Gujarat High Court

Dipnarayan Rajnarayan Ojha vs Secretary on 1 October, 2021

Bench: J.B.Pardiwala, Vaibhavi D. Nanavati

     C/LPA/5/2020                                 IA ORDER DATED: 01/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


         CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
             In R/LETTERS PATENT APPEAL NO. 5 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 4944 of 2018
                               With
        MISC. CIVIL APPLICATION (FOR RECALL) NO. 2 of 2020
             In R/LETTERS PATENT APPEAL NO. 5 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 4944 of 2018
                               With
        MISC. CIVIL APPLICATION (FOR RECALL) NO. 2 of 2021
             In R/LETTERS PATENT APPEAL NO. 5 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 4944 of 2018

================================================================

MAHAMUNKAR SAMPATBHAI SITARAM- PSI Versus SECRETARY ================================================================ Appearance:

MR DHAVAL DAVE, SR.ADVOCATE with MR.NIRAL R.MEHTA, ADVOCATE for the PETITIONER.

MR ARPIT R.SINGHVI, ADVOCATE for the RESPONDENT. MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER for the RESPONDENT - STATE MR SHAKTI S JADEJA for the RESPONDENT.

MR NISHIT P GANDHI for the RESPONDENT.

MR SHALIN MEHTA, SR.ADVOCATE with MR.VIPUL B SUNDESHA, ADVOCATE for the RESPONDENT.

MR IH SYED, SR.ADVOCATE with MR.PRITHU PARIMAL, ADVOCATE for the RESPONDENT.

================================================================

CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 01/10/2021

COMMON IA ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. Since the issues raised in all the captioned review applications are the same; the order sought to be reviewed is also the same and the parties are also the same, those were

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taken up for hearing analogously and are being disposed of by this common order.

2. For the sake of convenience, the Civil Application No.1 of 2021 is treated as the lead matter. This application is at the instance of the original respondents of a writ application seeking the following reliefs :

"(A) Be pleased to admit and allow this Misc. Civil Application.

(B) Be pleased to recall the order dated 21.10.2020 passed in LPA/5/2020 & allied matters and restore the same to its original file for consideration on merits.

(C) Pending hearing and till final disposal of this application, be pleased to grant interim relief in terms of staying further operation, execution and/or implementation of the order dated 21.10.2020 passed in LPA/5/2020 and allied matters.

(D) Be pleased to pass such other and further orders as may be deemed fit in the interest of justice."

3. The chronology of dates and events giving rise to the captioned review applications are as under :

3.1 On 5th December 2015 an advertisement bearing no.61/2015-16 was published for the post of Unarmed

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Police Sub-Inspector (PSI) Mode-2. It was purely merit based promotion formula, where a Head Constable having 15 years of experience is promoted to the post of PSI purely on the basis of his performance in the Special Competitive Examination. The physical examinations were conducted on 13th and 18th February 2017 respectively. The subjective examination was conducted on 23rd July 2017. The result was declared on 6th October 2017. The petitioners/ candidates filed the Special Civil Application No.4944 of 2018 and other allied matters stating that no promotion orders were passed in favour of any of the selected candidates on the date of filing of the petition.

3.2 On 25th January 2018, the selection list dated 6 th October 2017 was implemented by the State and 376 candidates selected pursuant to the advertisement No.61/2015-16 were promoted to the post of PSI (Unarmed).

3.3 On 12th September 2019, all the petitions came to be rejected by a learned Single Judge. Against the order passed in the Special Civil Application No.1486 of 2018, the petitioners preferred the Letters Patent Appeal No.5 of 2020. Similarly, other Letters Patent Appeals were also filed against the judgment dated 12th September 2019.

3.4 On 23rd January 2020, this Court directed the respondent Board to carry out the re-evaluation of the answer sheets of all the candidates who had appeared in

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the examination of English and Gujarati papers only, i.e. subjective written test.

3.5 On 11th March 2020, this Court directed the respondent-authorities to submit a report of the outcome of the said re-evaluation within four weeks.

3.6 On 26th August 2020, after concluding the process of re-evaluation of all the answer sheets of the subjective papers (i.e. Gujarati and English), as per the order dated 23rd January 2020 passed by this Court, the respondent- Board submitted the outcome of the re-evaluation by way of affidavit dated 26th August 2020. As per the said re- evaluation, in all 356 candidates were selected. The category wise details are as under :



  Sr. No.       Category         Total Category               Category Wise
                                   Wise Post                   Selected List



                  Caste

                  Tribe



 3.7       That the 32 new candidates who were selected were

declared to be promoted to the post of PSI (Unarmed) and 52 candidates who were selected as per the result dated 6 th October 2017 were declared unsuccessful. Out of the 52 candidates, 11 were declared qualified but not selected and

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41 were declared fail - who could not secure even the qualifying marks.

