Gujarat High Court
Gujarat Public Service ... vs Niketa Babulal Chaudhari on 31 March, 2021
Bench: Vineet Kothari, Biren Vaishnav
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 1105 of 2015
In
R/SPECIAL CIVIL APPLICATION NO. 15057 of 2014
With
2. R/LETTERS PATENT APPEAL NO. 1106 of 2015
In
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1106 of 2015
In
SPECIAL CIVIL APPLICATION NO. 16620 of 2014
With
3. R/LETTERS PATENT APPEAL NO. 1108 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14330 of 2014
With
4. R/LETTERS PATENT APPEAL NO. 1109 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2015
In R/LETTERS PATENT APPEAL NO. 1109 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
5. R/LETTERS PATENT APPEAL NO. 1110 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2016
Page 1 of 131
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In R/LETTERS PATENT APPEAL NO. 1110 of 2015
In
SPECIAL CIVIL APPLICATION NO. 2125 of 2015
With
R/LETTERS PATENT APPEAL NO. 1187 of 2015
6.
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2020
In R/LETTERS PATENT APPEAL NO. 1187 of 2015
In
SPECIAL CIVIL APPLICATION NO. 14849 of 2014
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of YES
the judgment ?
4 Whether this case involves a substantial question of YES
law as to the interpretation of the Constitution of India
or any order made thereunder ?
==========================================================
GUJARAT PUBLIC SERVICE COMMISSION
Versus
NIKETA BABULAL CHAUDHARI & 2 other(s)
==========================================================
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
Letters Patent Appeal No.1105 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 2
RULE SERVED BY DS (65) for the Respondent(s) No. 1
Letters Patent Appeal No.1106 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 2
MR YATIN N. OZA, Counsel with
MS. SHRUSHTI A THULA, Counsel for Respondent(s) No. 1
Civil Application No.1 of 2016
MR GM JOSHI, Senior Counsel with
Mr. VYOM H SHAH for the Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
MR DG SHUKLA, Counsel for the Respondent
MR YATIN N. OZA, Counsel with MS. SHRUSHTI A THULA, Counsel for
Respondent
Letters Patent Appeal No.1108 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR HRIDAY BUCH Counsel for the Respondent No.2733,34
MR VAIBHAV A VYAS, Counsel for Respondent No.7
MR YATIN OZA, Counsel with MS SRUSHTI A THULA, Counsel for
MR SUDHIR NANAVATI, Sr. Counsel with MS ANUJA S NANAVATI,
MR SUNIT SHAH, Sr. Counsel with MR SANDEEP R LIMBAI, Counsel
MS VIDHI J BHATT, Counsel for Respondent Nos. 2425, 26
MR MAHAVIR M GADHVI, Counsel for Respondent No. 833, 34.
Letters Patent Appeal No.1109 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent No. 3
MR PRABHAKAR UPADYAY, Counsel for Respondent No.7
MR BHASKAR TANNA, Counsel for Tanna Associates for Respondent
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No.12
MR VAIBHAV A VYAS, Counsel for Respondent No.6
MR SANDEEP R LIMBANI, Counsel for Respondent No.5
Civil Application No. 1 of 2015
MR DG SHUKLA, Counsel for the Applicant
Rule served by DS
MR PRABHAKAR UPADHYAY
MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for
Respondent
Civil Application No.2 of 2015
MR VAIBHAV A VYAS, Counsel for Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
MR PRABHAKAR UPADYAY, Counsel for the Respondent
MR DG SHUKLA, Counsel for the Respondent
Letters Patent Appeal No.1110 of 2015
MR DG SHUKLA, Counsel for the Appellant(s) No. 1
MR KM ANTANI, Assistant Government Pleader for Respondent
MR MB PUJARA, Counsel for the Respondent
Civil Application No.2 of 2016
MR RITURAJ M MEENA, Counsel for the Applicant
MS DIMPLE A THAKER, Counsel for the Applicant
MR DG SHUKLA, Counsel for the Respondent
Letters Patent Appeal No.1187 of 2015
MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for Appellant
Nos. 12.
MR KM ANTANI, Assistant Government Pleader for Respondent No.1
RULE SERVED BY DS 5
MR PRABHAKAR UPADYAY, Counsel for the Respondent No.6
MR DG SHUKLA, Counsel for the Respondent No.2
MR SANDEEP R LIMBANI, Counsel for the Respondent No.4
Civil Application No.1 of 2020
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MR BHASKAR TANNA, Counsel for TANNA ASSOCIATES for Applicant
MR KM ANTANI, Assistant Government Pleader for Respondent
==========================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
And
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 31/03/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. These appeals have been filed against the common CAV
judgement of the learned Single Judge dated 11.06.2015 passed in
the respective Special Civil Applications, namely, Special Civil
Applications No. 15057 of 2014, 16620 of 2014, 14330 of 2014,
14849 of 2014, 2125 of 2015. Letters Patent Appeals No. 1105,
1106, 1108, 1109 and 1110 of 2015 have been filed by the Gujarat
Public Service Commission whereas Letters Patent Appeal No. 1187
of 2015 has been filed by the original petitioner of Special Civil
Application No. 14849 of 2014, a respondent also in Letters Patent
Appeal No. 1109 of 2015 filed by the GPSC.
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2. Facts in brief are as under:
2.1 The judgement under challenge is at the behest of the original
petitioners, who were treated as unsuccessful candidates by the
Gujarat Public Service Commission (GPSC) in the selection
process for the post of Assistant Conservator of Forests, Class
II (for short 'ACF') and Range Forest Officer, Class II (for short
'RFO') conducted pursuant to the advertisement dated 01.03.2010
(Advertisement No. 209/200910).
2.2 On 01.03.2010, the GPSC published an advertisement inviting
applications for 47 posts of ACF (Class II) and 120 posts of RFO
(ClassII). The distribution of 167 posts (47 + 120) in the
advertisement is summarised as below:
Adv. Name of Total Posts Category wise posts. Category wise
No. Post reserved posts for
women
Open S.C. S.T. SEBC Open SC ST SEBC
209 Assistant 47 24 3 7 13 8 1 2 4
Conservator
of Forest
Class II
Range 120 60 6 19 35 18 1 6 11
Forest
Officer,
Class II
Total Posts 167 84 9 26 48 26 2 8 15
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2.3 What is evident from the summarized table produced
hereinabove is that for the purposes of female category in all
categories, 15 posts of ACF and 36 posts of RFO were reserved for
women. This was in accordance with the Gujarat Civil Services
(Reservation of Posts for Women) Rules, 1997 (for short 'Rules,
1997') which at the relevant time prescribed 30% reservation for
women candidates.
2.4 On 30.05.2010, the GPSC conducted a preliminary test. From
27.05.2013 to 02.06.2013, the GPSC conducted written tests. On
21.05.2014, GPSC declared the result of the main Written
Examination. 505 candidates had cleared the main Written
Examination and appeared for the Personal Interview scheduled
from 16.06.2014 to 31.07.2014. On 25.09.2014, GPSC declared the
final result of the competitive examination for the posts of ACF and
RFO. The preparation of the merit list and declaration of results on
25.09.2014 gave rise to the petitions as the original petitioners -
women candidates were declared unsuccessful.
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2.5 Pleadings of Letters Patent Appeal No. 1109 of 2015 were
considered for the purposes of analysis of the judgement of the
learned Single Judge in context of the issue under consideration.
The result dated 25.09.2014 made the following declarations in the
merit:
(i) Clause 8 of the result declared that with regard to women
reservation, as provided for in the Government Notification
dated 09.04.1997 and GAD Circular dated 22.05.1997, 51
women candidates (Gen 26, SEBC 15, SC 02 and ST 08)
are required to be selected.
(ii)The result stipulated that as against this, 19 women of
General Category, 6 women of SEBC Category, 1 woman of SC
Category and 04 women of ST Category, thus total 30 women
candidates have been selected.
(iii) Clause 9 of the result declared that the required number
of women candidates of SEBC, SC, ST and General categories
could not be selected even after relaxing 10% of the minimum
qualifying standard prescribed for the male candidates of their
respective categories.
1. The qualifying standards for general category male is 429.
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After relaxation of 10% marks, the qualifying marks for
general category female comes to 386.10 and hence general
category female candidates who have obtained more than
386 marks have been selected for recommendation to the
Government.
2. The qualifying standard of SEBC category male is 375
marks. After relaxation of 10% marks, the qualifying
marks for general category female comes to 337.50 and
hence SEBC category female candidates who have obtained
more than 337 marks have been selected for
recommendation to the Government.
3. The qualifying standard of SC category male is 387 marks.
After relaxation of 10% marks, the qualifying marks for SC
category female candidates comes to 348.30 and hence SC
category female candidates who have obtained more than
348.30 marks have been selected for recommendation to the
Government.
4. Similarly, the qualifying standard of ST category male is
316 marks. After relaxation of 10% marks, the qualifying
marks for ST category female comes to 284.40 and hence ST
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category female candidates who have obtained more than
284.40 marks have been selected for recommendation to the
government.
(iv) Clause 10 of the result, therefore, stipulated that out of
51 total posts reserved for women candidates of General,
SEBC, SC and ST categories, 19 women candidates of General,
6 women of SEBC category, 1 woman of SC category and 04
women candidates of ST category have been selected. Hence,
male candidates of their respective categories are selected
against the posts reserved for women of respective categories.
2.6 The aforesaid clauses prescribing qualifying standard of marks
and positioning male candidates in the deficit posts - 21 in number,
has given rise to the controversy under consideration.
3. Before the learned Single Judge, the unsuccessful female
candidates in essential raised the following four grounds of challenge
which the learned Single Judge classified under four heads as
follows:
"(A) The method, procedure and basis followed and adopted by
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GPSC for determining the qualifying standard (described by
GPSC as cutoff marks).
(B) Transferring the quota reserved for female candidates to
male candidates and also transferring the quota reserved for
candidates possessing special qualification to the candidates
not possessing such special qualification.
(C) Migrating the candidates.
(D) Adopting and applying criteria/policy which was not
declared and informed to the candidates (and thereby
changing the criteria in the midstream). "
3.1 With regard to heads (A) and (B) as noted above, perusal of the
order of the learned Single Judge would indicate that the learned
Single Judge held, on the submission made by the learned Counsel
for the respective petitioners, that the qualifying standard which
prescribed cutoff marks at the rate of 10% was introduced only after
the stage when the interview got concluded and at the stage after
the common merit list was prepared and when the GPSC started
preparing the selection list for the first time in the entire selection
process.
3.2 The learned Single Judge on examining the provisions of the
Rules governing the examination for ACF and RFO, namely, The
Assistant Conservator of Forest/Range Forest Officer
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Competitive Examination Rules, 2008 (for short 'the
Examination Rules') in especially considering Rules 9 and 19
thereof, found that the Examination Rules do not empower the
Commission to determine and prescribe minimum qualifying
marks/standard at any stage other than the two stages mentioned in
Rules 9 and 19 of the Examination Rules. According to the learned
Single Judge, despite this rule position, it was for the first time that
the GPSC introduced the qualifying marks standard after the
preparation of the merit list. The learned Single Judge extensively
discussed the position with regard to the Commission's legality in
providing such qualifying standards (as discussed in paras 16 to 18
thereof) and found that the prescription of qualifying standards after
the examinations were conducted in accordance with the
Examination Rules, at the stage of preparation of merit list, was
untenable. The learned Single Judge found that the concept of
qualifying standard of 10% for assessing the bench mark for
including the reserved quota for women in all the categories was
based on the marks obtained by the last male candidate in each
category of which 10% less was the yardstick prescribed for bringing
in a female within that category. It will be in the fitness of things to
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reproduce the relevant findings of the learned Single Judge on the
issue in question.
"16.5 Under the said Examination Rules or under the
Recruitment Rules, there is no provision (other than above
quoted two Rules 9 and 19 in the Examination Rules), which
empower determination of qualifying marks/standard at any
stage, other than the said two stages mentioned in Rule 9 and
Rule 19 of the Examination Rules. The Examination Rules
and/or Recruitment Rules also do not contain any provision
(other than said two Rules) which empower the commission to
determine and prescribe minimum qualifying marks/standard
at any stage other than the two stages mentioned in Rule 9 and
Rule 19 of the Examination Rules. The Examination Rules
and/or the Recruitment Rules do not contain any provision in
light of which or on the strength of which minimum qualifying
marks/standard can be introduced and enforced by the
commission and that too at the stage which is not contemplated
and provided for in the Rules.
16.6 Despite this position the commission determined, for the
first time and introduced qualifying marks/standard
(described by the commission as cutoff marks), after
conclusion of stage of preliminary examination and the stage of
written test and the stage of interview and after general /
common merit list was prepared on the basis of aggregate
marks secured by the candidates during the written test and
interview.
17. The Examination Rules prescribe the procedure for
conducting examinations for selection of candidates for the said
two posts. Rule 3 of the said Examination Rules, 2008
prescribes, inter alia, that upon receiving requisition from the
Government the Commission shall hold combined competitive
examination for selection of candidates. Rule 4 of the said
Examination Rules provides that examination shall be held in
two successive stages whereby preliminary examination for
selection of candidates and then main examination (written
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test and interview) will be conducted. The said preliminary
examination will comprise objective type test. At the second
stage, main examination for final selection of candidates has to
be conducted. The said main examination comprises written
test and interview. PartI of the Schedule to the said
Examination Rules, 2008 prescribes, inter alia, that the
preliminary examination shall consist one paper of objective
type and shall carry 150 marks. It also provides that the
number of candidates to be allowed to appear in the main
examination shall be about 15 times the approximate number
of vacancies advertised. With reference to the main
examination, the said Part I of the schedule provides that the
written examination shall consist five papers of conventional
type. Part III further provides that paper one, paper two and
paper three will be compulsory papers and each paper will
carry 100 marks and paper four and paper five will be optional
papers and each paper will carry 200 marks. Rule 9 of
Examination Rules, prescribes the procedure to be
followed by the Commission and provides, inter alia,
that the Commission shall arrange names of the
candidates in order of merit on the basis of aggregate
marks finally awarded to each candidate in the main
examination (i.e. written and interview test) and in that
order, the Commission shall recommend the candidates
for appointment. The said provision under Rule 9 is subject
to the proviso which prescribes that where the vacancies
reserved for the candidates belonging to SC or ST or SEBC
category cannot be filled up on the basis of qualifying
aggregate marks fixed for general category, the Commission
may relax the standard of aggregate marks to make up
for the deficiency in the reserved posts. Thus, the said rule also
confers power to relax the qualifying standard in the event
vacancies reserved for candidates belonging to SC, ST or SEBC
category cannot be filledup. Rule 19 obliges the commission
to fix qualifying marks and it further provides that the
candidates who obtain minimum qualifying marks, as
may be fixed by the Commission in the preliminary
examination shall be allowed to appear in the main
examination subject to their satisfying the eligibility criteria
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and that the candidates who obtain minimum qualifying
marks as may be fixed by the Commission in the main
examination (written) shall be called for interview. The
expression the candidates who have obtained minimum
qualifying marks as may be fixed by the commission... ...
signifies and clarifies that the said provisions oblige the GPSC
to fix minimum qualifying marks at the stage of
preliminary examination stage (for allowing entry to
appear for written test) and at the stage of main
examination / written test (for allowing entry to appear in
interview). The said expression indicates that the candidates
who obtain marks fixed by GPSC as minimum qualification
can enter into next level. The said Rule 19 also empowers the
Commission to relax the said qualifying standard at the
stage of examination i.e. in preliminary examination or
in the main examination (written), if the Commission is of
the opinion that sufficient number of candidates from SC or ST
or SEBC category are not likely to be available for main
examination (written) or for interview which is clarified by the
expression "... ... ... may be allowed to appear........by relaxing
the standard .."..
17.1 In light of said provision it comes out that (a) the Rules do
not prescribe any particular percentage or marks as qualifying
standard; (b) however the Rules prescribe the stage/s when the
qualifying standard should be fixed viz. at the stage of
preliminary examination (for allowing entry to appear in
written test) and at the stage of written test (for allowing entry
to appear in interview); (c) once the candidates cross the stage
of main examination (i.e. the written test and interview), then
further requirement in form of qualifying standard for
entry in selection list (i.e. list containing names and marks
of successful candidates in the written test and interview) is
not prescribed by the Rules; (d) Rules 9 and 19 indicate that
actually the said Rules aim at informing the qualifying
standard to the students so that they know the minimum
marks/standard they must achieve to reach next level.
18. Since the Commission had not fixed the qualifying
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standard at any stage contemplated by the Rules (and until the
stage of interview test got concluded) the candidates were
not aware about the qualifying standard. Actually, the
candidates were not even aware as to whether any qualifying
standard is fixed or not. It is pertinent to mention at this stage
that respondent GPSC determined, settled, adopted and
applied different qualifying standard with regard to each of the
four categories mentioned in the advertisement.
