Gujarat High Court

Inayathussain Ibrahim Hussain ... vs State Of Gujarat on 30 March, 2022

Bench: Nikhil S. Kariel

     C/SCA/12961/2021                             JUDGMENT DATED: 30/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12961 of 2021

                                  With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 12961 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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

1     Whether Reporters of Local Papers may be allowed                 Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

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 ?

==========================================================
                   INAYATHUSSAIN IBRAHIM HUSSAIN SHAIKH
                                   Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1,2,3,4,5
MR SHALIN MEHTA with MR HEMANG SHAH for the Respondent(s) No.
4,5,6,7,8
MS DHARITRI PANCHOLI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,3
MR RC JANI(357) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 30/03/2022

                             ORAL JUDGMENT

1. Heard learned Advocate Mr. Jit P. Patel on behalf of the petitioners

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

and learned AGP Ms. Dharitri Pancholi on behalf of the respondent-State,

learned Advocate Mr. R. C. Jani for respondent no. 2-Gujarat Public

Service Commission and learned Senior Advocate Mr. Shalin Mehta

appearing along with learned Advocate Mr. Hemang Shah for

respondents no. 4 to 8- Private respondents.

2. Issue Rule. Learned Advocates for the respective respondents would

waive service of rule. With consent of learned Advocates, the petition is

taken up for final hearing.

3. By way of the present petition, the petitioners seek to challenge a

communication issued by the respondent no. 2- GPSC, pursuant to

advertisement no. 131/2019-2020 dated 28.07.2021, whereby the present

petitioners have been declared ineligible for personal interview on the

ground that the applicants do not have adequate experience as per the

Recruitment Rules. The petitioners also seek to impugn the selection of

private respondents by the respondent no. 2 vide order dated 03.08.2021

as being in contravention of the Recruitment Rules.

4. Facts in brief relevant for deciding the issue in question are narrated as

herein below. The respondent no. 2- GPSC had published an

advertisement no. 131/2019-20 on 24.01.2020 for recruitment to the post

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

of Assistant Director/ Regional Fire Officer, Class-I. The petitioners

were, according to them, possessing requisite qualification and

experience had applied. After technical scrutiny and verification of

documents, the candidature of the petitioners came to be rejected by the

respondent no. 2- GPSC vide impugned order dated 28.07.2021. It would

be pertinent to mention here that by virtue of the said order, petitioners

were declared ineligible to be called for the interview and whereas the

interview had been scheduled on 02.08.2021 and whereas pursuant to the

interview a final result containing names of successful candidates to be

recommended for appointment, candidates recommended to be kept in

waiting list and list of the unsuccessful candidates had been published by

the GPSC. Respondents no. 4-8 being the successful candidates have

been joined it the petition.

5. The case of petitioners being that according to the advertisement which

is based on the Recruitment Rules, the requirement, as relevant in case of

the petitioners, was that the candidate should have a bachelor's degree

obtained from any of the Universities established or incorporated by or

under the Central or a State Act and recognized by the UGC and also

having completed the Divisional Officers Course or the Fire Prevention

Course recognized by the National Fire Service College, Nagpur. The

candidates were also required to have about 7 years' experience in whole

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

time in the field of Fire Brigade out of which 3 years' experience should

be on post which should be considered equivalent to the post not below

rank of Station Officer or Assistant Divisional Officer in Government/

Local Bodies/ Government undertaking/ Board/ Corporation/ Limited

Company established under the Companies Act, 2013. According to the

petitioners all the petitioners fulfilled the educational requirement

whereas all except petitioner no. 5 have more than 7 years' experience in

the field of fire brigade.

6. Initially this Court vide order dated 07.09.2021 while issuing notice, by

way of Ad-interim relief directed respondents no. 1 and 3 not to issue

appointment orders to selected candidates and whereas the said interim

relief still continues, as a result of which the private respondents have not

yet been appointed to the post in question.

