Gujarat High Court
Takhatsinh Zilusinh Chavda vs State Of Gujarat on 21 July, 2022
Bench: Biren Vaishnav
C/SCA/3088/2021 ORDER DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3088 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3127 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4798 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 20149 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 20157 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 20160 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8098 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8169 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8104 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8105 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8125 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8099 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8130 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8102 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8112 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8113 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 8113 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8187 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8702 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 8702 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8510 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8706 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8677 of 2020
Page 1 of 12
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C/SCA/3088/2021 ORDER DATED: 21/07/2022
With
R/SPECIAL CIVIL APPLICATION NO. 9414 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16979 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1131 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 2890 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 2890 of 2021
==========================================================
TAKHATSINH ZILUSINH CHAVDA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR BANSI M KARIA, MR NIMESH M PATEL, MR SHAKTI S JADEJA, MR
ASHISH B DESAI, MR VAIBHAV A. VYAS, MR HEMANG H. SHAH, MR PR
ABICHANDANI, MR PP MAJMUDAR, MS PADALIYA, MR PARTHIV A
BHATT, MR VIPUL B. SUNDESHA, (9320) for the Petitioner(s) No. 1
MR SAMIR B GOGDA(11306) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MS MANISHA L. SHAH, GOVERNMENT PLEADER with MS SS PATHAK,
AGP for the Respondent(s) No. 1 in all the petitions
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/07/2022
COMMON ORAL ORDER
1. Rule returnable forthwith. Ms. Shruti Pathak, learned
Assistant Government Pleader waives service of notice
of Rule for the respondent - State in all these petitions.
2. With the consent of the learned advocates for the
respective parties, all these petitions alongwith Civil
Applications are taken up for final hearing today.
C/SCA/3088/2021 ORDER DATED: 21/07/2022
3. Heard learned advocates for the petitioners. They
would fairly submit that the issue was decided by the
Coordinate Bench of this Court vide order dated
15.07.2022 passed in SCA No.8191 of 2020 and allied
matters. The order reads as under:
"1. Since the common issue is involved in this group
of petitions and the facts of each writ petition is also
common; the present group of petitions are heard
together and decided analogously by this common
oral order.
2. In some of the petitions, the petitioners have
prayed to permit them to appear in the examination
which was being conducted for the promotion to the
post of Assistant SubInspector (Class-III).
3. By interim orders, such a permission was granted
and the petitioners were permitted to appear in
promotional examination with clear understanding
that they would not claim any right of promotion and
such appearance in the examination will not create
any equity in their favour.
4. At the outset, learned Government Pleader Ms.
C/SCA/3088/2021 ORDER DATED: 21/07/2022
Manisha Lavkumar Shah, has submitted that the
issue is squarely covered by the judgment passed
this Court dated 02.02.2022 in Special Civil
Application No.19220 of 2018 and allied matters,
which has been confirmed by the Division Bench by
the judgment dated 05.05.2022 passed in Letters
Patent Appeal No. 429 of 2022.
5. In all these writ petitions, the petitioners have
prayed for to allow them to appear in the promotional
examination and direct them to promote on the
higher post. The issue raised in all these petitions is
that all of the petitioners lack the criteria of
completion of requisite number of service in their
feeder cadre.
6. Learned advocate Mr. Abhichandani, has submitted
that in a similar situation, in the earlier round of
recruitment, this Court vide order dated 19.02.2019
passed in Special Civil Application No.8808 of 2017,
when such an action was under challenge, the State
Government had taken a policy decision to relax the
age criteria and the petitioners may also be given the
similar treatment .
7. In response to aforesaid submissions, learned
Government Pleader Ms.Manisha Lavkumar Shah, has
submitted that the aforesaid order and judgment was
C/SCA/3088/2021 ORDER DATED: 21/07/2022
considered by this Court in the group of petitions
being Special Civil Application No.19220 of 2018 and
allied matters, after examining the relevant Rules
and Regulations, the writ petitions were dismissed by
this Court.
