be recommended, who are belonging to the same
category and have been selected applying the similar
standards having similar qualifications against the posts which
have fallen vacant. It is therefore stated that against the post
of SEBC (common), names of SEBC female, could not have
been recommended.
5.3 It is further stated that pursuant to the advertisement in
question final result has been published on 8.8.2016; Note 2
appended to the result clearly reflects the details about the
non-selection of the candidates. Despite the fact that
everything was made known to all the candidates, the
petitioners have chosen not to disclose the said fact in the
petition. It is urged that the petitioners are not entitled to be
posted against the posts meant for SEBC (common) since they
have cleared the examination availing of relaxed standards
prescribed for SEBC female and have not secured the passing
standards of SEBC (common). Therefore, the petition is devoid
C/SCA/17897/2017 JUDGMENT
of any merits and hence deserves to be rejected.
6. Mr. Gautam Joshi, learned Senior Advocate appearing
with Mr. Vyom Shah, learned advocate for the petitioners
submitted that the action on the part of the GPSC, in not
considering the petitioners for the post of lecturer for the
subject of Computer Engineering, in spite of the fact that both
the petitioners have secured the marks which are above the
cut off marks, is arbitrary.
6.1 It is submitted that the post in question is of lecturer for
the subject of Computer Engineering, (Class-II) and for which
total posts advertised were 133, out of which, 50 posts were
earmarked for SEBC and out of said 50 posts, 15 posts were
reserved for SEBC female and rest 35 posts were for SEBC
candidates. It is submitted that 27 candidates selected against
the category of SEBC are male candidates and three of them
have chosen not to report for duty and therefore three posts
were still vacant. In spite of the vacant posts available and the
fact that the petitioners have secured more marks than the
cut off marks, are not offered appointments.
6.2 It is submitted that therefore, the petitioners made a
representation, inter alia, pointing out that female candidates,
who are shown to be selected in the category of SEBC female,
at least nine candidates would be selected and have to be
shown as open category within the said category and
thereafter, the candidates have to be shown as SEBC female. It
is submitted that the said representation has not been
responded to by GPSC. It is submitted that the petitioners
would have secured appointments to the post of lecturer -
C/SCA/17897/2017 JUDGMENT
Computer Engineering, (Class-II) had the GPSC applied the
principle of reservation in its right perspective.
6.3 It is next submitted that as the record reveals, in the
category of SEBC, described as SEBC (common), the last male
candidate found is at 27th position and 93rd in the list, who
was available for selection and had secured 35 marks. Beyond
that, no male candidate was available in the select list and the
GPSC has therefore, fixed 35 as cut off marks for SEBC
(common) and that is how eight posts were left vacant after
appointing 15 female candidates, treating the same as the
outer limit for female candidates. It is next submitted that
there lies a fallacy on the part of the GPSC in stopping at
number 15; number 15 is not and cannot be an outer limit of
females getting appointments. In the present case, firstly,
stopping at 27th candidates having secured 35 marks, treating
him as SEBC (common) and then to proceed further for
selecting females, having no male candidates available for
appointment and stopping at 42nd position keeping 8 posts
vacant, runs contrary to the judgement cited by the GPSC.
Therefore, reliance placed on the judgement without
complying with the directions in their entirety is misplaced.
Also, the principle laid down in the said judgement cannot be
partially relied upon by GPSC without applying it fully; it is
therefore submitted that it would only when more meritorious
male candidates are available, female candidates with less
merit would not be appointed beyond the quota which is not
the case here. All female candidates would have been included
in the list, had GPSC prepared a list of 50 candidates belonging
to SEBC in order of merit, irrespective of gender.