7. The present petition having been opposed by the State, the GPSC, and

the private respondents. The principle contention, raised by the

respondent no. 2 GPSC and adopted by the other respondents is that the

petitioners do not fulfill the requisite experience criteria and hence they

were declared ineligible to be called for the interview whereas the private

respondents having requisite experience as well as educational

qualification were called for the interview wherein they have been

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

declared successful. According to respondent no. 2 while the

advertisement and the Recruitment Rules required the candidates to

possess the educational qualification of bachelor's degree from

recognised University and also of having completed the Divisional

Officers Course or the Fire Prevention Course and the candidates were

also required to have experience of about 7 years' in whole time in field

of Fire Brigade out of which 3 years' experience should be on the post

which can be considered equivalent to the post not below rank of Station

Officer or Assistant Divisional Officer. According to the respondent

GPSC, the experience of these candidates could be counted only after the

candidate completes the Divisional Officers Course or the Fire Prevention

Course by the National Fire Service Collage, Nagpur, which experience

according to the respondent no. 2 GPSC, the petitioners do not possess.

The same having resulted in the ouster of the petitioners, this petition is

preferred.

8. At the outset, it requires to be noted that since it appears to this Court

that the issue involved is with regard to interpretation of Recruitment

Rules to the post in question, submissions of learned Advocates for the

respective parties in that regard are recorded in brief as herein below.

9. Learned Advocate Mr. Jit P. Patel appearing on behalf of the

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

petitioners has submitted that Recruitment Rules for the post in question

require a candidate to be eligible for being appointed to the post of

Assistant Director/ Regional Fire Officer in the Gujarat State Fire

Prevention Services, Class-I to hold the Educational qualification of

having a recognized bachelor's degree and also having completed the

Divisional Officers or the Fire Prevention Course recognized by the

National Fire Service college, Nagpur. The experience qualification

requires a candidate to have about 7 years' experience in the field of Fire

Brigade of which 3 years should be in a post not below rank of Station

Officer or Assistant Divisional Officer in Government or equivalent

thereto.

9.1. Learned Advocate Mr. Jit P. Patel, on behalf of the petitioners,

has submitted that petitioners no. 1 to 5 having the requisite educational

qualification is not in dispute. It is submitted that the only aspect

considered by the respondents for declaring the petitioners as ineligible is

reading the requirement of having total 7 years' experience in Fire

Brigade, to have been obtained after the candidates/ petitioners had

acquired the relevant experience qualification, i.e. after passing of the

Divisional Officer's Course/ Fire Prevention Course.

9.2. Learned Advocate Mr. Patel would submit that petitioners no.

1 to 4 have completed the Sub Officers Course from the National Fire

Service College, Nagpur and whereas the petitioners no. 1 to 3 were

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

appointed as Station Officer in the year 2012. Learned Advocate Mr.

Patel would submit that since the experience qualification as required for

the post of Station Officer and the experience qualification required for

the present post being different and the fact of the Recruitment Rule

specifically stating about the 3 years' experience specifically required out

of 7 years' experience in Fire Brigade, of being in a post not below rank

of Station Officer or Assistant Educational Officer, the respondent GPSC

had grossly erred in requiring that the experience of 7 years should be

after the candidate completed the Divisional Officers Course.

9.3. Learned Advocate Mr. Patel would submit that the

Recruitment Rules not specifying that the experience should be after the

candidate has completed the Divisional Officers Course or Fire

Prevention Course, such a requirement could not have been read into the

Recruitment Rules by the GPSC. Learned Advocate Mr. Patel would

submit that when the recruitment is requiring qualification for a higher

post and the experience required is in a lower post, the qualification as

required for the higher post could not be taken to be the starting point

from which the experience required could be counted.

