Gujarat High Court
Laljibhai Narsibhai Prajapati vs State Of Gujarat on 5 May, 2022
Bench: Hemant M. Prachchhak
C/LPA/429/2022 ORDER DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 429 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19220 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 429 of 2022
With
R/LETTERS PATENT APPEAL NO. 430 of 2022
In SPECIAL CIVIL APPLICATION NO. 19506 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 430 of 2022
==========================================================
LALJIBHAI NARSIBHAI PRAJAPATI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MAULIN G PANDYA(3999) for the Appellant(s) No.
1,10,11,12,13,2,3,4,5,6,7,8,9
for the Respondent(s) No.
10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115,1
16,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,13
2,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,14
9,15,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164,165,16
6,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,181,182
,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,197,198,199
,2,20,200,201,202,203,204,205,206,207,208,209,21,210,211,212,213,214,21
5,216,217,218,219,22,220,221,222,223,224,225,226,227,228,229,23,230,231
,232,233,234,235,236,237,238,239,24,240,241,242,243,244,245,246,247,248
,249,25,250,251,252,253,254,255,256,257,258,259,26,260,261,262,263,264,
265,266,267,268,269,27,270,271,272,273,274,275,276,277,278,279,28,280,2
81,282,283,284,285,286,287,288,289,29,290,291,292,293,294,295,296,297,2
98,299,3,30,300,301,302,303,304,305,306,307,308,309,31,310,311,312,313,
314,315,316,317,318,319,32,320,321,322,323,324,325,326,327,328,329,33,3
30,331,332,333,334,335,336,337,338,339,34,340,341,342,343,344,345,346,3
47,348,349,35,350,351,352,353,354,355,356,357,358,359,36,360,361,362,36
3,364,365,366,367,368,369,37,370,371,372,373,374,375,376,377,378,379,38
,380,381,382,383,384,385,386,387,388,389,39,390,391,392,393,394,395,396
,397,398,399,4,40,400,401,402,403,404,405,41,42,43,44,45,46,47,48,49,5,50
,51,52,53,54,55,56,57,58,59,6,60,61,62,63,65,66,67,68,69,7,70,71,72,73,74,7
5,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95,96,97,98,
99
MR TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for the
Respondent - State in LPA 429/22
MS DHWANI TRIPATHI, ASSISTANT GOVERNMENT PLEADER for the
Respondent - State in LPA 430/22
MR SHALIN N MEHTA, SENIOR ADVOCATE assisted by MR NISHIT P
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C/LPA/429/2022 ORDER DATED: 05/05/2022
GANDHI(6946) for the Respondent(s) No. 16,64
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 05/05/2022
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
common judgment and order dated 2.2.2022
passed by the learned Single Judge in Special
Civil Applications no. 19220/18 and 19506/18,
the original petitioners have preferred this
intra-Court appeal under Clause 15 of the
Letters Patent.
2. The facts arising in both the appeals and Writ
Petitions are identical and both the appeals
were heard together and are disposed of by
this common judgment and order.
3. The appellants - original petitioners are
direct recruits to the post of Assistant
Police Sub-Inspector (hereinafter referred to
as "ASI") in the year 2014. As per the policy
of the Government, for the initial years, the
appellants were on a fixed pay. Ultimately,
respondent no.2 herein i.e. Subordinate
Services Selection Board issued an
advertisement no.151/2018-19 for the promotion
post i.e. Police Sub-Inspector (hereinafter
C/LPA/429/2022 ORDER DATED: 05/05/2022
referred to as "PSI"). The said advertisement
stipulated that those candidates who have
completed 3 years of service as on 15.12.2018
would be eligible to apply for the same. As
the appellants did not possess experience of 3
years on the cut off date i.e. 15.12.2018 and
in fact was short by 40-45 days, except one of
the appellant approached this Court by way of
these two petitions and inter-alia prayed as
under:-
"B) Your Lordships may be pleased to
issue a writ of mandamus and/or any
other appropriate writ, order or
direction in the nature of mandamus
in exercise of powers under Article
226 of the Constitution of India and
thereby be pleased to direct and hold
that the petitioners were eligible
for the promotional post of Police
Sub-Inspector, upon completion of
three years of service and be pleased
to direct the respondent authorities
to permit the petitioners to fill up
the forms and further be pleased to
direct the respondents to accept the
forms and to permit the petitioners
to appear in the competitive
examination to be held for the post
of Police Sub-Inspector in pursuance
to the advertisement No.151/2018, in
the interest of justice.
