Gujarat High Court
Dr Tejas Mahasukhlal Tank vs Gujarat Public Service Commission Thru ... on 21 February, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/397/2022 CAV JUDGMENT DATED: 21/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 397 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 7791 of 2018
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL
EVIDENCES) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 397 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
==========================================================
1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
DR TEJAS MAHASUKHLAL TANKDR TEJAS MAHASUKHLAL TANK & ORS.
Versus
GUJARAT PUBLIC SERVICE COMMISSION THRU CHAIRMAN &
ANR.GUJARAT PUBLIC SERVICE COMMISSION THRU CHAIRMAN
==========================================================
Appearance:
CHIRAG N KAKKAD(8465) for the Appellant(s) No. 1,2,3,4
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY
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Date : 21/02/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. Chirag Kakkad for
the appellants, learned advocate Mr. Alkesh Shah
for respondent No.1 Gujarat Public Service
Commission and learned Assistant Government Pleader
Ms. Shruti Dhruve for respondent State, at length.
2. By filing the present Letters Patent Appeal,
the appellants-original petitioners have called in
question the judgment and order dated 05.01.2022 of
learned Single Judge whereby learned Single Judge
dismissed the Special Civil Application.
2.1 What was prayed in the petition by the
petitioners, twelve in numbers, was to direct the
respondent authorities to fill up all 51 posts of
Assistant Professor in the subject of physics, in
the various Government Science Colleges, on the
basis of the merit list and without subjecting the
petitioners to fulfil the criteria of minimum cut-
off marks prescribed in clause 14(4) of the general
terms and conditions of the advertisement, pursuant
to which, the posts were sought to be filled in.
2.2 Also prayed in the context, was to set aside
the decision reflected in the Circular dated
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31.03.2018, whereby the provision of cut-off marks
was cancelled for posts in different subjects other
than Physics. It was prayed that the decision
dated 31.03.2018 which lifted the cut-off marks for
the subjects other than physics was discriminatory
and created an unreasonable classification.
3. The relevant facts to be noted are inter alia
that Advertisement No.69/2016-17 to 94/2016-17 were
issued by respondent no.1-Gujarat Public Service
Commission (GPSC) for recruitment to the posts of
Assistant Professor in different faculties of
Government Arts, Commerce and Science colleges.
The appellants-petitioners applied in response to
the Advertisement No. 88/2016-17 for the post of
Assistant Professor in the subject of Physics.
Total 51 vacancies were available, out of which, 20
were for general category, 02 for Scheduled Caste
and 14 for Scheduled Tribe, whereas 15 was for
Socially and Economically Backward Class.
3.1 Preliminary examinations were held for the
said posts between 21.06.2017 and 09.10.2017. The
result of the preliminary examination was declared
on 06.12.2017. Based on the result of the
examination, interviews were conducted between
29.01.2018 to 02.02.2018 for the said post of
Assistant Professor, Physics.
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3.2 Cut off marks were prescribed for different
categories. In general category, 50 marks were
prescribed for male, whereas for female, 45 marks
were prescribed. For Socially and Economically
Backward Class male candidates, 35 marks were
prescribed, whereas for Socially and Economically
Backward Class female candidates, 31 marks were
prescribed. Same was the prescription for
Scheduled Caste and Scheduled Tribe candidates. In
the result published on 07.02.2018, 15 candidates
were found to have received marks above the cut-off
marks. They were recommended by the GPSC for
appointment to the post of Assistant Professor
(Physics). The appellants herein failed to obtain
the minimum marks. They were placed in the list
of unsuccessful candidates at serial nos. 8, 25, 27
and 29. The list of the candidates who were
recommended to the Government for appointment, and
those kept on waiting list and list of unsuccessful
candidates figures on record (Page 64 to 68).
