Gujarat High Court
Hemantbhai Bhikhabhai Sutariya vs Secretary, The Managing Director on 19 June, 2023
Bench: Mauna M. Bhatt
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3885 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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HEMANTBHAI BHIKHABHAI SUTARIYA
Versus
SECRETARY, THE MANAGING DIRECTOR & 1 other(s)
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
MR NEERAJ SONI(3433) for the Respondent(s) No. 2
MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 19/06/2023
ORAL JUDGMENT
1. By way of captioned writ petition, the petitioner has invoked
extra ordinary jurisdiction under Article 226 of the Constitution of
India, challenging recruitment process undertaken by respondent
No.2- Gujarat Public Service Commission through advertisement
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
No.36 of 2020-2021, for the post of Security Officer, Class-II,
wherein the petitioner has been declared ineligible for not having
required experience. The said recruitment was undertaken for the
Department of Gujarat Mineral Development Corporation.
2. Considering the issue involved and with the consent of learned
Advocates appearing for the respective parties, the present petition
is taken up for final hearing today.
3. Facts, in brief, are as under:
Respondent No.2 - Gujarat Public Service Commission
(hereinafter referred to as "GPSC"), published an advertisement
No.36 of 2020-2021, for the recruitment to the post of Security
Officer, Class-II, in the Department of Gujarat Mineral
Development Corporation (hereinafter referred to as "the
Corporation"). The said advertisement was common for different
categories of posts, out of which, advertisement No.36 of 2020-2021
was for the post in question, wherein the petitioner had applied.
The required qualification prescribed in the advertisement, reads as
under:
36/2020-21 Post Security Officer, Class-2
Education Possess
qualification/ The candidate should be
Experience 1. Retired Commissioned officer of
(I) The Army holding the rank of
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
Lieutenant or above; or
(II) For navy holding the rank of Sub
Lieutenant or above; or
(III) For Air Force holding the rank of
Flaying Officer or above;
OR
2. Retired Commissioned Officers of
paramilitary forces like BSF, ITBP,
CRPF, CISF etc. Holding the rank of
Assistant Commandant or above;
OR
3. Holding the rank of Dy.S.P. or above
in Central or State Government
Organization such as police/ Home
Guard;
OR
4. Graduate and "C" Certificate issued
by all wings of NCC with 5 years' post
qualification experience as Security
Officer in relevant department with
proper position with successful track
record in respect of Security service in
the Government/ Local Bodies/
Government Undertaking Board/
Corporation/ Limited Companies
established under the Companies Act.
Provided further that the candidate
possessing higher qualifications than
prescribed in Para (i) hereinabove will
also be considered.
It is case of the petitioner that as he was possessing requisite
qualification and competent to appear in preliminary test held on
14.02.2021, he appeared and cleared the same. Upon clearing
preliminary test, the petitioner was called to take part in personal
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
interview scheduled on 17.12.2021. The petitioner appeared on
17.12.2021, for personal interview, however, his candidature was
rejected on the ground of not having requisite experience. Aggrieved
by which, present petition is filed.
4. This Court under order dated 23.02.2022 had issued Notice.
5. Heard learned Advocate Mr. Jigar Gadhavi for the petitioner.
He submitted that rejection of candidature of the petitioner by
respondent No.2 is erroneous on the following grounds :
(i) That pursuant to the interview held to fill up eight posts of
Security Officer, Class-II, only two candidates have been selected,
one Mr. Kiritsinh Chamanji Rajput, who scored 41.45 marks and
another Mr. Harshavardhan Hadmatdan Gadhavi, who scored total
35.81 marks. Thus, out of four candidates, who were invited to fill
eight vacancies, only two candidates were selected and candidature
of two candidates was cancelled on the ground that they did not
possess the required experience.
(ii) From the final Result dated 31.01.2022, published by
respondent No.2 - GPSC, it is noticed that the cut-off marks
considered in General Category was 35.81, and without disclosing
marks of the petitioner, his candidature was cancelled on the
ground of not having required experience. In the recommendation
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
published on 31.01.2022, it is indicated that out of six posts, one
post of General Category, one post of Economic Weaker Section,
three posts of Socially and Educationally Backward Classes of
citizens and one post of Scheduled Tribes remained vacant as no
candidates were available in the said interview.