18.1 In present cases controversy and dispute have arisen on
account of the basis adopted and the procedure and method
followed by respondent GPSC for determining and settling the
qualifying standard (cutoff marks) and the said method,
procedure and basis have given birth to the objection that
GPSC is neither justified nor authorized to determine
qualifying standard for female candidates (for filling up the
vacancies in reserved quota) on the basis of and by taking
into account the marks secured by last male candidate
i.e. the male candidate, who, depending on the number of
vacancies available of particular category, is the "last
candidate required (depending on number of notified vacancy)
for complying the quota in that category and at such belated
stage.
18.2 On this count, it is pertinent that for the purpose of
determining the qualifying standard the respondent GPSC
first pickedup the General / Unreserved Category and took
into account total number of vacancies in that category.
Thereafter the respondent GPSC started from the candidate at
the top in the common merit list (i.e. the candidate with highest
marks) and, while descending, it started identifying only male
candidates belonging to the said / particular category and
proceeded in descending order by taking into account marks of
only male candidates in that particular category (i.e. excluding
all female candidates/marks obtained by female candidates in
that category) and continued to descend in similar
manner until it reached the male candidate who,
depending on the number of notified vacancies in the
particular category, would be the last male candidate
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required to fillup the vacancies in that particular
category. The marks secured by such last male candidate of
that particular category are treated and adopted and applied
by GPSC as the qualifying marks/standard (what is described
by GPSC as cutoff marks) for the respective category. The
procedure and method followed by GPSC is explained by it in
paragraphs No.6.2 to 6.4 of its affidavit dated 23.2.2015 filed
in SCA No.14849 of 2014 and it is further explained in para
No.2 of its additional affidavit dated 24.2.2015.
18.3 Besides this even in the notification dated 25.9.2014
GPSC itself has admitted and stated that: The candidates at
Rank No...... ST being female candidates have been selected
after relaxing the minimum qualifying standard prescribed for
male candidates of their respective categories. (Emphasis
supplied)
18.4 From the details mentioned in said affidavits it has
emerged that for combined (i.e. ACF + RFO) 84 position of
unreserved / general category, 26 position are reserved (@ 30%
of total number of notified vacancy for the said category) for
female candidates and for selecting female candidates for said
position, the marks secured by the male candidate in general
category whose name is listed at Sr.No.78 in the general /
common merit list is treated as the marks of last candidate
in general / unreserved category (though only 58
position / vacancies are to filledup) and the marks
secured by the said male candidate at Sr.No.78 is
recognized as minimum qualifying marks/standard for
the female candidates in general / unreserved category
on the premise that the said candidate at Sr.No.78 is last male
candidate to enter the selection list in general/unreserved
category and the said marks are then adopted and applied as
benchmark for selection of female candidates and for
complying the reserved quota. In response to the query, the
learned counsel for GPSC submitted and clarified that the
standard/basis which came to be fixed, settled and adopted in
above mentioned manner (as qualifying marks/standard) is
treated as yardstick and benchmark for all purposes including
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the process and purpose of fillingup the reserved quota for
women in other three categories as well and for the candidates
seeking selection in the quota reserved for persons holding
special qualification.
18.5 It is relevant to mention that the stage of finalizing
selection list and declaring successful candidates was reached
after crossing three stages of screening. It is also relevant to
note that the respondent GPSC also did not adopt the marks
secured by a candidate in particular category regardless or
irrespective of the fact that such last candidate is male
candidate or female candidate but the respondent GPSC
consciously started the process by picking up the marks
secured only by male candidates in respective categories
and proceeded going downwards while taking into
account the marks secured by only male candidates and
it consciously opted for and adopted marks secured by such last
male candidate as the qualifying standard.
18.6 It is pertinent that neither the Recruitment Rules
nor the Reservation Rules nor the Examination Rules
provide for or contemplate or permit such procedure
and method and/or authorize GPSC to follow such
procedure. Such method, basis and procedure is, therefore,
not permissible under the Rules. Actually, such procedure
militates against and frustrates diligent, honest and genuine
and complete implementation of quota reserved for female
candidates of all four categories.
19. The basis/standard adopted and the procedure and
method followed by GPSC for determining and settling the
qualifying marks/standard is not only contrary to and beyond
the purview of the Rules or de hors the Rules but there is no
rationale for the decision / action of adopting marks secured by
only male candidate as the base / benchmark and the
GPSC has not offered any explanation or justification
for such decision and the procedure, basis and method
followed and adopted by GPSC are irrational,
unjustified and do not find support from the applicable
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Rules and are not sustainable.
20. The Court would hasten to clarify that the aforesaid view
and finding is not to say or to suggest and it does not mean
that the Court finds fault with the principle and/or practice of
applying the qualifying standard and/or with the practice of
not relaxing the qualifying standard below certain extent. Nay.
Not the least. What, in the opinion of the Court, is objectionable
and untenable, is the manner in which GPSC determined the
qualifying marks/standard and the procedure it followed and
the basis which it adopted (wherein it took into account marks
secured by only male candidates) for the said purpose and not
the decision to determine and apply qualifying
marks/standard. In this background and in this view of the
matter, the Court is convinced to hold that the impugned
method, basis and procedure are incapable of approval and
acceptance. The very basis adopted by GPSC is fundamentally
erroneous and irrational and untenable."
[Emphasis Supplied]
3.3 In short, the learned Single Judge found that prescription of
applying the qualifying standard with the practice of relaxing the
qualifying standard for female candidates with reference to
minimum qualifying marks for male candidates was faulty.
However, in para 25 of the decision, the learned Single Judge
clarified that the action of determining qualifying marks and/or the
action of allowing relaxation therein essentially are not sustained on
account of the manner in which the said process is carried out and
the basis which the GPSC adopted and not for want of jurisdiction to
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do so. The learned Single Judge held that the action of allowing
relaxation is not sustained also because it is tainted with vice of
discrimination and the error of not applying relevant factors and not
for want of power.
"25. For the foregoing reasons and in light of the facts, the
impugned method and procedure followed by GPSC and the
basis adopted by GPSC for fixing / determining the qualifying
standard as well as the qualifying marks/standard
determined and settled and adopted by GPSC are not
sustainable and deserve to be set aside and are consequently set
aside and as corollary all subsequent and consequential
decisions and actions by GPSC which are taken in
pursuance of and on the basis of such qualifying
standard (decided in impugned method) fall and stand
vitiated. At this stage, it is necessary to further clarify that the
action of determining qualifying marks / standard and/or the
action of allowing relaxation therein are, essentially, not
sustained on account of the manner in which the said
process is carried out and the basis which GPSC
adopted and not for want of power. The action of allowing
relaxation is not sustained also because it is tainted with vice
of discrimination and the error of not applying relevant factors
and not for want of power.
[Emphasis Supplied]
3.4 On the second limb of the fallout of this qualifying standard,
the learned Single Judge held that by virtue of this operation of the
qualifying standard of 10%, the process of selection of female
candidates seeking selection in the reserved quota caused a
substantial shortfall in the number of female candidates being
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selected, though sufficient number of female candidates in each
category who meet with and fulfill the eligibility criteria prescribed
by the Rules and notified in the advertisement are available. On the
submission of the learned Counsel for GPSC that this 10%
relaxation of GPSC was based on the opinion of the learned
Advocate General, the learned Single Judge held that such an
opinion taken years back had no foundation of a statutory backing
and had no nexus with the post in question and therefore could not
have been relied upon.
3.5 As a result of the shortfall of 21 vacancies not being fulfilled in
as a result of the process of restricted intake of female candidates in
each of the four categories inasmuch as out of 51 vacancies only 30
female candidates found their place as a result of the qualifying
standard and the treatment by GPSC in transferring these 21
positions to male candidates and their consequential selection was
also a subject matter of consideration before the learned Single
Judge. Having held that on the conjoint reading of the recruitment
rules, relaxation of qualifying standards was faulty, the learned
Single Judge held that when the recruitment rules and the
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reservation rules are read, then the recruitment examination rules
provided that the qualifying standards ought to be relaxed to
accommodate required number of candidates of reserved category
and the Commission must strive to fill up the quota reserved for
female candidates belonging to reserved categories even by relaxing
the qualifying standards fixed by it rather than transferring the
position to the male candidates. By doing so and restricting the
intake of female candidates, the female reservation got constricted
which was not in consonance with the Rules.
3.6 On reliance placed by the GPSC on the Circulars dated
09.04.1997 and 22.05.1997 providing for a clarification that in the
event, a requisite number of female candidates are not available,
then the vacancies may be filled up by male candidates of the
respective categories, the learned Single Judge on an extensive
discussion of the Circulars found that a recourse to such Circulars
could not be taken when the Examination Rules obliged the
Commission to fill up the notified vacancies of the reserved quota to
the fullest extent and when female candidates were available.
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3.7 In other words, the learned Single Judge found that the
benefit of reservation of women as prescribed under the Reservation
Rules got restricted by virtue of providing for 10% relaxation and
transferring of the posts - 21 reserved for women to the male
candidates was contrary to the spirit of the Recruitment Rules and
the Reservation Rules and the petitions were therefore allowed. The
final result dated 25.09.2014 and the subsequent revision of result
carried out by the GPSC based on the decision of the Apex Court in
the case of Union of India vs. Ramesh Ram [(2010) 7 SCC 234
was quashed and set aside. The learned Single Judge in para 57
held as under:
"57. In the result and as an upshot of foregoing discussions:
(a) the qualifying marks / standard (described as cutoff
marks by GPSC) determined and applied by the respondent
GPSC by following and adopting earlier discussed method,
procedure and base are, for the recorded reasons, set aside.
(b) Consequently, all subsequent decisions and actions which
are based on the said qualifying standard and/or which are
taken pursuant to and/or on the basis of and by applying the
said qualifying standard / cutoff marks do not survive and all
such consequential decisions, steps and actions are set aside.
(c) In the result and for the recorded reasons, impugned
selection list notified by GPSC on 25.9.2014 stands quashed.
Thus, the list revised by GPSC vide notification dated
23.1.2015 automatically falls and does not survive.
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(d) The action of the respondent GPSC of categorizing part
of the notified vacancies reserved for women candidates and
also out of the vacancies reserved for candidates with special
subject, as vacant and the further / subsequent action of
transferring the position out of reserved quota for women
candidates to male candidates and out of the quota reserved for
candidates with special subject, to other candidates not
holding said special qualification, also stand quashed.
(e) The action of considering the meritorious reserved category
candidates (who secured their position in general/open
category on account of their performance) in their respective
reserved category only because they availed benefit of
"concession" which cannot be considered as "relaxation in
merits" also set aside since it is found to be contrary to the
decision by Hon'ble Apex Court in the case of Jitendra Kumar
Singh (supra).
(f) So far as Special Civil Application No.14849/2014 is
concerned, it stands partly allowed inasmuch as petitioners'
objection against the qualifying standard fixed by GPSC and
the objection against adopting criterion of 10% for relaxing
qualifying standard and the objection against considering the
marks obtained by last male candidate as cutoff marks /
qualifying standard are accepted and the selection list
prepared on such basis is set aside. However, the contention
that meritorious reserved category candidates who secured
position in general/unreserved (open) category list should be,
for the purpose of complying reserved quota, considered in their
respective reserved category is not accepted. Horizontal
reservation, even compartmentalized reservation, cannot be
maintained by taking away a slice from the quota for vertical
reservation.
(g) So far as Special Civil Applications No.14330/2014,
14331/2014 and Special Civil Applications No. 16620/2014
are concerned, the said petitions are also partly allowed
inasmuch as the objection against qualifying standard fixed by
GPSC by considering marks of last candidate as the base is
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accepted and the qualifying standard determined by GPSC on
such basis and the selection list are set aside and the
objection against adopting criterion of 10% for relaxing
said qualifying standard is also accepted. However, so far
as the further relief claimed by the petitioner in Special Civil
Application no.16620 of 2014 that her case should be
considered for the post of AFO is concerned, it is clarified that
at this stage, the said request cannot be considered because
now the process of preparing fresh selection list will have to be
undertaken and it shall be finalized afresh.
(h) So far as Special Civil Application No.13857/2014 is
concerned, the said petition is also partly allowed inasmuch as
the decision of applying said qualifying standard and the
decision to apply criterion of 7% for relaxing qualifying
standard and the decision to consider part of the notified
position from the quota reserved for candidates with special
subject (i.e. the candidates holding specified special
qualification) as vacant and the further decision to
transfer such position to the candidates not holding
qualification of special subject by treating such notified
position as vacant, is set aside.
(i) So far as Special Civil Application No.15057/2015 is
concerned, having regard to the fact that at the relevant time,
only one contention/objection was raised and pressed in
service, viz. the impugned notification is bad and
unsustainable because waiting list is not prepared and notified
under the said notification, the said petition is, therefore,
examined in light of the said singular contention and with
regard to the said objection (of the petitioner in Special Civil
Application No.15057/2015) it is found and held that in light
of applicable Rules said objection is not sustainable. Though
the said petitioner did not raise any other contention with
regard to the notification and/or selection list, it is clarified
that the decision with reference to the qualifying standard /
cutoff marks and the selection list (with regard to the
objections by other petitioners) will apply to and will govern the
case of the petitioner in SCA No.15057/2015 also.
(j) So far as Special Civil Applications No.1100/2015 and
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1141/2015 are concerned, the said petitions are also partly
allowed and the decision of the respondent GPSC of
considering the candidates who availed benefit of relaxation /
reservation though they have not availed benefit of relaxation
in qualifying standard, is, it being contrary to the decision by
Apex Court in case of Jitendra Kumar Singh (supra), set aside.
(k) So far as Special Civil Application No.2125/2015 is
concerned, in view of the fact that the qualifying standard /
cutoff marks decided by the GPSC is set aside, the decision
with regard to allotment of any candidate to the post of ACF or
RFO will have to be taken afresh by the respondent GPSC after
preparing fresh selection list and that, therefore, at this stage,
the declaration as prayed for by the petitioner (i.e. to allot the
said petitioner to the post of ACF) cannot be granted. However,
so far as other contentions which are similar and common as
in other petitions, are concerned, they shall be governed by the
conclusion with reference to other petitions. It is clarified that
if the petitioner has any grievance with regard to her allotment
after fresh selection list is prepared, then at that stage, it would
be open and permissible to the petitioner to take appropriate
action against the decision by GPSC. However, in view of the
Court's decision with reference to the qualifying standard /
cutoff marks, the consequential actions including allotment of
the candidates to the higher post will not survive and that
process also will have to be taken afresh. "
[Emphasis Supplied]
4. Mr. D.G. Shukla, learned Counsel for the Gujarat Public
Service Commission has invited the attention of the Court to the
relevant provisions. He would defend the procedure and the base to
decide the qualifying marks/standard (cutoff marks adopted by the
GPSC) and the result declared on 25.09.2014 and the subsequent
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action of transferring the reserved quota for women candidates to
male candidates. He would invite the attention of the Court to the
Affidavitinreply filed by the GPSC.
4.1 Mr. Shukla would submit that after conducting of the
Preliminary Test, the Written Examination and the Physical
Endurance Test, the results were declared. He would submit that
the concept of horizontal reservation and filling of the posts of
women was in accordance with the law laid down by the Apex Court
in the case of Rajesh Kumar Daria vs. Rajasthan Public
Service Commission [(2007) 8 SCC 685]. He would submit that
as laid down by the Apex Court in the said decision, social
reservation in favour of categories of SC, ST and OBC under Article
16(4) are "vertical reservations" whereas special reservations in
favour of Physically Handicapped, Women etc. under Articles 16(1)
and 15(3) are "horizontal reservations".
4.2 Mr. Shukla would submit that the Notification dated
09.04.1997 issued by the General Administration Department
(GAD) prescribing the Gujarat Civil Services (Reservation of
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Posts for Women) Rules, 1997 prescribed rules providing for 30%
of posts for women belonging to all categories. On 22.05.1997
the GAD issued a Notification. He would take the court to the
Notification and explain that the Notification envisaged that if
women candidates are not available then the posts can be filled by
the male candidates.
4.3 Mr. Shukla would also invite the attention of the Court to the
paper book of the appeal wherein file notings have been produced by
the original petitioner wherein extensively considering the opinion of
the Advocate General, a decision was taken by the Commission on
25.10.2001 to select women candidates after relaxing 10% of the
minimum qualifying standards prescribed for the male candidates of
their respective categories. An additional affidavit has also been
filed by Mr. Shukla during the course of hearing on behalf of the
GPSC. Relying on the affidavit, he would submit that the appellant
Commission had taken a policy decision on 25.10.2001 to select
women after relaxing 10% of the minimum qualifying standards
prescribed for male candidates of their respective categories. The
said policy decision was taken based on the opinion of the then
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Advocate General, Gujarat dated 06.10.2001. The opinion of the
Advocate General, the file notings and the policy decision dated
25.10.2001 are on record. The same are quoted hereinbelow for
ready reference:
"Exparte:
The Secretary,
Gujarat Public Service Commission
Ahmedabad. .... Querist.