C/SCA/17897/2017 JUDGMENT
6.4 It is further contended that GPSC did not provide the cut
off marks in advance and it is only at the time of preparation of
the merit list, that the cut off marks were provided. The cut off
marks for SEBC category described as SEBC (common), was
fixed at 35 only because the last candidate belonging to SEBC
male was having 35 marks. The GPSC stopped at the last male
candidate and determined the cut off marks as 35. Had there
been one more SEBC candidate, who had secured either 34 or
33 even 30 marks, the qualifying standard could have been
that. So far as SEBC female candidates are concerned, it
stopped at the number 15 who had secured 32 marks,
determining the cut off marks as 31. It is further submitted
that no details are given which would show anything to the
contrary and all the documents suggest that there was no
male SEBC candidate available for selection after the one
appearing at serial number 93 in the list. It is therefore
submitted that the action on the part of the GPSC in fixing the
cut off marks is erroneous, without any basis and detriment to
the rights of the petitioners for being appointed to the post of
lecturer - Computer Engineering, (Class-II).
6.5 It is further submitted that once the waitlist for SEBC
candidates, without being gender specific is prepared and
when incidentally all females find their place in the list,
because no male candidate beyond 35 marks is available at
all, the list has to be operated when there are vacancies in the
SEBC category in addition to 8 remaining unfilled because of
non-availability of male candidates beyond 27th position. It is
further submitted that if after the last SEBC male candidate, if
no further SEBC male candidates were available, to be offered
appointment, it was the petitioners, who would be given
C/SCA/17897/2017 JUDGMENT
appointment inasmuch as, there is nobody in the wait list
above the petitioners. Reliance is placed by the GPSC on the
judgment in the case of Rajesh Kumar Daria vs. Rajasthan
Public Service Commission & Ors. reported in (2007) 8 SCC
785 which is misplaced because, the say of the petitioners is
that they are in the list and since no male candidates are
available, the petitioners be offered appointment. It is
submitted that all that the petitioners want is operation of the
waiting list considering the fact that 8 vacancies are there and
3 more have arisen owing to the rejection of the candidature
of the 3 candidates.
6.6 It is further submitted that the advertisement does not
provide for prescription of any benchmark/cut off marks in
advance and that the respondent GPSC has not shown how the
cut off marks were prescribed separately for each category,
which is done when separate lists are prepared for all the four
categories and female of those categories. The present is a
continuous list as per the merits and GPSC ought to have
adopted the procedure prescribed in the judgement in the case
of Tamannaben Ashokbhai Desai vs. Sheetal Amrutlal Nishar
rendered in Letters Patent Appeal No.1910 of 2019 and more
particularly, paragraph 56 and the said judgement has been
cited with approval in Saurav Yadav and others vs. The State
of Uttar Pradesh reported in 2020 (14) SCALE 389 by the Apex
Court.
6.7 It is next submitted that it is the GPSC, which arbitrarily
selected the 15 candidates with 32 marks treating 31 as
benchmark, taking the view that 15 female candidates are
appointed and even if there are vacancies, right from the
C/SCA/17897/2017 JUDGMENT
beginning or because of candidates not appearing pursuant to
the selection, the petitioners cannot be appointed though they
hold first and second position in the waitlist. It is submitted
that the qualifying marks are always prescribed for the
purpose of getting a position in the select list and in the event
of contingencies requiring operation of waitlist, the candidates
are bound to have marks less than the cut off marks otherwise
they would have been in the select list itself. It is thus urged
that the stand of the GPSC in not considering the candidature
of the petitioners, is illegal, tainted with arbitrariness and
deserves to be quashed and set aside.
6.8 It is further submitted that undisputedly, no list of 50
candidates as per merits in the category of SEBC is prepared
as required in the judgements of the Hon'ble Supreme Court
and particularly in the case of Rajesh Kumar Daria (supra). It is
submitted that the preparation of the list of the candidates is
as per the number of posts advertised and only thereafter,
GPSC would be required to find out whether the requisite
number of females is achieved or not. In the present case, all
SEBC candidates would be entitled for being appointed as
there were 50 posts advertised and in order of merit, 47
candidates of SEBC category are available irrespective of
gender. It is therefore submitted that the further classification
and prescription of separate cut off marks is therefore arbitrary
and does not stand to reason. Further, reliance placed by the
GPSC on the judgement does not speak of separate cut off
marks for male and female as is done by it. Further, no
judgement restricts the number of women to be appointed on
the basis of merit. Only consequence would be that the GPSC
need not go farther down to make good the deficit.