(iii) That the petitioner is presently working as Lokrakshak -
Unarmed Head Constable serving in Gujarat Police since 17.12.2013
and thus he possesses experience as Unarmed Head Constable. He
submitted that the petitioner is an eligible candidate having
required experience, basis which he was called to participate in
personal interview held on 17.12.2021 and therefore, final result
declared vide order dated 31.01.2022 is erroneous and requires
scrutiny.
(iv) That the petitioner being qualified and eligible was allowed to
participate in the recruitment process and called for personal
interview. The reason of not having requisite experience was
communicated only after completion of interview process and
therefore, the action of the respondent cancelling candidature of the
petitioner is arbitrary.
(v) That respondent No. 2, had disclosed the marks of two
successful candidates who have been recommended for the post in
question however, petitioner's marks were not disclosed. This, non-
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
transparency creates great prejudice to the petitioner and also shows
arbitrariness in the approach of respondent particularly, when out
of eight posts, only two posts were filled up. As per interview
program, four candidates were interviewed and out of four
candidates, only two were declared successful. This creates
suspicion on the fair interview process and in absence of any fair
recruitment process, entire process undertaken by the respondent is
bad in law.
(vi) Most importantly, the petitioner has been recruited in Gujarat
Police and was selected as Lokrakshak in 2013 and currently serving
as Unarmed Head Constable at Surat City. Thus, the petitioner is
serving as Security Officer for last more than seven and half years
i.e. he has got experience of more than five years which is required
for the post in question. Thus, cancellation of the name of the
petitioner and one Shri Ramchandra Rameshbhai Patel is perse
illegal, arbitrary, improper and unconstitutional.
(vii) Experience required for the said post as referred in the
advertisement is "Graduate and "C" Certificate issued by all wings
of NCC with 5 years' post qualification experience as Security
Officer in relevant department with proper position with successful
track record in respect of Security service in the Government/ Local
Bodies/ Government Undertaking Board/ Corporation/ Limited
Companies established under the Companies Act. As the petitioner is
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
Graduate with 5 years' experience as Security Guard, based on
which, he was called for interview and therefore rejection of
candidature of the petitioner is arbitrary and bad.
(viii) Relying upon Experience Certificate dated 21.09.2021, he
submitted that Certificate of Experience refers to the work carried
out by the petitioner and therefore, non-consideration of the work
experience of the petitioner, as the Security Officer, is erroneous.
(ix) That the stand taken by the respondents that qualification of
the petitioner does not fall in Category-4 as he is serving as an
Unarmed Head Constable with police department, and does not
possess the experience as security officer in relevant department
with proper position is contrary to the advertisement. It is an
incorrect interpretation by the respondent that the post of Police
Department is referred in Clause-3 and not in Clause-4.
(x) At the time of issuance of Notice, this Court has held that
appointment will be subject to outcome of the present petition or
any other orders that may be passed. Therefore, appointment of
other two candidates cannot be said to be confirmed and on this
ground, he requested to direct the respondent to give appointment
to the petitioner.
(xi) As per Bombay State Police Reserve Force Act, the term
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
"Security" includes "Armed Police Constable" because the
experience, which the petitioner possesses is of "Assuring Security"
in the department, in which, he is working. Therefore, non-
selection of the present petitioner is erroneous.
(xii) Further, the contention of respondent that case of the
petitioner can only be considered under Clause-3 and not under
Clause-4 is misconceived. P.S.I. is Class-III Officer and post in
question is Class-II Officer and therefore, Dy.S.P. is higher in rank
and cannot be put at par with Police Constable, is not acceptable.
The comparison with other cadres like BSF, ITBP, CRPF, CISF,
cannot be made.
Learned Advocate Mr. Gadhavi thus submitted to allow the petition.
6. On the other hand, learned advocate Mr.Neeraj Soni appearing
for respondent No.2- GPSC submitted as under:
(i) As per settled legal position, the candidate, who once
appeared in the process of recruitment, cannot challenge the said
process only for the reason that he is not selected and therefore,
the present petition is required to be dismissed on this ground
alone.