3.3 Like the list of Assistant Professor in
Physics, in the subject of Drama and Mathematics,
which were Advertisement No. 75/16 and 92/16, there
were 3 and 16 vacancies respectively. In Drama,
none of the candidates were recommended by GPSC
whereas in Mathematics, 4 candidates were
recommended. The total number of vacancies in both
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the subjects could not be filled on account of
criteria.
3.4 Similarly, in the subject of Hindi, English,
etc. in all, 12 other subjects, vacancies were
advertised and out of the total, successful
candidates were recommended by GSPC for
appointment. The details about the interview date,
vacancies advertised, number of persons
recommended, etc., in the subject of physics to
which the controversy relates, as well as the other
subjects, Drama and Mathematics, are given in the
tabular chart, below,
Sr. Advertisem Subject Interview Reschedule No. of No. of Reason for
No. ent No. Date Date of vacanci Vacancies not
Interview es recommende filling of
given d by GPSC total no.
in & filled of
adverti by Govt. vacancies
sement
1 78/2016-17 Drama 05.09.2017 --- 03 Nil Due to
Cut-off
criteria
2 88/2016-17 Physics 29.01.2019 --- 51 15 Due to
to Cut-off
02.02.2018 criteria
3 92/2016-17 Mathematics 11.09.2017 -- 16 04 Due to
to Cut-off
14.09.2017 criteria
Below subjects' interview were held after 31.03.2018 as per Circular dated
31.03.2018 in which cut-off marks criterion has been removed to fill all the
vacancies
4 70/2016-17 Hindi 19.03.2018 14.05.2018 41 41 ---
to To
23.03.2018 19.05.2018
5 71/2016-17 English 05.03.2018 28.05.2018 92 81 Non
to To availabili
09.03.2018 02.06.2018 ty of ST
Candidates
6 74/2016-17 Sanskrit 16.04.2018 --- 39 38 Non
to availabili
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21.04.2018 ty of ST
Candidates
7 78/2016-17 Sociology 12.03.2018 06.07.2018 31 31 ---
to To
16.03.2018 11.07.2018
8 79/2016-17 Psychology 06.03.2018 19.05.2018 14 14 ---
to To
14.03.2018 25.05.2018
9 81/2016-17 Economics 26.03.2018 16.07.2018 51 51 ---
To To
31.03.2018 19.07.2018
10 84/2016-17 Chemistry 02.04.2018 --- 44 35 Non
To availabili
10.04.2018 ty of ST
Candidates
11 85/2016-17 Microbio- 20.03.2018 16.04.2018 05 05 ---
logy
12 86/2016-17 Botany 07.03.2018 18.06.2018 25 22 Non
To To availabili
09.03.2018 21.06.2018 ty of ST
Candidates
13 87/2016-17 Statistics 02.01.2019 13.09.2021 18 06 Non
availabili
ty of ST
Candidates
14 91/2016-17 Zoology 26.03.2018 30.04.2018 24 20 Non
To To availabili
28.03.2018 02.05.2018 ty of ST
Candidates
15 93/2016-17 Commerce 05.04.2018 --- 10 10 ---
To
06.04.2018
3.5 It appears that while in the subject of
Physics, the interviews were conducted, in the
other subjects, the interviews were yet to be
taken. The process of recruitment was incomplete
and was underway. At that juncture, the respondent
GPSC published Circular dated 31.03.2018, providing
about cancellation of minimum marks for selection
of candidates by direct recruitment. The
requirement of minimum cut-off marks was waived in
respect of subjects/branches wherein either the
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preliminary examination or interviews were not
held. It was also stated that for the new
advertisement would be published after 01.04.2018,
there will be no cut-off mark criteria.
3.6 As noted above, the minimum cut-off marks for
general category was 50 marks whereas for reserved
category, it was 35. The decision reflected in
Circular dated 31.03.2018 (Annexure-D page 69)
provided that in respect of the post advertised in
Advertisement No.69/2016-17 to 94/2016-17, where
the preliminary examination and interview is not
taken, the providence for cut-off marks was
cancelled. It was provided that the cut-off marks
would not apply to all such cases and the
categories and would apply for all direct
recruitment process to be conducted from
01.04.2018.