3.8 On 21st October 2020, as per the affidavit filed by the respondent Board dated 26th August 2020, this Court quashed and set-aside the order passed by the learned Single Judge and also disposed of all the Letters Patent Appeals with a direction to implement the newly published result within a period of one month.

3.9 The petitioners preferred the Special Civil Application No.4944 of 2018 with the following reliefs :

"(A) Your Lordship may be pleased to issue the writ of mandamus or certiorari or any other appropriate writ to all the respondents, order or direction to quash and set aside the result dated 6.10.2017 of qualified candidates who are selected and not selected for the post of PSI pursuant to advertisement no.61/2015-2016.

(B) Your Lordship may be pleased to issue the writ of certiorari or any other appropriate writ, order or direction to take re-examination of all the candidates strictly following the instructions as mentioned in the question paper pursuant to advertisement no.61/2015-2016.

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restricting the respondents to publish new recruitment process or advertisement for the post of PSI mode-2.

(D) During the pendency, hearing and final disposal of the petition, Your Lordship may kindly be pleased to stay the next advertisement for the post of PSI mode-2 in the interest of justice, as there are already qualified candidates but not selected are available in force.

(E) During the admission pendency and final disposal of the petition the Hon'ble Court direct the respondent to consider the cases of the petitioner for being appointed for the post of Police Sub Inspector Mode-II and on the basis of their results of the examination.

(E) Your Lordships may be pleased to pass such other and further relief which may deem fit in the interest of justice."

3.10 The other allied writ-applications were also preferred on the same line.

3.11 The order dated 21st October 2020 resulted into selection of 32 new candidates and 52 candidates respectively who were selected as per the result dated 6 th October 2017 to be reverted to the post of Head Constable. The order dated 21st October 2020 passed by this Court reads thus :

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"1. We have heard Shri Shalin Mehta, learned Senior Counsel assisted by Ms. Aditi Raol, learned counsel for the appellants in Letters Patent Appeals Nos.5 of 2020, 1866 of 2019, 1876 of 2019, 1755 of 2019, 6 of 2020 and 1867 of 2019, Shri I. H. Syed, learned counsel assisted by Shri Prithu Parimal, learned counsel for the applicants in Civil Application No.1 of 2020 in Letters Patent Appeal No.5 of 2020, Shri Vipul Sundesha, learned counsel with Shri Nishit Gandhi, learned counsel for the applicants in R/Civil Application No.776 of 2020 in F/Letters Patent Appeal No.236 of 2020, R/Civil Application No.1138 of 2020 in F/Letters Patent Appeal No.4589 of 2020, R/Civil Application No.1139 of 2020 in F/Letters Patent Appeal No.4599 of 2020 and R/Letters Patent Appeal No.1879 of 2019, Shri C. J. Gogda, learned counsel for the appellant in Letters Patent Appeal No.100 of 2020, Shri Rushabh Munshaw, learned counsel with Shri Arpit Singhvi, learned counsel for the appellants in R/ Letters Patent Appeal No.1840 of 2019 and Ms. Manisha Lavkumar, learned Government Pleader with Shri Dharmesh Devnani with Ms. Aishwarya Gupta, learned A.G.Ps. for the State respondent in all the appeals and Shri Alphus Rocky, learned advocate for respondents Nos.6,13,20,27 and 29 in R/Letters Patent Appeal No.5 of 2020.

2. On 23rd January 2020, following order was passed:

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"Heard Shri Shalin Mehta, learned senior counsel assisted by Ms. Aditi S. Raol, learned counsel for the appellants in Letters Patent Appeal Nos. 5/2020, 6/2020, 1755/2019, 1866/2019, 1867/2019 and 1876/2019, Shri Mukul Thakker, learned counsel for Shri Vipul B. Sundesha, learned counsel for the appellants in Letters Patent Appeal No. 1879 of 2019, Shri Rushabh H. Munshaw, learned counsel for the appellants in Letters Patent Appeal No. 1840 of 2019, Ms. Bansi M. Karia, learned counsel for the appellants in Letters Patent Appeal No.100 of 2020, Ms. Manisha Luvkumar Shah, learned Government Pleader assisted by Shri D.M.Devnani, learned Assistant Government Pleader for respondent - State and sub ordinate Selection Board and Shri Nikhil S. Kariel, learned counsel representing private respondents. Ms. Manisha Luvkumar Shah, learned Government Pleader has made statement that the Service Selection Board would get the answersheets of all the answer sheets of English and Gujarati paper only with respect to questions giving choice strictly as per the instructions mentioned in the question paper and submit a report to this Court of the out come of the said reevaluation. For the said purpose, six weeks' time is granted, as prayed for. List these matters on 11.03.2020."