C/SCA/17897/2017 JUDGMENT
6.9 Adverting to the stand of the GPSC that life of the wait
list was for two years from the date of publication of the result,
that is, 7.8.2018 and therefore, it has expired and no relief can
be granted, reliance is placed on the judgment in the case of
Nirav Dipakchandra Rana & 4 Ors. vs. State of Gujarat
rendered in Special Civil Application No.12056 of 2018 and
allied matters. It is submitted that the coordinate bench while
dealing with the similar contention raised by the respondent
therein, observed that when the wait list was live and could be
operated, the petitioners therein, whose names figured in the
wait list, were entitled to the benefit to be considered for
appointment to the post. The coordinate bench declared the
stand of the authorities therein in refusing to operate the wait
list as in breach of the tenets of Articles 14 and 16 of the
Constitution. It is submitted that the judgment of the learned
single Judge has been confirmed in the Letters Patent Appeal
No.212 of 2020 and cognate matters.
6.10 It is submitted that one of the contentions raised by the
GPSC is to the effect that the petitioners are not entitled to be
posted against SEBC (common), since, they have been
selected by availing relaxed standards prescribed for SEBC
female; the said contention is fallacious, as, no relaxation has
been claimed by any of the petitioners either on the basis of
age, qualifying marks or attempts.
6.11 It is therefore urged that the arguments of GPSC suffers
from basic infirmities and hence the petition deserves to be
accepted.
7. On the other hand, Ms. Roopal R. Patel, learned advocate
C/SCA/17897/2017 JUDGMENT
for the GPSC submitted that selection had to be made on the
basis of the personal interview and in case of availability of
large number of candidates, preliminary examination had to be
held for the purpose of shortlisting the candidates so that
suitable candidates can be called for, for the purpose of
personal interview. After duly conducting the selection process,
GPSC had recommended the names of total 42 SEBC
candidates, out of which, 27 were male candidates and 15
female candidates. It is submitted that total 5 candidates,
were kept in the wait list, including the petitioners, at serial
nos.1 and 2 respectively. Further, the GPSC while preparing the
list has adhered to the provisions of Circular dated 22.5.1997
issued by the General Administration Department and the
female candidates have been put in the merit list against the
female reserved post only. Therefore, out of total 42 SEBC
candidates, recommended for appointment, all the 15 posts
which were kept reserved for SEBC female candidates,15
female candidates have been selected and 5 female
candidates were kept in the wait list.
7.1 While referring to the recruitment process, it is submitted
that the candidates who remained successful in the
preliminary examination, were called for the personal interview
followed by issuance of call letters to each of the candidates.
Clause 9 whereof provides for cut off marks for Scheduled
Caste, Scheduled Tribe and SEBC as 35. It also provides that
where seats are kept reserved for categories namely, female,
physically handicapped, ex-servicemen etc. they shall be
considered against such seats, reserved in the respective
categories. It further provides that if for such reserved seats,
candidates are not available, then there should be relaxation
C/SCA/17897/2017 JUDGMENT
up to 10% in the marks, in order to select the candidates
against the reserved seats of the respective category.
7.2 While adverting to the aspect of providing cut off marks,
it is submitted that both the petitioners have applied against
the SEBC category. So far as SEBC (common) is concerned, the
cut off marks provided or prescribed were 35. Since sufficient
number of SEBC female could not get the cut off marks,
relaxation in marks were given whereby, the cut off has been
laid down as 31 marks. Referring to the select list, it is
submitted that the candidate mentioned at sr. no.103 was the
last SEBC female candidate, who has secured 32 marks and 15
SEBC female candidates were selected up to this serial
number. It is submitted that vacancy has not arisen against 15
posts reserved for SEBC female candidates and therefore,
there arises no question of absorbing the petitioners against
the said 15 posts, reserved for SEBC female. It is further
submitted that the last SEBC female candidate, who was
selected has secured 32 marks so also the petitioners.
