Patel Jignaben Maheshbhai vs Gujarat Subordinate Service ...
2022 Latest Caselaw 1690 Guj

     C/LPA/154/2022                               ORDER DATED: 14/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 154 of 2022

           In R/SPECIAL CIVIL APPLICATION NO. 12362 of 2018

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                  PATEL JIGNABEN MAHESHBHAI
                             Versus
        GUJARAT SUBORDINATE SERVICE SELELCTION BOARD
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Appearance:
MR TR MISHRA(483) for the Appellant(s) No. 1,2,3,4,5,6,7,8
MR TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                            Date : 14/02/2022

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the common judgment and order passed by the learned Single Judge dated 24.09.2019 in Special Civil Application No. 12362 of 2018 and cognate matters, the appellants preferred this intra-court appeal.

2. Heard Mr. T.R. Mishra, learned advocate for the appellants and Mr. Tirthraj Pandya, learned Assistant Government Pleader on advance copy of respondent No.2.

3. The following facts emerge from the record of the appeal.

3.1. Pursuant to the advertisement No. 133/2017-18 to

C/LPA/154/2022 ORDER DATED: 14/02/2022

137/2017-18, the appellants - original petitioners applied for the post of Live Stock Inspector online. It is the say of the appellants that the appellants fulfilled all requisite qualifications as per the advertisement that appeared in the web-site and it is also a matter of fact that all the appellants are female candidates. The main grievance raised by the appellants in the writ petition was that the passing marks irrespective of any community whether belonging to SC/ST ABC, OBC, physically handicapped or female is 40% as per the advertisement. As the record indicates that out of the total posts, 67 posts were reserved for female general candidate, 9 posts were reserved for scheduled castes female candidate and 20 posts were reserved for scheduled Tribes female candidate and 36 posts were reserved for Socially and Economically Backwards class community female candidates, out of total 400 posts which were advertised. It is the case of the appellants, relying upon the circular dated 29.09.2015 issued by the State of Gujarat in General Administration Department that in case of female candidates, 10% marks may be reduced from the standard marks of 40%. The appellants who appeared for the written examination secured less than 40% and therefore, the present grievance is raised that there should be relaxation in order to see that they are qualified, the petitioners approached this Court by way of the present writ petition and inter-alia prayed as under.

"(A) Your Lordships be pleased to issue an order, direction and/ or writ in the nature of mandamus and/ or certiorari and / or any other appropriate writ, order or direction, holding and declaring the impugned action of not granting relaxation upto 10% in the passing marks to female candidate, as illegal, arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India;

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(B) Without prejudice to the rights and contention, by way of interim relief, this Hon'ble Court be pleased to issue direction to the respondents to permit the petitioners to appear in the Computer Proficiency Test, scheduled to be held on 11.08.2018."

4. As the learned Single Judge has dismissed writ petitions. One of the petition is the subject matter of the present appeal.

5. Mr. T.R. Mishra, learned advocate for the appellants has taken this Court through the observations made by the learned Single Judge in Para-10 of the judgment and has also taken this Court to the advertisement at Annexure-A, wherein it was harped by Mr. Mishra, learned advocate for the appellants that though 40% is prescribed there is an inherent provision that it can be relaxed. Mr. Mishra, learned advocate for the appellants has almost reiterated the contentions, which were raised before the learned Single Judge, as can be seen from the observations made by the learned Single Judge. Relying upon the communication dated 29.09.2015 of the General Administration Department addressed to the Gujarat Sub- ordinate Service Selection Board i.e. respondent No.1 herein, it was contended that 10% less in respect of women category or category of ex-service men can be provided for. Mr. Mishra, learned advocate also relied upon Clause-7 of the minutes of the meeting of respondent No.1 dated 27.08.2014 and contended that this has not been adhered by the authorities in undertaking the selection. Mr. Mishra, learned advocate has also relied upon the resolution dated 01.08.2018 and has submitted that the even according to the said decision, relaxation of marks should have been given. In short contended as contended before the learned Single Judge see of not providing the relaxation to the reserved categories was

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inconsistent with the concept of benefit of reservation. On the aforesaid grounds, Mr. Mishra, learned advocate for the appellants contended that the appeal requires consideration.

6. The learned Single Judge after considering the same argument, that are canvassed before us has observed thus :

"6. The submission canvased on behalf of the petitioners that non- providence of consistent in minimum standard of 40% in the written examination was violative of Articles 15 and 16 of the Constitution, could not be countenanced as the provisions of Articles 15 and 16 are only enabling provisions. The provision of fixing the minimum eligibility at a particular stage of selection to the services or posts could not be confused with the concept of reservation. The prescription of such nature to determine the minimum eligibility does not amount to reservation but it is a provision to screen the candidates to limit the number of entrants with an idea to maintain a particular level of efficiency and only such number of screened candidates would be entitled to participate in the further stages of the selection.