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3. Pursuant to the said order, the Deputy Secretary of the Gujarat Subordinate Services Selection Board has filed an affidavit-in-reply dated 26th August 2020. According to the contents of the said affidavit, the answersheets were reevaluated as per the statement of the learned Government Pleader recorded in the order dated 23rd January 2020 and as per the directions contained herein. The new result, after reevaluation, has been annexed with the affidavit-in- reply. Paragraphs 3 and 4 of the affidavit-in-reply give details of the outcome of the reevaluation. The said paragraphs are reproduced below:

"3. I say and submit that pursuant to such reevaluation after following the instructions strictly as mentioned in the question paper the selected candidates which were 376 as per the result dated 06.10.2017 is reduced to 356 candidates on the reevaluation.

4. I further say and submit that out of 376 candidates declared selected as per the result dated 06.10.2017, 32 candidates who were earlier not selected would be included and 52 selected candidates as per the result dated 06.10.2017 are finding place in the process of reevaluation. It is further submitted that only 8 candidates of all appellants in the group of appeals stand selected even on reevaluation. A

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copy of chart indicating result is annexed hereto and marked as Annexure-R1. A copy of list of candidates successful as per reevaluation and list of successful candidates who are appellants, list of not selected candidates and list of included candidates and list of omitted candidates after reevaluation are annexed hereto and marked as Annexure-R2 (colly)."

4. Learned counsel for the appellants and other private parties including the intervenors seeking impleadment have no objections to the new result being implemented forthwith.

5. We, accordingly, set aside the order passed by the learned Single Judge impugned in the present appeals and dispose of the present appeals as also the writ petitions with a direction that the new result, after reevaluation as attached with the affidavit-in- reply, may be implemented forthwith by the Selection Board.

6. Ms. Manisha Lavkumar, learned Government Pleader, upon instructions, states that the implementation would take three to four weeks. We, accordingly, grant one month time for the said purpose. 7 All the appeals and connected Civil Applications stand disposed of as aforesaid."

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3.12 On 25th November 2020, around 52 candidates filed the applications being the MCA No.2 of 2020 and MCA No.3 of 2020 for recall and/or review of the order dated 21 st October 2020 passed in the Letters Patent Appeal No.5 of 2020 referred to above.

3.13 On 11th January 2021, some of the affected candidates filed the Special Leave Petition No.1001 of 2021 before the Supreme Court against the order passed by this Court dated 21st October 2020, even though their review application was pending before this Court.

3.14 On 10th February 2021, the Gujarat Subordinate Service Selection Board published the result as per the court's order. The Board published two lists out of which one comprises the list of successful candidates and another comprises of the list of unsuccessful candidates.

3.15 On 12th February 2021, the Supreme Court dismissed the Special Leave Petition on the ground that the review application is pending before the High Court and directing to decide the review/recall application before the contempt application.

3.16 On 15th February 2021, an affidavit came to be filed by some of the candidates who were more qualified, along with a comparative chart, showing that they have secured more qualifying marks than the 52 candidates who have filed the review application before this Court.

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3.17 On 26th February 2021, this Court passed an order directing the State to file appropriate response. The order reads thus :

"1. We have heard Mr. Dhaval Dave, learned Senior Advocate assisted by Mr. Niral Mehta, learned counsel for the applicants, Ms. Manisha Lavkumar, learned Government Pleader assisted by Ms. Aishvarya Gupta, learned Assistant Government Pleader for the State opposite parties, Mr Shalin Mehta, learned Senior Advocate assisted by Mr. Nishit Gandhi and Mr. Vipul Sundesha, learned advocates for some of the opposite parties, Mr. I.H.Syed, learned Senior Advocate assisted by Mr. Prithu Parimal, learned counsel appearing for some of the private opposite parties and Mr. Shakti Jadeja, learned counsel also appearing for some of the private opposite parties.

2. Mr. Dhaval Dave, learned Senior Advocate relying upon judgment of the Supreme Court in the case of Rajeshkumar & Ors. vs. State of Bihar & Ors. reported in (2013)4 SCC 690 submitted that the services of the applicants may be protected. In this respect, the learned Government Pleader may take instructions.

3. Mr. Shalin Mehta, learned Senior Advocate submitted that although 52 selected candidates have been excluded from the select list after the re-

evaluation, however, only 32 petitioners - appellants

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have been adjusted and there are still 20 positions vacant, which if filled up, his clients, details of which are given in the short reply, could be adjusted. In this respect also, the learned Government Pleader may obtain instructions.