However, the said last candidate was elder to the petitioners,
and therefore was selected and the petitioners were put in the
wait list.
7.3 It is submitted that it so happened that the vacancies
had arisen against the SEBC (common) where cut off marks
prescribed were 35 and the claim of the petitioners is that they
should be selected/appointed against the posts of SEBC
(common), the said claim of the petitioners cannot be
accepted, considering the fact that the petitioners have not
secured the cut off marks of 35 and that they have secured
only 32 marks and therefore, the petitioners cannot be
C/SCA/17897/2017 JUDGMENT
recommended against the posts of SEBC (common). Further,
the petitioners are also finding their place in the wait list by
availing the relaxed standards. It is next submitted that had
the petitioners got 35 marks, then the matter would have been
different inasmuch as, the petitioners could not be said to
have been selected in the relaxed standards.
7.4 Amongst others, reliance is placed on the judgments
namely, (i) Rajesh Kumar Daria (supra), (ii) Public Service
Commission, Uttaranchal vs. Mamta Bisht & Ors. Reported in
(2010) 12 SCC 204; and (iii) Saurav Yadav vs. State of Uttar
Pradesh (supra). It is therefore, urged that the petition is
devoid of merits and does not deserve to be entertained.
8. Heard Mr. G.M. Joshi, learned senior advocate assisted by
Mr. Vyom H. Shah, learned advocate for the petitioners and Ms.
Roopal R. Patel, learned advocate for the respondent no.2 -
GPSC.
9. The core issue which arises for the consideration of this
court is whether the petitioners are entitled for being
appointed against the posts meant for SEBC female or SEBC
open and that the GPSC has committed any illegality in
preparing the select list. This court is of the opinion that GPSC
has not committed any illegality in preparing the select list and
therefore no direction can be issued to the GPSC to appoint the
the petitioners at the concerned posts that have fallen vacant
in the category of SEBC, for the reasons discussed herein
below.
10. GPSC had issued an advertisement No. 65/2013-14 to
89/2013-14 inviting applications for the post of Lecturers for
C/SCA/17897/2017 JUDGMENT
various subjects. Present petition pertains to the
advertisement No. 73/2013-14 for the post of Lecturer for the
subject of Computer Engineering (Class-II) for which, total
posts advertised were 133 out of which, 53 were reserved for
Open category, 7 for Scheduled Caste, 23 for Scheduled Tribes
and 50 for SEBC. Out of 50 posts reserved for SEBC, 15 posts
were reserved for women candidates. The issue is also
regarding non-filling up of the said 50 posts.
11. The petitioners, being eligible, had applied for the post of
Lecturer for the subject of Computer Engineering (Class-II). The
written examination was conducted on 13.7.2014 and the
candidates who had cleared the examination, were called for
interview, issuing call letters indicating date, time, place and
other information including the information of prescribing the
cut off marks for the respective categories. So far as the
petitioners are concerned, they were also issued the call
letters and specimen copy of one such call letter/intimation
was placed on record along with the written submission filed
by the GPSC. Item no.9 of the said call letter provides that 50
marks out of 100 marks has been fixed as cut off marks for the
general category candidates; whereas 35 marks for reserved
category candidates. It further provides that if the sufficient
number of candidates namely women, ex-servicemen and
physically handicapped persons are not available, then in that
case, there will be a relaxation up to 10% marks of the
prescribed cut off marks of 35. Therefore, vide item no.9,
GPSC made it clear, well in advance, that the cut off marks
prescribed for general category candidate would be 50;
whereas, for reserved category candidates it would be 35 with
further relaxation of 10% marks in the event of non-availability
C/SCA/17897/2017 JUDGMENT
of the eligible candidates in the respective categories of
special reservation.
