Gujarat High Court

Dhantiya Tausif Saeed Mohammad vs Gujarat State Electricity Corporation ... on 6 February, 2024

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     C/SCA/15992/2016                           JUDGMENT DATED: 06/02/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CIVIL APPLICATION NO. 15992 of 2016


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair
      copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation of the
      Constitution of India or any order made
      thereunder ?

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             DHANTIYA TAUSIF SAEED MOHAMMAD
                             Versus
        GUJARAT STATE ELECTRICITY CORPORATION LTD
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Appearance:
MR. BK. RAJ(3794) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                         Date : 06/02/2024

                         ORAL JUDGMENT

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1. The petitioner has filed the present petition under Articles

14, 16, 21 r/w. Article 226 of the Constitution of India challenging

the discriminatory action on the part of the respondent in not

selecting the petitioner for the post of Vidhyut Sahayak (Plant

Attendant, Grade - I) for the following prayers.

"7.1 May Your Lordships be please to admit and allow this application.

7.2 May Your Lordships be please to issue a Writ Mandamus or any other appropriate writ, command order or direction to quash and set aside the Annexure - B i.e. impugned letters dated 08/10/2014 which has changed the criteria of the recruitment after the completion of online examination dated 05/10/2014 and also be pleased to direct the respondent to appoint the petitioner as Vidhyut Sahayak (Plant Attendant Grade - I) at Kadana Hydro Electric Project with effect from 24.11.2014 and to grant all other relevant benefits with effect from 24.11.2014.

7.3 During the pendency of this petition through an ex- parte ad-interim relief, May Your Lordships be please to stay the operation, implementation and execution of the Annexure - B i.e. the communication dated 08/10/2014 and to direct the respondent to allocate the work of Vidhyut Sahayak (P.A. Grade - I) to the petitioner during the pendency of this petition.

7.4 During the pendency of this petition through Bi-parte ad-interim relief, May Yyour Lordships be please to stay the operation, implementation and execution of the Annexure

- B i.e. the communication dated 08/10/2014 and to direct the respondent to allocate the work of Vidhyut sahayak (P. A. Grade - I) to the petitioner during the pendency of this petition.

7.5 May Your Lordships be please also be please to grant any other relief which may be fit and appropriate in the fact and circumstances of the case and also be pleased grant any other relief which may be prayed at the time of

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the hearing in the interest of the real, complete and substantial justice."

2. Brief facts giving rise to the present petition are, in

nutshell, as under:-

2.1 That in 2014, the respondent published advertisement for

the post of Vidhyut Sahayak at Thermal Power Station i.e.

Kadana Hydro Electric Project in three categories i.e. General, SC

/ ST and SEBC. In all three categories one person each to be

appointed after successfully clearing online examine which was

held by respondent on 05.10.2014. It is the case of the petitioner

that though he has obtained highest marks i.e. 39 marks in SEBC

category out of 100 marks and in the said category,the petitioner

obtained highest marks, however, he was not appointed. That

the petitioner wrote a letter to the respondent - corporation and

in response thereto, the respondent - corporation wrote a letter

inter alia stating that minimum qualified marks is 40 and,

therefore, the petitioner has obtained 39 marks. It is further the

case of the petitioner that he was deprived from the legitimate

right and arbitrary action on the part of the respondent, he

preferred the present petition.

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3. Heard Mr.B. K. Raj, learned counsel appearing for the

petitioner and Mr.D. R. Dave, learned counsel appearing for the

respondent.

4. Mr.Raj, learned counsel appearing for the petitioner has

submitted the same facts which are narrated in the memo of

petition and has submitted that though the petitioner has

obtained highest marks in online examination in SEBC category,

however, he was not considered for appointment as Vidhyut

Sahayak and thereby the respondent has high handedly taken

the decision which is arbitrary in nature and the respondent has

changed the policy subsequently after examination which is not

permissible in the eyes of law and, therefore, the case of the

petitioner is to be considered for the appointment of Vidhyut

Sahayak at Kadana Hydro Electric Project. Mr.Raj, learned

counsel has referred to and relied upon the decisions of the

Division Bench of this Court Court reported in Modh

Vinaykumar Dasrathlal Versus State Of Gujarat reported in

2010 (2) GLR 915 and Jayesh Ramlal Brahmbhatt Versus

State Of Gujarat reported in 2015 (2) GLR 1917 and has

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submitted that the respondent cannot change the rules after

taking online examination as it was at the time of examination ,

no any rules were mentioned on website and, therefore, the

subsequent development in changing the rules is not permissible

under the law. He has urged to allow the present petition and to

quash and set aside the impugned order / letter.

5. Per contra, the present petition has been vehemently

opposed by Mr.Dave, learned counsel appearing for the

respondent. Mr.Dave, learned counsel has relied upon the

affidavit-in-reply filed by one Ankitkumar Rameshbhai Chaudhari,

Secretary of respondent. The relevant paragraphs of the said

reply reads as under:-

"10. It is submitted that for the purpose of declaration of result, respondent, as per the past practice and circular of 11.01.2000; decided to declare result. It is submitted hat so far as to have meritorious candidates and to preserve the efficiency in the Hydro Project, it was decided by the Corporation long back that candidate having obtained 40% marks shall be declared as successful and that the said candidates' name be included in the merit list. It is submitted that thus 40% was benchmark set up by the respondent. It is submitted that the said condition is not inserted as new condition as contended by the petitioner. It is submitted that for the purpose of declaration of result, there has to be some benchmark. It is not the case of the petitioner that earlier the benchmark was set up 30% and thereafter as a new condition, it was increased to 40%. it is submitted that thus it cannot be said that any rule or criteria of selection has been changed. It is submitted that