8. I have heard the learned advocates for the
respective parties. I have also perused the relevant
documents relied by learned advocates for the
respective parties.
9. At the outset, all the learned advocates appearing
for the respective parties are ad idem that the core
issue with regards to fulfillment of the completion of
requisite number of years, in the feeder cadre of
Police Department was considered by this Court and
vide judgment dated 02.02.2022 passed in Special
Civil Application No. 19220 of 2018 and allied
matters, this Court had dismissed the said petitions.
The aforesaid decision was subject matter of
challenge before the Division Bench in Letters Patent
Appeal No.429 of 2022. By the order dated
05.05.2022, the Division Bench after considering the
array of judgment of the Hon'ble Apex Court has held
thus : -
"15. The learned Single Judge has succinctly
considered this aspect and has observed thus:-
C/SCA/3088/2021 ORDER DATED: 21/07/2022
"19. The legal proposition that emerges from
the settled position of law as enumerated
herein above is as under:
a) The right to participate in the selection
process, without possessing the prescribed
eligibility conditions, is guaranteed, is not
correct; the right is guaranteed only if the
candidate concerned fulfills the requisite
eligibility criteria, on the stipulated date. A
candidate acquiring the stipulated qualifications
subsequent to the prescribed date cannot be
considered and also, one not fulfilling the
conditions cannot be allowed to participate.
b) There is clear authority to the proposition
that eligibility of any candidate is to be
reckoned, not from the date of his or her
selection, but in terms of the rules, or the
advertisement for the post.
c) An advertisement or notification issued/
published calling for applications constitutes a
representation to the public and the authority
issuing it is bound by such representation. It
cannot act contrary to it.
C/SCA/3088/2021 ORDER DATED: 21/07/2022
d) A person who does not possess the requisite
qualification cannot even apply for recruitment
for the reason that his appointment would be
contrary to the statutory rules, and would
therefore, be void in law. e) Lacking eligibility
for the post cannot be cured at any stage and
appointing such a person would amount to
serious illegality and not mere irregularity. Such
a person cannot approach the court for any
relief for the reason that he does not have a
right which can be enforced through court.
20. In the present case, though by the interim
orders, the petitioners are directed to undergo
the physical test and the written test,
subsequently the same would not make any
difference since as on the cutoff date as
specified in the advertisement and in the
recruitment rules, the petitioners did not fulfill
the eligibility criteria. The Apex Court has held
that the proposition that where applications are
called for prescribing a particular date as the
last date for filing the applications, the
eligibility of the candidates shall have to be
judged with reference to that date and that
date alone, is a well-established one.
21. The applications of the petitioners at the
C/SCA/3088/2021 ORDER DATED: 21/07/2022
very outset were not required to be entertained
since they were not eligible to apply for the
aforesaid post and thus, in wake of their lacking
the eligibility for the post, their applications
cannot be accepted since appointing such
persons would amount to serious illegality.
22. The petitioners have placed reliance on the
orders passed by this Court in other writ
petitions being Special Civil Application No.9647
of 2017 with allied matters. The group of writ
petitions were disposed of by a common order
dated 17.10.2019. The same reveals that in fact
an Office Order was issued by the Director
General of Police, Gandhinagar allowing those
candidates, who had cleared the physical test
and thereafter, cleared objective and written
test in which the recruitment process and
relaxation was granted by the concerned
authorities and accordingly, the writ petitions
were disposed of. Since, a policy decision was
taken by the Deputy Secretary, Home
Department to offer the appointment to those
candidates, who have passed the departmental
preliminary examination, without working for 5
years as the Assistant SubInspector and who
fulfill the requirement of 40 months of
experience, the writ petition was disposed. In
C/SCA/3088/2021 ORDER DATED: 21/07/2022
the present case, neither there is any policy
decision of the State Government nor the
authorities have offered any relaxation in the
eligibility criteria of 3 years as envisaged in the
recruitment rules and in the advertisement and
hence, the respondent authorities cannot be
compelled to give any relaxation. As noted
hereinabove, the Apex Court has clarified that
the respondent authorities are bound by the
provisions of the advertisement and no benefit
of relaxation can be granted de hors the
recruitment rules and the criterion stipulated in
the advertisement. Thus, it is not open for the
respondents to grant relaxation in the
recruitment rules, which are statutory in nature
without issuing a notification amending the
Rules. 23. The issue raised in the present writ
petitions is no more res integra. It is well settled
principle of law that the candidates, who apply
for the particular post should fulfill the eligibility
criteria as specified in the advertisement and
the recruitment rules, failing which such
candidate cannot be considered even eligible
for filling up the application for seeking the
appointment to the concerned post, for which
the advertisement is issued."