3.7 The aforesaid Resolution or the Circular dated
31.03.2018 stated that in such categories of
subject where preliminary test or interviews were
not taken, since the cut-off requirement was taken
out, the candidates could sail through to be able
to get appointment. In the category of physics,
the interview were taken between 29.01.2018 to
02.02.2018. In respect of the candidates who
appeared in the interview before the date of
Circular dated 31.03.2018 and remained failed
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whereas those candidates whose interviews were to
be taken up beyond 31.03.2018, they could go
successful as the cut-off marks requirement were
given up.
3.8 Similar situation was obtained in the subject
of Drama and Mathematics. The present petitioners
were candidates in the subject of physics only. It
is to be further noted that in all other
categories/subjects, such as Hindi, English,
Sociology, Economics, Chemistry, Microbio, Zoology,
etc., the cut-off marks were taken out to the
benefit of such category/subjects of candidates,
which happened only because in the interregnum, the
decision dated 31.03.2018 was brought out and that
the interview of those candidates were not taken.
4. Affidavit-in-reply on behalf of the GPSC was
filed in which, it was contended that pursuant to
the advertisement concerned, 51 posts of the
Assistant Professors in the subject of Physics were
required to be filled-in. It was contended that
the petitioners appeared in the preliminary test
and then in the interview, but could not clear them
for not satisfying the passing standard of
qualifying marks and therefore, they were treated
to be ineligible for final selection. The details
were given in the affidavit of the marks obtained
by the respective petitioners and their merit
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numbers in the list. It was contended that any
relief to the petitioner would amount to injustice
to other candidates.
4.1 It was further stated that in light of
Circular dated 31.03.2018 the representation of the
petitioner was disposed of on 02.05.2018 in light
of the Circular dated 31.03.2018. Noticeably, in
the entire affidavit-in-reply, the aforesaid was
the only mention and reference of Circular dated
31.03.2018, which was bone of contention which
provided for criteria of minimum qualifying marks
for selection in different subjects.
4.2 Reply affidavit was filed by respondent no.1
GPSC also in the proceedings of Letters Patent
Appeal in which, it was stated that most of the
appellants failed in the preliminary examination.
It was stated that cancellation of minimum
qualification standard was provided for by the
Commission on 31.03.2018 and implemented on
01.04.2018. It was stated that out of the 26
advertisements, in 11 advertisements, the personal
interview was held before publication of decision
dated 31.03.2018, but the posts were not filled.
In advertisement No.69/2016-17, total post were
filled in, even though personal interview were held
before publication of Office Order dated
31.03.2018.
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4.3 Thus, the case of the appellants-petitioners
is that the action on the part of the GPSC in
cancelling the criteria of minimum/cut off marks
during recruitment process is discriminatory. It
is contended that the GPSC ought to have offered
the benefit of Resolution dated 31.03.2018 to all
the candidates, irrespective of subjects.
4.4 On the other hand, the stand of the respondent
is that the appellants, who appeared in the
preliminary test and interview could not clear the
same with the requisite qualifying marks, the
recruitment process for the post of Assistant
Professor (Physics) was, it was stated, pursuant to
the advertisement No. 88/2016-17, which was
completed on 07.02.2018, whereas the Resolution
cancelling the minimum cut-off marks requirement
was passed 31.03.2018. It was contended that the
appellants have not impleaded the successful
candidates.
5. The last contention of the respondents about
non-joining of the successful candidates may be
disposed of at the outset. The said aspect may not
affect, if petitioners-appellants establishes their
right to be appointed. The right to be appointed
would arise independently and would not prejudice
others as available vacancies are required to be
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filled in.
5.1 Adverting to the merits of the case, the
recruitment process was undertaken in respect of
several subjects. The schedule of recruitment
included the taking written test and the interview.