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there has to be benchmark for the purpose of selection and in absence of benchmark, there cannot be any selection. If no benchmark / passing marks are prescribed than a candidate having obtained 1% shall have to be included in the merit list, in that case, the entire purpose of selection process would be frustrated. It is submitted that looking to the efficiency which is required to be maintained at Hydro Thermal Power Stations and as per the past practice and circular, respondent decided to have benchmark of 40%. It is submitted that as back as in the year 2000 such benchmark of 40% was prescribed. It is at this stage required to be noted that benchmark of 40% was not set up for Kadana Hydro Project but the said benchmark was for all the Thermal Power Stations and thus there is no question of discrimination and/or pick and chose policy on part of the respondent. It is required to be noted that in the interest of respondent and also in the interest of public at large, head Office of the respondent decided to have 40 marks as benchmark so far as Thermal Power Stations i.e. Ukai, Vanakbori, Sikka and Kadana Hydro Project. Thus, there is no question of any discrimination to the petitioner as alleged.

11. It is submitted that in any view of the matter, when the petitioner has not even cleared examination with 40 marks, he cannot insist that he being the only candidate of SEBC, shall have to be included in the merit-list. The petitioner has obtained only 39 marks. It is submitted that after having taken participation in the selection process and after having fully known that benchmark of 40% is set up for the purpose of inclusion in the merit-list, now the petitioner cannot turn back and say that setting up of benchmark after examination is insertion of new condition.

12. It is submitted that in fact the selection procedure was known to the petitioner, petitioner with full wide open eyes participated in the selection process, petitioner was in knowledge that there would be 40% benchmarks for the purpose of inclusion in merit-list, therefore, now petitioner is estopped in law in challenging the selection process.

13. It is submitted that now the selection is over. The candidates have joined in pursuance to the selection. The petitioner has also not joined candidates who have selected in pursuance to the selection process. If at all the petition is to be allowed, candidates who have been selected in pursuance to the selection process, shall have

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to be terminated from service. Thus only on the ground that candidates who will be affected by virtue of this petition has not been joined as party respondents the petition requires rejection. Thus on the said ground also, this petition may kindly be rejected.

14. It is submitted that the Corporation is a government company. It is submitted that there is no discrimination meted out to anyone. There is no ill-will towards the petitioner and the entire exercise has been carried out by the respondent absolutely in accordance with law and to ensure filling up of posts by meritorious candidates. It is submitted that the petitioner, therefore, cannot claim discrimination. The respondent - Corporation has acted absolutely in just and fair manner. Even otherwise also, there is no allegation of mala fide against any officer of the respondent. Thus, the action of the respondent being just and proper, this Hon'ble Court may be pleased not to interfere with."

5.1 Mr.Dave, learned counsel has referred to and relied upon

the decision of the Hon'ble Supreme Court in the case of

Yogesh Yadav Vs. Union of India and others reported in

(2013) 14 SCC 623 more particularly paragraph no.14 and 15

which reads as under:-

"14. Instant is not a case where no minimum marks prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. Entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since benchmark was not stipulated for giving the

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appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case.

15. The decision taken in the instant case amounts to short listing of candidates for the purpose of selection/appointment which is always permissible. For this course of action of the CCI, justification is found by the High Court noticing the judgment of this Court in the State of Haryana V/s. Subash Chander Marwaha & Ors. (1974) 3 SCC 220. In that case, Rule 8 of the Punjab Civil Service (Judicial Branch) Service Rules was the subject matter of interpretation. This rule stipulated consideration of candidates who secured 45% marks in aggregate. Notwithstanding the same, the High Court recommended the names of candidates who had secured 55% marks and the Government accepted the same. However, later on it changed its mind and High Court issued Mandamus directing appointment to be given to those who had secured 45% and above marks instead of 55% marks. In appeal, the judgment of the High Court was set aside holding as under:

"It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another.

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That is why Rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility."

5.2 Mr.Dave, learned counsel appearing for the respondent has

submitted that it is not the case that the respondent has

subsequently changed the rules of appointment, but it was prior

to the date of examination, which is in existence and the same is

continuously followed till today and since it is an object of a

special nature and the special character, it is required to be

fulfilled and, therefore, the respondent has setup the benchmark

and it cannot be held to be arbitrary and/or contrary to the

provisions of law. He has urged that the present petition being

meritless deserves to be dismissed and now almost ten years

have been lapsed and the persons, who have been selected, are

posted at their respective place and, therefore, at this juncture

the case of the petitioner is not required to be considered.

6. It is required to be noted that the advertisement dated

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08.10.2014 published by the Gujarat State Electricity Corporation

Limited for filling up the post of Vidyut Sashayak (Plant Attendant

Grade - I). In the said advertisement, it has been specifically

mentioned in para-3 as under:-

"3. Only after following procedure as per (2), the Panel report shall be prepared purely on the basis of marks obtained in on-line exam. In no case the cut-off marks shall be taken below 40 marks of on-line exam. The no. of candidates to be included in select list will be equal to no. of vacancies approved. Wait list will be maximum 20% of the select list."

7. Considering the facts and circumstances of the case and

the submissions canvassed by the learned counsel appearing for

the respective parties, it appears that the online examination

held in 2014 in consonance with the provisions of the rules which

are framed on 11.01.2000 and the same is in existence till today

also. If the benchmark set up by the respondent is arbitrary and

illegal then the law is very settled considering the ratio laid down

by the Hon'ble Supreme Court in the case of Yogesh Yadav

(supra). I am of the opinion that since the petitioner has not

obtained the requisite marks i.e. 40 out of 100 and since the

benchmark was setup by the respondent prior to the date of

examination i.e. from 11.01.2000, it has not changed any rules