OPINION:
In exercise of powers conferred by the proviso to Article
309 of the Constitution of India, the State Government has
made the rules known as 'Gujarat Civil Services (Reservation
of Posts for Women) Rules, 1997. Rule 2 of the said rules reads
as under:
"2. Reservation of posts for women Notwithstanding
anything contained in any rules or orders relating to
recruitment to public services and posts in connection
with the affairs of the State
(a) there shall be reserved in favour of women belonging
to the Scheduled Castes thirty percent of the posts
reserved in favour of such Castes;
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(b) there shall be reserved in favour of women belonging
to the Scheduled Tribes thirty percent of the posts
reserved in favour of such Tribes;
(c) there shall be reserved in favour of women belonging
to the Socially and Educationally Backward Classes
thirty percent of the posts reserved in favour of such
Classes;
(d) there shall be reserved in favour of women thirty
percent of the posts not being posts reserved in favour of
the Scheduled Castes; Scheduled Tribes and Socially
and Educationally Backward Classes. "
2. The Gujarat Public Service Commission invited
applications for Class I and Class II posts in Gujarat
Administrative Services. Since there were 70,000 applications,
the Public Service Commission held Elimination Test. The
results of the Elimination Test are under process. On the result
of the Elimination Test, candidates will be required to compete
at the Written Test and the Oral Test to be held. The results of
Elimination Test are not to be considered for the purpose of
assessment at the Written Test and Oral Test to be
subsequently held.
3. The querist - Secretary, Gujarat Public Service
Commission, therefore seeks my opinion as to whether it is
possible for the Commission to relax the standard of merit for
Elimination Test for women candidates so as to enable them to
go in for further competitive test.
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4. For the benefit of the women candidates, a general policy
decision can be taken by the Public Service Commission to
grant relaxation in qualifying marks determined for
elimination test. This policy is legally permissible under
article 16 of the Constitution of India.
5. In 1999(9) Judgments Today 152 (Haridas Parsedia vs.
Urmila Shakya & Ors) the Supreme Court has observed as
under:
"We have, therefore, to see whether the State of Madhya
Pradesh, in its discretion and within permissible limits
of Article 16, had taken any policy decision to give
general relaxation of passing marks to SC/ST
candidates appearing at the departmental
examinations."
The Court held that
"Even when SC/ST candidates compete among
themselves for the reserved category posts they are
required to pass the written examination. For them the
passing marks remain the same i.e. 40% as compared to
general category candidates for whom 50% passing
marks are prescribed."
Thus, the qualifying marks in respect of reserved category
candidates were reduced from 50% to 40% marks.
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6. In AIR 1997 SC 303 (Chattar Singh vs. State of
Rajasthan) the Supreme Court has examined the scheme of
elimination test. In para 14 of its judgement, the Supreme
Court observed as under:
"The object is to eliminate unduly long list of candidates
so that opportunity to sit for main examination should be given
to candidates numbering 15 times the notified posts/vacancies
in various services in various services; in other words for every
one post/vacancy there should be 15 candidates. There would
be wider scope to get best of the talent by way of competition in
the examination. The ultimate object is to get at least three
candidates or as is prescribed, who may be called for vivovoce.
Therefore, the lowest range of aggregate marks as cut off for
general candidates should be so worked out as to get the
required number of candidates including OBCs, Scheduled
Castes and Scheduled Tribes. The lowest range would,
therefore, be worked out in such a way that candidates
numbering 15 times the notified posts/vacancies would be
secured so as to afford an opportunity to the candidates to
compete in the main examination.
Under the provision, if that range has not been reached
by the candidates belonging to the SCs or the STs, there may be
5% further cut off from the last range worked out for the
general candidates so as to declare them as qualified for
appearing in the main examination. In other words, where
candidates belonging to the SCs and STs numbering 15 times
the total vacancies reserved for them are not available then
Service Commission has to go down further and cut off 5% of
the marks from the lowest of the range prescribed for general
candidates and then declare as eligible the SC and ST
candidates who secured 5% less than the lowest range fixed by
P.S.C. for general candidates so as to enable them to appear for
the main examination."
7. In AIR 1999 SC 2894 (Dr. Preeti Srivastava and another
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vs. State of Madhya Pradesh) the Supreme Court held that "it
is basically, for an expert body like the Medical Council of
India to determine whether in the common entrance
examination, lower qualifying marks can be prescribed for the
reserved category of candidates as against the general category
of candidates; and if so, how much lower. There cannot,
however, be a big disparity in the qualifying marks for the
reserved category of candidates and the general category of
candidates at the postgraduate level." The Supreme Court did
not approve of the cut off percentage of 20% for the reserved
category and 45% for the general category saying that the
disparity of qualifying marks being 20% for the reserved
category and 45% for the general category is too great a
disparity to sustain public interest at the level of postgraduate
medical training and education.
8. In the background of the aforesaid decisions of the
Supreme Court, the Public Service Commission can determine
a lower qualifying marks for women candidates, in comparison
with the male candidates of respective sources (categories) of
recruitment, both at the Elimination Test as well as
Competitive Test which the Public Service Commission is
conducting for selection of candidates. The percentage of marks
to be lowered is to be determined by the Public Service
Commission in the context of the aforesaid decisions of the
Supreme Court. It can be within the range of 5 to 15 per cent.
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Advise accordingly.
Ahmedabad, (S.N. Shelat)
Date : 6th October, 2001 Advocate General
Gujarat State"
FILE NOTING:
(TRANSLATED VERSION )
By two notifications dated 09/04/1997 of the General
Administration Department, the provision was made by the
State Government to keep 30% posts reserved in the respective
category for the appointment of women on all services and
posts. Moreover, at the stage of direct recruitment in the
government services, it is provided to give five years relaxation
in the upper age limit. This order has come into effect from
09/04/1997. Thereafter, a clarification was made by the
General Administration Department vide Circular dated
22/05/1997 regarding several issues raised in the said matter,
which contains below mentioned important provisions.
The seat of women candidate could be allotted to the male
candidate if sufficient women candidates are not available for
seats reserved for women. The government aims to fill 30% of
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the total vacancies by women candidates. Therefore, after
computing the candidates admitted on the basis of merit at the
time of recruiting 30% posts, remaining of women candidates
in 30% could be admitted on reservation basis.
2. Following the opinion of the Advocate General
regarding the standard of selection for women candidates in
respect of the government's policy of reserving 30% seats for
women candidates, the Commission has adopted a standard of
selection by decision dated 25/10/2001 to keep the qualifying
standard as low as 10% of the standard of male candidates in
that category. Following the decision of the Commission, such
procedure is followed while finalizing the result in personal
interview of various vacancies conducted by the Commission.
3. The commission issued advertisement for the
Medical Officer (Ayurveda) ClassII vide Sr.no.100/20052006,
containing total 170 seats. Out of the said 170 seats, 40 seats
were reserved for ST, wherein 12 seats were reserved for
women. In personal interview of the said post, the commission
had fixed qualifying standard of 40 marks for Male
Candidates and 36 marks for female candidates for general
category and for reserved posts, 25 marks for male candidates
and 22 marks for female candidates. In 28 seats out of 40 seats
of ST, two candidates were selected who obtained 25 marks,
whereas in 12 seats of women candidates, three candidates
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obtained 25 marks and remaining nine candidates obtained 22
marks were selected, whereas, other women candidates
obtaining 22 makrs were not included in selection list. Among
these candidates, Dr. Komal Katara and another candidate
had sought relief in the matter from the Hon'ble High Court, In
which, the judgment of the Special Civil Application was in
favour of the Commission and the candidates had preferred
L.P.A, wherein the Division Bench had delivered judgment on
10/09/2009. It was ordered therein to prepare merit after
including ST candidates (Male or Female), who have obtained
25 marks or more, in the merit list of 28 posts and after
considering female candidates, who have obtained less than 25
marks but more than 22 marks, against 12 reserved posts for
women candidates. Following this judgment, the result of the
said post was sent for recommendation of the government and
accordaingly, the candidates have been appointed.
4. The Commission or the State had not drawn the
attention of the Hon'ble High Court towards the provision of
the circular dated 22/05/1997 of the General Administration
Department and same thing happened in L.P.A., too.
Therefore, the Commission and the State had preferred M.C.A.
regarding the judgment of the division bench of the Hon'ble
High Court. The judgment of M.C.A. No.411/2010 was
delivered on 16/03/2010, while remaining three M.C.A. filed
by the Commission and one M.C.A. filed by the State are still
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pending. In the judgment of M.C.A., the Assistant Government
Pleader had submitted that as explained in point no.7 of the
circular dated 22/05/1997 of the General Administration
Department, the women candidates can be appointed only on
the reserved posts, when the posts are reserved for the women
candidates and remaining 70% posts are not required to be
taken into consideration. The said submission was not accepted
by the Hon'ble High Court and confirmed the judgment
delivered earlier.
5. Advocate General's opinion was sought by the
Commission whether the facts of order dated 10/09/2009 of
the Honourable High Court are applicable to all
advertisements or it is only applicable to the advertisement of
Medical Officer (Ayurved) Class2. Advocate General's opinion
was received vide his letter dated 24/12/2009 stating that
until the judgement of Review Petition is pronounced, this
judgement is applicable to all the advertisements. Hence, the
Commission has followed this judgement accordingly in the
advertisements and it is continued. That is, female candidates
who are included in the merit list of general post other than the
female reservation, have been included on the basis of merit
and separate merit list for female candidates with respect to
reserved posts has been prepared.
6. There is provision in the circular of General
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Administration Department dated 22/05/1997 to consider
30% of the reserved posts for the candidates included on the
basis of merit. Whereas, in view of the above mentioned
judgement, the Commission has not considered meritorious
female candidates against 30% reserved posts. They are
considered in the merit list of remaining post other than the
reserved posts of woman.
(7) As per the same standard, the result of the exams
of Gujarat Administrative Services Class 1/2 published on 13
052010 have been prepared. In which, 23 female candidates
have been selected as meritorious candidates who were
fulfilling the eligibility criteria meant for the male candidates
and have not been counted in reference to the posts of female
reservation.
(8) The Judgments are rendered by the Hon'ble
Supreme Court regarding Vertical and Horizontal
reservations. In which the latest judgment is given on 0306
2010 in the case of Public Service Commission, Uttranchal
Versus Mamta Bist and others. Looking to the other
judgments of the Supreme Court mentioned in this judgment
as well as considering the details of this judgment, the female
reservation has been included in Horizontal reservation. Hence,
while making the selection for the seats of female reservation,
the meritorious female candidates shall also be counted in
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reference to the reserved post earmarked for them. In such
circumstances, presently four Review Petitions are pending in
the Hon'ble High Court. Therefore, it is to consider whether it
would be proper to take steps to get the said petitions heard
first by giving reference of Supreme Court judgments OR to
take steps to correct the result in view of Supreme Court
judgments in the cases where result is published and
appointment process is pending.
(9) The legal opinion is to be taken in this case
because, after the Commission has declared the result of the
post of Class 1 / Class 2 on 13052010, a legal notice has
been issued to the Government and Public Service Commission
by Tanna Associates through its letter dtd. 05072010. Public
Service Commission has received this notice on 0807010. In
this Legal Notice, two recent judgments of the Supreme Court
have been referred.
(1) Union of India Vs. Ramesh, Ram and Others.
C.A. no. 4310 4311 / 2010 Judgment dtd. 07052010
and
(2) Public Service Commission, Uttranchal Vs.
Mamta Bist and others.
Civil Application no. 5989/ 2007, Judgment dtd. 03062010
Referring these two judgments, it has been submitted that the
necessary procedure should be followed after reviewing the
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result declared on 13052010 and the recommendations done
regarding the same by the Public Service Commission to the
Government on 03082010. Hence, before carrying out further
procedure by the Government in reference to the appointment of
Class1 and Class2, necessary discussion / procedure is to be
done regarding the Legal Notice received from Tanna
Associates.
(10) From the above details, it can be observed that
while discussing 30 percent reservation for women, the Public
Service Commission is required to take into consideration/
decide upon two issues/ factors. (1) 30% reservation for women
in direct recruitments of Class 1/2 posts through competitive
exams and (2) 30% reservation for women in direct
recruitments on the basis of interview without competitive
exam. While discussing the issue, it has to be also taken into
consideration that the norms of commission in different types
of direct recruitments with reference to 30 percent reservation
for women remain identical and noncontradictory.
Additionally, it is to be seen that any further procedure in this
regard does not lead to violation/ contempt of court until any
modification takes place in the judgment of Gujarat High
Court mentioned above at para4.
(11) On 08/01/2011, an informal meeting was
arranged in the chamber of Advocate General to discuss the
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issue where the Secretary of the commission, Joint Secretary
Shri V.N. Desai, Shri Deepak Shukla, a panel advocate of the
commission and the Registrar remained present. In the
meeting, the provisions of GAD circular dated 22051997 and
subsequent judgment by the Division Bench in Dr. Komal
Katara case were discussed. The opinion of Advocate General
with reference to the judgment is considered while following
procedure at present. The details thereof were given. Three
MCAs of the Commission and one MCA of the GAD are
pending before the High Court. Detailed discussion about legal
aspects was held with Advocate Shri Deepak Shukla, a panel
advocate of the commission and the Advocate General that
considering the circumstances, whether the present procedure
be continued in accordance with the judgment in case of Dr.
Komal Katara or the procedure prescribed vide the judgment of
Hon'ble Supreme Court be implemented. After the discussion,
the Advocate General opined that the procedure be followed in
accordance with the judgment of Hon'ble Supreme Court. The
MCA in Review Petition of Dr. Katara being pending,
implementation of the procedure is not bound by the same. The
Hon'ble High Court can also justify it by placing on record the
judgment of Hon'ble Supreme Court. As per the legal opinion of
24122009, Komal Katara Judgment is only applicable to the
cases where situation similar to Komal Katara case has arisen.
In a case where situation not similar to Komal Katara case has
emerged, recruitment of women is to be decided considering
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instructions of 1997 of the GAD and judgments of the Supreme
Court in Mamta Bist case and other similar cases. Under such
circumstances, now the Commission is required to take the
decision about the matter after a review.
(12) Perusing the Judgment of Hon'ble Supreme Court
in the case of Rajeshkumar Dariya V/S Rajasthan P.S.C.
Dated: 18/07/2007, it appears that, in the case of female
reservation, the merit list should be prepared according to the
total vacancies of concerned category at first, and if the number
of female candidates equivalent to the reserved posts of female
or more are included in this merit list, the posts of female
reservation are deemed to be filled up. But if the female
candidates equal to number of female reservation are not
available, they shall be considered from the merit list in the
following order for the selection of the number of such female
candidates and the male candidates to that extent shall be
decreased from the merit list. For example, 10 posts are to be
filled from unreserved category, out of which 3 posts are
reserved for female. If the passing criteria for unreserved
category is 40 marks, the combined list of male and female
candidates securing 40 marks or more is to be prepared first,
and if three or more females are included in it on merit, no
further consideration is to be made considering that 30 percent
female reservation is fulfilled as per rules. But if two female
candidates are included, one more female candidate is to be
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selected and for that, the female candidates from the merit list
are to be considered in the following order and the male
candidate at sr.No.10 in the merit list is to be excluded from
the selection list. This kind of consideration is to be adopted
for the candidates of scheduled cast / scheduled tribe / socially
and educationally backward / physically disabled. After
discussion of this fact, following can be considered in the result
which will be declared afterwards.
(a) Instead of prescribing the minimum passing marks / selection
criteria separately for the male and female candidates of
unreserved and reserved category, the minimum passing /
selection criteria for unreserved category (common minimum
passing / selection criteria for Male and female) and for the
reserved category (common minimum passing / selection
criteria for Male and female) may be prescribed.
(b) If the female candidates equal to the posts of reserved seats of
female or more are included in the merit list prepared on the
basis of minimum passing criteria, no relaxation standard
shall be fixed for the female candidates considering that the
provisions of 30 percent female reservation are complied.
(c) If the female candidates sufficiently equal to the posts of
female reservation are not available in the merit list prepared
on the basis of minimum marks, the shortfall of female
candidates shall be selected from the relaxed standard for
female candidates.
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(d) Considering the legal opinion submitted by the Advocate
General on 06/10/2001 in respect of what extent the minimum
standard is to be relaxed for filling up 30 percent posts of
female, the Commission has decided that, 10 percent of the
minimum marks prescribed for the candidates of
unreserved/reserved candidates shall be relaxed as the
standard in this regard. Such standard is found proper to be
followed in the result which will be declared hereinafter.
Purpose of the Commission to take such decision is to maintain
30% female reservation as well as efficiency / merit etc in
government service. Aforesaid relaxed standard should be
adopted only for shortfall of candidates in female reservation
seats and a separate waiting list of female candidates on the
basis of relaxed standard should not be maintained.