The prescription of minimum qualifying marks for
general category and reserved category to apply to
each and every subject for which the Assistant
Professors were to be recruited. The interviews
were scheduled to be taken for different subjects
on different dates. The recruitment process was
started on fixed set of rules and qualifying
standards.
5.2 It is trite principle that rules to apply the
recruitment process have to remain same till
conclusion of the process. All the candidate have
to be governed by same set of rules and criteria
throughout. The same standards and qualifications
shall have to be applied. It is not permissible in
law to change the rules in the middle.
5.3 In Maharashtra State Road Transport
Corporation and Others vs. Rajendra Bhimrao Mandve
and Others [(2001) 10 SCC 51], it was the
recruitment of drivers under the Maharashtra State
Road Transport Corporation by driving test and
interview. In respect of marks assigned in the
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interview, there was a complaint that excessive
mark was given by the selection committee. The
State Road Transport Corporation applied the
Circular of 1996, which was issued long after the
last date for receipt of application and further it
was done in course of selection process. Circulars
of 1980 and 1995, which was of prior point of time,
did not speak about the driving test.
5.3.1 The Supreme Court held that what would
attract and what would be applied were the
circulars of 1980 and 1995 as stood before the
commencement of process. Since the corporation had
ignored the said aspect, neither unsuccessful
candidates nor the selectees would be entirely
blamed for the same and it was a most suitable case
for adjustment of equities held the Supreme Court.
The court directed for consideration of the claim
for appointment on the basis of performance and
marks for driving test and interview and to
accommodate the candidates unless found to be
medically unfit.
5.3.2 While holding as above, the Supreme Court
underlined the statement of law that it has been
repeatedly held by this court,
"It has been repeatedly held by this Court
that the games of the rules meaning thereby,
that the criteria for selection cannot be
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altered by the authorities concerned in the
middle or after the process of selection has
commenced. Therefore, the decision of the High
Court, to the extent it pronounced upon the
invalidity of the Circular Orders dated
24.6.1996, does not merit acceptance in our
hand and the same are set aside."
(para 5)
5.4 In K. Manjusree vs. State of Andhra Pradesh
and Another [(2008) 3 SCCC 512], the Supreme Court
emphasised that in the recruitment process the
selection criteria has to be prescribed in advance
and the rules of game cannot be changed afterwards.
In that case, the minimum qualifying marks for
interview were prescribed after the interviews were
over. It was held that the same was not
permissible.
5.4.1 In K. Manjusree (supra), the Supreme Court
observed thus, which principle will apply with
reverse logic in the facts of the present case,
"But what could not have been done was the
second change, by introduction of the
criterion of minimum marks for the interview.
The minimum marks for interview had never been
adopted by the Andhra Pradesh High Court
earlier for selection of District & Sessions
Judges, (Grade II). In regard to the present
selection, the Administrative Committee merely
adopted the previous procedure in vogue. The
previous procedure as stated above was to
apply minimum m arks only for written
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examination and not for the oral examination.
We have referred to the proper interpretation
of the earlier resolutions dated 24.7.2001 and
21.2.2002 and held that what was adopted on
30.11.2004 was only minimum marks for written
examination and not for the interviews.
Therefore, introduction of the requirement of
minimum marks for interview, after the entire
selection process (consisting of written
examination and interview) was completed,
would amount to changing the rules of the game
after the game was played which is clearly
impermissible. We are fortified in this view
by several decisions of this Court. It is
sufficient to refer to three of them P. K.
Ramachandra Iyer v. Union of India [1984 (2)
SCC 141], Umesh Chandra Shukla v. Union of
India [1985 (3) SCC 721] and Durgacharan Misra
v. State of Orissa [1987 (4) SCC 646]."
