Gujarat High Court

Vimala Kumari Balvir Singh Pooniya vs State Of Gujarat on 18 January, 2024

Author: Nikhil S. Kariel

Bench: Nikhil S. Kariel

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     C/SCA/9365/2021                            ORDER DATED: 18/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9365 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 463 of 2022
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                  VIMALA KUMARI BALVIR SINGH POONIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
for the Petitioner(s) No. 1
MR CHETAN K PANDYA(1973) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, ASST.GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                            Date : 18/01/2024

                             ORAL ORDER

ORDER IN SCA NO.9365/2021

1. Heard learned advocate Mr.Chetan Pandya on behalf of

the petitioner, learned Assistant Government Pleader Mr.Sahil

Trivedi on behalf of the respondent - State and learned

advocate Mr.Chaitanya Joshi on behalf of the respondent no.2.

2. By way of this petition, the petitioner had inter alia

challenged the decision of the respondent no.2 - Public

Service Commission dated 09.06.2021 whereby the petitioner

was declared as ineligible for personal interview for selection

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to the post of Dowry Prohibition-cum-Protection Officer, Class-

II in advertisement no.83/2019-20.

3. It would appear that at the time of filing of the petition

since the interviews were not conducted, vide an order dated

13.07.2021, a learned Coordinate Bench of this Court had

permitted the petitioner to appear in the interview subject to

her appearance not creating any right in her favour. It would

further appear that later on, the result of the interview was

produced before this Court in a sealed cover and whereas, it

was noticed that the petitioner had obtained 59.10 marks

which is less than the cut off marks for general category i.e.

65.61 marks.

3.1. It would appear that after the said result had been

noticed, the petitioner had preferred Special Civil Application

No.463/2022 inter alia challenging the decision of the

respondent dated 12.11.2021 whereby, the respondents had

recommended the appointment to the post in question. It

would appear that the said prayer had been sought for in

context of a submission that though the petitioner originally

belonged to the Economically Weaker Section (EWS)

category, yet, since there were more number of posts for

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female candidates in the general category, therefore, the

petitioner while applying had applied as a general category

candidate and not as a candidate under the EWS category.

3.2. It is further contended that while the selection process

was in progress, this Court had passed a judgment in case of

Tamannaben Ashokbhai Desai vs. Shital Amratlal Nishar

in Letters Patent Appeal No.1910/2019 dated 05.08.2020

whereby this Court had held that there would not be any

horizontal reservation and a female candidate having applied

in the reserved category would also be entitled to be

appointed in open category subject to her marks.

3.3. It is submitted that since the respondent - GPSC had

published the select list as per the law laid down by this Court

in the said decision, therefore, the petitioner was prejudiced

since she could not gain benefit of her EWS status and

therefore, a request had been made to the respondents to

convert her application from general category to EWS

category and whereas, the said request not being considered,

the second petition had been preferred.

4. Considering the submissions made by learned advocates

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for the respective parties, it would appear to this Court that

while the first petition is with regard to the eligibility of the

petitioner to appear in the selection process itself, therefore,

until such issue is decided, there would not be any

requirement to decide the second petition. It would be only

upon the petitioner succeeding in the first petition that there

would be a requirement for this Court to adjudicate the issue

raised in the second petition. Having regard to the above

observation, this Court would not adjudicate the grievance of

the petitioner as raised in the first petition preferred by her

being Special Civil Application No.9365/2021.

5. Learned advocate Mr.Chetan Pandya on behalf of the

petitioner would submit that the respondents had issued

advertisement for selection to the post of Dowry Prohibition-

cum-Protection Officer, Class-II and whereas, the educational

qualification and experience criteria as found in the

recruitment rules were incorporated in the advertisement

itself.