(Ch) As shown in (Gh) above, if sufficient female candidates are not
available for 30% after relaxing standard, such shortfall /
vacant seats shall be filled by male candidates as per their
merit number.
(Chh) Before preparing common merit list for recommendation to the
Government, joint list of all the candidates, category wise
separate common merit list for general candidates (male and
female), Scheduled Caste candidates (male and female),
Scheduled Tribe candidates (male and female), Socially and
Educationally Backward Candidates (male and female),
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physically handicapped candidates (male and female) shall be
prepared first.
(Jh) It would also occur sometimes that due to preparing the
merit list in aforesaid manner, number of candidates with
minimum or more marks would be more than total number of
aforesaid category. Under the circumstances, candidates equal
to number of posts should be kept in selection list and
remaining candidates should be included in waiting list and if
a candidate does not join after making recommendation and
proposal is received to call for a name from waiting list, in
such an event, if female candidate has not joined,
recommendation should be made from waiting list serially if
30% seats (meaning seats shown in advertisement) are filled
with female candidates in recommendation list and if 30%
seats are not filled with female candidates, female candidate
should be recommended from waiting list, which method is
being followed at present.
(Z) The decision dated 09092005 taken by the Commission
(Circular No.:EXM822000Part2CNF) to call three times the
number of candidates to seats in preliminary test should be
continued.
For consideration and order of the Commission."
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POLICY DECISION DATED 25.10.2001
(translated version)
Through two notifications dated
09/04/97 of the General Administration Department of the
Government, it has been provided by the State Government
that 30 % seats shall be reserved in the concerned cadres for
the appointment of women in all the services. In this regard,
necessary note had been prepared and produced before the
Commission earlier for the implementation of the said order in
the case of direct recruitment and competitive examinations
conducted by the Commission. However, it appears that no
decision has been taken by the Commission in this regard.
Moreover, the respective file has also not been returned to the
office. In such circumstances, the copy of the said note has been
produced again to the Correspondence Department : 1 to 3 for
necessary action. It is requested that appropriate decision
should be taken after consideration in this regard.
Signature (Illegible)
(Chandravadan Kapadiya)
Secretary
Date - 31/07/2001.
As per the above mentioned notification of the Government as
well as the clarification dated 22/05/97, it is provided that, for
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30 % reservation for female candidates, after counting the
female candidates passed on merits, the shortfall female
candidates required for 30% reservation can be appointed on
the basis of reservation. All these provisions shall be followed
at the time of selection for the posts of all the direct
recruitments by the Commission.
Signature (Illegible)
3/8/2
Member, Mr. Rana Discussion shall be done
Signature (Illegible) 06/08/01
Member, Dr. Patel Signature (Illegible) 06/08/01
Member, Mr. Chavda Discussion shall be done in
Commission.
Signature (Illegible) 07/08/01
Chairman After discussing today, the
opinion of the Advocate
General shall be asked as
soon as possible.
Member, Mr. Rana Signature (Illegible) 24/09/01
Member, Dr. Patel Signature (Illegible) 24/09/01
Member, Mr. Chavda Signature (Illegible) 24/09/01
Chairman Signature (Illegible) 24/09/01
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Submitted with compliments.
2. Kindly see the letter dated 06102001 of the Advocate
General received on 22102001.
3. It has been provided in the notification dated 09041997
of General Administrative Department to keep 30% posts
reserved for women in all the services and vacancies under the
State Government. It also clarifies the issues raised out of the
circular dated 22051997. As the result of preliminary
examination for Gujarat Civil Services ClassI and II is to be
prepared, a letter was sent to the Advocated General of Gujarat
on 26092001 seeking his opinion for more clarification in this
regard. His opinion has been received on 22102001. The
details are as follows.
"As per the judgement of the Supreme Court, the
Commission may keep selection criteria for appointment of
women candidates lower than that of male candidates. This
criteria is applicable to all elimination tests and competitive
examinations. However, the Commission shall decide as to upto
what extent the selection criteria to be kept. This lower criteria
shall be fixed in the range of 5% to 15%."
As the result of preliminary examination for appointment to the
posts of Gujarat Civil Services, ClassI and II, conducted on
26082001 is pending, kindly decide appropriately as to how
much lower the selection criteria for women candidates is to be
kept than that of male candidates in accordance with the
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opinion of the Advocate General.
4. For consideration and order of the Commission.
Sd/ (Illegible)
Date: 22102001
Secretary
As recommended in para(8) of the opinion given by the
Advocate General, State of Gujarat, keeping selection criteria
for women candidates in the range of 510 percent in
comparison to male candidates for Gujarat Civil Services
(Preliminary) Examination, August 2001, procedure be carried
out so that 30% women may get selected at every stage as per
Rule2 of Gujarat Civil Services (Reservation of Posts for
Women) Rules, 1997.
Sd/ (Illegible)
Date: 23102001
Member Shri Rana Sd/(Illegible) 23102001
Member Dr. Patel Sd/(Illegible) 23102001
Member Shri Chavda Sd/(Illegible) 23102001
Chairman
Discussion was held today in the commission.
While preparing result for various exams conducted by
the commission for recruitment through competitive exam and
direct recruitment, i.e Objective test(Elimination test), Written
test, Personal Interview and (Skill test) Stenography, the
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shortfall required on the posts reserved for women are to be
taken on the basis of reservation.
For this, 10% lower eligibility standard is decided for
female candidates than that of male candidates of respective
category. Even after doing so, if the posts reserved for women
remain vacant, then it is decided to fill these posts with male
candidates of the respective category.
Clarification
In personal interview, it is decided to set 10% lower
eligibility standard for female candidates than that of male
candidates for the posts at present. For example,
Eligibility standard Eligibility standard
for Men for Women
Member Shri Rana Sd/ illegible
251001
Member Dr. Patel Sd/ illegible
251001
Member Shri Chavda Sd/ illegible
251001
Chairman
Kindly keep copy."
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4.4 Mr. Shukla would also rely on the Gujarat Public Service
Commission Procedure Rules, 1962 which regulate its procedure
and function. Relying on clause (ii) of Sub Rule (ii) of Rule 2 of the
Procedure Rules, he would submit that after the receipt of the
applications the GPSC will determine as to who should be admitted
at the examination and fix the date and programmes of the
examination and make all arrangement for the conduct of the
examinations. In his submission, when no specific provision is made
in the Rules, it is within the domain of the Commission to formulate
a yardstick for qualifying the merit position.
4.5 Taking us to the Affidavit, Mr. Shukla explained the manner
and the method in which the result was furnished. He would submit
that the following male candidates had been selected against the
posts reserved for women for respective categories as a result of
unsuccessful women candidates who did not qualify on the relaxed
standard of 10% in the respective category vizaviz the male
candidates. The details of the male candidates, 21 in number who
were selected in place of female candidates are as under:
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CATEGORY NO. OF MALE CANDIDATES
He would submit that this was because of non availability of
women candidates even after relaxing 10% of the qualifying of the
respective categories.
4.6 Taking us to the Affidavitinreply filed by the GPSC on
09.02.2015, particularly paras 6.3 to 6.6, Mr. Shukla would explain
that the candidates have been arranged in the order of merit on the
basis of aggregate marks finally awarded to each candidate in the
main examination (Written and Personal Interview) and explaining
the working of the results, he would submit that the Commission
firstly prepared the list in the order of merit in descending order, i.e.
the candidate with the highest total marks at Merit No. 1 and the
candidate securing lowest marks at the bottom. He would further
submit that for Unreserved/General category, there were 24
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vacancies for the post of ACF of which 8 had to be filled by female
candidates. Similarly, 60 vacancies were for the post of RFO of
which 18 had to be filled by women candidates of General category.
In all, 84 general posts were to be filled in of which 26 were reserved
for female candidates. He would submit that going down the list the
last candidate at Merit No. 78, who had secured 433 marks was the
yardstick worked out and 10% relaxation for female candidates on
that basis was counted as 389 for the purpose of yardstick of the
female candidates in unreserved category.
4.7 In other words, the GPSC went into each category and the last
male candidate of the said category was considered and 10%
qualifying standard was relaxed so as to consider the eligibility of a
female candidate for being appointed in the respective reserved
categories against female reservation. While working up such list,
only 30 women candidates were found qualifying and hence deficit of
21 posts were filled in by transferring such posts male candidates for
respective categories.
4.8 Mr. Shukla would submit that it is entirely within the domain
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of the GPSC to prescribe for qualifying standards and the findings of
the learned Single Judge that the GPSC had either no power or that
the power was utilised arbitrarily, was misconceived. He would
submit that the list was operated in accordance with the decision of
the Apex Court in the case of Rajesh Kumar Daria (supra) and in
accordance with the dictum of the Apex Court in the case of Union
of India vs. Mamta Bisht [(2010) 12 SCC 204].
4.9 A preliminary objection was raised by Mr. Shukla during the
course of his submissions that the original petitioners - candidates
who had taken part in the selection process knowing fully well the
procedure laid down therein could not question the same. In support
of his submission, he would rely on the following decisions:
(i) Union of India vs. S. Vinodh Kumar reported in
2007 (8) SCC 100 : AIR 2008 SC 5
(ii) Amlan Jyoti Barooah vs. State of Assam and
Others reported in 2009 (3) SCC 227
(iii) Sadananda Halo & Others vs. Momtaz Ali Sheikh
& Others reported in 2008 (4) SCC 619 &
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(iv) Ranjan Kumar etc. vs. State of Bihar and Others
reported in 2014 AIR SCW 2968.
4.10 With regard to the powers of the GPSC to judge the merits of
the candidates, Mr. Shukla invited the attention of the Court to the
decision in the case of Andhra Pradesh Public Service
Commission vs. Balaji Badhavath and Others [(2009) 5 SCC 1.
He would particularly invite the attention of the Court to paras 12 to
25 thereof to submit that it is for the Commission to judge the merit
of the candidates and unless the procedure adopted by it is held to be
arbitrary or against the principles of fair play, the Superior Courts
would not ordinarily interfere therewith. He would submit that no
one had a fundamental right to be appointed because the right
merely provides for a right to be considered.
4.11 In context of his submission explaining the concept of women
reservation and prescribing the standard of qualifying marks, Mr.
Shukla would rely on the decision dated 13.12.2007 in the case of
Dr. Mehta Rakshaben Kantilal vs. Gujarat Public Service
Commission and Another (Special Civil Application No.
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25773 of 2007). He would invite the attention of the Court to
relevant contentions raised by the parties therein, wherein the
petitioner had prayed to quash and set aside alleged norms fixed by
the GPSC being dehors the advertisement and the recruitment
rules. He would invite the attention of the court to para 16 of the
decision and submit that fixation of cutoff marks cannot be said to
be arbitrary. Specific attention was drawn to para 18 of the decision
wherein the court had observed that if there is a relaxation or a
provision of cutoff marks between reserved category candidates for
entry of female candidates it cannot be said to frustrate female
reservation. He would also invite the court's attention to para 23 of
the decision. In support of his submissions he also relied on the
following decisions:
(a) Asha M. Barasara v. Gujarat Public Service
Commission reported in 2008(3) GLR 2462 : 2008(2) GCD
(b) Prajapati Ishwarbhai Joitaram & 18 v. State of
Gujarat delivered by Gujarat High Court in LPA No.
1350 of 2012 in SCA No. 13495 of 2012
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(c) Nagori Ruksana Ahmedkhan v. State of Gujarat
delivered by Gujarat High Court in LPA No. 2474 of 2010
in SCA No. 10060 of 2000
(d) Hemlata R. Joshi v. State of Gujarat of Gujarat
High Court in SCA No. 5733 /2004
(e) Hemlata R. Joshi v. State of Gujarat of Gujarat
High Court delivered by Gujarat High Court in LPA No.
(f) Public Service Commission, Uttaranchal v. Mamta
Bisht and Others reported in 2010(12) SCC 204
4.12 Reading extensively the decision in the case of Prajapati
Ishwarbhai Joitaram (supra), Mr. Shukla would submit that the
Division Bench of this Court held that even in reserved categories
while making appointments efficiency of administration cannot be
completely ignored and therefore a prescription of cutoff marks for
appointment even in reserved categories was held to be just and
proper. He would submit that the Division Bench also held that it is
well settled that women reservation is horizontal and in respect of
seats of women the merit will be at par with the male candidates
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and if requisite merit is not available conversion of posts in the
respective category cannot be said to be arbitrary. Under no
circumstances, should the GPSC be compelled to go down below the
cutoff marks because the same would compromise with efficiency.
Mr. Shukla in context of the decision of the Division Bench relied on
para 6.
4.13 In support of his submission that the Commission is within its
powers to provide for prescription of cutoff marks, an additional set
of judgements was tendered by him on 16.03.2021. The list of
judgements read as under:
(a) Prof. A. Marx v. Government of Tamil Nadu
reported in 2013(O) GLHELSC54739 : 2014(13) SCC 329
(b) Lekhabahen Kanaiyalal Modi v. State of Gujarat
reported in 2015(O) AIJEL - HC - 232965 : 2015 JX (Guj)
(c) Artiben Manilal Makwana v. State of Gujarat
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delivered by Gujarat High Court in LPA Nos.1428 of
2015 & 19 of 2016 (Interim Order dated 19.12.2018)
(d) Ira Harshadkumar Bhavsar v. State of Gujarat
delivered by Gujarat High Court in SCA No.8857/2013
dated 18.4.2017
(e) Bhavneeta Rajeshkumar Darji v. State of Gujarat
reported in 2018(O) AIJELHC239188 : 2018(2) GLH 350.
4.14 Extensively relying on the decision of this Court in the case of
Lekhaben Modi (supra) wherein the Circulars of 09.04.1997 and
22.05.1997 were considered holding that unless it was found to be
arbitrary 10% relaxation in context of female reservation was held to
be valid, Mr. Shukla submitted that the learned Single Judge
committed an error in holding the prescription of such qualification
as being beyond the powers of the GPSC. Relying on the decision in
the case of Bhavneeta Rajeshkumar Darji (supra), Mr. Shukla
would invite the attention of the Court to para 7 in support of his
submission.
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5. In the case before us, in Letters Patent Appeal No. 1109 of
2015, for the respondent - original petitioner - unsuccessful
candidate who has also filed LPA No. 1187 of 2015, Mr. Bhaskar
Tanna, learned Senior Advocate appeared. He drew the attention of
the Court to the Affidavitinreply of the GPSC and read the same in
context of the 'Convenience Note' filed by him in LPA No. 1187 of
2015. He would submit that the appellants of LPA No. 1187 of 2015
were general category candidates who had been deprived the benefit
of female reservation on account of erroneous implementation of
policy of reservation for women. He would submit that while
declaring the merit list of 25.09.2014, the GPSC had not followed
the 30% reservation for females as envisaged by the Apex Court in
the case of Mamta Bisht (supra).
5.1 Mr. Tanna would further submit that GPSC at the relevant
time was not even entitled to prescribe 10% relaxation in qualifying
marks for women and thereby transferring the shortfall to be
occupied by male candidates of the respective categories. As far as
the Letters Patent Appeal filed by the original petitioners, he would
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submit that he was aggrieved by the observation of the learned
Single Judge in para 57(f), which misinterpreted the concept of
horizontal and compartmentalized reservation taking it as a concept
and an argument which was not found favourable as taking away a
slice from the quota of vertical reservation.
5.2 Mr. Tanna would submit that when sufficient qualified female
candidates were available, steps should have been taken by the
GPSC to fill in the reserved post in each category with the available
female candidates and the contention of Mr. Shukla that the power
of the GPSC was backed by an opinion of the Advocate General
dated 06.10.2001 was misconceived. There was no power with the
Commission to prescribe such qualifying standard. Mr. Tanna in
support of his submission would rely on the leading case as he would
put it in the case of Tamannaben Ashokbhai Desai vs. Shital
Amrutlal Nishar rendered in Letters Patent Appeal No. 1910
of 2019 dated 05.08.2020. He would submit that the decision of the
learned Single Judge (J.B. Pardiwala, J.) in the case of Lekhaben
Modi (supra) was no longer a good law in view of the decision in the
case of Tamannaben Desai (supra) (authored by Honourable
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Justice J.B. Pardiwala himself with Honourable the Chief Justice
Vikram Nath) which in para 56 provided and explained the proper
and correct method of implementing horizontal recommendation for
women. He would submit that the manner and the method in which
the GPSC operated the merit list, was seriously flawed and the
learned Single Judge had committed no error in assessing such fault
as he did. He would want the court to read extensively the manner
in which the learned Single Judge found the working of the female
reservation as being flawed in comparison to one laid down in
Tamannaben Desai (supra). Mr. Tanna would submit that the
learned Single Judge has distinguished the decisions in the case of
Dr. Mehta Rakshaben (supra) and Prajapati Ishwarbhai
Joitaram (supra).