6.1 Nor the providence of 40% marks for all categories at the written examination level was a cut-off level. The cut-off marks could be one which is scored by the last candidate in the list prepared for the eligible candidates at the end of both the examinations. While the advertisement contemplated calling the candidates three times the posts advertised in each category, since very less number of candidates could attain the minimum eligibility standard of 40% at the competitive written examination level, the ratio of calling the candidates three times in number could not be obviously observed.

7. Article 16 of the Constitution does not envisage any right in the nature of fundamental right to be appointed. It merely provides that for a right to be considered. The prescription of minimum eligibility to screen the candidates at a particular level of the recruitment process cannot be said to be inconsistent, incongruent or in any way contrary to the tenets of Article 16 of the Constitution. It was held and observed in Baloji Badhavath (supra) as under.

"The Constitution of India lays down provisions both for

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protective discrimination as also affirmative action. Reservation of posts for the disadvantaged class of people as also seats in educational institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation made for the members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes would, however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued. [See C.A. Rajendran v. Union of India [(1968) 1 SCR 721, at pp. 731-33], Indra Sawhney v. Union of India [1992 Supp (3) SCC 217, paras 165 to 169, 428 to 432, 741 and 742], Ajit Singh (II) v. State of Punjab [(1999) 7 SCC 209, paras 32 to 38] and State of Punjab v. Manjit Singh [(2003) 11 SCC 559, paras 7 and 12]." (Para 18)

8. When the petitioners sought to press into service communication dated 29th September, 2015 addressed by the General Administration Department to the Gujarat Subordinate Services Selection Board, the reliance was based on misreading of the said communication. The communication, on the contrary, provided that it was permissible for the Service Selection Board to determine the merit standard with reference to the number of posts advertised. It was categorically stated at the same time that merit standard below 40% shall not be fixed for any category. It then provided that for the Scheduled Caste, Scheduled Tribe and Socially & Educationally Backward Class categories, it would be permissible to prescribe 10% less merit standard compared to determine for the General category. It could be countenanced that the communication on the contrary mentioned uncompromisable 40% standard for all categories. Even otherwise and even reading it in the manner in which the petitioners want to read, the contemplation in the said communication is not a mandating provision, but only an enabling. The decision in Komal Manubhai Katara (supra) does not apply in the facts of this case. It had altogether a different context.

9. When the scheme of recruitment provided a condition of 40% passing standard to be reached by the candidates in the competitive written examination as a pre-condition for being able to take the next stage examination of Computer Proficiency test and to further participate in the process of selection, it was a prescription of minimum eligibility. The competitive written examination, attached with above

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minimum eligibility criteria for passing, was with an intent to filter the candidates. It could be viewed as a screening test to ensure the basic standard of eligibility is maintained and enforced. It is always permissible for the employer to provide and apply the minimum eligibility standard at the entry stage of the process. The standard eligibility fixed at 40% for the written examination was applied uniformly to the candidates of all the categories, whether general or reserved categories. It did not in any way militate against reservation policy, nor did it offend rights of the reserved category candidates to reap the benefit of reservation.

10. It was entirely permissible within the purview of law for the respondent - Selection Board to provide a methodology to prescribe minimum eligibility criteria at the first level examination and determine the merit of the candidates for their entry in the next stages of the process. How the Selection Board would judge the merit of the candidates is the function of the Selection Board. The prescription of minimum eligibility of 40% for the competitive written examination was eminently a rational prescription in eye of law. The procedure adopted by the Selection Board could hardly be said to be arbitrary or against the principles of fair play. Such procedure was neither violative of Article 14 nor offended Article 16 of the Constitution."

7. We are in total agreement with the observations made by the learned Single Judge. The recommendations that are made in the minutes of the meeting which are relied upon by the learned advocate for the appellants and the recommendations/ instructions given by the G.A.D. are not in form of rules and minimum eligibility standard of 40% for the post of Live Stock Inspector Assistant cannot be termed as arbitrary or discriminatory in any manner. The advertisement in question as observed hereinabove clearly prescribes for minimum eligibility of 40% for the competitive written examination and has rightly observed by the learned Single Judge, the same is eminent and rational prescriptions in the eye of law. The recruiting agency has followed the prescribed law and has not changed the game in between, as from the beginning in the

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advertisement itself minimum marks proscribes for all categories is 40%. We do not find any case to tinker with such eligibility criteria prescribed by an expert body by way of judicial review in exercise of powers under Article 226 of the Constitution of India and Clause-15 of the Letters Patent. The appeal being bereft of any merits, the same deserves to be dismissed. The appeal is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Salim/