5.1. Learned advocate would take this Court to the

advertisement and would submit that while there is no dispute

with regard to the educational qualification of the present

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petitioner, the issue in question is whether the petitioner

possesses the requisite experience criteria. It is submitted

that the experience required is of having atleast three years'

experience of social working or social administration in the

government or local bodies or government undertaking board

or corporation which can be considered equivalent to post not

below the rank of Senior Clerk, Class-III or atleast three

years' experience of social work or social administration or in

the field related to social service of registered NGOs or atleast

three years' experience on the post connected with social

service in the private or public sector organization which can

be considered equivalent to the post not below the rank of

Senior Clerk, Class-III.

5.2. Learned advocate would then take this Court to the

experience of the present petitioner and would submit that

the present petitioner had worked from 16.05.2016 to

10.11.2017 as a Management Trainee/Executive - Grade-B in

a company named Micro Housing Finance. Learned advocate

would emphasize on the role and responsibility of the

petitioner as mentioned in the certificate annexed with the

petition which would show that the petitioner was working in

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the area of 'customer service, counseling, coordination with

employees and administrative department.'

5.3. It is submitted that the petitioner thereafter had worked

for two years i.e. from 28.03.2018 to 28.09.2020 with one

Mrs. Aanugree Academy. It is submitted that the

responsibility of the petitioner as mentioned in the certificate

includes 'complete centre administration, trainer, counselor

and recruitment and selection, coordinate with employees and

head office.' Reference is also made to a communication dated

20.03.2018 i.e. an offer of employment by the said academy

which inter alia states that the job profile of the petitioner

would include working with children who are suffering from

different type of psychological difficulties, working on

fundraising and Corporate Social Responsibility (CSR)

mobilization, lead in identifying CSR opportunities for

representing the academy, organizing the seminars in

government and private schools and coordinate with NGOs for

needy children and scouting for funders and government

schemes to support social services.

5.4. Based upon the certificate as above, it is contended by

learned advocate that the present petitioner fulfills the

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required criteria of having three years' experience in social

work or social administration.

5.5. Learned advocate would thereafter draw the attention of

this Court to an additional affidavit preferred by the present

petitioner and would submit that in case of selection to the

very post conducted in the year 2015, the Public Service

Commission had considered certificates like the certificates of

the present petitioner as valid certificates for the purpose of

appointment and whereas, it is submitted that since at the

relevant point of time in the year 2015 if persons who did not

have the relevant experience in social work and social service

were appointed, then there was no reason for the respondents

to have denied appropriate opportunity to the petitioner for

attending the interview.

5.6. Thus submitting, learned advocate would request this

Court to intervene and to set aside the decision of the

respondents of not calling the petitioner for interview and

would further request that this Court may considering the fact

that the petitioner has appeared for the interview in the

interregnum, direct the respondents to publish the result of

the petitioner and to give appropriate placement to the

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petitioner as per the marks obtained by the petitioner.

6. This petition is vehemently opposed by learned advocate

Mr.Chaitanya Joshi on behalf of respondent no.2.

6.1. Learned advocate Mr.Joshi would submit that the

certificates produced by the petitioner would not reflect that

the petitioner had any relevant work experience. Learned

advocate would submit that as such, the GPSC had sought for

clarification from the State Government as regards whether

the petitioner would qualify the experience criteria and

whereas, the State Government had opined that the petitioner

did not have the experience as required in the recruitment

rule. At this stage, it would be pertinent to mention that since

this document does not form part of the affidavit-in-reply, the

same is not being considered by this Court.

6.2. At the direction of this Court, learned advocate Mr.Joshi

has produced the original files and whereas, the experience

certificates of the candidates whose candidature were

rejected and candidates whose candidature were accepted

have been produced for the perusal of this Court. Learned

advocate Mr.Joshi would submit that since these are

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documents which show the work experience of other

candidates, the same have not been provided to the learned

advocate for the petitioner.

6.3. Learned advocate Mr.Joshi relying upon the certificates

would submit that the respondent may not be aware about the

circumstances in the year 2015 as regards the selection that

had taken place at that time and whereas, it is submitted that

as far as the present selection is concerned, the respondents

have considered the experience criteria exactly as required in

the recruitment rules. It is submitted that none of the

experience certificates as submitted by the candidates who

are considered eligible, would anyway reflect that they were

not connected with the social work or the social

administration. Learned advocate would thus submit that the

respondents have rightly not considered the case of the

petitioner for permitting her to appear in the interview since

the petitioner did not have the relevant experience as

required.