C) Pending admission, hearing and/or
final disposal of this petition, Your
Lordships may be pleased to direct
respondent authorities permit the
petitioners to fill up the forms and
further be pleased to direct the
C/LPA/429/2022 ORDER DATED: 05/05/2022
respondents to accept the forms and
to permit the petitioners to appear
in the competitive examination to be
held for the post of Police Sub-
Inspector in pursuance to the
advertisement No. 151/201, in the
interest of justice."
4. The facts as narrated in Letters Patent Appeal
no.429/22 are taken as basis of this judgment
and order.
5. It was mainly contended by the appellants-
original petitioners that syllabus of the post
of ASI and PSI are almost identical, except
one subject of law. It was also contended that
even the physical requirements and/or
parameters are also the same. It was contended
that in majority cases, ASIs who were
appointed in the year 2016 have experience of
not less than 2 years upto 9 years of service
and therefore, it was contended by the
appellants - original petitioners that they
may be permitted to submit their forms by
directing the respondent authorities to accept
the same. It was also contended that cut off
date prescribed by the respondent authorities
deserves to be modified as there is no
requirement of completion of period of 3 years
for the purpose of participating in the
competitive examination. It was also contended
that the appellants - original petitioners are
C/LPA/429/2022 ORDER DATED: 05/05/2022
not in any way wanting the process of
recruitment to be stalled, however, it was
prayed that the cut off date should be
15.2.2019 instead of 15.12.2018. The learned
Single Judge, after considering the
submissions made on behalf of all the parties
as well as considering the affidavit filed by
the respondent authorities and relying upon
the judgments of the Hon'ble Apex Court, was
pleased to dismiss the petitions and being
aggrieved by the same, the present appeals are
filed.
6. Heard Mr. Maulin Pandya, learned advocate for
the appellants in both the appeals, Mr.
Tirthraj Pandya, learned Assistant Government
Pleader for the State and its authorities in
Letters Patent Appeal no.429/22, Ms. Dhwani
Tripathi, learned Assistant Government Pleader
for the State and its authorities in Letters
Patent Appeal no.430/22 and Mr. Shalin N.
Mehta, learned Senior Advocate assisted by Mr.
Nishit Gandhi, learned advocate for the
caveators.
7. Mr. Maulin Pandya, learned advocate for the
appellants reiterating the grounds raised
before the learned Single Judge, contended
that as per the criteria fixed by the
notification dated 11.3.2016 based upon the
C/LPA/429/2022 ORDER DATED: 05/05/2022
Police Sub-Inspector (Unarmed) Class-III,
Recruitment Rules, 2008, the appellants have
to meet with the requirement of completion of
3 years of service for getting the appointment
as Police Sub-Inspector. It was contended that
in fact, the recruitment process pursuant to
the advertisement issued in the year 2014 got
stalled and the appointment orders were issued
late which was not the fault of the
appellants. It was further contended that the
said fact has not been properly considered by
the learned Single Judge. It was also
contended that the learned Single Judge has
wrongly relied upon the cut off date and has
not appreciated the fact that the appellants
were fulfilling other conditions. It was also
contended that as such the advertisement was
given in the year 2014 and as the cut off date
is fixed as 15.12.2018, the appellants are
falling short of one or two months and the
learned Single Judge ought to have taken a
lenient view. It was also contended that the
learned Single Judge ought to have considered
the fact that there was question of future of
the appellants and because of cut off date,
the legitimate rights of the appellants are
wholly affected and that the learned Single
Judge ought to have considered the Writ
Petitions filed by the appellants in the
interest of public at large. It was contended
C/LPA/429/2022 ORDER DATED: 05/05/2022
that the learned Single Judge has not
considered the order passed by this Court
dated 28.4.2017 in Special Civil Application
no.8808/17, wherein the directions were issued
to the State Government to grant relaxation in
the period of experience. It was contended
that the learned Single Judge has misread the
provision of Rule 2 of the Police Sub-
Inspector (Unarmed) Class-III, Recruitment
Rules, 2008 and has not considered the fact
that the promotion can be given on the basis
of the merit list and hence, the appellants
ought to have been given chance to appear in
the said selection process along with
similarly situated candidates but it was
reiterated that the learned Single Judge has
not considered the aspect that the recruitment
process for the appointment to the post of PSI
was stalled and because of the litigation, the
respondent authorities did not proceed further
and the question of service experience as cut
off date would not have arisen.