4. Further, learned Government Pleader Ms. Manisha Lavkukmar submitted that there are issues relating to applicability of the reservation on which she needs time to obtain instructions.

5. Accordingly, on the request made by learned Government Pleader, we direct that this matter be listed after three weeks whenever the Bench is available. In the meantime, an appropriate response may be filed by the State with respect to the above aspects or any other relevant aspect which the Government may deem fit and necessary.

6. Learned Senior Advocate Mr. Dave informs that another Misc Civil Application No.3 of 2020 is also filed, but apparently on account of some office objections, it is not being listed. He submits that the office objections would be duly removed, where after the said Misc. Civil Application may also be circulated and listed along with this matter. Office is directed accordingly that subject to removal of office objections, Misc Civil Application No.3 of 2020 may also be listed."

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3.18 On 5th May 2021, a letter came to be issued by the office of the DGP & IGP stating that as on date there are 1660 vacancies to the post of PSI (Unarmed).

3.19 On 15th June 2021, as per the court's order dated 26th February 2021, the Deputy Secretary, Gujarat Subordinate Service Selection Board, filed an affidavit stating that as per the re-evaluated result prepared pursuant to the order passed by this Court, 356 candidates have been selected, 32 new candidates now form a part of the new selection list and 52 candidates from the old selection list dated 6.10.2017 now stand excluded as per the new result prepared by the Board. It was also stated that no seats for the general category candidates were available and only the scheduled tribe category seats were vacant which cannot be filled from the candidates of other categories. It was also mentioned that the State was in the process of taking a decision in respect of the promotions of the 52 candidates who had been excluded from the old/previous selection list.

3.20 On 18th June 2021, this Court directed the State to take appropriate decision and communicate the same to this Court. The order reads thus :

"1. An affidavit-in-reply on behalf of the State - respondent No.3 has been filed and served upon the learned counsel appearing for the parties, yesterday and today respectively.

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2. Learned counsel appearing for the private parties have prayed for three weeks time to file reply to the same. Further, what is pointed out is that the affidavit-in-reply of the State (respondent No.3) still does not contain the decision of the State as to whether the 52 candidates who have been found, not selected for promotion, are to be removed or are to be continued as of date despite the fact that the 30 new candidates who have become eligible after reevaluation, have been given appointment, but the 52 candidates who do not qualify and were wrongly given appointment, are still being continued although the result of the re-evaluation was notified some time in February, 2021.

3. According to Mr. Shalin Mehta, learned Senior Advocate, about 20 candidates who have scored higher marks than these 52 candidates who are now declared unqualified and are still continuing, have more marks than them and as such they should also be given appointment. It is also pointed out that as of date, there are about 1600 vacancies against which, these candidates can be adjusted. The decision is to be taken by the State, which has not been taken so far. Ms. Aishvarya Gupta, the learned AGP prays for three weeks time to enable the State to take an appropriate decision and communicate the same to this Court by way of a further affidavit.

4. Let this matter be listed after four weeks whenever this bench is available."

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3.21 On 30th June 2021, an affidavit came to be filed by 33 qualified candidates who were not selected, stating that they could be accommodated on the vacancies available to the post of PSI (Unarmed) as per the letter dated 5 th May 2021 and otherwise also they are better placed than the 52 candidates who were being retained to the post of PSI (Unarmed). Similarly, 20 candidates who were declared fail also filed affidavit stating that they are similarly situated to the 41 candidates who are still retained to the post of PSI (Unarmed) and, therefore, their case may also be considered.

3.22 On 19th July 2021, a show-cause notice came to be issued by the DGP & IGP as regards the issue of reversion of the 52 unsuccessful candidates.

3.23 On 29th July 2021, an affidavit came to be filed by the respondent no.4 bringing to the notice of this Court that a show-cause notice came to be issued dated 19th July 2021.

3.24 On 30th July 2021, this Court directed the respondent authority to take appropriate decision with regard to the show-cause notice. The order reads thus :

"On 18.6.2021, we had passed the following order:-

"1. An affidavit-in-reply on behalf of the State - respondent No.3 has been filed and served upon the

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learned counsel appearing for the parties, yesterday and today respectively.

2. Learned counsel appearing for the private parties have prayed for three weeks time to file reply to the same. Further, what is pointed out is that the affidavit-in-reply of the State (respondent still does not contain the decision of the State as to whether the 52 candidates who have been found, not selected for promotion, are to be removed or are to be continued as of date despite the fact that the 30 new candidates who have become eligible after reevaluation have been given appointment, but the 52 candidates who do not qualify and were wrongly given appointment, are still being continued although the result of the re- evaluation was notified some time in February, 2021.