6.4. Learned advocate Mr.Joshi would also submit that as far

as the certificates of experience submitted by candidates

whose candidatures were rejected, would show that even

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candidates who had much better claim than the present

petitioner i.e. candidates having certificates of having worked

with the organization under the State Government have not

been considered since it did not appear that the experience of

such candidates was corelatable to the term social work or

social administration.

6.5. Learned advocate Mr.Joshi would in support of his

submissions also rely upon decision of the learned Coordinate

Bench of this Court in case of Mulabhai Harchandji Patel

vs. State of Gujarat, reported in 2011 (2) GLR 1527.

6.6. Thus submitting, learned advocate would request this

Court not to entertain the present petition and reject the

same.

7. Heard learned advocates for the respective parties and

perused the record. The only question which arises for

consideration of this Court is whether the certificates

produced by the petitioner reflect corelatable experience as

sought by the respondents in the advertisement.

7.1. Before answering the said question, it requires to be

observed as regards the contention of learned advocate for

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the petitioner that there are candidates who do not possess

the requisite qualification as per the recruitment rules, yet,

they have been appointed and whereas, the case of the

petitioner is not considered. In this regard, firstly it requires

to be noted that there are no averments in the petition with

regard to any such candidates who have been selected in the

present selection process. Furthermore, more importantly, it

is by now a well settled position of law that Article 14 could

not be directed to be implemented in its breach i.e. to say that

a writ cannot be sought for to direct the State Authorities to

commit an illegal act. While the petitioner is claiming breach

of Article 14 by stating that in case of other candidates the

Public Service Commission has committed some illegality and

whereas, it is contended that a writ may be issued in her

favour directing the Public Service Commission to commit the

same illegality in favour of the present petitioner. Such a

request cannot be countenanced. A writ would not be issued

to direct the State or any authorities under the State to do an

illegal act. The contention that since the respondents have

committed some illegality in case of other candidates and

therefore, the certificates in favour of the petitioner were also

required to be considered for the said reason, cannot be

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countenanced and is hereby rejected.

8. Coming back to the primary issue, it would appear that

the advertisement contains the experience criteria which,

according to learned counsels, is nothing but a reproduction

of the requirement of the recruitment rules. The same is

reproduced hereinbelow for benefit:-

"(2) Educational Qualification and Experience:-

A ... ... ...

B i. At least three years' experience of Social Work or Social Administration in Government or Local Bodies or Government Undertaking Board or Cooperation on the post which can be considered equivalent to the post not below the rank of a Senior Clerk, Class-III in the Subordinate Service of the Directorate of Social Defence, or

ii At least three years' experience of Social Work or Social Administration or in the field related to Social Service of the Registered Non-Government Organization, or

iii At least three years' experience on the post connected with Social Services in the Private or Public Sector Organization which can be considered equivalent to the post not below the rank of Senior Clerk, Class-III in the Subordinate Service of the Directorate of Social Defence;"

8.1. As seen from the experience criteria required, it would

appear that Clause-B(i) is with regard to experience in local

bodies or government undertakings which would not be

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relevant in case of the present petition so there is no

discussion required on the said score.

8.2. Insofar as Item No.B(ii) is concerned, the experience is

in filed related to social service of registered non-

governmental organization. It is not the case of the petitioner

that either of the organizations in which the petitioner had

worked, was a non-governmental organization in that sense

and therefore, there would not be any requirement to

consider the case of the petitioner from the said perspective.

8.3. Thus, the case of the petitioner for considering her

experience is required to be viewed from the perspective of

Item No.B(iii) which inter alia requires three years'

experience on post connected with social services in the

private or public sector organization which can be considered

equivalent to post not below the rank of Senior Clerk, Class-III

in subordinate service of the directorate of social defence.