7.1 It was also contended that the learned Single
Judge has wrongly emphasized on requisite
criteria, however, has not considered the fact
that except less experience by one or two
months by prescribing the cut off date as on
15.12.2018 has deprived the legitimate rights
of the appellants for getting promotion. It
C/LPA/429/2022 ORDER DATED: 05/05/2022
was also contended that the learned Single
Judge has not properly considered the order
dated 17.10.2019 passed by this Court in
Special Civil Application no. 9647 of 2017 and
allied matters. It was also contended that the
learned Single Judge ought to have appreciated
the fact that the respondent authorities have
given discriminatory treatment to the
appellants which suggest malafide intention on
the part of the authorities. It was contended
that the impugned order passed by the learned
Single Judge lacks cogent and convincing
reasons and therefore, contended that the
appeals deserve to be entertained and be
allowed.
8. Per contra, Mr. Tirthraj Pandya and Ms. Dhwani
Tripathi, learned Assistant Government
Pleaders have opposed these appeals and
referring to the affidavit-in-reply and
relying upon the affidavit-in-reply, contended
that the appellants were recruited in the year
2016 to the post of ASI (Unarmed) on
contractual basis for a period of 5 years with
fixed pay. It was further contended that the
appellants were to be given regular posting
after satisfactory completion of 5 years of
service. Referring to condition no.28 of the
appointment orders, it was contended that the
appellants would not be entitled to any
C/LPA/429/2022 ORDER DATED: 05/05/2022
equitable right for appointment to the
Government establishment and hence, the
appellants cannot claim equity of promotional
benefits. It was also contended that the
eligibility criteria stipulated in the
advertisement dated 15.12.2018 is in
consonance with the notification dated
27.8.2008 issued by the Home Department which
was issued in accordance with the statutory
requirement of Rule 2(a) of the Recruitment
Rules to the post of Police Sub-Inspector
(Unarmed) Class-III. It was further contended
that the said Rules mandated that for
recruitment by promotion, a person must have
worked for not less than 3 years either in the
cadre of ASI (Unarmed) Class-III and/or Head
Constable (Unarmed) Class-III in Gujarat State
Police Service. It was also contended that it
is an admitted position that the appellants
were appointed on 1.2.2016 and accordingly,
for meeting with the requirement of the cut
off date i.e. 3 years as on 15.12.2018, it
would be completing on 31.1.2019. It was
further contended that none of the appellants
were fulfilling the eligibility criteria to
apply for the post of Police Sub-Inspector as
per the advertisement dated 15.12.2018. It was
contended that the learned Single Judge has
rightly relied upon the judgments of the
Hon'ble Apex Court in the cases of Dheeraj Mor
C/LPA/429/2022 ORDER DATED: 05/05/2022
Vs. High Court of Delhi, reported in (2020) 7
SCC 401, Alka Ojha Vs. Rajasthan Public
Service Commission & Anr., reported in (2011)
9 SCC 438, Ashok Kumar Sonkar Vs. Union of
India & Ors., reported in (2007) 4 SCC 54 and
State of Bihar & Ors. Vs. Ramjee Prasad &
Anr., reported in (1990) 3 SCC 368 to deny the
relief claimed by the appellants. Relying upon
the latest decision of the Hon'ble Apex Court
in the case of the State of Himachal Pradesh &
Anr. Vs. K.P. Nayar rendered in Special Leave
Petition (Civil) no.572/21 decided on
15.2.2022, it was contended that the
recruitment conditions cannot be modified,
rescind or altered to suit the eligibility
from person to person, which would be in
violation of the constitutional mandate under
Article 14 of the Constitution of India. In
support of such contention, reliance is placed
upon the decision of the Hon'ble Apex Court in
the case of State of Jammu Kashmir & Ors. Vs.
Shaheena Masarat & Anr., reported in Live Law
2021 SC 518. It was also contended that as per
the judgment of the Hon'ble Apex Court in the
case of State of Odisha Vs. Sulekh Chandra
Pradhan, reported in 2022 Live Law SC 393, the
appointments made in contravention of the
statutory provisions are void-ab-initio and as
such the appellants have prayed for being
declared eligible and qualified de hors the
C/LPA/429/2022 ORDER DATED: 05/05/2022
statutory requirement of Rule 2(a) of the
Recruitment Rules to the post of Police Sub-
Inspector (Unarmed) Class-III. It was
contended that even the contention raised by
the appellants that under interim orders, the
appellants have undergone physical test and
written test, the appellants be declared to be
eligible, does not merit any consideration as
by way of interim order, no equity is created
in favour of the appellants and the same does
not confer any vested right in favour of the
appellants to claim equitable relief with the
aid of such interim direction. On the
aforesaid grounds, it was thus contended that
both the appeals are merit-less and the same
deserve to be dismissed.