(ii) The petitioner had applied for the post of Security Officer,
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
Class-II. Therefore, it is mandatory to have the required
qualification mentioned in the advertisement. However, during
scrutiny, it was found that the petitioner had placed on record
Certificate of work experience as an Unarmed Head Constable for
more than seven and half years, which cannot be considered as
valid experience equivalent to the experience as 'Security Officer',
prescribed in the advertisement. Referring to the recruitment Rules,
he submitted that the candidate must have all requisite qualification
as referred in recruitment rules, which reads as under:
"4. Graduate and "C" Certificate issued by all wings of
NCC with 5 years' post qualification experience as
Security Officer in relevant department with proper
position with successful track record in respect of
Security service in the Government/ Local Bodies/
Government Undertaking Board/ Corporation/ Limited
Companies established under the Companies Act.
Provided further that the candidate possessing higher
qualifications than prescribed in Para (i) hereinabove will
also be considered."
(iii) Respondent No.2 is the recruiting agency, who had undertaken
recruitment process as per requirement of concerned Government
Department. Upon requisition by respondent no.1, with its objects
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
and expectation of the candidates for the post in question an
advertisement came to be issued. In the present case, the petitioner
has claimed his eligibility based on his service as Unarmed Head
Constable which is class-III post in police hierarchy. In police
department, Class-II post starts from Police Inspector. Even Police
Sub-inspector (PSI) is Class-3 in hierarchy and therefore, service as
an Unarmed Head Constable cannot be equated with Security
Officer, Class-II post. Therefore, the contention that the petitioner
possesses equivalent qualification is not correct. In relation to
transparency, he relied upon evaluation, carried out by respondent
No.2 while declaring Final Result dated 31.01.2022.
(iv) Experience required for the said post specifies the work of
Security Officer, which is Class-II post, whereas, the post of
Constable i.e. post on which the petitioner is working, is Class-III
Post and therefore, the same cannot be equated with the work
experience required. Since the post in advertisement is below the
rank of Dy.S.P. and if the Constable would be considered for the
said post, cut-off specified particularly in Clause-3 would be
redundant. Since the petitioner possesses more than seven and half
years' experience as Unarmed Head Constable, the same cannot be
equated with Security Officer and therefore, rejection is as per
recruitment rules specified for the said post.
(v) In support of his submission, Mr. Soni has relied upon
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
following decisions :
(i) Santoshi A. Soni vs. Gujarat Public Service
Commission rendered in Special Civil Application
No.12258 of 2011 dated 27.09.2011;
(ii) Shivangi Sanatkumar Pota vs. State of Gujarat &
other reported in 2019(3) GLR 2419;
(iii) Maharashtra Public Service Commission through its
Secretary, Ashok Tukaram Barde vs. Sandeep Shriram
Warade and others; Suhas Sudhakarrao Lavhekar and
others reported in 2019(6) SCC 362.
He thus submitted that the petition is devoid of merits and may
be rejected.
7. Learned advocate Mr.Varun Patel appearing for respondent
No.1 supported the arguments canvassed by learned advocate Mr.
Neeraj Soni for respondent No.2 and submitted that qualification for
the post in question has been specified in the advertisement.
Admittedly, the petitioner being Unarmed Head Constable cannot be
stated to be candidate having 5 years post qualification experience
as Security Officer. For the said post, from the police or home
guard department, the candidates must possess qualification with
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
Dy.S.P., which is not the case here and therefore, no interference is
required. He submitted that as per settled legal position, no
deviation is required in the qualification prescribed in the
advertisement. If the candidature of the petitioner having its
experience as Unarmed Head Constable is being considered, it
would amount to tampering with the qualification and the same is
bad in law.
He submitted that calling of candidate for preliminary test is
conditional and absolutely ad-hoc and on that ground, the
petitioner cannot claim right over the post. It is clearly stated in
the advertisement that decision of GPSC regarding the said
admission is final. The petitioner cannot claim appointment as a
matter of right and therefore, the present petition deserves
rejection. In support of his submission, he has relied upon the
decision rendered by Hon'ble Supreme Court in the case of
Dilipkumar Garg & Anr. Vs. State of UP reported in (2009)4 SCC
753.