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4. Let this matter be listed after four weeks whenever this bench is available."

1.1 We had, in clear terms, required the State to come-up with its decision regarding the 52 candidates, who have been found unsuitable for promotion after re-evaluation, as to whether the State would like to continue with them against the existing vacancy or would like to revert them.

2. An affidavit has been filed by the respondent No.4 - The Inspector General of Police (Administration) sworn on 29.7.2021, by Ms. Aishwarya Gupta, learned AGP appearing for the State respondents. Although Ms. Aishwarya Gupta, learned AGP, has prayed for adjournment on the ground of personal difficulty of the learned Government Pleader, but nevertheless, we have heard some of the submissions advanced by the respective counsel appearing for the different parties and we have also perused the affidavit received by us on behalf of the respondent No.4, referred to above.

2.1 From the perusal of the affidavit filed today, we find that the State has still not taken any decision as was required to be taken by our previous order dated 18.6.2021. We do not known the reason why the State has not taken any decision so far despite lapse of almost 6 weeks. The State would be at liberty to intimate its decision on the above issue by the next date by way of the affidavit filed by the competent officer not below the rank of Secretary, Department of Home.

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2.2 According to the contents of this affidavit, it appears that the State has issued show-cause notices to the 52 candidates calling upon them to make report as regards the issue of reversion. However, when no response has been received, the State has still not taken any decision and apparently, reminder has also been issued. It is also stated in paragraph-5 that out of 52 candidates, only 1 candidate has submitted his reply. Further, paragraphs-6, 7 (its sub- paras), 8 and 9 give details of another litigation relating to some selection. According to the said averments, another petition filed by 27 petitioners, being Special Civil Application No.3953 of 2018 again relating to the manner in which qualifying marks were calculated as to whether to treat the objective test of two papers and subjective test of two papers to be required for calculating aggregate minimum qualifying marks or each of the two papers of objective test and subjective test to be independently requiring minimum qualifying marks of 40% was under challenge. The Board had apparently prepared their results requiring minimum qualifying marks in each of the four papers, i.e. two for the objective and two for the subjective test.

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said judgment of the learned Single Judge, the State has preferred Letters Patent Appeal being Letters Patent Appeal (Filing) No.25506 of 2020, which has since been allotted final number as pointed out by Ms. Aishwarya Gupta, learned AGP, being Letters Patent Appeal No.690 of 2021. The said regular number has been allotted after the delay condonation application has been allowed and the appeal is now to be listed for admission. It is the submission of Ms. Aishwarya Gupta, learned AGP that outcome of this appeal, i.e. Letters Patent Appeal No.690 of 2021 will also have a bearing on the results already declared by the State and may also directly have an impact or relevance for the present controversy, which is under consideration. She, therefore, submits that the said Letters Patent Appeal No.690 of 2021 may also be tagged with the present application in Letters Patent Appeal No.5 of 2020 and both the matters may be heard together.

3. We, accordingly, direct that let Letters Patent Appeal No.690 of 2021 be connected with Letters Patent Appeal No.5 of 2020 and shall be listed on 20.8.2021.

The registry shall take appropriate orders on the administrative side for the aforesaid purpose."

3.25 On 26th August 2021, the respondent no.1 filed an affidavit stating that, as a special case, they have decided not to revert the 52 unsuccessful candidates as they have been serving since last 3 years.

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3.26 On 15th September 2021, this Court passed the following order :

"1. On 30th July, 2021, a Coordinate Bench of this Court, to which one of us J.B. Pardiwala, J. was a party, passed the following order:

"On 18.6.2021, we had passed the following order :-

"1. An affidavit-in-reply on behalf of the State

- respondent No.3 has been filed and served upon the learned counsel appearing for the parties, yesterday and today respectively.

2. Learned counsel appearing for the private parties have prayed for three weeks time to file reply to the same. Further, what is pointed out is that the affidavit-in-reply of the State (respondent still does not contain the decision of the State as to whether the 52 candidates who have been found, not selected for promotion, are to be removed or are to be continued as of date despite the fact that the 30 new candidates who have become eligible after reevaluation have been given appointment, but the 52 candidates who do not qualify and were wrongly given appointment, are still being continued although the result of the reevaluation was notified some time in February, 2021.

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3. According to Mr. Shalin Mehta, learned Senior Advocate, about 20 candidates who have scored higher marks than these 52 candidates who are now declared unqualified and are still continuing, have more marks than them and as such they should also be given appointment. It is also pointed out that as of date, there are about 1600 vacancies against which, these candidates can be adjusted. The decision is to be taken by the State, which has not been taken so far. Ms. Aishvarya Gupta, the learned AGP prays for three weeks time to enable the State to take an appropriate decision and communicate the same to this Court by way of a further affidavit.