5.3 Mr. Tanna would further invite the attention of the Court to
the decision of the Apex Court in the case of Saurav Yadav and
Others vs. State of Uttar Pradesh and Others reported in
(2020) SCC OnLine 1034 and submit that the procedure so laid
down by the Gujarat High Court in Tamannaben Desai (supra)
has been approved and referred to in paras 33 and 36 of the decision.
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5.4 Mr. Tanna would extensively read para 56 of Tamannaben
Desai (supra) and elucidate the step wise implementation of women
reservation in each category. He would submit that the learned
Single Judge was right in his perception of holding that the Rules of
the games were changed and the judgements cited by Mr. Shukla
that once having participated in the selection process, the petitioners
ought not to have approached this court would not apply to the facts
of this case. Mr. Tanna would also rely on the recent decision of the
Division Bench of this Court in the case of Alpesh Surendrasinh
Rathod vs. State of Gujarat in Letters Patent Appeal No. 1246
of 2019 dated 17.10.2020.
6. Mr. K.B. Pujara, learned Advocate has appeared in LPA No.
1110 of 2015. He would invite the court's attention to the
distribution of seats and submit that he was canvassing on behalf of
SEBC candidate female. 15 seats were reserved for women in the
SEBC category. He would submit that after holding OMR test,
Written Examination and Oral Tests and after final selection list
was published, the petitioner of Special Civil Application No. 2125 of
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2015 was placed at SEBCF15. He would invite the attention of the
Court to the operative portion of the learned Single Judge, para
57(k) and submit that he would support the impugned judgement of
the learned Single Judge.
6.1 Mr. Pujara would submit that the Rules, 1997 provided a
statutory requirement of 30% (now 33%) reservation for women
under the proviso to Article 309 of the Constitution of India. He
would submit that though large number of eligible candidates were
available in each category, the GPSC selected much less number of
women than notified vacancies for them in the final selection list
dated 25.09.2014.
6.2 Mr. Pujara would submit that by not actually selecting the
sufficient number of women for the posts reserved for women as
notified in the advertisement, the GPSC failed to implement the
statutory policy of women reservation of the State Government.
GPSC committed illegality by preparing select list and final list on a
wrong premises by applying irrational and illogical formula of fixing
qualifying marks on the basis of the marks obtained by the "last
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male candidate" of the respective category and then granting 10%
relaxation for selecting women candidate on the reserved quota. In
the submission of Mr. Pujara, such formula had no legal sanctity as
it was not even contemplated by the statutory rules. The GPSC
being a creature of the Constitution under the Article 320 it must
scrupulously follow the statutory rules. He would invite the
attention of the Court to para 12.2 of the judgement of the learned
Single Judge. In support of his submissions, Mr. Pujara would rely
on the decision in the case of Rajesh Kumar Daria vs. Rajasthan
Public Service Commission (supra) wherein the Apex Court has
explained the concept of women reservation and how the same is to
be implemented. He would also rely on the decision of the Apex
Court in the case of State of Punjab vs. Manjit Singh [(2003) 11
SCC 559]. He would invite the attention of the Court to para 9
thereof to submit that where no special qualification or any
prescribed standard of efficiency over and above the eligibility
criteria is provided by the Rules, it would not be for the Commission
to impose any extra qualification.
6.3 Mr. Pujara would also invite the attention of the Court to the
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decision in the case of Inder Parkash Gupta vs. State of Jammu
and Kashmir [(2004) 6 SCC 786]. He would submit relying on
para 28 of the decision that the Commission must scrupulously
follow the Proviso to the Rules under Article 309 and it cannot fix
any "cutoff marks" not contemplated under the statutory rules.
6.4 Mr. Pujara would rely on the decision in the case of P.V.
Indiresan (2) vs. Union of India [2011 (8) SCC 441] which
explains the concept of "cutoff marks". He further relied on the
decision in the case of Government of Andhra Pradesh vs. P.B
Vijayakumar [(1995) 4 SCC 520] which provides the spirit of
reservation inasmuch as the reservation in benefit of a person who is
required not to compete in equal terms with the open category, their
selection and appointment to the reserved post is independently on
their interse merit and not as compared with the merits of the
candidates in the open category. The very purpose of reservation
according to Mr. Pujara is to protect the weak against the
competition of the open category.
7. Mr. Yatin Oza, learned Counsel with Ms. Srushti Thula,
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learned advocate has also appeared for the respondents in LPA Nos.
1108 of 2015 - original petitioners and made the submissions in
support of the decision of the learned Single Judge. Mr. Oza would
submit that had the qualification of 10% not been so prescribed post
merit list, the original petitioners would have been in the female
category in the deficit 21 seats that were transferred to the male
candidates which were completely against and prejudicial to the
women's right and dignity. The fixing of qualifying standards after
the announcement of the results, in his submission, has been rightly
upset by the learned Single Judge. He would submit that the
Commission is constituted as a Constitutional Body under Article
320 of the Constitution of India and must faithfully follow the Rules
and it must select the candidates in accordance with the
Examination Rules. Mr. Oza has relied on the decisions which were
cited by Mr. K.B. Pujara during the course of his arguments and
therefore he submitted that he would not repeat and reiterate those
citations but would adopt the arguments on the judgements cited by
Mr. Pujara during part arguments made by him in the earlier course
of hearing in this court.
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8. We have also heard Mr. Prabhakar Upadhyay, learned
Advocate who appears for the respondent in LPA No. 1109 of 2015.
He would submit that he was the respondent no. 7 in LPA No. 1109
of 2015 and respondent no. 6 in LPA No. 1187 of 2015. He would
submit that the concerned respondent whom he represents was
issued an order of appointment on 28.01.2016, pursuant to an order
passed by this court in Civil Application No. 11408 of 2015 on
14.10.2015. He was sent for training on 01.03.2016. The
subsequent decision and the modification of the list based on the
decision of the Apex Court in the case of Ramesh Ram (supra)
according to Mr. Upadhyaya is flawed. He would submit that the
learned Single Judge has rightly held that the judgment in the case
of Ramesh Ram (supra) is rules specific and would not apply to the
rules as they exist in the State of Gujarat.
9. Mr. Sandeep Limbani, learned Advocate has appeared and
supported the submissions of the learned Counsel for the GPSC. Ms.
Dimple Thakkar, learned Advocate who appears for one Mr. Keyur
Patel submitted that the applicant of Civil Application No. 2 of 2016
(OLD No. 3733 of 2016) in Letters Patent Appeal No. 1110 of 2015
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for joining party is claiming his right as he has scored 426 marks
and is above the cutoff marks in the new revised list. She submitted
that the original petitioner of Special Civil Application No. 2125 of
2014 was claiming a right as per the old list of 25.09.2014.
According to her, the applicant can be considered in the 21 left out
seats if the GPSC would succeed in the appeals.
9.1 Mr. Gautam Joshi, learned Counsel appears for the Civil
Applicant of Civil Application No. 1 of 2016 (Old No. 13096 of 2016).
He has submitted that the applicant is a female candidate of general
category and has scored 346 marks, above the cut off marks for
SEBC (Female) and that she has been listed at Sr. No. 150 in the list
dated 25.09.2014 and at Sr. No. 151 in the revised new list. He
further submitted that the applicant of Civil Application No. 13096
of 2016 is similarly situated as the applicants in Civil Applications
in which this Court has passed order dated 14.10.2015 that is above
cutoff marks in SEBC category for whom there is no question of
further relaxation of marks. The applicant is also entitled to the
appointment like the candidates appointed who have scored more
than the cutoff marks of SEBC.
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10. Mr. Kanva Antani, learned AGP has appeared for the State.
He would draw the attention of the Court to the provisions of
Articles 309 and 320 of the Constitution of India and submit that
under Article 309 of the Constitution it is for the State to legislate
for making Rules for the purposes of recruitment whereas for the
purposes of conducting examination it is within the domain of the
Public Service Commission under Article 320 of the Constitution of
India. The concept of recruitment envisages 2 streams (i) Selection
and (ii) Appointment. Selection is undertaken by the Public Service
Commission whereas appointment is made by the State. Mr. Antani
would invite the attention of the Court to the Examination Rules
and submit that it is within the powers of the Commission to
formulate a policy and the decision of the Commission shall be final.
ANALYSIS
11. As reproduced hereinabove, the major bone of contention that
this Court in these Appeals is called upon to decide is whether the
method, procedure and the basis followed and adopted by the GPSC
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for determining the qualifying standards (described by the GPSC as
"cutoff marks") and by adopting such criteria which was not
declared and informed to the candidates amounted to changing the
rules of the game. The second consequential issue that, therefore,
deserves consideration is whether it was open for the GPSC to
transfer the quota reserved for female candidates to male
candidates. The question whether transfer of quota of candidates
possessing special qualification is an issue which will be dealt with
in course of a separate LPA which is still pending consideration.
12. Before we embark on this journey of taking a decision on the
issue, it will be in the fitness of things to have a bird's eye view of
the relevant rules of recruitment that govern the recruitment in
question. Rules governing the recruitment of ACF are Assistant
Conservator of Forests in Gujarat Forest Service, Class II
Recruitment Rules, 2007 ( for short 'Rules of 2007'). Those
rules provide for recruitment to the service either by way of
promotion and by direct selection on the basis of a result of a
competitive examination held for such purpose. Rule 2 of the Rules
of 2007 reads as under:
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"2. Appointment to the post of Assistant Conservator of
Forests, Class II, shall be made either,
a) by promotion of a person of proved merit and efficiency
from amongst the persons who
i) have worked for not less than five years in the
cadre of Range Forest Officer, ClassII;
ii) have passed the prescribed departmental
examination; and
iii) have passed the qualifying examination for
computer knowledge as may be prescribed by the
Government in accordance with the provision of the
Gujarat Civil Services Classification and
Recruitment (General) Rules, 1967:
Provided that where the appointing authority is
satisfied that a person having the experience
specified in clause(i) is not available for promotion
and that it is necessary in the public interest to fill
up a post by promotion even of a person having
experience for a lesser period, it may, for reasons to
be recorded in writing, promote such person who
possesses experience of a period of not less than two
third of the period prescribed in clause(i).
b) by direct selection on the basis of the result of the
competitive examination held for the purpose."
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12.1 Amendments have been made to the Rules of 2007 in the years
2008 and 2009 which may not be relevant for the present
controversy. For the purpose of rules governing recruitment of RFO,
the rules are known as Range Forest Officer Class II
Recruitment Rules, 2008. The appointments are made either by
promotion of a person through proved merit and efficiency or by
direct selection of a person holding prescribed qualifications. The
examinations for the purposes of recruitment to these posts that of
ACF and RFO is governed by the Examination Rules, as stated in
the earlier part of the judgement known as The Assistant
Conservator of Forest, Class II/ Range Forest Officer
Competitive Examination Rules, 2008. The Rules provide as
under:
"2. Definitions: In these rules, unless the context otherwise
requires.
(a)"Commission" means the Gujarat Public Service
Commission;
(b)"Examination" means the Combined Competitive
Examination for recruitment to the post of Assistant
Conservator of Forest / Range Forest Officer and includes
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the Preliminary Examination, Main Examination and an
interview test referred to in rule 4;
(c) xxx xxxx xxxx
(d) "Prescribed" means prescribed by the regulations made
by the Commission;"
XXX XXX XXX
3. Holding of Examination. (1) The Commission shall
hold a combined competitive examination for selection of
candidate on receiving of the requisition from the
Government, for the aforesaid post. The dates and the
place of the examination shall be decided by the
Commission.
4. Nature of Examination. (1) The examination shall be
in two successive stages namely.
(i) Preliminary Examination (Objective type) for selection of
Candidates for Main Examination,
(ii)Main Examination (Written and Interview Test) for final
selection of candidate.
XXX XXX XXX
9. Order of Preference. (1) The names of the candidates shall be
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arranged by the commission in the order of merit on the basis
of aggregate marks finally awarded to each candidate in the
main examination (written and Interview test) and in that
order, the commission shall recommend the qualified
candidates for appointment to the extent of the number of
vacancies to be filled in;
Provided that where the vacancies reserved for the candidates
belonging to Scheduled Castes or Scheduled Tribes or Socially
and Educationally Backward Classes cannot be filled up on the
basis of qualifying aggregate marks fixed for general category,
the Commission may relax the standard of aggregate marks to
make up for the deficiency in the reserved posts;
10.Conditions for Eligibility. (1) A Candidate shall not be
qualified for admission to the Examination unless he is,
(a) a citizen of India, or
(b) a subject of Nepal, or
(c) a subject of Bhutan, or
(d) a person of Indian origin who has migrated from Pakistan,
Myanmar, Sri Lanka, East African Countries of kenya,
Uganda, the United Republic of Tanzania, Zambia,
Malawi, Zaire, Ethopia and Vietnam, with the intention of
permanently settling in India;
(2) A candidate who is required to produce a Certificate of
eligibility, may be allowed to appear in the examination or
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interview conducted by the Commission and he may also be
appionted provisionally subject to the production of eligibility
certificate.
XXX XXX XXX
17.Commission's decision final. (a) No candidate shall be
allowed to appear at the Main Examination unless the
Commission is satisfied that candidate is eligible in all respect
and has complied with all the requirements including the
payment of requisite fees.
(b) The decision of the Commission as to the eligibility of a
candidate for admission to the main examination shall be final
and the candidate who has not been permitted to appear in any
stage of the examination by the commission shall not be
allowed to appear at remaining stage of the examination.
XXX XXX XXX
19.Appearance to Main Examination. (a) The candidates
who have obtained minimum qualifying marks as may be fixed
by the Commission in the Preliminary Examination shall be
allowed to appear in the Main Examination subject to
satisfying the eligibility criteria.
(b) The candidates who have obtained minimum qualifying
marks as may be fixed by the Commission in the Main
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Examination (Written) shall be called for interview test.
Provided that candidates belonging to the Scheduled Castes,
Scheduled Tribes or Socially and Economically Backward
Class may be, allowed to appear in the Main Examination
(Written test) or, as the case may be called for interview test by
relaxing the standard in the Preliminary Examination or, as
the case may be, in the Main Examination (Written) if the
Commission is of the opinion that sufficient number of
candidates from these communities are not likely to be
available for the Main Examination (written) or, as the case
may be, for interview test on the basis of the qualifying
standard fixed for general category in order to fill up the
vacancies reserved for such categories."
12.2 From the reading of the aforesaid examination rules, 2008,
what is evident is that the examinations for the purposes of
recruitment to these posts is to be held by the GPSC. It is a
combined competitive examination for recruitment to the post. The
examination is in two successive stages namely (i) preliminary
(objective type) for selection of candidates for main examination (ii)
Main examination (written and interview test) for final selection of a
candidate. Rule 9 indicates that the name of the candidates have to
be arranged by the Commission in the order of merit on the basis of
aggregate marks finally awarded to each candidate in the main
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examination and in that order the Commission shall recommend
the qualified candidate for appointment to the extent of the number
of vacancies to be filled in. The proviso indicates that where there
are vacancies reserved for candidates belonging to SC, ST or SEBC
and if such vacancies cannot be filled up on the basis of the
qualifying aggregate marks fixed for the general category, the
Commission may relax the standard of aggregate marks to make
up for the deficiency in the reserved posts. Rule 19 indicates
that the candidates who have obtained minimum qualifying marks,
as may be fixed by the Commission in the preliminary examination,
shall be permitted to appear in the main examination subject to
satisfying the eligibility criteria. Clause (b) of rule 19 provides that
the candidates who obtain minimum qualifying marks as may be
fixed by the Commission in the main (written) exam shall be called
for the interview test. The proviso indicates that the candidates
belonging to reserved categories may be allowed to appear in the
main examination or as the case may be called for the interview by
relaxing the standard if sufficient number of candidates of these
communities are not likely to be available for main examination or
as the case may be for the interview test on the basis of qualifying
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standard fixed for general categories in order to fill up the vacancies
for such categories.
13. For the sake of brevity, though it may amount to burdening
the record, we cannot help but reproduce the reasoning of the
learned Single Judge on the basis of the affidavitinreply of the
GPSC to show how they have worked out reservation in context of
qualifying marks of 10% reservation.
"18.2 On this count, it is pertinent that for the purpose of
determining the qualifying standard the respondent GPSC
first pickedup the General / Unreserved Category and took
into account total number of vacancies in that category.
Thereafter the respondent GPSC started from the candidate at
the top in the common merit list (i.e. the candidate with highest
marks) and, while descending, it started identifying only male
candidates belonging to the said / particular category and
proceeded in descending order by taking into account
marks of only male candidates in that particular
category (i.e. excluding all female candidates/marks
obtained by female candidates in that category) and
continued to descend in similar manner until it reached the
male candidate who, depending on the number of notified
vacancies in the particular category, would be the last male
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candidate required to fillup the vacancies in that particular
category. The marks secured by such last male candidate
of that particular category are treated and adopted and
applied by GPSC as the qualifying marks/standard
(what is described by GPSC as cutoff marks) for the
respective category. The procedure and method followed by
GPSC is explained by it in paragraphs No.6.2 to 6.4 of its
affidavit dated 23.2.2015 filed in SCA No.14849 of 2014 and it
is further explained in para No.2 of its additional affidavit
dated 24.2.2015.