(para 27)
6. Reverting back to the facts of this case,
while the interview process was underway, Circular/
Resolution dated 30.03.2018 came to be issued by
respondent no.1 GPSC. It provided for doing away
with the minimum qualifying marks, which were fixed
at the beginning of the process. The requirement
to satisfy the minimum qualifying marks was
abandoned stating that it would not apply in
firstly in relation to such categories where the
preliminary examination and personal interview were
not held. Secondly, the provision to permit the
candidates without fulfillment of minimum
requirement prescribed was made effective from
01.04.2018 for all advertisement issued
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thenceforth.
6.1 This second eventuality stated that the
minimum qualifying marks will apply to all
advertisement, to be issued after 01.04.2018, could
be said to be booking no infirmity in its
application, for it is the policy decision that new
rule in terms of cancellation of minimum marks
would apply to the future advertisements and future
recruitment process.
6.2 However, what is to be taken exception in law
is the application for the first provision in the
Circular. When it was provided that the
cancellation of cut-off marks would not apply in
the ongoing recruitment process, in the categories/
cases where the preliminary test and personal
interview are not held, tantamount to changing the
rules of the game in the middle. The deletion of
the requirement of the minimum qualifying marks,
could not have been made to intervene when the
recruitment process was underway and was
incomplete. Such a decision effecting change in
the eligibility was taken and applied in the course
of the recruitment process, which was not
permissible.
6.3 The action was discriminatory as well. The
qualifying marks were same for all irrespective of
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the subject and category. While for all categories
of the subject, in all cases where preliminary
examination and the interviews were not held, the
minimum qualifying marks requirement was taken out
to permit all the candidates to sail through
without satisfying the minimum marks. As far as
the petitioners are concerned, it was only on
account of the fact that the test and the interview
were taken, they were excluded by stating that they
did not satisfy the minimum qualifying criteria.
It amounted to creating class within a class
artificially by dividing a homogeneous class.
6.4 The respondent authorities could not have
adopted such two-pronged approach. It amounted to
irrational classification class of Assistant
Professors who although may be the candidates in
different subjects, they were faring participants
in the same recruitment process. It breached the
tenets of Articles 14 and 16 of the Constitution.
6.5 When the respondents perceived and applied the
rejecting of the minimum qualifying marks for same
reason and with same logic, which is not the
subject matter of probe by the Court, it is to be
applied however to all the candidates. By not
giving the benefit of cancellation of minimum
qualifying marks to the petitioner, on a spacious
consideration that the test and the interview were
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held, amounted to creation of an artificial class
out of homogeneous class.
6.6 The petitioners and similarly persons become
entitled to be treated in the same fashion and that
the requirement of minimum marks could not have
been insisted upon him, once it was lifted for all
other subject categories. If the rule of the game
are to be altered in the midst of the process, they
have to be applied uniformly.
6.7 Therefore, the petitioners are entitled to
relief by holding that in their case also, the
decision dated 31.03.2018 has to be applied and
they are not attaining the minimum qualifying
marks, which were cancelled, would not be a factor
of debility for them to be appointed, if otherwise,
entitled to.
6.8 Accordingly, the said action on the part of
the respondents in treating the petitioners as not
qualified to the post on the ground that they did
not satisfy the minimum qualifying marks
requirement, which was done away with for all other
subject categories, is set aside.
6.9 The respondent authorities are directed to
fill-up all posts as may be available and as
prescribed in the Advertisement No. 88/2016-17 for
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the post of Assistant Professor in Physics subject-
without applying for the criteria the minimum
qualifying marks prescribed. The respondents
shall thus consider the case of the appellants-
petitioners for appointment to the post of
Assistant Professor (Physics) as per the above
observations if they stand on merits and otherwise
eligible. The post shall be filled up as may be
available.
7. As a result of above, the impugned judgement
and order of learned Single Judge dated 05.01.2022
is set aside. Appeal is allowed.
Connected Civil Application would not survive in
view of the disposal of the Letters Patent Appeal.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
BIJOY B. PILLAI
