Rashmikaben Subhashbhai Koli vs State Of Gujarat
2021 Latest Caselaw 17242 Guj

     C/SCA/6410/2017                                JUDGMENT DATED: 16/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6410 of 2017


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                           Sd/-
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1     Whether Reporters of Local Papers may be allowed                   NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                           YES

3     Whether their Lordships wish to see the fair copy                  NO
      of the judgment ?

4     Whether this case involves a substantial question                  NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                RASHMIKABEN SUBHASHBHAI KOLI & 9 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR HIREN MODI, ADVOCATE for
MR.KARNA H DHOMSE, ADVOCATE for the Petitioners
MR ADITYASINH JADEJA, AGP for the Respondent No. 1
MR RV DESHMUKH, ADVOCATE for the Respondent No. 2
MR. HARDIK K RAVAL, ADVOCATE for the PRIVATE RESPONDENTS
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 16/11/2021
                     ORAL JUDGMENT

1. The present writ petition has been filed seeking quashing and setting aside of the provisional merit-list of the Panchmahal District qua those candidates who appeared twice i.e. on 19.02.2017 (from another district) and on 04.03.2017 (from Panchmahal District) in the written examination for the posts of female health workers.

2. Pursuant to the advertisement dated 15.11.2016 issued by the respondent No.2 - District Panchayat Service Selection

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Committee, the petitioners applied for the posts of female health workers. Accordingly, their forms were accepted. The advertisement was issued for filing up the 75 posts of female health workers. As per the policy of the State Government, the examination for selection of the said posts, has to be conducted on the same date, same time in all the districts with different questions papers (OMR). The first examination was scheduled on 19.02.2017 from 15:00 hours to 16:00 hours. Accordingly, hall tickets were issued on 09.02.2017 to all the candidates. Though, 604 candidates applied online for the post of female health worker, only 351 candidates appeared in the examination. Subsequently, when the respondent No.2 realized that there was some defect in the distribution of question papers of Gram Sevak; by publishing a press note dated 20.02.2017, it was declared that the examination which was held on 19.02.2017 are cancelled and the same are rescheduled on 04.03.2019. It is the case of the respondent authority that only those candidates who applied earlier were allowed to appear in the rescheduled examination. However, this time 458 candidates appeared and out of earlier examination 33 candidates remained absent. Thereafter, the selection committee prepared a provisional merit list comprising of 115 candidates (one and half times of total vacancies as prescribed in the advertisement). Since the name of the petitioners did not figure in the provisional list, they are constrained to file the captioned writ petition.

3. Learned advocate Mr.Hiren Modi appearing for learned advocate Mr.Karan Dhomse for the petitioner has submitted that as per the policy of the State Government and the instructions issued to the candidates, more particularly

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instruction No.2, a candidate who has filled two applications forms and have received two call letters, they can only choose one call letter and appear in the concerned examination and hence the candidate who had appeared in other districts in the first examination can not undertake the second examination which will be against the policy of the State Government. It is submitted that in order to see that no discrimination is committed in holding the examination, simultaneously examination in the entire State of Gujarat is conducted and the candidates are only allowed to appear only in one examination, though they have applied twice. It is submitted that in the present case, the provisional merit list includes such candidates who appeared twice, first in the other district and secondly of those candidates who belong from Panchmahal district, hence the names are required to be deleted from the provisional seniority list. Thus, he has submitted that the respondents may be directed to prepare fresh provisional seniority list or in the alternative prepare a final list excluding those candidates who appeared twice.

4. In response to the aforesaid submissions, learned advocate Mr.R.V.Deshmukh, appearing for the respondent No.2 has submitted that it is not in dispute that because of some irregularities committed in the first examination, the committee was constrained to reschedule the examination on 04.03.2017. He has submitted that the instructions contained in the application of each of the candidates with regard to choosing of one center are only advisory nature, and are not mandatory. Learned advocate Mr.Deshmukh, has submitted that there is no statutory rules governing such recruitment and only because of the peculiar circumstances with regard to the

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irregularity committed in the first examination, the authorities were constrained to reschedule the examination. It is also submitted by him that the list is only provisional and yet final list is required to be prepared and since the petitioners do not have any right, the writ petition may not be entertained. It is also submitted that some of the candidates have opted out of the recruitment and are not interested. It is also stated that some candidates who may be affected by this Order are not joined as party respondents, hence the writ petition may be rejected.

5. Learned advocate Mr.Hardik K. Raval, appearing for the private respondents has submitted that when they came to know about the litigation, they had filed an application to be joined as party respondents and accordingly, they were joined. It is submitted by learned advocate Mr.Raval, that the private respondents have the right of being placed in the provisional seniority list, as there is no bar of reappearing or taking the examinations again if the advertisement is re-issued by the respondent No.2 - authority. It is thus submitted by the learned advocate for the private respondents that the private respondents may not be disturbed and the writ petition be rejected.