18.3 Besides this even in the notification dated 25.9.2014
GPSC itself has admitted and stated that: The candidates at
Rank No...... ST being female candidates have been selected
after relaxing the minimum qualifying standard prescribed for
male candidates of their respective categories. (Emphasis
supplied)
18.4 From the details mentioned in said affidavits it has
emerged that for combined (i.e. ACF + RFO) 84 position of
unreserved / general category, 26 position are reserved (@ 30%
of total number of notified vacancy for the said category) for
female candidates and for selecting female candidates for said
position, the marks secured by the male candidate in general
category whose name is listed at Sr.No.78 in the general /
common merit list is treated as the marks of last candidate in
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general / unreserved category (though only 58 position /
vacancies are to filledup) and the marks secured by the said
male candidate at Sr.No.78 is recognized as minimum
qualifying marks/standard for the female candidates in
general / unreserved category on the premise that the said
candidate at Sr.No.78 is last male candidate to enter the
selection list in genera/unreserved category and the said
marks are then adopted and applied as benchmark for
selection of female candidates and for complying the reserved
quota. In response to the query, the learned counsel for GPSC
submitted and clarified that the standard/basis which came to
be fixed, settled and adopted in above mentioned manner (as
qualifying marks/standard) is treated as yardstick and
benchmark for all purposes including the process and purpose
of fillingup the reserved quota for women in other three
categories as well and for the candidates seeking selection in
the quota reserved for persons holding special qualification.
18.5 It is relevant to mention that the stage of finalizing
selection list and declaring successful candidates was reached
after crossing three stages of screening. It is also relevant to
note that the respondent GPSC also did not adopt the marks
secured by a candidate in particular category regardless or
irrespective of the fact that such last candidate is male
candidate or female candidate but the respondent GPSC
consciously started the process by picking up the marks secured
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only by male candidates in respective categories and proceeded
going downwards while taking into account the marks secured
by only male candidates and it consciously opted for and
adopted marks secured by such last male candidate as the
qualifying standard."
13.1 The working of reservation as demonstrated by the learned
Single Judge in para 18.2 which is reiterated above is at complete
variance of working of reservation in female category as held in the
case of Tamannaben Desai (supra) so confirmed by the Apex Court
in the case of Saurav Yadav (supra). Para 56 of the decision in the
case of Tamannaben Desai (supra) which explains proper and
correct method of implementing horizontal reservation for women
reads as under:
"56. For the future guidance of the State Government, we
would like to explain the proper and correct method of
implementing horizontal reservation for women in a
more lucid manner.
"PROPER AND CORRECT METHOD OF
IMPLEMETING HORIZONTAL RESERVATION
FOR WOMEN.
No. of posts available for recruitment. ..... 100
Social Reservation quota (50%)
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Open Competition (OC) ... 51
Scheduled Caste (SC ) ... 12
Scheduled Tribe (ST) ... 17
Socially and Educationally
Backward Classes (SEBC) ... 20
Horizontal Reservation for Women (33% in each of
the above categories)
OC ... 17
SC ... 04
ST ... 06
SEBC ... 07
Step 1: Draw up a list of at least 100 candidates
(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 2: From the aforesaid Step 1 List, draw up a 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 3: Do a check for horizontal reservation in OC quota.
In the Step 2 List of OC category, if there are 17 women
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(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.
Step 4: Move over to Scs. From the Step 1 List, after 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 5: Do a check for horizontal reservation in the 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
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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 filled up by SC men. If in case, SC men are also
wanting, the social reservation quota of SC is to be
carried forward to the next recruitment unless there is a
rule which permits conversion of SC quota to OC.
Step 6: Repeat steps 4 and 5 for preparing list of Sts.
Step 7 Repeat steps 4 and 5 for preparing list of SEBCs."
13.2 Even the Apex Court in the case of Saurav Yadav (supra)
approved the decision in the case of Tamannaben Desai (supra).
Para 36 of the decision in the case of Saurav Yadav (supra) reads
as under:
"36. Finally, we must say that the steps indicated by the High
Court of Gujarat in para 56 of its judgment in Tamannaben
Ashokbhai Desai29 contemplate the correct and appropriate
procedure for considering and giving effect to both vertical and
horizontal reservations. The illustration given by us deals with
only one possible dimension. There could be multiple such
possibilities. Even going by the present illustration, the first
female candidate allocated in the vertical column for
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Scheduled Tribes may have secured higher position than the
candidate at Serial No.64. In that event said candidate must
be shifted from the category of Scheduled Tribes to Open /
General category causing a resultant vacancy in the vertical
column of Scheduled Tribes. Such vacancy must then enure to
the benefit of the candidate in the Waiting List for Scheduled
Tribes - Female. The steps indicated by Gujarat High Court
will take care of every such possibility. It is true that the
exercise of laying down a procedure must necessarily be left to
the concerned authorities but we may observe that one set out
in said judgment will certainly satisfy all claims and will not
lead to any incongruity as highlighted by us in the preceding
paragraphs."
14. What is evident from reading the Examination Rules of 2008 is
that, while preparing the merit list and recommending the name of
the qualified candidates for appointment, the Commission has to
arrange the names in the order of merit on the basis of aggregate
marks finally awarded to each candidate in the main Written
Examination and Interview Test. Rule 19 of the Examination Rules
envisages the discretion of the Commission to prescribe qualifying
standards. The minimum qualifying standards have to be fixed by
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the Commission in the preliminary examination prior to the main
examination and then while calling for the interview on the basis of
the main examination. On facts, it has been found on reading the
result dated 25.09.2014 that the Commission has introduced 10%
qualifying standards after preparing the Common Merit List for
purposes of working out female reservation based on the aggregate
marks of "last male candidate" in each category. The learned Single
Judge has specifically held in para 25 of the order that he is not
going into the question whether the Commission had power or not
what was observed is that what had been done was that the power
had been used without nexus and it was not sustained about the
manner in which the process was held. Para 25 at the cost of
repetition is quoted hereunder:
"25. For the foregoing reasons and in light of the facts, the
impugned method and procedure followed by GPSC and the
basis adopted by GPSC for fixing / determining the qualifying
standard as well as the qualifying marks/standard
determined and settled and adopted by GPSC are not
sustainable and deserve to be set aside and are consequently set
aside and as corollary all subsequent and consequential
decisions and actions by GPSC which are taken in pursuance
of and on the basis of such qualifying standard (decided in
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impugned method) fall and stand vitiated. At this stage, it is
necessary to further clarify that the action of
determining qualifying marks / standard and/or the
action of allowing relaxation therein are, essentially,
not sustained on account of the manner in which the
said process is carried out and the basis which GPSC
adopted and not for want of power. The action of
allowing relaxation is not sustained also because it is
tainted with vice of discrimination and the error of not
applying relevant factors and not for want of power.
[Emphasis Supplied]
15. Referring to the file notings produced by Mr. Shukla and read
before us in context of the opinion of the Advocate General dated
06.10.2001 quoted above, what is evident is that female reservation
is envisaged under the statutory rules, then in force by virtue of the
Notification of 09.04.1997. Even subsequent amendment of the rules
on 14.06.2012 would indicate that the explanation to the rules are in
the spirit of the judgement of this court in the case of Rajesh
Kumar Daria (supra). The reservation of posts for women has to be
done in consonance with the manner and method as envisaged under
the Notification dated 14.06.2012. Rule 3, the amended rule of that
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notification is reproduced hereunder:
"3. Manner of applying reservation of posts for
women
(1) The reservation of posts for women shall be
horizontal and compartmentalized and women selected
on merit within the vertical reservation quota in any
category mentioned in clause (a) to (d) of rule 2 shall be
counted against the horizontal reservation for women
within that category.
Explanation:
(i) Horizontal and compartmentalized reservation
means respective quota of posts reserved in favour of
women under Clause (3) of article 15 of the Constitution
of India made in public services and posts in connection
with the affairs of the state that interlocks with the
vertical reservation.
(ii) Vertical reservation means reservation in favour of
Scheduled Castes, Scheduled Tribes and Other
Backward Classes under clause (4) of article 16 of the
Constitution of India.
(2) The reservation of posts for women mentioned in
rule 2 shall be applied
(i) by first filling up the quota of the categories
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mentioned in clause (a) to (d) of rule 2 in order of merit;
and then
(ii) finding out the number of candidates among them
who belong to the respective reservation category and if
the number of candidates in such lists is equal to or more
than the number of special reservation quota of women,
then it shall not be necessary for further selection
towards the reservation quota of women. Only if there
is any shortfall of the women candidates in any
such category, the requisite number of women
belonging to such category shall have to be taken
by deleting the corresponding number of
candidates from the bottom of the list relating to
such category."
16. Reading of the aforesaid provision makes it abundantly clear
that if there is a shortfall of women candidates, the requisite number
of women shall have to be taken by deleting the corresponding
number of candidates from the bottom of the list relating to such
categories. The working of Commission in preparing the merit list of
25.09.2014 is in direct contravention of this provision. By
introducing the so called policy decision of 10% relaxation vizaviz
the last male candidate in each category, the said policy decision has
worked in direct conflict of the Reservation Rule under Article 309 of
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the Constitution of India namely the Women Reservation Rules.
Consequentially, the action of transferring the deficit posts filled in -
21 in number by male candidates, therefore, in our opinion is not
sustainable and has rightly been set aside by learned Single Judge.
We concur with the said view.
17. The Circular dated 22.05.1997 envisages a position of filling in
a post of a female reserved category candidate by a male only in the
event a female candidate is not available. In the facts of the present
case, what has been found by the learned Single Judge and which
has been so demonstrated by the pleadings on record, especially the
affidavitinreply of the GPSC is that the merit list has been so
operated contrary to the manner in which it is explained in the case
of Tamannaben Desai (supra).
18. As far as the decision cited by Mr. Shukla in the case of Dr.
Mehta Rakshaben (supra), reproduction of relevant para of the
decision in the case of Dr. Mehta Rakshaben (supra) shall be
pertinent. Para 18 of the said decision is reproduced hereinbelow:
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"18. The reservation of female candidates in open category
cannot be equated with the reservation made for SCST or
OBC in any recruitment. The reservation of female
candidates is reservation within the reservation as well as
reservation for open category. Therefore, when the
reservation is there in the open category, in normal
circumstances, it is also open to the recruitment authority to
fix up the same merit, may be between male candidates
or female candidates and between equal merits,
priority may be given to the female candidates for
offering appointment or for inclusion in the select list.
However, if a reasonable relaxation is given for considering
more number of female candidates for entering the zone of
consideration, the same also cannot be said as arbitrary
or unreasonable. In the present case, it appears that for the
male candidates GPSC has provided cutoff mark in open
category at 152, whereas for female candidates, such
standard of cutoff mark is lowered down and is fixed at
134, which has resulted into inclusion of about seven
more female candidates in the zone of consideration for
interview. Therefore, when the attempt is made for permitting
entry of more female candidates in comparison to the posts
available for female candidates, the action cannot be said as
frustrating or contrary to the policy for reservation made for
female candidates. Further, it is an admitted position that
none of the petitioners, not called for interview, has secured
134 or more marks at the elimination test. Therefore, the cut
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off mark is relaxed for female candidates to enter the zone of
consideration for interview. "
18.1 In the facts of the said case, the court found that when an
attempt is made for permitting entry of more female candidates in
comparison to the posts available for female candidates, the action
cannot be said to be frustrating or contrary to the policy of
reservation made for female candidates. In other words, the policy
was approved as it worked in favour of female reservation whereas
in the facts of the present case, the learned Single Judge found that
it worked in contravention or constriction of the policy of reservation
and therefore even the learned Single Judge held and rightly so that
the decision in the case of Dr. Mehta Raksha (supra) would not be
applicable to the facts of the present case.
18.2 Even in the decision in the case of Prajapati Ishawarbhai
Joitaram (supra), the learned Single Judge rightly held that the
decision would not be applicable to the facts of the case. The
question there was also in relation to horizontal reservation but was
in context of providing for qualifying standards for entering the zone
for the purposes of interview and not after the entire exercise based
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for filtering on the basis of the examination, in the context of the
present rules, especially Rules 9 and 19, was over. The judgment,
therefore, would not be applicable. Paragraphs no. 4 to 6 of the
decision in the case of Prajapati Ishwarbhai Joitaram (supra)
read as under:
"4. However, the principal contention raised on behalf of the
appellants is that the cutoff marks for the purpose of inclusion in the
select list or waiting list should have been fixed by the respondents at
the time when the written examinations are held and it is not open to
the respondents to fix the cutoff marks at the later stage. It was also
submitted that even if the cutoff marks are fixed by the respondents
for the respective category of the candidates in the case of horizontal
reservation for ExServicemen, in order to accommodate all Ex
Servicemen upto the post advertised, it is required for the
respondents to go below the cutoff marks and offer employment for
the purpose of selection. The learned counsel in support of his
submission, has relied upon the decision of the Apex Court in the case
of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission
reported at (2007) 8 SCC 785 for explaining the method and manner
of applying the horizontal reservation and the selection of the
candidates by application of horizontal reservation.
5. Whereas, on behalf of the respondents, it has been submitted
that initially the cutoff marks were not prescribed for the simple
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reason that it would be unknown as to how many candidates may
pass the written examination. It is only after the written examination
is conducted, if the interview is to be taken, normally the number of
candidates who may be called for interview, may be three times the
number of post advertised and therefore, the cutoff mark is to be
treated as that of the person who is last in such list for the purpose of
interview. Whereas in case of posts wherein interview is not provided
and the selection is to be made on the basis of the performance at the
written test, keeping in view the number of vacancies and the
available candidates, the cutoff mark is being provided. It was
submitted that so far as the appellants herein are concerned, who are
in the category of ExServicemen, for which there is reservation of
10% in horizontal manner, initially, there was no relaxation
provided. However, subsequently, as the Division Bench of this Court
vide order dated 19.12.2012, passed in the present appeal, observed
for consideration on the aspect of relaxation, the Recruitment Board
has considered the same and relaxation has been granted to the
extent of 5% so far as ExServicemen are concerned in comparison to
the cutoff marks of the candidates of the respective category, be it
General, SC, ST or SEBC, as the case may be. It was submitted that
for the purpose of inclusion of the name of any candidate who is
falling in the horizontal reservation, such candidate has to meet with
the criteria of cutoff marks provided for the respective category
subject to relaxation for ExServicemen and if the candidate is to be
considered scoring less than the cutoff marks, it would adversely
affect the merits of the selection and ultimately efficiency of the
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candidate concerned and such would adversely affect the
administration. It was submitted that the facts and figures which are
given by way of the affidavitinreply in the present LPA makes it
clear that all care has been taken by the respondents to see that all
candidates of the reserved category are included in the list, but
subject to the requirement that one has scored marks above the cutoff
marks provided for such category with the relaxation of 5% for Ex
Servicemen which is in the present case.
6. The first aspect of providing cutoff marks shows that the
recruitment process is governed by the Police SubInspector, Class III
Level Cadres Posts (Combines Competitive Examination for Director
Recruitment) Rules, 2011, ( Recruitment Rules for short) copy
whereof is produced as annexure with the affidavitinreply dated
05.11.2012 filed by Shri Ashish Bhatia, Chairman of Recruitment
Board. Therefore, so far as the recruitment to the post of Police
Inspector is concerned, it would be governed by the aforesaid
Recruitment Rules. Rule 4(2)(c) of the Recruitment Rules reads as
under:
"The candidates who qualify in the written examination shall
be called for an interview. The number of candidates called for
interview shall ordinarily be three times the number of
requisioned."
Therefore, if the number of candidates to be called for interview by
express language of the Recruitment Rules should be equivalent to
three times the number of post advertised. Only those candidates who
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stand on merit upto three times the number of vacancies will be
required to be called for interview and under these circumstances, the
last candidate in the list who secured particular marks at the written
test could be termed as qualifying marks/cutoff marks of the
candidates for the post of Police Inspector. Therefore, if the
respondents have fixed the qualifying marks accordingly keeping in
view the said aspects, it cannot be said that there is no power or
authority with the recruiting board to provide for qualifying marks.
It is hardly required to be stated that fixation of qualifying marks for
entering into the select list and/or waiting list is essentially the
domain of recruiting agency or the authority conducting the
examination. For example, if the number of posts are 50 and the
candidates appearing at the written test are 500 and about 300
candidates have passed the written test, that does not mean that all
the 300 candidates would be eligible for the purpose of interview. It is
open to the recruiting agency or the authority conducting the
examination to fix the cutoff marks which is popularly known as
qualifying marks for the purpose of entering in the zone of
consideration for the purpose of interview. In the present case, it is
three times the number of posts advertised. Therefore, it is only after
the result of the written test, the recruiting agency may be in a
position to know that how many candidates are to be interviewed and
the qualifying marks or the cutoff marks may be fixed. Such cannot
be termed as beyond the power or competence of the recruiting agency
for providing of the cutoff marks or qualifying marks for the purpose
of interview."