9. Mr. Shalin N. Mehta, learned Senior Advocate
assisted by Mr. Nishit Gandhi, learned
advocate for the caveators has reiterated the
arguments made by Mr. Tirthraj Pandya and Ms.
Dhwani Tripathi, learned Assistant Government
Pleaders. Mr. Mehta contended that the learned
Single Judge has rightly rejected the Writ
Petitions and no right is accrued in favour of
the appellants. Mr. Mehta has also relied upon
the judgments in the cases of Dheeraj Mor
(supra), Alka Ojha (supra), Ashok Kumar Sonkar
(supra), State of Bihar & Ors. Vs. Ramjee
Prasad & Anr. (supra) and Rakesh Kumar Sharma
C/LPA/429/2022 ORDER DATED: 05/05/2022
Vs. State (NCT of Delhi), reported in (2013)
11 SCC 58.
10. No other or further submissions, averments,
grounds and/or contentions are made by the
learned counsel appearing for the respective
parties.
11. It is an admitted position that the
appellants-original petitioners were recruited
to the post of ASI at various places in the
State of Gujarat pursuant to the advertisement
published in the year 2014, results of which
were declared on 16.9.2015 and the appointment
orders came to be issued on 11/12.1.2016 and
as such as per the facts of this case, the
training started from 1.2.2016. It is an
admitted position that none of the appellants
fulfilled the criteria of completing 3 years
of service as on 15.12.2018. As noted by the
learned Single Judge, the respondent - State
authorities issued an advertisement on
15.12.2018 for filling up the post of Sub-
Inspector (Unarmed) and the same provides for
a condition that the eligibility criteria for
which the candidates, who seek appointment to
the post in question, must have completed
minimum 3 years of service in unarmed cadre
either on the post of Assistant Sub-Inspector,
Class-III or Head Constable, Class-III and cut
C/LPA/429/2022 ORDER DATED: 05/05/2022
off date is 15.12.2018 as per the provisions
of Rule 2(a) of the Recruitment Rules and it
has nexus on the date on which the
advertisement was published and therefore, in
no manner, it can be said that such
prescription of cut off date of 15.12.2018 is
arbitrary, bad or illegal. It also deserves to
be noted that because of some litigation was
pending and interim orders were passed, the
same would not mean that the relaxation is
ipso facto granted, that too, de hors the
Recruitment Rules. The learned Single Judge
has rightly relied and based the conclusion on
the binding decisions of the Hon'ble Apex
Court in the cases of Dheeraj Mor (supra),
Alka Ojha (supra), Ashok Kumar Sonkar (supra)
and State of Bihar & Ors. Vs. Ramjee Prasad &
Anr. (supra).
12. At this juncture, it would be appropriate to
refer to the decision of the Hon'ble Apex
Court in the case of State of Bihar & Ors. Vs.
Madhu Kant Ranjan, reported in Live Law 2021
SC 752, wherein it has been held that it is no
more res integra that a candidate/applicant
has to comply with all the
conditions/eligibility criteria as per the
advertisement before the cut off date
mentioned therein. It has been further
observed by the Hon'ble Apex Court as under:-
C/LPA/429/2022 ORDER DATED: 05/05/2022
"9. As per the settled proposition of
law, a candidate/applicant has to
comply with all the
conditions/eligibility criteria as
per the advertisement before the cut-
off date mentioned therein unless
extended by the recruiting authority.
Also, only those documents, which are
submitted alongwith the application
form, which are required to be
submitted as per the advertisement
have to be considered. Therefore,
when the respondent No.1 - original
writ petitioner did not produce the
photocopy of the NCC 'B' certificate
alongwith the original application as
per the advertisement and the same
was submitted after a period of three
years from the cut-off date and that
too after the physical test, he was
not entitled to the additional five
marks of the NCC 'B' certificate. In
these circumstances, the Division
Bench of the High Court has erred in
directing the appellants to appoint
the respondent No.1 - original writ
petitioner on the post of Constable
considering the select list dated
08.09.2007 and allotting five
additional marks of NCC 'B'
certificate."
13. In the case of State of Odisha Vs. Sulekh
Chandra Pradhan, reported in 2022 Live Law SC
393, it has been observed thus:-
"32. It is not in dispute that
the appointment of all the
applicants/respondents/teachers have
been made directly by the respective
Management without following the
C/LPA/429/2022 ORDER DATED: 05/05/2022
procedure as prescribed under the
Rules/Statute. It is a trite law that
the appointments made in contravention
of the statutory provisions 25 are
void ab initio. Reference in this
respect could be made to the
judgments of this Court in the
cases of Ayurvidya Prasarak Mandal and
another vs. Geeta Bhaskar Pendse (Mrs)
and others , J & K Public Service
Commission and others vs. Dr.