9.4. Learned Advocate Mr. Patel has also assailed the selection of

the private respondents inter alia by submitting that the Gujarat Fire

Prevention and Life Safety Measures Act, 2013 inter alia requires a Fire

Brigade for the entire State of Gujarat. Learned Advocate Mr. Patel

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

would for the said purpose rely upon Section-3 of the Act, whereby the

State of Gujarat is empowered to declare fire brigade or any other fire

service as being part of State fire service and whereas the provision

would not apply for private fire services maintained for providing fire

protection to specific building or industry. Learned Advocate Mr. Patel

would submit in this regard that since respondents no 4 to 8 have

acquired experience in fire protection services maintained by private

industries therefore such experience could not be counted as experience

in fire brigade. Learned Advocate Mr. Patel, in support of his contention

has relied upon decision of the Supreme Court in Dr. (Major) Meeta

Sahai v/s State of Bihar reported in 2019 (20) SCC 17. Learned Advocate

Mr. Patel has, therefore, requested for quashing the impugned order dated

28.07.2021 whereby the petitioners were shown as disqualified and also

order dated 03.08.2021 whereby private respondents were selected and

further appropriate orders are requested to be passed by this Court.

10. On the other hand, learned Advocate Mr. R. C. Jani on behalf of

respondent no. 2, GPSC, would submit that since the Recruitment Rules

for the post in question does not specify that the date from which the

experience is to be counted, therefore, reliance is placed on the

Classification Rules which clarifies on this aspect. Learned Advocate Mr.

Jani would submit that Rule-8 of the Gujarat Civil Services Classification

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

and Recruitment (General) Rules, 1967 states with regard to 'Condition

as to prescribed qualification' and sub rule-8 thereof inter alia states that

in a recruitment to any service or post requires in its qualifications, a

qualification as to practical experience for a given period than the period

of practical experience shall be computed from the date of which the

requisite qualifications are obtained.

10.1. Learned Advocate Mr. R. C. Jani would submit that since the

Recruitment Rules require amongst its qualifications, a qualification of

practical experience and Rule 8(8) of the Classification Rules laying

down that experience is to be counted after the candidate acquired the

educational qualification, the experience criteria of having seven years in

Fire Brigade is required to be counted from the date the candidates clear

the Divisional Officer's Course or the Fire Prevention Course.

10.2. Learned Advocate Mr. Jani would further submit that as far

as the petitioners are concerned, they do not have the requisite experience

as per the Recruitment Rules read with the Classification Rules and

whereas in so far as the private respondents who have been selected,

since they fulfill the experience criteria as above, they were called for the

interview which they had successfully cleared and hence they have been

placed in the select list. Learned Advocate Mr. Jani would submit that the

GPSC having conducted the selection procedure, strictly in accordance

with the Recruitment Rules read with the Classification Rules, no fault

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

could be found with the said respondent. Learned Advocate Mr. Jani

would, therefore, submit that the petition may be rejected by this Court.

Learned Advocate Mr. R. C. Jani has relied upon decision of this Court in

case of Shivrajsinh Bhupat Chavda Vs State of Gujarat Special Civil

Application No. 1896 of 2017 dated 22.02.2017 and decision in case of

Anjnaben Mansukhlal Pandya Vs State of Gujarat dated 06.08.2019 in

Special Civil Application No. 13126 of 2019 in support of his

submissions.

11. Learned AGP Ms. Pancholi, on behalf of the State, would submit that

the Recruitment Rules have to be read along with the Classification

Rules, more particularly, since the Recruitment Rule does not provide a

date from which the experience of 7 years has to be counted and therefore

no infirmity can be found in the procedure adopted by the respondent no.

2 GPSC. In so far as the respondents no. 4 to 8 are concerned, according

to learned AGP Ms. Pancholi, since the said respondents fulfilled the

criteria as per the Recruitment Rules and have been selected by the

GPSC, no infirmity could be alleged in so far as the said selection was

concerned.

12. Learned Senior Advocate Mr. Shalin Mehta with learned Advocate

Mr. Hemang Shah has adopted the submission made on behalf of

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

respondent -GPSC and the Government. Learned Senior Advocate Mr.