4. Let this matter be listed after four weeks whenever this bench is available."

1.1 We had, in clear terms, required the State to come-up with its decision regarding the 52 candidates, who have been found unsuitable for promotion after re-evaluation, as to whether the State would like to continue with them against the existing vacancy or would like to revert them.

2. An affidavit has been filed by the respondent No.4 - The Inspector General of Police (Administration) sworn on 29.7.2021, by Ms. Aishwarya Gupta, learned AGP appearing for the State respondents.

Although Ms. Aishwarya Gupta, learned AGP, has

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prayed for adjournment on the ground of personal difficulty of the learned Government Pleader, but nevertheless, we have heard some of the submissions advanced by the respective counsel appearing for the different parties and we have also perused the affidavit received by us on behalf of the respondent No.4, referred to above.

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petition filed by 27 petitioners, being Special Civil Application No.3953 of 2018 again relating to the manner in which qualifying marks were calculated as to whether to treat the objective test of two papers and subjective test of two papers to be required for calculating aggregate minimum qualifying marks or each of the two papers of objective test and subjective test to be independently requiring minimum qualifying marks of 40% was under challenge. The Board had apparently prepared their results requiring minimum qualifying marks in each of the four papers, i.e. two for the objective and two for the subjective test.

2.3 The learned Single Judge vide judgment and order dated 22.1.2020 and further vide a modification order dated 30.1.2020 held that the manner adopted by the examination body in preparing the results was incorrect. The examining body ought to have calculated the results on the basis of aggregate marks achieved in both the tests together, i.e. in the objective test and in the subjective test. Aggrieved by the said judgment of the learned Single Judge, the State has preferred Letters Patent Appeal being Letters Patent Appeal (Filing) No.25506 of 2020, which has since been allotted final number as pointed out by Ms. Aishwarya Gupta, learned AGP, being Letters Patent Appeal No.690 of 2021. The said regular number has been allotted after the delay condonation application has been allowed and the appeal is now to be listed for admission. It is the submission of Ms. Aishwarya

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Gupta, learned AGP that outcome of this appeal, i.e. Letters Patent Appeal No.690 of 2021 will also have a bearing on the results already declared by the State and may also directly have an impact or relevance for the present controversy, which is under consideration. She, therefore, submits that the said Letters Patent Appeal No.690 of 2021 may also be tagged with the present application in Letters Patent Appeal No.5 of 2020 and both the matters may be heard together.

3. We, accordingly, direct that let Letters Patent Appeal No.690 of 2021 be connected with Letters Patent Appeal No.5 of 2020 and shall be listed on 20.8.2021. The registry shall take appropriate orders on the administrative side for the aforesaid purpose."

2. It appears that some major developments have taken place after the last order passed by this Court referred to above. The developments have been pointed out in the form of affidavit, duly affirmed by the Secretary of the Home Department. The affidavit reads thus :

"I, Nipuna Torawane, Aged 46 years, Serving as Secretary, Home Department, do hereby solemnly affirm and state on oath as under1. I have perused a copy of the captioned Application, Letters Patent Appeal and the special civil petition as well as the relevant files and records pertaining thereto. I say that I am conversant with the facts and circumstances leading to filing of the captioned petition. Under the

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circumstances, I am competent as well as authorized to make this affidavit-in-reply, which I hereby do so, for the limited purpose of putting on record certain factual details and subsequent developments, in support of the recruitment process carried out in 2016 as well as the declaration of results and filling up of seats by candidates of various categories for PSI Mode-2.

2. I say that I am filing the present affidavit only for the aforementioned limited purpose and I reserve my right to file a detailed affidavit, if an when, necessary.

3. I say and submit that by way of an affidavit dated 15.06.2021 filed on behalf of Respondent No.3 (Gujarat Subordinate Services Selection Board) in the present proceedings, the Hon'ble Court was apprised of the fact that 52 candidates from the older selection list, dated 06.10.2017, now stand excluded as per the new result dated 09.02.2021, prepared by the Respondent Board. The Hon'ble Court was also apprised of the fact the decision in respect of such 52 candidates was pending consideration with the State Government.

4. I say and submit that by way of an affidavit dated 29.07.2021 filed on behalf of Respondent No.4 in the present proceedings, the Hon'ble Court was appraised of the fact that show cause notices were

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issued on 19.07.2021 to 52 candidates who stood excluded from the new selection list.

5. In this regard, it is most humbly submitted that considering that the said 52 candidates have been discharging duties from the past three and half years on the post of Unarmed PSI (Mode.2), in the interest of principle of natural justice, and as a special case without treating the same as a precedent, the State Government has decided not to revert the said 52 candidates and has further decided to permit them to continue discharging their duties on the post of Unarmed PSI (Mode.2).