Narinder Mohan and others, Official
Liquidator vs. Dayanand and others ,
and Union of India and another vs.
Raghuwar Pal Singh."
14. In the case of the State of Jammu Kashmir &
Ors. Vs. Shaheena Masarat & Anr., reported in
Live Law 2021 SC 518, it has been observed as
under:-
"6. Re-T scheme provides that a
candidate shall 'as far as possible'
fulfill the qualification as
prescribed by the State Government.
The eligibility criteria stipulated
by the advertisement dated 29.11.2002
is that a candidate shall 'as far as
possible' fulfill the age
qualification as prescribed by the
State Government i.e. the candidate
should not be above 35 years of age.
The learned Single Judge of the High
Court interpreted the words 'as far
as possible' appearing in the scheme
as well as the advertisement in
respect of the upper age limit, as
directory by relying upon judgment of
this Court in Iridium Indian
TeleCommunication V. Motorola In-
Charge, 1 whereas, the Division Bench
was of the opinion that the judgment
C/LPA/429/2022 ORDER DATED: 05/05/2022
of this Court 1 2005 (2) SCC 145 6 in
Iridium Indian Tele-Communication
(supra) is not applicable to the
facts of the instant case.
7. In Iridium Indian Tele-
Communication (supra), this Court was
concerned with the interpretation
clause 37 of Letters Patent which
provided that in making rules and
orders under this clause, the High
Court shall be guided "as far as
possible" by provisions of the Code
of Civil Procedure. A Full Bench of
High Court of Calcutta in Manickchand
Durgaprasad V. Pratabmull Rameswar
2 , considered the scope of clause 37
of Letters Patent and observed that
the rules framed under clause 37
would prevail over the corresponding
provisions of the Code of Civil
Procedure if there is any
inconsistency. This Court in Iridium
Indian TeleCommunication (supra),
upheld the view of the Full Bench of
the Calcutta High Court in
Manickchand Durgaprasad (supra) in so
far as it related to interpretation
of the words 'as far as possible' in
clause 37 of the Letters Patent by
holding that the words 'as far as
possible' are merely directory.
8. As stated above,the eligibility
criteria for appointment as Re-T by
the scheme as well as the
advertisement includes a condition
that a candidate shall 'as far as
possible' fulfill the age
qualification as prescribed by the
State Government. There is no 2 AIR
1961 Cal 483 7 dispute that the upper
age limit for appointment as Re-T is
35 years. The Division Bench examined
C/LPA/429/2022 ORDER DATED: 05/05/2022
the scheme and noticed that there is
no minimum age limit specified and if
the words 'as far as possible' for
upper age limit are interpreted as
directory, the officers would have
discretion to select candidates even
after they cross 45 years. Further,
the Division Bench was of the opinion
that there will be no uniformity in
selection of Re-Ts in the State. The
scheme would be rendered
unconstitutional as being violative
of Articles 14 and 16 of the
Constitution of India. Therefore, the
High Court construed the provision
relating to upper age limit as
mandatory. We approve the conclusion
of the Division Bench. Appointments
to public posts should be strictly in
accordance with Articles 14 and 16 of
the Constitution of India.
Eligibility criteria should be
uniform and there cannot be scope of
arbitrary selections by unfettered
discretion being vested in the
authorities. Construing the provision
relating to upper age limit as
directory would be conferring
unbridled power in the executive to
choose persons of their choice by
relaxing the age beyond 35 years. In
such case, the provision would have
to be declared as unconstitutional.
Therefore, we are of the opinion that
35 years is the upper age limit for
appointment as Re-T. The 2nd
Respondent who has crossed 35 years
on the cut-off date was not 8
eligible for appointment. The High
Court has correctly directed the
appointment of the 1st Respondent as
Re-T."
C/LPA/429/2022 ORDER DATED: 05/05/2022
15. The learned Single Judge has succinctly
considered this aspect and has observed thus:-
"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.
d) A person who does not possess
the requisite qualification cannot
C/LPA/429/2022 ORDER DATED: 05/05/2022
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 cut-
off 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 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
C/LPA/429/2022 ORDER DATED: 05/05/2022
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 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
C/LPA/429/2022 ORDER DATED: 05/05/2022
no benefit of relaxation can be
granted de hors the recruitment rules
and the criterion stipulated in the
advertisement. Thus, it is not pen
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 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 Sub-
Inspector. 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
C/LPA/429/2022 ORDER DATED: 05/05/2022
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.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
Maulik