Mehta would further submit that the term 'Fire Brigade' is a terminology

which denotes a group of professional persons who deal in protecting life,

environment and property in the event of fire. Learned Senior Advocate

Mr. Mehta would submit that the term is used in the Recruitment Rules

and the advertisement in its general sense and whereas a narrow meaning

i.e. Fire Brigade being a Fire Brigade of the State or some instrumentality

of the State in exclusion of Fire Brigade maintained by Private

Companies, could not be attributed to the term. Learned Senior Advocate

Mr. Mehta would further submit that since the Recruitment Rule and the

advertisement prescribes eligibility criteria which includes a person

having requisite experience in limited company established under the

Companies Act, therefore, no objection could be raised against the

candidatures of the private respondents being considered. Learned Senior

Advocate Mr. Mehta would further submit that since the Recruitment

Rule itself envisages equivalence of experience of a person working in

the fire brigade of the State or any instrumentality of the State and a

Private company, the respondent GPSC could not be faulted in

considering the experience of the private respondents as being a valid

experience.

13. Heard learned Advocates for the respective parties and perused the

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

record. The petitioners have been declared as being ineligible in the

selection process on account of the petitioners not fulfilling the

experience criteria, such declaration of ineligibility on account of

invoking of Rule- 8(8) of the Classification Rules and whereas if Rule

8(8) of the Classification Rules had not been invoked the petitioners

would be eligible to compete in the selection process. The petitioners in

addition to challenging their being declared as ineligible have also

challenged the Respondent no. 4 to 8 being declared as being eligible,

more particularly, since the experience acquired by the private

respondents according to the petitioners not being relevant and

comparable experience. In view of this conspectus, the following issues

arise for consideration of this Court:

(1) Whether the GPSC was justified in invoking Rule-8(8) of the

Classification Rules to prescribe the date of acquisition of qualification

as the relevant date for counting of the period of experience.

(2) Whether the GPSC could be faulted in considering the experience

as acquired by the respondents no. 4 to 8 in a private company as

relevant experience for being considered for selection.

14. For deciding question no. 1 the Recruitment Rules as well as the

Classification Rules require a closer appreciation/ interpretation. Rule

3(b)(1), 3(b)(2) and 3(c) of the Assistant Director/ Regional Fire Officer

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

of Gujarat State Fire Prevention Service, Class-I, Recruitment Rules,

2019 being the relevant rules the same are reproduced herein below for

benefit.

Assistant Director/ Regional Fire Officer Recruitment Rules

"Rule 3(b)(1): A Bachelor's degree obtained from any of the Universities

established or incorporated by or under the Central or a State Act in India; or

any other educational institution recognized as such or declared to be

deemed as a University under section 3 of the University Grants

Commission Act, 1956, and Completed the Divisional Officers Course or

the Fire Prevention Course recognized by the National Fire Service College,

Nagpur."

GCS Classification & Recruitment (general) Rules, 1967.

"Rule 3(b)(2): a degree of Bachelor of Engineering (Fire)/ Bachlor of

Technology (Fire)/ Bachelor of Engineering (Fire and safety)/ Bachelor of

Technology (Fire and safety) / Bachelor of Science (Fire) obtained from any

of the Universities established or incorporated by or under the Central or a

State Act in India; or any other educational institution recognized as such or

declared to be deemed as a University under Section-3 of the University

Grants Commission Act, 1956."

"Rule 3(c): Have about seven years' service experience in a whole time in

the field of Fire Brigade out of which three years' experience on the post

which can be considered equivalent to the post not below the rank of Station

Officer or Assistant Divisional Officer in Government/ Local bodies/

Government Undertaking Board/ Corporation/ Limited Company established

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

under the Companies Act, 2013."

14.1. It is required to be noted that the Recruitment Rules sets out

the educational and experience qualification in two parts. In so far as the

educational qualification criteria, the candidate is required as per Rule (3)

(b)(i),

(a) to possess a Bachelor's degree from a recognized University,

and

(b) completed the Divisional Officers Course or the Fire Prevention

Course recognized by the National Fire Service College, Nagpur.

The experience qualification as per Rule (3)(c) requires a candidate

(a) to have about 7 years experience in whole time in field of Fire

Brigade and

(b) 3 years of the 7 years should be on a post not below the rank of

Station Officer or Assistant Divisional Officer in the state or on a post

considered equivalent thereto.