12. Pertinently, vide item no.9 of the call letter, GPSC had
retained the discretion of relaxing the cut off marks of 35 in
the event of non-availability of the candidate concerned. It
appears that since sufficient number of female candidates
were not available, prescribed cut off marks came to be
relaxed by 10%, that is, 4 marks and that is how so far as the
SEBC female candidates are concerned, the cut off marks fixed
were 31. Hence, the contention of the petitioners that the cut
off marks for SEBC category described as SEBC (common) was
fixed 35, only because the last candidate belonging to SEBC
male was having 35 marks does not deserve acceptance and is
rejected for, the same was done in advance and prior to the
conduct of the interview.
13. Further, the GPSC had declared the result on 8.8.2016
containing the select list as well as the wait list. As per the
select list, GPSC filled up 42 posts of SEBC candidates. Out of
which,15 posts were filled up by SEBC females and 27 by the
SEBC open candidates on merits; it did not fill up the
remaining 8 posts. Since the cut off marks of 35 were
prescribed at the stage of the issuance of the call letter, GPSC
adhering to the said prescription, has stopped at the candidate
who was at 27th position and at serial no.93 in the select list,
who had secured 35 marks. Pertinently, after the 27 th
candidate there was not a single candidate (irrespective of
gender) available with 35 marks in the select list.
14. So far as the post reserved for female candidates are
concerned, there were 15 posts, all of which were filled up by
C/SCA/17897/2017 JUDGMENT
the SEBC female candidates who have secured the marks
more than the cut off marks 31. In the select list, the candidate
at serial no.103 in the category of SEBC female, had secured
32 marks and being elder to the petitioner, was offered
appointment. The cut off marks fixed for SEBC female was 31
and therefore, the consideration of the petitioners could have
been only against the posts reserved for SEBC female, having
secured 32 marks. However, by the time the turn of the
petitioners came, all the posts reserved for female candidates
stood exhausted and therefore, the petitioners were put in the
wait list.
15. The Apex Court, in the case of the Rajesh Kumar Daria
(supra) has observed that where a special reservation for
women is provided within the social reservation for Scheduled
Castes, the proper procedure is first to fill up the quota for
Scheduled Castes in order of merit and then find out the
number of candidates among them who belong to the special
reservation group of 'Scheduled Castes women'. If the number
of women in such list is equal to or more than the number of
special reservation quota, then there is no need for further
selection towards the special reservation quota. Only if there is
any shortfall, the requisite number of scheduled caste women
shall have to be taken by deleting the corresponding number
of candidates from the bottom of the list relating to Scheduled
Castes. The Apex Court, has in paragraph 9 observed thus:
"But the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special) reservations.
Where a special reservation for women is provided within the
social reservation for Scheduled Castes, the proper procedure is
first to fill up the quota for scheduled castes in order of merit
and then find out the number of candidates among them who
belong to the special reservation group of 'Scheduled Castes-
C/SCA/17897/2017 JUDGMENT
Women'. If the number of women in such list is equal to or more
than the number of special reservation quota, then there is no
need for further selection towards the special reservation
quota. Only if there is any shortfall, the requisite number of
scheduled caste women shall have to be taken by deleting the
corresponding number of candidates from the bottom of the list
relating to Scheduled Castes. To this extent, horizontal (special)
reservation differs from vertical (social) reservation. Thus,
women selected on merit within the vertical reservation quota
will be counted against the horizontal reservation for women.
Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for
women is four), 19 SC candidates shall have to be first listed
in accordance with merit, from out of the successful eligible
candidates. If such list of 19 candidates contains four SC
women candidates, then there is no need to disturb the list
by including any further SC women candidate. On the other
hand, if the list of 19 SC candidates contains only two women
candidates, then the next two SC woman candidates in
accordance with merit, will have to be included in the list and
corresponding number of candidates from the bottom of such
list shall have to be deleted, so as to ensure that the final 19
selected SC candidates contain four women SC candidates.