6.1 I have heard the learned advocates appearing for the respective parties. The facts as narrated hereinabove or not in dispute. The advertisement for filing up the posts of 75 female health workers was issued by the District Panchayat Panchamahals Committee on 15.11.2016. After accepting the online applications and offering the hall tickets, it was decided to hold the examination on 19.02.2017, however the same was

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cancelled since there was some irregularities in the question papers and again an advertisement was issued, it was informed that the examination are rescheduled and will be conducted on 04.03.2017.

6.2. It is the case of the petitioners that the candidates who have appeared again after taking chance in some other districts, cannot be considered for appointment, and hence cannot be placed in the provisional or final seniority list, since the policy of the State Government and the conditions incorporated in the application do not permit the same. It is not denied by the respondents that as per the policy of the state government in all the districts of State of Gujarat, the examination for selection of the aforesaid posts are conducted on the same day simultaneously, but with different question papers.

6.2 At this stage, it would be opposite to notice that the application forms of the candidates, contain various instructions which are required to be followed. Instructions No.2, which is relevant for this case reads as under.

" If in any of the cadres, more than two applications are filed and accordingly, if more than two call letters are issued, then the candidate can appear in the examination on the seat number of only one call letter at the examination center ."

6.3 Thus, the instruction specifically and categorically states that in the case of issuance of two call letters, the candidate can appear only once in such examination. In the present case, it is not in dispute and not denied that after the rescheduling the examination on 04.03.2017, other candidates who had

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already appeared in the other districts have again taken a chance and have appeared in the examination held on 04.03.2017 in the Panchmahals district. No administrative instructions/Rules or regulations are pointed out to this Court by the respondents suggesting that the candidates can reappear in the examinations in other districts after undertaking the same in any one district. The State has formulated a policy of holding the examinations simultaneously in all the districts. If such approach is allowed, then the entire object of the policy of holding simultaneous examination will be frustrated. The respondent-authority cannot wriggle out of from the irregularity which is committed by them by stating that the instruction no.2 contained in the application form is not required to be followed since there is no statutory rule. Such an argument is ill-conceived and deserves to be out rightly rejected. If such submission is accepted then there is no need to incorporate any instructions in the application forms of the candidates. It is no more res-integra that administrative instructions can be issued to fill up the gaps in statutory rules.

6.4. It is noticed by this Court, after filing of the writ petition, some of the candidates had filed an application for joining them as party respondents, which was allowed, and such affected candidates are joined as party respondent nos. 3-20. They are also represented by learned Advocate Mr.Hardik K Raval who is also heard. The Supreme court in the case of Tridip Kumar Dingal Versus State Of West Bengal, 2009 (1) SCC 768 while dealing with the issue of non-joinder of affected parties has held thus:

" Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they

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were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (se- lected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as re- spondents in a `representative capacity'. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of se- lected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside. The Apex Court in the case of J.S. Yadav V/s. State of Uttar Pradesh and another, (2011) 6 SCC 570, has been held that "In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative ca- pacity.

Thus, the Supreme court has enunciated that some of the candidates who are likely to be affected are required to be joined in representative capacity. In the present case, some of candidates are already joined as party respondents, hence there is no need to join all the candidates as party respondents.

6.5 Thus, it was not open for the candidates to again appear in the rescheduled examination conducted in the Panchmahal district after having appeared in other districts. Such opportunity is only be available to the candidates, in whose favour the call letters were issued when they applied for the first time pursuant to the advertisement for appearing in the examination which was scheduled on 15.11.2016. The same candidates who had applied subsequently cannot be excluded since the examination was cancelled for no fault on their part, and they are entitled to be included in the provisional select list even if they have appeared twice.

6.6 Thus, the provisional list prepared by the respondent no.2

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is required to be modified accordingly, and the candidates who have appeared in other district and subsequently reappeared in the rescheduled examination shall be excluded. The list which is challenged by the present petitioners is also provisional and the final list is yet to be prepared since by the interim order dated 28.03.2017, this Court had granted interim relief in terms of paragraph No.21(c), staying the further operation of the provisional merit list.

7. For the foregoing reasons and analysis, the writ petition is partly allowed by issuing following directions.

7.1 The respondents are directed to prepare a provisional list of the posts of Female Health Workers in the Panchmahal district by excluding those candidates who had earlier appeared in other districts and have again chosen to re-appear on 04.03.2017. Only the names of candidates who had filled in the application form pursuant to first advertisement dated 15.11.2016 and subsequently have again appeared in view of the advertisement dated 20.02.2017 shall be included.

7.2 After finalization of the provisional list, it would be open for the respondent No.2 to prepare a final seniority list, in accordance with merits. It is also open for the respondent- authority, if they so desire to inform those candidates who have chosen not appear before this Court. The entire exercise shall be carried out within a period of two months.

7.3 The respondent No.2 is also authorized to prepare the provisional list as well as the final merit list excluding those candidates who have chosen not to offer their candidature for selection even after finding their names in the provisional select list.

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Rule is made absolute to the aforesaid extent.

Sd/-

(A. S. SUPEHIA, J) MAHESH BHATI