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19. As held by the Apex Court in the case of Inder Parkash
Gupta (supra), it will be worthwhile to reproduce para 28 of the
decision which reads as under:
"28. The Jammu & Kashmir Medical (Gazetted) Service
Recruitment Rules, 1979 admittedly were issued under Section
124 of the Jammu and Kashmir Constitution which is in pari
materia with Article 309 of the Constitution of India. The said
rules are statutory in nature. The Public Service Commission is
a body created under the Constitution. Each State constitutes
its own Public Service Commission to meet the Constitutional
requirement for the purpose of discharging its duties under the
Constitution. Appointment to service in a State must be in
consonance with the constitutional provisions and in
conformity with the autonomy and freedom of executive action.
Section 133 of the Constitution imposes duty upon the State to
conduct examination for appointment to the services of the
State. The Public Service Commission is also required to be
consulted on the matters enumerated under Section 133. While
going through the selection process the Commission, however,
must scrupulously follow the statutory rules operating in the
field. It may be that for certain purposes, for example, for the
purpose of shortlisting, it can lay down its own procedure. The
Commission, however, must lay down the procedure strictly in
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consonance with the statutory rules. It can not take any action
which per se would be violative of the statutory rules or makes
the same inoperative for all intent and purport. Even for the
purpose of shortlisting, the Commission cannot fix any kind of
cut off marks."
19.1 On facts of the present case, it has been found that the
procedure laid down by the Commission did not have the support of
the statutory rules and therefore the decision in the case of Inder
Parkash Gupta (supra) would apply on facts of the present case.
19.2 Even the decision in the case of Manjit Singh (supra), para 9
which is reproduced hereunder would indicate that the Commission
would have no power to impose a qualification which was not in
consonance with providing for efficiency of administration.
"9. In the present case, the stand of the appellant
Commission is that for medical services where the
members of service have to deal with the health and life
of the people, they must have some minimum standard of
efficiency and it is the bounden duty of the Commission to
ensure the same. It is perhaps with this view in mind that the
Commission fixed 45% minimum qualifying cutoff marks for
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general category candidates and 40% cutoff marks for
Scheduled Caste candidates. We feel, here lies the fallacy in
the whole reasoning of the Commission. It is no doubt true
that the Commission is an independent and autonomous body
and has to work without influence of any authority or the
government. It is rather under duty to act independently. But
at the same time the fact cannot be lost sight of that the State
Government is competent to lay down the qualifications
for differernt posts, and frame rules for the purpose or
take policy decisions which may of course not be against
the law. In this context, we may refer to the provisions
contained under Article 320 of the Constitution. It reads as
under :
" 320. Functions of Public Service Commissions
1. It shall be the duty of the Union and the State
public Service Commissions to conduct examinations for
appointments to the services of the Union and the
services of the State respectively.
2. It shall also be the duty of the Union Public
Service Commission, if requested by any two or more
States to do, to assist those States in framing and
operating schemes of joint recruitment for any services
for which candidates possessing special qualifications
are required.
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3. The Union Public Service Commission or the
State Public Service Commission, as the case may be,
shall be consulted
(a) on all matters relating to methods of
recruitment to civil services and for civil posts;
(b) on the principles to be followed in making
appointments to civil services and posts and in
making promotions and transfers from one service
to another and on the suitability of candidates for
such appointments, promotions or transfers;
(c) on all disciplinary matters, affecting a person
serving under the Government of India or the
Government of a State in a civil capacity,
including memorials or petitions relating to such
matters;
(d) on any claim by or in respect of a person who is
serving or has served under the Government of
India or the Government of a State or under the
Crown in India or under the Government of Indian
State, in a civil capacity, that any costs incurred by
him in defending legal proceedings instituted
against him in respect of acts done or purporting to
be done in the execution of his duty should be paid
out of the Consolidated Fund of India, or, as the
case may be, out of the Consolidated Fund of the
State.
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(e) on any claim for the award of a pension in
respect of injuries sustained by a person while
serving under the Govt. of India or the Government
of a State or under the Crown in India or under
the Government of an Indian State, in a civil
capacity, and any question as to the amount of any
such award, and it shall be the duty of a Public
Service Commission to advise on any matter so
referred to them and on any other matter which the
President, or, as the case may be, the Governor of
the State may refer to them.
Provided that the President as respects the all
India services and also as respects other services
and posts in connection with the affairs of the
Union and the Governor as respects other services
and posts in connection with the affairs of a State,
may make regulations specifying the matters in
which either generally or in any particular class of
case or in any particular circumstances, it shall
not be necessary for a Public Service Commission
to be consulted.
4. Nothing in clause (3) shall require a Public Service
Commission to be consulted as respects the manner in
which any provision referred to in clause (4) of article 16
may be made or as respects the manner in which effect
may be given to the provisions of article 335.
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5. All regulations made under the proviso to clause (3) by
the President or the Governor of a State shall be laid for
not less than fourteen days before each House of
Parliament or the House or each House of the Legislature
of the State, as the case may be, as soon as possible after
they are made and shall be subject to such modifications,
whether by way of repeal or amendment, as both Houses
of Parliament or the House or both Houses of Legislature
of the State may make during the session in which they
are so laid."
It is to be noted that under clause (3), the Union Public Service
Commission or the State Public Service Commission, has to be
consulted by the Government relating to methods of
recruitment in civil services and for civil posts, promotions and
transfers as well as about suitability of candidates etc. The
consultation may also be in regard to disciplinary' matters
affecting a person serving under the Government. We then find
that clause (4) particularly provides that nothing in clause (3)
shall require consultation of the Commission in respect to the
manner in which any provision referred to in Article 16(4) may
be made or the manner in which the effect may be given to the
provisions of Article 335. We may peruse clause (4) of Article 16
and Article 335. They read as follows :
" 16(4)Nothing in the article shall prevent the
State from making any provision for the reservation of
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appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
335.Claims of Scheduled Castes and
Scheduled Tribes to services and postsThe claims of
the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently
with the maintenance of efficiency of administration in
the making of appointments to services and posts in
connection with the affairs of the Union or of a State.
Provided that nothing in this article shall prevent
in making of any provision in favour of the members of
the Scheduled Castes and the Scheduled Tribes for
relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in
matters of promotion to any class or classes of services or
posts in connection with the affairs of the Union or of a
State."
Article 16(4) deals with Reservations and Article 335 pertains
to consideration of reservation consistent with maintenance of
efficiency of the administration. As indicated earlier, clause (4)
of Article 320 clearly provides that consultation of the
Commission would not be necessary in the matters relating to
Articles 16(4) and 335. Therefore, it would be a matter of
policy to be decided by the State Government as to what
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measures, if necessary, may be provided regarding
reservations visavis maintenance of efficiency in
services. Where no special qualification or any prescribed
standard of efficiency over and above the eligibility criteria is
provided by the Rules or the State, it would not be for the
Commission to impose any extra qualification/standard
supposedly for maintaining minimum efficiency which,
it thinks, may be necessary. No consultation with the
commission, in such matters, is envisaged in view of Clause (4)
of Article 320 of the Constitution."
19.2 It would also be worthwhile to reproduce para 45 in the case of
P.V. Indiresan (supra) which provided that a factor which was
unknown at the time of declaring examination cannot be used to
disentitle a candidate who is otherwise entitled for admission.
"45. No candidate who fulfils the prescribed eligibility
criteria and whose rank in the merit list is within the number
of seats available for admission, can be turned down, by saying
that he should have secured some higher marks based on the
marks secured by some other category of students. A factor
which is neither known nor ascertained at the time of
declaring the admission programme cannot be used to
disentitle a candidate to admission, who is otherwise
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entitled for admission. If the total number of seats in a
course is 154 and the number of seats reserved for OBCs is 42,
all the seats should be filled by OBC students in the order of
merit from the merit list of OBC candidates possessing the
minimum eligibility marks prescribed for admission. (subject
to any requirement for entrance examination.) When an eligible
OBC candidate is available, converting an OBC reservation
seat to general category is not permissible."
[Emphasis Supplied]
19.3 Even recently the Division Bench of this Court in Letters
Patent Appeal No. 1246 of 2019 (Alpesh Surendrasinh Rathod
vs. State of Gujarat) decided on 17.08.2020 was considering the
issue of "horizontal reservation" and in the context of providing for
qualifying marks in context of the grievance of the appellants
therein, the Division Bench considering the decision in the case of
Balaji Badhavath and Others (supra) cited by Mr. Shukla in the
present appeals held as under:
"28. Article 16 says that all citizens shall be equal in matters
relating to employment or appointment to any office under the
State. In Indra Sawhney vs. Union of India reported in 1992
Supp (3) SCC 217 (reference paragraph no.'733'), Justice B.P.
Jeevan Reddy speaking for the majority of Judges has clarified
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that Article 16(1) is a facet of Article 14. Just as Article 14
permits reasonable classification, so does Article 16(1). A
classification may involve reservation of seats. The argument
that clause (1) of Article 16 permits only extending of
preferences, concessions and exemptions, but does not permit
reservation of appointments/posts has not been accepted. The
question whether clause (1) of Article 16 permits any
reservation has been answered in the negative and it was
observed:
"741. ...............Article 16(1) being a facet of the
doctrine of equality enshrined in Article 14 permits
reasonable classification just as Article 14 does. In
our respectful opinion, the view taken by the
majority in Thomas is the correct one. We too believe
that Article 16(1) does permit reasonable
classification for ensuring attainment of the equality
of opportunity assured by it. For assuring
equality of opportunity, it may well be
necessary in certain situations to treat
unequally situated persons unequally. Not
doing so, would perpetuate and accentuate
inequality............
745. For the reasons given in the preceding
paragraphs, we must reject the argument that
clause (1) of Article 16 permits only extending of
preference, concessions and exemptions, but does not
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permit reservation of appointments/posts.......".
29. The observations in paragraph no.812 of Indra Sawhney
(supra) are relevant for our purposes and are extracted herein
below:
"812 .We are also of the opinion that this rule of 50%
applies only to reservations in favour of backward
classes made under Article 16(4). A little
clarification is in order at this juncture: all
reservations are not of the same nature. There are
two types of reservations, which may, for the sake of
convenience, be referred to as 'vertical reservations'
and 'horizontal reservations'. The reservations in
favour of Scheduled Castes, Scheduled Tribes and
other backward classes [under Article 16(4)] may be
called vertical reservations whereas reservations in
favour of physically handicapped [under Clause (1)
of Article 16] can be referred to as horizontal
reservations. Horizontal reservations cut across
the vertical reservations that is called inter
locking reservations. To be more precise, suppose
3% of the vacancies are reserved in favour of
physically handicapped persons; this would be a
reservation relatable to Clause (1) of Article 16. The
persons selected against this quota will be placed in
the appropriate category; if he belongs to S.C.
category he will be placed in that quota by making
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necessary adjustments; similarly, if he belongs to
open competition (O.C.) category, he will be placed
in that category by making necessary adjustments.
Even after providing for these horizontal
reservations, the percentage of reservations in favour
of backward class of citizens remains and should
remain the same. This is how these reservations
are worked out in several States and there is no
reason not to continue that procedure."
30. Thus, it is evident that the reservation in favour of the
physically handicapped, dependents of freedom fighters and
Exservicemen is relatable to Article 16 (1) and can be referred
to as horizontal reservation. Such reservation has been granted
on the principle of reasonable classification embraced in Article
16(1) for ensuring attainment of the equality of
opportunity assured by it. It is just the same as Article 14
which permits reasonable classification on the doctrine of
equality enshrined in it.
31. As has been held in Indra Sawhney (supra) noted above,
the persons selected against the quota of physically
handicapped, dependents of freedom fighters and Ex
servicemen are to be placed in the appropriate category to
which they belong by making necessary adjustment so that the
rule of 50% (percentage of reservation) is adhered to. The
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horizontal reservation, thus, cuts across the vertical
reservation.
32. In Anil Kumar Gupta and others vs. State of U.P. and
others reported in 1995 SCC (5) 173, Supreme Court
explained the procedure to be adopted regarding the vertical
reservation and horizontal reservations in following terms:
"The proper and correct course is to first fill up the
O.C. quota (50%) on the basis of merit: then fill up
each of the social reservation quotas, i.e., S.C., S.T.
and B.C. the third step would be to find out how
many candidates belonging to special reservations
have been selected on the above basis. If the quota
fixed for horizontal reservations is already satisfied
in case it is an overall horizontal reservation no
further question arises. But if it is not so satisfied,
the requisite number of special reservation
candidates shall have to be taken and
adjusted/accommodated against their respective
social reservation categories by deleting the
corresponding number of candidates therefrom...."
33. In Sunaina Tripathi vs. State of U.P. reported in 2012
(3) ADJ 463, the issue which came up before the Court was
"whether horizontal reservation for women provided under the
Government Order dated 26th February 1999 is restricted to
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each of the categories or is general in nature". The Court
placing reliance upon Indira Sawhney vs. Union of India
1992 Supp (3) SCC 217, Rajesh Kumar Daria vs.
Rajasthan Public Service Commission and others
reported in 2007 (8) SCC 785, Anil Kumar Gupta (supra)
culled out the following principles:
(i) vertical reservations cannot exceed 50% in an
year;
(ii) provision of reservation made for women
(dependents of freedom fighter and exservicemen) is
horizontal reservation;
(iii) the proper and correct course is to fill up the
general (open) category quota on the basis of merit
and then fill up each of the reserved category quotas
of the Scheduled Castes, Scheduled Tribes, Other
Backward Class, and thereafter, find out how many
candidates belonging to the special
reservations/horizontal reservations have been
selected on the above basis. If the quota fixed for
horizontal reservation is already satisfied, in case it
is an overall horizontal reservation, no further
question arises and if it is not satisfied, the requisite
number of the special reservation candidates under
the horizontal reservation have to be taken and
adjusted/accommodated against their respective
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categories by deleting the corresponding number of
candidates therefrom.
34. The Supreme Court in Public Service Commission,
Uttaranchal vs. Mamta Bistand others reported in AIR
2010 SC 2613, observed that the High Court allowed the writ
petition only on the ground that the horizontal reservation is
also to be applied as vertical reservation in favour of the
reserved category candidates. The Court placing reliance on the
observations made in the case of Rajesh Kumar Daria (supra)
repelled the contention:
"The second relates to the difference between the
nature of vertical reservation and horizontal
reservation. Social reservations in favour of SC, ST
and OBC under Article 16(4) are Vertical
reservations'. Special reservations in favour of
physically handicapped, women etc., under Articles
16(1) or 15(3) are 'horizontal reservations'. Where a
vertical reservation is made in favour of a backward
class under Article 16(4), the candidates belonging
to such backward class, may compete for non
reserved posts and if the}' are appointed to the non
reserved posts on their own merit, their numbers
will not be counted against the quota reserved for
the respective backward class. Therefore, if the
number of SC candidates, who by their own merit,
get selected to open competition vacancies, equals or
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even exceeds the percentage of posts reserved for SC
candidates, it cannot be said the reservation quota
for SCs has been filled. The entire reservation quota
will be intact and available in addition to those
selected under Open Competition category. [Vide
Indira Sawhney (Supra), R.K. Sabharwal v. State of
Punjab, 1995 (2) SCC 745), Union of India v. Virpal
Singh Chauvan, 1995 (6) SCC 684 and Ritesh R.
Sah v. Dr. Y.L. Yamul, 1996 (3) SCC 253)]. 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 CastesWomen'. 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
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(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."
35. Article 16(4) contemplates vertical (social) reservation for
SC/ST/OBC, which cannot exceed 50% of the total vacancies.
These reservations are not communal reservation, therefore,
candidates belonging to the SC/ST/OBC may compete for non
reserved/open category (OC) post and if they get selected on the
OC post on merit, their numbers will not be counted against
the reserved quota for the respective social class. The entire
reservation quota shall remain intact and be available in
addition to those selected under OC.
36. The principle applicable to horizontal (special) reservation
is different and distinct from the principle applicable to
vertical reservation. The special reservation provided to
women, Exservicemen etc., under Articles 15(3) and 16(1) is
horizontal reservation. Horizontal reservation cuts across the
vertical reservation, otherwise, it will be vertical reservation
breaching the 50% bench mark, which is prohibited. The
horizontal reservation is provided to the special class of
persons i.e. Ex servicemen/dependents of freedom fighters
irrespective of their social class SC/ST/OBC. Such persons on
being selected in the OC or in SC/ST/OBC quota will
necessarily be counted against the vacancy reserved for them
on horizontal basis irrespective of the social category to which
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they belong for the reason that the persons belonging to special
class may constitute a class in themselves, but as a class they
do not enjoy the benefit of vertical reservation. They have not
been classified as backward class. They would, therefore, have
to be adjusted in the social category to which they belong after
making necessary adjustment. For instance, 10 posts of Ex
servicemen are to be filled up on horizontal reservation basis
and if that many number of Exservicemen are included in the
merit list of selected candidates prepared vertically i.e.