[But if the list of 19 SC candidates contains more than four
women candidates, selected on own merit, all of them will
continue in the list and there is no question of deleting the
excess women candidate on the ground that 'SC-women'
have been selected in excess of the prescribed internal quota
of four.] "
Perceptibly, the select list ends at serial no.105 and at serial
no.103 requisite number of 15 SEBC female candidates were
available and since there was no shortfall of the female
candidate, it was not incumbent upon the GPSC to have gone
farther down. Also, there was not a single female candidate
with the marks more than cut off marks of 35 available so as
to find place in the merit list of SEBC open category. Therefore,
GPSC did not commit any error in preparing the select list.
16. Besides, as is clear, relaxation was provided to the extent
of 10% and thereby, the cut off marks fixed for SEBC female
were 31 and accordingly the list was prepared and operated
and that is how, all the 15 posts reserved for female
C/SCA/17897/2017 JUDGMENT
candidates were filled up accordingly. As aforesaid no occasion
was available to the GPSC either to delete the male candidates
from list or to go farther down as there was no shortfall of the
women candidates. Therefore, no fault can be attributed on
the part of the GPSC in adhering to the said procedure. The
learned Counsel for the GPSC is right in contending that had
the petitioners obtained or secured the cut off marks of 35,
then the petitioner would have been accommodated against
the SEBC open category, however, since the petitioners were
having 32 marks and not 35 marks, they could not have been
adjusted against the quota other than SEBC female as their
consideration has to be against the said category.
17. After the result was declared, some of the appointments
were cancelled owing to various reasons. As is clear from the
file noting, the GPSC has while operating the wait list, sent the
recommendation to the State Government for appointment of
the candidates against the open category. 7 candidates were
recommended, 5 for general (common) and 2 for general
female. So far as the above posts reserved for SEBC
(common) are concerned, no recommendation was made on
the ground that the candidates in the wait list, including the
petitioners have not secured 35 marks which was cut off marks
provided for SEBC (common). In the note, it further records
that though in the wait list all the candidates are female
candidates and are finding place because of availing of the
relaxed standards; cannot be recommended for being
appointed against the post, of SEBC (common).
18. Therefore, there is no illegality committed by the GPSC in
preparing the select list and putting the petitioners in the wait
C/SCA/17897/2017 JUDGMENT
list for, the cut off marks prescribed for SEBC open category
were 35 and the petitioners could not have been
recommended or accommodated against the posts earmarked
for SEBC open category. Moreover, GPSC after considering the
candidature of the petitioners, having obtained 32 marks, and
owing to the fact that posts having been reserved for female
candidates stood exhausted, the petitioners were put in the
wait list. It is well settled proposition of law that even if the
advertised posts remained vacant, it is well within the
discretion of the employer to fill up or not to fill up the said
posts. In the present case, GPSC, so also the State
Government thought it fit not to fill up the remaining 8
vacancies and further 3 vacancies which had fallen vacant
owing to either non-joining of the candidate or for cancellation
of the appointment by the State Government.