Now, while the term social services has not been explained,

yet, it would essentially mean that the candidate should be

engaged in activity which would be closely connected with

providing social services in any private or public sector

organization.

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8.4. Viewed from the perspective of the said requirement, it

would appear that the petitioner does not possess the

required qualification. The reason for coming to such a

conclusion being that as while the petitioner worked as a

Management Trainee/Executive-Grade-B with one Micro

Housing Finance Corporation Limited for a year

approximately, yet, the responsibility of the petitioner was

with regard to customer service, counseling, coordination

with employees and administrative department. The above

responsibilities of the petitioner would be considered to be

closely related with the administration of the organization

itself and whereas, it could not be by any stretch of

imagination stated that the responsibility of the petitioner was

connected with the social services.

8.5. Insofar as the certificate issued by Aanugree Academy

which is being heavily relied upon by the petitioner where the

petitioner had worked for two years approximately, while it

would appear that in the offer of employment given to the

petitioner as well as the job description of the petitioner as

Centre Manager, it would appear that the petitioner was

required to work with children suffering from psychological

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difficulties and was required to coordinate with CSR

mobilization and organizing seminars etc. and whereas, the

job description also entail supporting mentally challenged

children from lowest income group of the society etc. yet, it

would appear that all these services would be closely

connected with the core activity of the academy that was

running a peripheral educational module for children namely

'Aloha' and 'Brainy'. It would not appear from the certificates

annexed with the petition that the academy was in any way

connected to social work and whereas, the entire focus of the

academy more particularly corelatable to the responsibility

assigned to the petitioner was with regard to business

development of the academy and nothing else.

8.6. At this stage, reliance would be placed by this Court

upon observations made by the learned Coordinate Bench in

case of Mulabhai Harchandji Patel (supra) as relied upon

by learned advocate for the respondent. Paragraph nos.10 and

11 being relevant for the present purpose, are reproduced

hereinbelow for benefit:-

"10. There does not appear to be any certificate on record stating that the petitioner has the requisite experience of three years in the field of Social Work. Though the learned counsel for the petitioner has

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submitted that the activities carried on by the petitioner are in the nature of social work, according to the GPSC this aspect is not evident from the documents supplied by the petitioner.

11. In the considered view of this Court, the very purpose and requirement of submission of certificates, credentials and documents is to enable the recruiting body, in this case the GPSC, to come to a conclusion regarding the eligibility of the candidate and to form an opinion on the basis of the same, whether the candidate possesses the eligibility criteria as prescribed by the Rules and as stipulated in the advertisement. What is not clearly stated in the documents and credentials of the petitioner cannot be inferred by the GPSC. For the purpose of evaluating whether the petitioner possesses three years' experience in the field of Social Work, he was required to submit documents that makes this aspect clear on bare perusal of the same. To infer, by a long drawn out process of reasoning and speculation whether the duties performed by the petitioner involve experience in the field of Social Work or not, would bring in an undesirable element of subjectivity, which is to be avoided in matters of public employment, through a process of direct selection. The GPSC, which is the recruiting body, has to maintain objectivity and impartiality in order to satisfy itself regarding the aspect whether the candidate fulfills all the necessary eligibility criteria prescribed by Rules, for the post. This can only be done by scrutiny of certificates, credentials and documents and only if it is found that the candidate fulfills all the necessary eligibility criteria for the post in question, is he to be called for the interview. The documents should speak for themselves and in this case, looking to the material on record, it cannot be said that the decision of the GPSC, debarring the petitioner from appearing in the interview, suffers from any illegality, irregularity or arbitrariness, so as to warrant interference from this Court in exercise of its power of judicial review."

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9. In the considered opinion of this Court, more particularly

as noted by the learned Coordinate Bench, the documents

produced by a candidate should speak for themselves and

whereas, there could not be a requirement to infer by a long

drawn process of reasoning and speculation whether the

duties performed by the candidate involved experience in the

field of social services or not. In this regard, it would be

pertinent to mention that both the organizations in which the

petitioner had worked, appear to be private organizations