He further submitted that the Security Officer, Class-II is the
superior post than the post of Constable/ Armed Constable, which
are either Class-III post or below in hierarchy. There is already a
post of 'Security Supervisor, Class-III' below the post of 'Security
Officer, Class-II' in GMDC. The description of duties of 'Security
Officer, Class-II' mentioned in affidavit-in-reply of GMDC clearly
shows that duties of 'Security Officer, Class-II' is mainly Managerial
and Administrative in the nature and not the supervisory in nature.
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
8. Having heard learned advocates appearing for the respective
parties, the issue, which needs consideration, is "Whether decision
of respondent No.2 in holding the petitioner ineligible for the said
post as not having required experience is justiciable or not ?"
9. Taking case of the petitioner that he falls in Clause-4 of the
advertisement, it is necessary at this stage to revisit the
advertisement wherein the educational qualification/ experience
reads as under:
For the Security Officer Class-II:- " the candidate, who
possess "Graduate" and "C" Certificate issued by all wings of
NCC with 5 years' post qualification experience as Security
Officer in relevant department with proper position with
successful track record in respect of Security service in the
Government/ Local Bodies/ Government Undertaking Board/
Corporation/ Limited Companies established under the
Companies Act.
10. Therefore, as per Clause-4, the candidate (i) must be Graduate
and (ii) must possess "C" Certificate issued by all wings of NCC,
with (iii) 5 years' post qualification experience as Security Officer in
relevant department with proper position with successful track
record in respect of Security service in the Government and other
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
department as specified therein.
11. Admittedly, in this case, the petitioner is Graduate having
"C" Certificate issued by all wings of NCC and possesses Experience
Certificate issued by Additional Police Commissioner,
Administration, Surat. In the Experience Certificate dated
21.01.2021, it is stated that the petitioner was working as Unarmed
Head Constable with Traffic Police Department, Surat. If the said
experience is read in the context of Clause-4 of the advertisement,
it is clear that a candidate, who has to apply for the post of
Security Officer must be Graduate, having "C" Certificate issued by
all wings of NCC with 5 years' post qualification experience as
Security Officer in relevant department with proper position with
successful track record.
12. Taking note of the aforesaid prescription, the present
petitioner by virtue of being an Unarmed Head Constable working
with Traffic Police Department, Surat cannot be compared to
Security Officer as per the prescription given in the advertisement
and therefore, in my opinion, cannot be stated to have post
qualification experience as Security Officer in the relevant
department with proper position. If the contentions of the petitioner
are accepted, that would amount to adding words prescribed in the
said advertisement. Even as specified in Clause-3 of the
advertisement, in case of Dy.S.P. rank, no experience is required
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
and therefore, it is rightly contended by respondent - GPSC that
Unarmed Head Constable cannot be equated with Security Officer.
13. In the decision relied upon by learned advocate Mr.Varun
Patel in the case of Dilipkumar Garg and another v. State of Uttar
Pradesh and others, reported in (2009)4 SCC 753, in relation to
equivalence, the Hon'ble Supreme Court has held as under:
"13. In the present case, what we find is that Rule 5(ii)
of the 2004 Rules has done away with the requirement
of passing a qualifying examination for the diploma
holder Junior Engineers for promotion as Assistant
Engineers, and they have been placed at par with degree
holder Junior Engineer for this purpose. We see no
unconstitutionality or illegality in the same. It is entirely
for the authorities to decide whether the degree holders
and diploma holders should be treated at par or not for
the purpose of promotion from the post of Junior
Engineer to the post of Assistant Engineer."
14. Considering the facts of the present case and as the
qualification prescribed by the respondents being an administrative
action, this Court would not enter into the same. In the case of
Zahoor Ahmad Rather and others vs. Sheikh Imtiyaz Ahmad and
others reported in (2019)2 SCC 404, it has been held as under:
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
"26. We are in respectful agreement with the
interpretation which has been placed on the judgement
in Jyoti K.K. v. Kerala Public Service Commission, in the
subsequent decision in Anita? The decision in Jyoti K.K.
turned on the provisions of Rule 10(a)(ii). Absent such a
rule, it would not be permissible to draw an inference
that a higher qualification necessarily presupposes the
acquisition of another, albeit lower, qualification. The
prescription of qualifications for a post is a matter of
recruitment policy. The State as the employer is entitled
to prescribe the qualifications as a condition of
eligibility. It is no part of the role or function of judicial
review to expand upon the ambit of the prescribed
qualifications. Similarly, equivalence of a qualification is
not a matter which can be determined in exercise of the
power of judicial review. Whether a particular
qualification should or should not be regarded as
equivalent is a matter for the State, as the recruiting
authority, to determine. The decision in Jyoti K.K.