6. The present affidavit is tendered for limited purpose as stated herein above."

3. We have heard Ms.Manisha Luvkumar Shah, the learned Government Pleader appearing for the State and Mr.Shalin Mehta, the learned senior counsel appearing for some of the opponents in the review applications. It appears from the aforesaid that all those 52 candidates who came to be promoted as PSI are to be retained on the very same post. We are informed that the show-cause notices of reversion which were earlier issued have been recalled.

4. The aforesaid is suggestive of the fact that all the 52 applicants of the two review applications are not to be disturbed. At the same time, the clients of Mr.I.H.Saiyed, the learned counsel, who were earlier appointed, are also not to be disturbed.

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5. At this stage, Mr.Mehta, the learned senior counsel, pointed out that this development may hurt some of his clients.

6. We are not clear as to in what manner the clients of Mr.Mehta are prejudiced by the decision of the Government. Mr.Mehta would like to point out something in this regard to Ms.Shah, the learned Government Pleader. Ms.Shah may try to understand what is sought to be conveyed by Mr.Mehta and take appropriate instructions in the matter and revert to us on the next date of hearing.

7. Post the matters on 29.09.2021."

3.27 On 17th September 2021, a detailed affidavit came to be filed by the 33 qualified but not selected candidates pointing out that they are better placed than the 52 candidates who are retained to the post of PSI, and since there are vacancies, they should be promoted to the post of PSI (Unarmed). Similarly, 20 unsuccessful candidates also filed an affidavit stating that they should be given parity like the one which has been given to the 41 failed and retained candidates.

4. We have heard Mr.Dhaval Dave, the learned senior counsel assisted by Mr.Niral Mehta, the learned advocate appearing for the applicants, Ms.Manisha Lavkumar Shah, the learned Government Pleader appearing for the State Government, Mr.

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Shalin Mehta, the learned senior counsel assisted by Mr.Vipul Sundesha, the learned advocate appearing for the private respondents who qualified in the special competitive examination and Mr.I.H.Syed, the learned senior counsel appearing for some of the respondents.

5. Mr.Dhaval Dave, the learned senior counsel submitted that all the three review applications need not now be adjudicated any further in the wake of the developments which have been placed by the learned Government Pleader on record. In other words, according to Mr.Dave all his 52 clients are to be retained as Police Sub-Inspectors and are not to be reverted to the original post of Police Constable. In such circumstances, Mr.Dave submitted that he may be permitted to withdraw the review applications.

6. Ms.Manisha Shah, the learned Government Pleader submitted that the show cause notices dated 19 th July 2021 were issued to the clients of Mr.Dave (52 candidates who stood excluded from the new selection list) calling upon them to show cause as to why they should not be reverted to their original post of Police Constable. Ms.Shah pointed out that later the State Government took a decision not to revert the 52 candidates as they had been discharging their duties past over a period of three and a half years on the post of Unarmed Police Sub- Inspector (Mode-2). According to Ms.Shah such decision was taken as a special case without treating it as a precedent. Ms.Shah pointed out that 41 candidates out of the aforementioned 52 fall within the category of 'not selected', i.e. having failed. The remaining 11 candidates out of the

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aforementioned 52 are qualified but not selected. Ms.Shah further pointed out that there are 33 candidates (clients of Mr.Mehta) who claim to be qualified but not selected and thus contend that they are more meritorious than the 41 candidates (present applicants) who have not been reverted and are similarly placed to the 11 candidates out of the aforementioned 52 who have not been reverted. Ms.Shah further pointed out that there are 20 candidates who claim to be identically situated to the 41 candidates out of the aforementioned 52 who have not been reverted. Ms.Shah has placed on record a statement for the convenience of this Court.

Comparative Statement Showing Previous and Present Status of Selection and Cut-off Marks

No. of Vacancies Previous Result Reevaluated Result as per Adv. Dt: 06-10-2017 as per Court Order

Category No. of Selected Cut-off Selected Cut-off Posts Candidates Marks Candidates Marks GENERAL 314 314 240.25 314 232.5 SC 32 32 211 32 175.25 ST 57 30* 173.5 10* 177.25

* (1) In ST Category the candidates are not available with minimum qualifying standard i.e. 40% in each paper.