16. We are in total agreement with the
C/SCA/3088/2021 ORDER DATED: 21/07/2022
conclusion arrived at by the learned Single
Judge considering the binding decisions of the
Hon'ble Apex Court. As discussed hereinabove,
it is an admitted position that the appellants do
not fulfil the requirements and hence, the
candidature of the appellants cannot be
considered for the post of Police SubInspector.
In facts of this case, this Court, in exercise of its
jurisdiction under Article 226 of the Constitution
of India, cannot modify, rescind or alter any
eligibility criteria provided as per the Rules in
the advertisement to accommodate or to suit
the eligibility of the appellants as held by the
Hon'ble Apex Court in the case of the State of
Himachal Pradesh & Anr. Vs. K.P. Nayar (supra).
No case for interference is made out. The
appeals, being bereft of merits, deserve to be
dismissed and are hereby dismissed. However,
there shall be no order as to costs."
10. Thus, the Division Bench has confirmed the order
passed by this Court and has held that the such
candidates like the present petitioners, who are
members of the Police Department, cannot seek
relaxation as a matter of right or they cannot in any
manner claim relaxation in eligibility creteria de hors
the Recruitment Rules. The Court has held that the
eligibility of any candidate is to be reckoned, not
C/SCA/3088/2021 ORDER DATED: 21/07/2022
from the date of his or her selection, but in terms of
the rules, or the advertisement for the post. A
candidate acquiring the stipulated qualifications
subsequent to the prescribed date cannot be
considered and also, the candidate not fulfilling the
conditions cannot be allowed to participate. It is
further held that a person who does not possess the
requisite qualification cannot even apply for
recruitment for the reason that his appointment
would be contrary to the statutory rules, and would
therefore, be void in law, and finally, it is held that
lacking eligibility for the post cannot be cured at any
stage and appointing such a person would amount to
serious illegality and not mere irregularity and such a
person cannot approach the Court for any relief for
the reason that he does not have a right which can
be enforced through the Court. In the present case,
the petitioners are permitted to appear in the
promotional examination by the interim order passed
by this Court, which was the same situation in the
group of petitions, which have been dismissed by this
Court.
11. Merely because the petitioners are directed to
undergo the physical test and the written test,
subsequently, the same would not make any
difference, since as on the cut off date, as specified
in the advertisement and in the Recruitment Rules,
C/SCA/3088/2021 ORDER DATED: 21/07/2022
the petitioners did not fulfill the eligibility criteria. The
Court has reiterated the principle of law enunciated
by the Apex Court that the propositions that their
applications are called for, prescribing a particular
date as a last date for filling the applications, the
eligibility of the candidates shall have to be judged
with reference to that date and that date alone.
Indubitably, all the petitioners get their qualifications
on the eligibility date.
12. The issue is thus raised in this group of petitions
is squarely covered by the decisions of this Court,
and accordingly, all the writ petitions are dismissed in
terms of the judgment dated 02.02.2022 passed in
Special Civil Application No.19220 of 2018, and
confirmed in Letters Patent Appeal No.429 of 2020
vide order dated 05.05.2022 by the Division Bench.
Notice is discharged.
13. All the connected civil applications also stand
disposed of accordingly."
4. In view of above, all these petitions stand dismissed.
No order as to costs. Rule is discharged.
5. All the connected Civil Applications also stand disposed
of accordingly.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