14.2 The contention on behalf of the respondent no. 2 GPSC being

that the date of acquisition of the requisite qualification being the date

from which the experience could be counted. Since such a requirement is

being read into the Recruitment Rule by invoking aid of the Classification

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

Rule, Rule 8(8) of the Gujarat Civil Services, Classification and

Recruitment Rules, 1967 is reproduced herein below.

GCS Classification & Recruitment (General) Rules, 1967

"Rule-8(8): Where the qualifications prescribed for any service or post

include a qualification as to practical experience of a given period and

applications are invited for such service or post "the period of practical

experience shall be computed-

(a) Unless otherwise provided in recruitment rule from the date on which

requisite qualifications are obtained.

(b) With reference to the last date fixed for receipt of such application."

15. Rule-8(8) of the Classification Rules prescribes that the period of

practical experience, which is prescribed in recruitment for a post shall be

computed from the date on which the qualifications are obtained. Having

noted the same, it would be absolutely relevant to mention that such a

requirement in the Classification Rules, is not unqualified. Rule-8(8)(a)

begins with the pre-condition for invoking the sub-rule "unless otherwise

provided in Recruitment Rule". Thus, reading rule-8(8) as a whole, it

could be stated that in a recruitment for a post where practical experience

is also a requisite qualification and if there is no provision in the

Recruitment Rule which specifies how the period of experience is to be

counted than the period of experience shall be computed from the date

from which requisite qualifications are obtained.

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

15.1. Reading the Recruitment Rule, one finds that the Rule

specifically provides as to how the practical experience is to be computed

as stated herein above. Rule-3(c) states with regard to general experience

of about 7 years in the field of Fire Brigade and specific requirement of 3

years out of the said 7 years being on a post not below the rank of Station

Officer or Assistant Divisional Officer in the State or on any equivalent

post. The Recruitment Rule very specifically providing as to how the

practical experience has to be computed, in the considered opinion of this

Court, the pre-condition as found in Rule-8(8)(a) as noted herein above

would come into play and under such circumstances the requirement of

counting the period of experience from the date the requisite

qualifications were obtained could not have been invoked, more

particularly, the sub rule itself making it clear as to where the said sub

rule could be applicable and not applicable as the case may be. The

Recruitment Rules very specifically providing as to how the experience is

to be computed, the same ought not and could not have been ignored by

the GPSC for invoking aid of the Classification Rules which in the

considered opinion of this Court was not applicable.

16. As noted herein above, the Recruitment Rules specify about the

candidate acquiring general experience of about 7 years and specific

experience of 3 years, in the 7 years on a particular post in the State or on

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

an equivalent post. It also appears that the posts of Sub-Officers and

Assistant Divisional Officer are subordinate posts to the post of Assistant

Director/Regional Fire Officer i.e. the post in question. The qualification

required for appointment to the post of Station Officer being that the

candidate should pass a Sub-Officers Course. Notification dated

02.05.2017 relied upon by the applicants & GPSC with regard to sending

officers working in the Fire Brigade of the State or instrumentalities of

the State for completing various courses at the National Fire Service

College, Nagpur states that a candidate for appearing in the Divisional

Fire Officers Course is required to clear the Sub Fire Officer, Station

Officer and Instructor course. Thus, it appears that for being appointed as

Station Officer, a candidate is required to clear the most basic course i.e.

the Sub Officers course.

16.1. Considering the said aspect in light of the submission by the

GPSC there appears an apparent incongruity in as much as while the

Recruitment Rules specify that the candidate should have 3 years

experience as Station Officer or Assistant Divisional Officer, yet the

GPSC reads the requirement of passing an examination which is the

requirement for a higher post as being the date from which the experience

is to be counted. Since the Station Officer is not required to pass a

Divisional Officers Course, therefore the stand of the GPSC does not

appear to be in consonance with the Recruitment Rules.