19. Quiet apart, as emerges from the record, GPSC at the
time of issuance of the call letters, has prescribed the cut off
marks as 35 for the reserved category candidates and
relaxation of 10% in the event of the non-availability of
sufficient number of candidates in the respective categories. It
also provides that the reserved category candidates securing
place by way of relaxed standards, will be adjusted against the
categories meant for them. The petitioners were issued call
letters in the month of June 2016 prescribing the cut-off marks
as well as providing other details, the petitioners did not raise
any objection to such prescription and information. The
petitioners thereafter appeared in the interview without any
protest. The results were declared on 8.8.2016 thereafter also
the petitioner did not raise any objection. Though a reference
is made about a detailed representation by one of the
C/SCA/17897/2017 JUDGMENT
petitioners, no such representation is placed on the record to
substantiate that any grievance was raised by the petitioners
against the prescription of cut off marks. Even it is not clear as
to whether the information provided under the Right to
Information Act was at the behest of the petitioners. Notably,
the petition has been filed in the month of September 2017
that is almost after a period of more than one year, from the
date of declaration of result on 8.8.2016. Therefore, the
petitioners having not raised any objection at any point of
time, it would be impermissible for the them to raise any
grievance against the prescription of cut off marks by GPSC
only when they found themselves not securing place in the list
of the successful candidates. Therefore, the contention raised
on behalf of the petitioners in the captioned writ petition that
the advertisement had not provided for prescription of any
benchmark/cut off marks in advance and that the GPSC had
not shown how the cut off marks were prescribed separately
for each category, does not deserve to be accepted and is
hereby rejected. Further, providing for the cut off marks would
fall within the domain of the GPSC and in absence of any
material pointed out by the petitioners, that the said
prescription was arbitrary or unreasonable this Court, is of the
opinion that the decision of the GPSC prescribing the cut off
marks and accordingly preparing the select list of the
candidates does not deserve to be interfered.
20. Adverting to the contention raised by the petitioners that
the action of the respondent in treating the female candidates
against the quota of SEBC female only, despite some of them
securing as high as 42 marks against the prescribed cut off
marks of 35 of SEBC open category, is arbitrary and illegal, the
C/SCA/17897/2017 JUDGMENT
same also does not deserve to be accepted inasmuch as, the
Apex Court in the case of Rajesh Kumar Daria (supra) has held
the same to be impermissible, which is clear from the
observations made in paragraphs 10 and 11 of the judgment.
Paragraphs 10 and 11 are reproduced herein below:
"10. In this case, the number of candidates to be selected
under general category (open competition), were 59, out of
which 11 were earmarked for women. When the first 59
from among the 261 successful candidates were taken and
listed as per merit, it contained 11 women candidates,
which was equal to the quota for 'General Category -
Women'. There was thus no need for any further selection
of woman candidates under the special reservation for
women. But what RPSC did was to take only the first 48
candidates in the order of merit (which contained 11
women) and thereafter, fill the next 11 posts under the
general category with woman candidates. As a result, we
find that among 59 general category candidates in all 22
women have been selected consisting of eleven women
candidates selected on their own merit (candidates at
Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection
List) and another eleven (candidates at Sl.Nos.54, 61, 62,
63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List)
included under reservation quota for 'General Category-
Women'. This is clearly impermissible. The process of
selections made by RPSC amounts to treating the 20%
reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical
reservation.
11. Similarly, we find that in regard to 24 posts for OBC, 19
candidates were selected by RPSC in accordance with
merit from among OBC candidates which included three
woman candidates. Thereafter, another five women were
selected under the category of 'OBC - Women', instead of
adding only two which was the shortfall. Thus there were in
all 8 women candidates, among the 24 OBC candidates
found in the Selection List. The proper course was to list 24
OBC candidates as per the merit and then find out number
of woman candidates among them, and only fill the
shortfall to make up the quota of five for woman."
What the petitioners want is exactly this, which the Apex
Court has held to be impermissible. Hence, the said contention
C/SCA/17897/2017 JUDGMENT
also deserves to be rejected and is hereby rejected.
21. So far as the reliance placed by the learned senior
advocate for the petitioners on the judgment of this Court in
the case of Tamannaben Ashokbhai Desai (supra); cited with
approval in the case of Saurav Yadav vs State of Uttar Pradesh
(supra) by the Apex Court is concerned, the principle laid down
therein, cannot be made applicable to the facts of the present
case for the reasons discussed herein after.
22. This Court, in paragraph number 56 has set out the
method of implementing horizontal reservation for women.
While setting out the method for Step 3, it has been be
observed that "In the Step 2 List of OC category, if there are
17 women (category does not matter), women's quota of 33%
is fulfilled. 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 category), 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. Thereafter, 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". This Court has set out similar such steps for
the respective categories mentioned therein.