turned on a specific statutory rule under which the
holding of a higher qualification could presuppose the
acquisition of a lower qualification. The absence of such
a rule in the present case makes a crucial difference to
the ultimate outcome. In this view of the matter, the
Division Bench of the High Court was justified in
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
reversing the judgement of the learned Single Judge and
in coming to the conclusion that the appellants did not
meet the prescribed qualifications. We find no error in
the decision of the Division Bench.
27. While prescribing the qualifications for a post, the
State, as employer, may legitimately bear in mind several
features including the nature of the job, the aptitudes
requisite for the efficient discharge of duties, the
functionality of a qualification and the content of the
course of the studies which leads up to the acquisition of
the qualification. The State is entrusted with the
authority to assess the needs of its public services.
Exigencies of administration, it is trite law, fall within
the domain of administrative decision making. The State
as a public employer may well take into account social
perspectives that require the creation of job opportunities
across the societal structure. All these are essentially
matters of policy. Judicial review must tread warily. That
is why the decision in Jyoti K.K. must be understood in
the context of a specific statutory rule under which the
holding of a higher qualification which presupposes the
acquisition of a lower qualification was considered to be
sufficient for the post. It was the context of specific rule
that the decision in Jyoti K.K. turned." for a post is a
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
matter of recruitment policy. The State as the employer
is entitled to prescribe the qualifications as a condition
of eligibility. It is no part of the role or function of
judicial review to expand upon the ambit of the
prescribed qualifications. Similarly, equivalence of a
qualification is not a matter which can be determined in
exercise of the power of judicial review. Whether a
particular qualification should or should not be regarded
as equivalent is a matter for the State, as the recruiting
authority, to determine. The decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission, (2010) 15 SCC
596 : (2013) 3 SCC (L&S) 664] turned on a specific
statutory rule under which the holding of a higher
qualification could presuppose the acquisition of a lower
qualification. The absence of such a rule in the present
case makes a crucial difference to the ultimate outcome.
In this view of the matter, the Division Bench [Imtiyaz
Ahmad v. Zahoor Ahmad Rather, LPA (SW) No.135 of
2017, decided on 12102017 (J&K)] of the High Court was
justified in reversing the judgment [Zahoor Ahmad Rather
v. State of J&K, 2017 SCC OnLine J&K 936] of the
learned Single Judge and in coming to the conclusion
that the appellants did not meet the prescribed
qualifications. We find no error in the decision [Imtiyaz
Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
2017, decided on 12-10-2017 (J&K)] of the Division
Bench." That thereafter it is observed in para 27 as
under:
27. While prescribing the qualifications for a post,
the State, as employer, may legitimately bear in
mind several features including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course of
studies which leads up to the acquisition of a
qualification. The State is entrusted with the
authority to assess the needs of its public services.
Exigencies of administration, it is trite law, fall
within the domain of administrative decision-
making. The State as a public employer may well
take into account social perspectives that require
the creation of job opportunities across the societal
structure. All these are essentially matters of policy.
Judicial review must tread warily. That is why the
decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public
Service Commission, (2010) 15 SCC 596 : (2013) 3
SCC (L&S) 664] must be understood in the context
of a specific statutory rule under which the holding
of a higher qualification which presupposes the
acquisition of a lower qualification was considered
C/SCA/3885/2022 JUDGMENT DATED: 19/06/2023
to be sufficient for the post. It was in the context
of specific rule that the decision in Jyoti K.K. [Jyoti
K.K. v. Kerala Public Service Commission, (2010) 15
SCC 596 : (2013) 3 SCC (L&S) 664] turned."
15. In view of the aforesaid, namely limited interference by Courts
in the matter of interpreting conditions prescribed by recruitment
agencies coupled with the fact that in the present matter, the
Petitioner is not meeting the eligibility criteria prescribed in the
advertisement, the petition deserves to be rejected and is
accordingly dismissed. Interim relief, if any, shall stand vacated
forthwith. However, there shall be no order as to costs.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL.