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16.2. This is because if Sub-Rule (b)(1) and (c) of Rule-3 of the

Recruitment Rules are read harmoniously, which should have been the

case, then it clearly appears that the intent of the rule being that a

candidate with a Bachelor's degree, other than a Bachelor's degree with

regard to Fire and Fire Safety as envisaged in clause-(b)(II), gets a level

play field upon his completion on a Divisional Officers Course or Fire

Prevention Course as the case may be that candidates having Bachelor's

degree as per clause-3(b)(II).

17. It further appears in this regard that the Recruitment Rule did not

intent the experience criteria to be clubbed with the educational criteria.

The Recruitment Rule after mentioning the age criteria states about the

educational qualification criteria. 3(b)(i) being the criteria for a candidate

having any recognized Bachelor's degree and having completed the

Divisional Officer's Course or the Fire Prevention Course, whereas 3(b)

(ii) being the criteria for candidates having a recognized degree in

Bachelor of Engineering, Technology or Science in Fire or Fire

Prevention, while the requirement of completing the Divisional Officer's

Course or Fire Prevention Course is not required. Rule 3(c) being the

experience criteria states about having the general whole time experience

of 7 years in Fire Brigade and particular experience of 3 years in Station

Officer or Assistant Divisional Officer post in the State or equivalent

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

thereto including from private companies under the Companies Act. It

thus appears that a candidate having any recognized degree and a

candidate having a recognized degree in Fire or Fire Safety would be

brought at par upon the candidate having non fire or fire safety related

recognized degree passing the Divisional Officer's Course or Fire Safety

Course. The equivalence being achieved upon the course mentioned

herein above being passed, then as far as experience criteria is concerned

both the class of candidates stand at par. The experience criteria very

specifically mentioning only about the general and the specific

experience to be possessed without any reference to any educational

qualification. Reading the Recruitment Rule in a manner as done by the

GPSC and supported by the State would clearly be to the disadvantage of

non fire or fire safety related degree holders which is not the intent of the

rules. Rather as noted herein above the intent appears to be to bring an

equivalence between two sets of qualifications whereafter the experience

criteria would be equally applicable to both the classes. In this view of the

nature of the recruitment rules, this Court fails to appreciate the rationale

of the GPSC in invoking aid of the Classification rule, more particularly,

since there is no mention about the aim which is intended to be achieved

by invoking the Classification Rules.

18. The Classification Rules relied upon by the GPSC clearly providing

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

that the requirement of counting of the date of acquiring experience as the

relevant date for counting of experience only if the Recruitment Rules

does not provide anything in that regard and in the instant case, the

Recruitment Rules specifically providing for how experience is to be

computed, and in absence of any rationale pointed to invoke the aid of the

Classification Rules, in the considered opinion of this Court, the stand of

the GPSC as supported by the State and the private respondents cannot be

countenanced and is hence rejected.

19. In so far as the decisions relied upon by the learned Advocate for the

GPSC, the same in the considered opinion of this Court would not

advance the cause of the GPSC. In case of Shivrajsinh Chavda (Supra)

this Court (Justice Bela Trivedi, as she then was), was concerned with a

recruitment, where the advertisement itself mentioned that the period of

experience has to be counted from the date on which the requisite

educational qualification was acquired. In the instant case, neither the

Recruitment Rule nor the advertisement prescribed the said condition.

After the application forms were received, it appears that the GPSC

invoking aid of Rule 8(8) of the Classification Rules have read the

condition that the period of experience has to be counted from the date

the requisite qualification was acquired in the recruitment rules. The facts

being entirely different, the ratio laid down by this Court in decision of

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Bhupatsinh Chavda would not be helpful to the respondent Commission.

19.1. In the decision in case of Anjanaben Pandya (Supra) this

Court (Justice N. V. Anjaria) was considering the case of a candidate who

did not have the requisite qualifications as per the recruitment rules,

which is not the fact situation here. Thus, the said decision also would be

of no avail to the respondent Commission.

20. Insofar as question at Sr. No. 2 i.e. with regard to experience held by

respondent no. 4-8 as being valid. Rule (3)(b)(ii) inter alia envisages that

a candidate should possess a valid degree of BE (Fire)/ B. Tech (Fire)/ B.