23. Further in paragraph 57 it has been held and observed
that a woman not belonging to the reserved category OBC, SC
and ST, is not entitled to compete for post reserved in favour
of other backward classes (women), scheduled caste (women)
C/SCA/17897/2017 JUDGMENT
and scheduled Tribes women. In paragraph 58, it has been
further held that the converse, however, is not true. It has
been held that all women, irrespective of whether they belong,
or do not belong, to the reserved category are entitled to
compete for post 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.
Paragraphs 57 and 58 are reproduced herein below for ready
reference.
"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,
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 belonging to the reserved category (OBC, SC
and ST), is not entitled to compete for posts reserved in
favour of Other Backward Classes (Women), Scheduled
Castes (Women) and Scheduled Tribes (Women). 58. The
converse, however, is not true. 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
58. 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. Holding otherwise, would result in surreptitious
introduction of reservation in favour of those who do not
C/SCA/17897/2017 JUDGMENT
belong to the socially and educationally backward classes,
and a disguised attempt at communal reservation has
been frowned upon by the Supreme Court in The State of
Madras Vs. Sm. Champakam Dorairajan and another : AIR
1951 SC 226"
24. It is not the case of the petitioners, that though SEBC
female candidates have secured more marks than the marks
obtained by the open category female candidates, GPSC has
not counted them against the open category. The principle laid
down in the case of Tamannaben Ashokbhai Desai (supra) as
well as in the case of Saurav Yadav vs State of Uttar Pradesh
(supra) are of no aid to the petitioners because, as is
discernible from the result, so far as the open category
candidates are concerned, the cut off marks provided were 50
and for general female, the cut off marks provided were 45.
Further, there were 16 posts reserved for general female and
all the female candidates, in the open category have secured
more than 45 marks. The 2 posts had fallen vacant because of
non-joining or cancellation of the appointment, the GPSC while
operating the select list, recommended further 2 female
candidates from open category and both of them had secured
45 marks. Therefore, even the last candidate in the female
open category had secured 45 marks that would be more than
the marks obtained by first SEBC female that is 43. Therefore,
there does not arise any question of applying the said method
of implementing the horizontal reservation of women as
provided by the Division Bench in the case of Tamannaben
Ashokbhai Desai (supra) as well as in the case of Saurav Yadav
vs State of Uttar Pradesh(supra) to the facts of the present
case.
25. In view of the aforesaid discussion, the issue, namely, the
C/SCA/17897/2017 JUDGMENT
life of the waiting list, is not required to be gone into. So far as
the contention raised by the petitioners that the petitioners
have not claimed any relaxation on the basis of age, qualifying
marks or attempts and therefore, the submission of GPSC that
the petitioners are finding place because of the relaxed
standards is not correct, is concerned the same does not
deserve to be accepted. Pertinently, the cut off marks
prescribed for SEBC open category is 35; whereas the passing
standard for SEBC female was fixed as 31 marks and the
petitioners have been selected and put in the wait list on the
basis of said cut off marks. Had the relaxation not been
accorded by GPSC by relaxing the cut off marks as 31, the
petitioner would not have found place in the wait list.
Therefore, the said contention of the petitioners does not
deserve to be accepted and is rejected.
26. In view of the discussion aforementioned, it cannot be
said that the GPSC has committed any error in preparing the
select list and putting the petitioners in the wait list, as the
petitioners have secured marks of 32. Therefore, the prayer of
the petitioners does not deserve to be granted inasmuch as,
no case has been made out by the petitioners for being
appointed against the post of SEBC open category and more
particularly, when the cut off marks prescribed for SEBC open
category described as SEBC (common) were 35 marks.
27. Under the circumstances, the petition being devoid of
any merits, does not deserve acceptance and is hereby
rejected.
28. Rule is discharged. No order as to costs.
C/SCA/17897/2017 JUDGMENT
29. Learned Advocate for the petitioner requested to
continue the interim relief granted by this Court vide order
dated 28.9.2017. Let the same be continued for a period of
four months from the date of this oral judgment.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