(2) In the reevaluated result as per Court Order only 10 vacancies of the ST candidates are filled against 30 in previous result dated 06.10.2017

7. According to Ms.Shah, no illegality could be said to have been committed by the State in taking such decision.

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8. Mr.Shalin Mehta, the learned senior counsel has many grievances to redress and to a considerable extent, justifiably. He pointed out that the retention of 52 candidates (present applicants) after the exercise of reevaluation is in complete violation of rule 2(2) of the Police Sub-Inspector (Unarmed) Class III Recruitment Rules, 2008, which provides for promotion of a person on the basis of merit-rank obtained in the competitive examination. Mr.Mehta invited the attention of this Court to rule 2 of the Rules which is reproduced herein below:

"2. Manner of Appointment.- Appointment to the post of Police Sub-Inspector (Unarmed) Class-III in the Gujarat State Police Service shall be made either-

(1) xxx xxx xxx

(2) by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination conducted in accordance with the rules prescribed by the Government in that behalf and who-

(a) have worked for not less than three years either in the cadre of Assistant Police Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III in the Gujarat State Police Service.

(b) have passed the departmental examination as prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part-I);

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(c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006;

(d) have filled the minimum requisite standards of physical efficiency test, as may be prescribed by the Government from time to time in this behalf;

(e) have passed the Higher Secondary School Certificate Examination (Standard XII, 10 + 2 pattern) or Secondary School Certificate Examination (Standard XI old pattern) conducted by the State's Secondary and Higher Secondary Education Board or possess an equivalent qualification recognised as such by the Government;"

9. Mr.Mehta pointed out that in the litigation on hand 41 out of the 52 review applicants have failed in the special competitive examination. All the private respondents (33 in number) have passed the special competitive examination. Mr.Mehta pointed out that the same is evident from the table set out in the affidavit dated 17th September 2021 filed by the private respondents in the present application.

10. According to Mr.Mehta, in such circumstances, the review applicants could not have been preferred over the private respondents.

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11. According to Mr.Mehta, there is an absolutely topsy-turvy at the end of the State Government and the same is apparent from a comparison of the two affidavits dated 29 th July 2021 and 26th August 2021 respectively filed in the present application. According to Mr.Mehta the orders passed by this Court from time to time in the present application reveal that the State Government was asked to make its position clear about the 52 unsuccessful candidates who are the review applicants herein. He pointed out that in the first affidavit filed by the State Government dated 29th July 2021, this Court was informed that the show cause notices were issued to all the 52 unsuccessful candidates for reversion from the promotional post. Only one candidate out of the 52 replied to such show-cause notice. According to him in less than one month the State Government vide its affidavit dated 26th August 2021 informed this Court that a decision has been taken to retain all the review applicants (though 41 have failed) as a special case.

12. Mr.Mehta would submit that the unreasonable stance of the State Government in the present case is evident from the fact that when the private respondents sought promotion based on their higher merit rank in the special competitive examination after all the vacancies were filled up, the State Government declined to promote the private respondents citing lack of vacancies. However, vide affidavit dated 26 th August 2021, the State Government took the decision not to revert the 52 review applicants despite there being no vacancies, by allegedly creating supernumerary posts. Mr.Mehta finds it quite baffling to understand that the State Government is not willing to create supernumerary post for the private respondents who are higher

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in the rank of merit in the special competitive examination than the review applicants and at the same time, thought fit to accommodate the 52 review applicants (41 of whom have failed) by creating supernumerary posts.

13. Mr.Mehta would submit that the action of the State Government in preferring the review applicants who have failed in the special competitive examination over the private respondents who qualified in the special competitive examination smacks of discrimination and arbitrariness. He would vociferously submit that rule 2(2) of the Rules, 2008, mandates that merit should be the sole factor for granting the Mode-2 promotion. There is no provision in the recruitment rules to relax the merits.

14. In such circumstances referred to above, Mr.Mehta prays that this Court may make appropriate observations having regard to what has been referred to above.

15. The decision of the State Government to retain the clients of Mr.Dave and not to revert them to their original post, in fact, has rendered the present review applications infructuous. In such circumstances, there should not be any difficulty in disposing of all the three review applications. The only question now remains is as regards the status of the clients of Mr.Shalin Mehta. We could have observed many things while disposing of the present review applications, however, we refrain ourselves from making any further observations. We may only observe that we are thoroughly disappointed with the decision of the State

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Government. It is merit and merit alone which should be the sole consideration. Merit predominates. Merit always comes first when it comes to promotion. It is a well-settled principle that equities will follow the law; equities at the most may supplement the law but equities cannot supplant the law. We do not propose to observe anything further as our observations may cause prejudice to either of the parties. we dispose of all the three review applications on the ground that they do not survive anymore, leaving it open for the clients of Mr.Mehta to avail appropriate legal remedy before the appropriate forum in accordance with law so far as their grievance is concerned.

(J. B. PARDIWALA, J.)

(VAIBHAVI D. NANAVATI, J.) /MOINUDDIN