E. (Fire Safety)/ S.Sc (Fire). Rule (3)(c) inter alia envisages that the

candidate should have 7 years' experience in Fire Brigade of which 3

years could be considered equivalent to the post not below the rank of

Station Officer or Assistant Divisional Officer in the State or any of its

instrumentalities. In so far as respondents no. 4 to 8 are concerned, it is

required to be noted that respondents no. 4 to 8 have acquired

qualification of experience while working with private companies.

20.1. A plain reading of the Rule 3(c) clearly suggests that the

Recruitment Rule does not envisage any difference in experience

obtained while working in the field of Fire Brigade with the State or any

of its entities or with a private organisation namely company established

under the Companies Act, 2013. The respondents having acquired

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

experience as required while working with a company, the same being

one of the acceptable categories in the Recruitment Rule, no fault could

be found with the GPSC considering their candidature.

20.2. Rule 3(c) of the Recruitment Rules, inter alia envisages about

the experience which a candidate should possess for being considered.

The said rule contemplates equivalence of experience between insofar as

posts not being below the rank of Station Officer or Assistant Divisional

Officer in the State or its instrumentalities and in Limited Companies

under the Companies Act, 2013. Thus, when the Recruitment Rules itself

envisages the equivalence of experience and when the Recruitment Rules

have not been challenged, it would not be open for the petitioners to

challenge the selection of the private respondents on the ground that their

experience was while working in limited companies. Moreover it is also

not the case of the petitioners that the private respondents have not

worked on posts which could be considered equivalent to the post of

Station Officer or Assistant Divisional Officer.

20.3. Insofar as decision relied upon by learned Advocate of the

Hon'ble Apex Court in case of Dr. (Major) Meeta Sahai, it would be

relevant to mention that the said judgment insofar as relied upon by the

learned Advocate for the petitioner would not be applicable to the facts of

the present case. The Hon'ble Apex Court was concerned with an issue

regarding narrow interpretation of the term "work experience" restricting

C/SCA/12961/2021 JUDGMENT DATED: 30/03/2022

the same to experience gained while working in Government hospitals

run by the Government of Bihar. The Hon'ble Apex Court had held such

a restriction as being constitutional-unjust had held the term to

encompass experience gained in hospitals run by the Government of

Bihar or the Central Government and its instrumentalities. It would also

be relevant to note that the Hon'ble Apex Court had clearly noted that the

petitioner therein was not challenging the selection process rather she was

challenging narrow interpretation of the term "work experience". It is

with reference to such a challenge that the observations at paragraph no.

18 which is relied by the learned Advocate for the petitioners. Paragraph

18 of the said judgment reads as thus:

Paragraph 18. "The question of permissibility of giving weightage for "work experience" in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions."

In the considered opinion of this Court the observations has to be read in

the context of the facts before the Hon'ble Supreme Court. That in the

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instant case the equivalence being envisaged in the recruitment rules and

the rules not being challenged, such observations would not come to the

aid of the petitioner. The rules making it clear that even comparable

experience gained while working in Limited Companies established

under the Companies Act would be considered as equivalent experience.

So long as the Rules are in force, the respondent commission could not be

faulted in adhering to by the same.

20.4. Furthermore challenge by the petitioners to the selection

process whereby the private respondents have been selected, would be

negated by observations of the Hon'ble Apex Court in the very judgment

of Dr. (Major) Meeta Sahai at paragraph (16) which reads as thus.

Para 16 - "It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

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Having regard to the law laid down by the Hon'ble Apex Court as above,

a candidate having taken part in the selection process cannot turn around

and question the same, the challenge to the selection of the private

respondents not being maintainable, is hereby rejected.

21. In view of the above discussion and reasoning the questions raised at

paragraph (13) are answered as herein below:

(13)(1) The GPSC respondent no. 2 was not justified in invoking the aid

of Rule (8)(8) of the GCS Classification and Recruitment (General)

Rules, 1967.

(13)(2) The GPSC could not be faulted in considering experience of

respondent no. 4 - 8 as relevant experience.