OC/SC/ ST/OBC, then nothing further is required to be done.
But against 10 Exservicemen only 5 could make it to the merit
list, then in that event 5 Exservicemen, if available, will have
to be adjusted in the respective social category i.e.
OC/OBC/ST/ST to which they belong by replacing the last
male candidate from that category. If the suitable Ex
servicemen are not available then as per the impugned rule, the
vacancy is to be carried forward.
40. It is the action of the Recruitment Board at the time of
document verification that has given rise to the present
petition. At the time of physical verification of documents, the
candidates who had qualified in PET/PST in different
categories were to be called for physical verification of
documents in such numbers as prescribed under the Rules. The
Recruitment Board has fixed cut off marks for unreserved
category and other reserved categories where there were more
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candidates than the number of vacancies. This is a fair and
reasonable approach taken by the Recruitment Board. In fact,
it would be the only mode for the Recruitment Board to proceed
where number of candidates who had qualified in PET/PST
were more than number of vacancies in different categories.
But where there were less number of candidates than the
vacancies available, there would be no question of fixing any
cut off marks at the stage of physical verification of documents.
But surprisingly, the Recruitment Board even for the categories
where there were lesser number of candidates than the posts
available for that category, has fixed cut off marks equivalent
to the unreserved category of male and female and all reserved
categories under the vertical reservation. This meant that the
candidates falling under the horizontal reservation were to
compete or perform better than those selected candidates in
vertical category. This is where the petitioners were aggrieved
and have approached this Court. This arbitrariness is because
of the instructions issued by the Recruitment Board dated
03.05.2019.
45. When the time came to call the appellants for the
verification of their documents, the Board introduced the
concept of qualifying marks. Clause 10 of the advertisement
provides that relaxation may be given to the Exservicemen if
sufficient number of candidates are unable to obtain the
minimum qualifying marks. It is suggestive of the fact that the
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relaxation, which was intended to be given as per the condition
of the recruitment was in context with the minimum qualifying
marks i.e. 40% as referred to above and not the qualifying
marks, that may be fixed by the Board for other category of the
candidates for the purpose of preparing the final select list on
merit. Clause 10 in the advertisement has been provided with a
purpose and with definite intention. The intention is to provide
employment to the Exservicemen and to call for as many
candidates as possible from the category of Exservicemen
against the reserved posts. In this context, the decision of the
Supreme Court referred to above in the case of P.V. Indresan
and others (supra) assumes significance. The respondents
faltered at this stage. The respondents relied upon Rule 6A
for the purpose of providing qualifying marks
applicable even to the Exservicemen. We have already
quoted Rule 6A of the 1975 Rules above. It is stated
therein that in the case of direct recruitment, if
sufficient number of candidates belonging to the
category of Exservicemen are not available on the basis
of general standard to fill all the vacancies reserved for
them, the candidates belonging to the category of Ex
servicemen may be selected under a relaxed standard of
selection to make up the deficiency in the reserved quota
subject to the condition that such relaxation should not
affect the level of performance of such candidates. This
Rule 6A rather is apparently making a provision for
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selecting Exservicemen under the relaxed standard to make up
the deficiency. This Rule 6A cannot be read to nullify the
appointment of the reserved category of Exservicemen. If
the stand of the respondents is accepted, the very
purpose of horizontal reservation would stand
frustrated. It is settled law that the horizontal
reservation has to be provided by cutting across
amongst the vertical reservation and if a candidate
having a right of selection under any of the horizontal
reservation categories, secures lesser marks than the
last candidate in the vertical reservations category, the
candidate from horizontal reservation shall be pulled
up for filling up the last seat in that category of vertical
reservation. The benefit of horizontal reservation could
not have been denied to the appellants herein merely
because the last candidate in the select list was higher
in merit even after providing 20% relaxation to the Ex
servicemen. The provisions of Article 335 of the Constitution
shall not be attracted for filling the seats amongst the
reservationists of the horizontal category visavis the vertical
category."
19.4 In other words, even the Division Bench of this Court,
considering various decisions cited before it has held that the
concept of qualifying marks in "horizontal reservation" cannot work
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in a manner so as to restrict the right of selection of a candidate who
is otherwise entitled to an appointment in the horizontal category.
19.5 Thus, we are of the opinion that the GPSC at the time of
preparing the final merit list, in the present case, could not have
applied the criteria of minimum qualifying marks. The action of the
GPSC in prescribing qualifying standard for female candidates for
reserved quota on the basis of the marks secured by "last male
candidate" of the respective category and then granting 10%
relaxation at the time of final selection list is dehors the Statutory
Rules.
20. On all these counts therefore, the directions issued by the
learned Single Judge in para 57 of the decision, as quoted in
paragraph no. 3.7 hereinabove, especially in (a), (b), (c), (g), (k) stand
confirmed. As far as the observations made in para 57 (f) that the
horizontal reservation cannot be maintained by taking away a slice
from quota of vertical reserevation is held to be contrary to spirit of
horizontal and compartmental reservation in light of the decision in
the case of Rajesh Kumar Daria (supra). LPA No. 1187 of 2015 is
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therefore disposed of accordingly. Remaining appeals are dismissed.
21. As far as the Civil Applications are concerned, in view of order
in Letters Patent Appeal No. 1110 of 2015, Civil Application No.
2 of 2016 (OLD No. 3733 of 2016) for joining party in Letters
Patent Appeal No. 1110 of 2015 is not entertained and is disposed of
accordingly. By virtue of interim orders passed by this Court dated
23.09.2015 and 14.10.2015, candidates who were even otherwise
eligible inasmuch as they had marks above the cut off marks and
who are already appointed will be continued as such. Their
appointments shall not be disturbed. Connected Civil Applications
are accordingly disposed of. Civil Applicant of Civil Application No.
1 of 2016 (Old No. 13096 of 2016) is however allowed.
22. The original petitioners - respondents in the respective
Appeals - the 21 female candidates in whose places male candidates
were recommended and appointed under interim orders may be now
appointed on their respective posts pursuant to the Order in these
Appeals within a period of four weeks from the date of receipt of
the copy of the writ of this Order. These appointees shall be given
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the benefit of notional seniority from the date of joining the service
of the candidates, who have been appointed pursuant to the Interim
Orders of this court dated 23.09.2015. No costs.
(PER : HON'BLE DR. JUSTICE VINEET KOTHARI)
CONCURRING :
1. I concur and respectfully agree with the view expressed by
learned Brother Justice Biren Vaishnav. I may add the following :
2. The purpose of providing 30% Horizontal Reservation to
women in the Recruitment Process for Forest Department for the
post of Assistant Conservator of Forest and Range Forest Officer was
to ensure appointment of women to the extent of 30% of total
vacancies in each category notified by the Advertisement dated
1.3.2010. The said avowed object of appointment / presence of 30%
women in the different categories in number of posts notified on
1.3.2010 was defeated by GPSC by the so called Policy Decision
dated 25.10.2001 based on the opinion of learned Advocate General
dated 6.10.2001 to introduce the relaxation of 10% of minimum cut
off marks computed on the basis of last cutoff marks for the Male in
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each category. This linkage of relaxation for women to Male's cutoff
marks had no rational nexus to the object sought to be achieved. The
reentry of males on the posts reserved for women to the extent of
30% on the basis that the women candidates even on such lower and
relaxed criteria fixed of cutoff marks for women on the basis of
policy decision of GPSC were not available, was nothing but taking
by the left hand what was given by the right hand to the women
folks in the said Recruitment Process. This was not only contrary to
the law laid down by the Supreme Court in the case of Saurav
Yadav (Supra) approving the Division Bench's decision of this
Court in the case of Tamanna Ashokkumar Desai (Supra) which
has meticulously laid down the stepwise entry of women candidates
in the Horizontal Reservation in compartmentalized manner, but
also such fixation of lower cutoff marks for women category by the
GPSC without any prior Notification or clarity in the Advertisement
or in the Rules promulgated by the State, was in our opinion self
defeating exercise which violated Article 14 of the Constitution of
India i.e. right of equality in consideration.
3. The said policy decision based on the opinion of the learned
Advocate General in different circumstances as quoted elsewhere
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could not be applied in the present Recruitment process for Forest
Department at the time of preparation of the final recommendations
for the appointments by GPSC and it was totally uncalled for. The
very concept of equality without any discrimination on the basis of
gender, in our opinion, was violated by linking the minimum cutoff
and qualifying marks for women category to the lowest cutoff marks
of the male category. This comparison and linkage per se is gender
discrimination and unnecessarily views females as inferior mortals
or less intelligent than males, which they are not. An independent
lower cut off with relaxation, prescribed at the beginning of
recruitment process could be understood but the very idea of linking
it to the lowest cut off marks in Males category, in our opinion, is
abhorrent and unpalatable idea. The relaxation of marks to support
and ensure full entry on Horizontal Reservation for women is a State
policy to ensure the equality, but not by comparing their IQ level
with males as if later is superior. The Constitution not only
guarantees equality without discrimination on the basis of gender
but, the real equality could be achieved by making the horizontal
entry of the women to the full extent of 30% of seats reserved for
them, only if such 30% posts were actually filled up by the qualified
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female candidates available in all the categories. They were all
qualified and faced interviews and were not otherwise rejected. The
only sledge or axe which fell on the unfortunate women folks in the
present recruitment process, 21 in number, who were removed
from the list of selected candidates finally on the basis of aforesaid
arbitrary fixation of 10% relaxation of cutoff marks by GPSC. They
were not the candidates otherwise without the merit and
qualifications. Their appointment would not have breached the
norms and bar of efficiency and merit through the bottom.
4. The power to fix cutoff marks with the GPSC is not in doubt
but, the manner and point of time when it was done is questionable
in the present case and cannot be sustained, since it was done at the
fag end without prior knowledge and notification to public at large
including the candidates, who appeared in the said Selection
process.
5. We are of the considered opinion that the law as now settled
by the Supreme Court and the Division Bench of this Court in the
case of Tamanna Ashokkumar Desai (Supra) has to be
implemented in true letter and spirit meticulously to achieve the
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object of giving 30% reservation to women provided under the
Reservation Rules promulgated by the State de facto by their actual
appointments to the extent of 30% of total seats and to achieve the
object of real equality for women candidates visavis the male
candidates. The number of females present in Select List has to be
30% of total vacancies and their actual appointment was necessary,
which has been prevented by introducing this 10% relaxation of
marks with reference to bottom Male category marks illogically. The
reliance placed by learned counsel for the GPSC on the previous
Supreme Court decisions for admission to the medical colleges is not
opportune and exactly applicable to the Recruitment Process in the
present case in the Forest Department, where the question of life
and health of the public at large to be handled by Doctors, who
qualified in that process is not the scenario here, when the
Recruitment Process for Assistant Conservator of Forest or Range
Forest Officer is being considered.
6. Today, with the advancement of Education, Technology and
Women Empowerment in India, the women folks are entering the
public service from the post of Peon to the post of Pilots for Fighter
Planes, Scientist, Doctors, CAs and Lawyers being other lot of
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professionals and with so many IT professionals in both genders,
they are doing great service to the Nation and their equality is not
now a farfetched dream in our Country but a stark reality.
7. The reservation provided to women folks in the Recruitment
Process as of now besides their entry on the basis of their merit by
way of Horizontal Reservation cannot be permitted to be defeated by
the policy decision taken on the file notings of the GPSC, as was
done in the present case. Therefore, we cannot countenance the
stand of the GPSC taken in the present case before us and we fully
affirm the view of the learned Single Judge and with the detailed
reasons and discussions given in the present Judgment by the
Brother Justice Biren Vaishnav, J., with which I fully concur with
the reasons and the final conclusions and with a direction to the
GPSC to implement the judgment of this Court in the case of
Tamanna Ashokkumar Desai (Supra) as affirmed by the
Supreme Court in the case of Saurav Yadav (Supra), the GPSC
should revise the Recommendations List accordingly and the
consequential appointments may be given to the women category
and the males who were appointed under the interim orders of this
Court in 21 posts reserved and required to be filled by women
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category in this selection process will naturally have to make way for
such eligible women candidates. No equity or continuation in service
can be claimed by such displaced 21 male category persons.
8. However, if the State considers it to be possible and services of
such persons are required by the State, they may either be employed
by the Forest Department on contractual basis and may be offered
another opportunity to again compete in the fresh Selection or
Recruitment Process to be held by the GPSC in the next Selection
Process upon vacancies arising. However, they cannot claim any
right of continuity in the service on the post of Assistant Forest
Conservator or Range Forest Officer, as of now, merely because they
were appointed temporarily under the interim orders of this Court,
which will stand obliterated by this final judgment and no right of
continuity of service can be said to have been vested with such male
candidates, 21 in number, who were temporarily appointed on the
posts reserved for women category subject to final decision in these
Appeals and the entire process will be governed by the law laid down
hereinabove and in the case of Tamanna Ashokkumar Desai
(Supra) by the Division Bench of this Court as affirmed by the
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Supreme Court in Saurav Yadav (Supra).
9. Incidentally and luckily, before we could sign off and
pronounce this Judgment, we came across the Judgment of the
Supreme Court pronounced on 25.3.2021 in WPC No.1109 of 2020
(Nitisha v. Union of India), in which reiterating the concern of the
Supreme Court for gender equality in the case of Secretary,
Ministry of Defence v. Babita Puniya & Others dated
17.2.2020, reported in (2020) 7 SCC 469 in which the Supreme
Court directed grant of Permanent Commissions to Women, who
were engaged in Army in Short Service Commissions (SSC) in its
landmark Judgment in which the following epoch making
observations were made by Hon'ble Dr.Justice D. Y.
Chandrachud for the Bench, resounding the Constitutional spirit
of equality without any gender discrimination in the following
terms :
"Seventy years after the birth of a postcolonial independent
State, there is still a need for change in attitudes and
mindsets to recognise the commitment to the values of the
Constitution. The submissions advanced in the note tendered
to the Supreme Court are based on sex stereotypes premises on
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assumptions about socially ascribed roles of gender which
discriminate against women. Underlying the statement
that it is a "greater challenge" for women officers to meet the
hazards of service "owing to their prolonged absence during
pregnancy, motherhood and domestic obligations towards their
children and families" is a strong stereotype which assumes
that domestic obligations rest solely on women. Reliance on the
"inherent physiological differences between men and women"
rests in a deeply entrenched stereotypical and
constitutionally flawed notion that women are the
"weaker" sex and may not undertake tasks that are "too
arduous" for them. Arguments founded on the physical
strengths and weaknesses of men and women and on
assumptions about women in the social context of marriage
and family do not constitute a constitutionally valid basis for
denying equal opportunity to women officer."
In the Judgment pronounced on 25.3.2021, the same Hon'ble
Judge reiterated the concern of Supreme Court in the following
words :
"We must recognize here, that the structures of our society
have been created by males for males. Therefore, certain
structures which may appear to be facially harmless are an
indication of insidious patriarchal system. A facially
equal application of laws to unequal parties is farce, when law
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is structured to cater to male standpoint. Superficial face
of Equality does not stand true to the principles
enshrined in the Constitution."
We cannot emphasize more or add anything more to apply the
same Constitutional spirit to support our aforesaid view.
10. Before we part with, we would humbly place on record our
acknowledgement of the guidance given by the judgment of the
Division Bench of this Court in the case of Tamanna Ashokkumar
Desai (Supra) where the Author of the said judgment (Hon'ble
Mr.Justice J.B. Pardiwala, sitting with Hon'ble the Chief
Justice Vikram Nath) took a view and with great respects, a
correct one, even deviating from His Lordship's own view sitting
singly earlier in the case of Lekhabahen Kanaiyalal Modi
(Supra). That only, in our humble opinion, displays the sterling
character of a Judge, who is receptive enough to change his own
earlier view and render an exposition of law with axiomatic clarity
by a Division Bench view in the case of Tamanna Ashokkumar
Desai (Supra). We are beholden and respectfully agree with the
C/LPA/1105/2015 CAVJUDGMENT Dt. 31.03.2021
GUJARAT PUBLIC SERVICE COMMISSION Versus NIKETA BABULAL CHAUDHARI & 2 other(s)
said view in the case of Tamanna Ashokkumar Desai (Supra).
We also place on record our appreciation for the valuable assistance
by all the learned Senior Counsels and other learned counsels, who
appeared in the said matter.
(DR. VINEET KOTHARI, J)
The Appeals are accordingly disposed of. No costs.
(BIREN VAISHNAV, J) (DR. VINEET KOTHARI, J)
DIVYA
