Gujarat High Court

Chintan Jayprakash Patel vs State Of Gujarat on 24 June, 2025

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                            C/SCA/10767/2018                                JUDGMENT DATED: 24/06/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 10767 of 2018



                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                       ==========================================================

                                    Approved for Reporting                 Yes           No


                       ==========================================================
                                               CHINTAN JAYPRAKASH PATEL & ORS.
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1,2,3
                       MR JEET JOTANGIA, AGP for the Respondent(s) No. 1
                       MS ROOPAL R PATEL(1360) for the Respondent(s) No. 2
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                       Date : 24/06/2025
                                                       ORAL JUDGMENT

1. This petition is filed for the following prayers:

"8(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to

(i) hold and declare that action on part of the respondent No.1 in issuing letter dated 26.03.2018 purportedly making clarification of its earlier letter dated 23.01.2018 as unjust,

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illegal, arbitrary and without jurisdiction and further may be pleased to quash and set aside the said letter dated 26.03.2018;

(ii) hold and declare that action on part of the respondent No.2 in issuing fresh list of eligible candidates on 28.06.2018 on the basis of clarification 26.03.2018 dated unjust, is illegal, arbitrary and may be pleased to quash and set aside the said action of the respondents inasmuch as names of the petitioners have been excluded on the ground that they does experience not in possess government institution and further be pleased to quash all further consequential action on the said basis;

(iii) hold and declare that exclusion of the petitioners from the selection respondent No.2 is list by unjust, illegal, arbitrary and may be pleased to direct respondent No.2 to consider petitioners' experience in the college/institute affiliated with GTU as well as with GPERI as valid experience under clause 3 (c) of the Notification dated 14.03.2016;

(iv) hold and declare that action on part of respondent Nos.1 and 2 in issuing revised list of eligible candidates dated 28.06.2018 is unjust, illegal and further may be pleased to direct the respondent No.2 to restore the earlier list dated 20.03.2018;

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(B) Pending the admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to direct respondent Nos.1 and 2 not to give further effect of list published on 28.06.2018 at ANNEXURE-M;

(C) Pending the admission, hearing and final disposal of the petition, this Hon'ble Court may be pleased to direct respondent No.2 to allow the petitioners participation in to take further the selection process, thereby to call them for oral interview Information for and the post of Communication Technology Officer, Class II;

(D) Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased Nos. 1 and to 2 direct not to respondent debar the petitioners from consideration in the selection process for the post of Information and Communication Technology Officer, Class II only on the ground that petitioners do not possess requisite experience in government institution;

(E) xxxx"

2. Rule. Learned AGP Mr.Jotangia waives service of

notice for respondent no.1 and learned advocate Ms.Roopal

Patel waives service of notice for respondent no.2.

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3. The facts, as stated by the petitioners in the

petition, which led to the filing of this petition are such that

after having accepted the applications of the petitioners,

declaring them eligible for the purpose of taking up written

examination and even after declaring list of ineligible

candidate on 20.03.2018, petitioners have been thrown out of

the selection process; that the petitioner no.1 is possessing

qualification of B.E./B.Tech. In Computer Engineering having

secured distinction passed from Ganpat University and is also

possessing the qualification of M.Tech in Computer Science

and Engineering from SRM University, Chennai with

distinction; the petitioner nos.2 and 3 are possessing

qualification of B.E./B.Tech. And M.E./M.tech in Computer

Engineering having secured first class, distinction and first

class respectively; that the petitioner no.1 has served the institution from 1.8.2013 to 31.7.2017, after the initial

interview of the petitioner no.1 by the selection committee on

28.7.2013, provisional endorsement of faculty recruitment for

degree engineering was accorded by GTU and the final

endorsement was accorded on 21.7.2015. The petitioners were

declared as successful candidates and were included in the

first selection/eligibility list published by respondent no.2,

however on the basis of the so-called clarification dated

26.3.2018, fresh list came to be issued debarring/disqualifying

the present petitioners on 21.6.2018 by the respondent no.2.

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Hence, this petition.

4. Heard learned advocates for the parties.

4.1 Learned advocate Mr.Dave for the petitioner has

submitted that the challenge in the present petition is

substantially the impugned action of the respondent no.1 in

issuing letter dated 26.3.2018 purportedly making clarification

of its earlier letter dated 23.1.2018 and also the action of the

respondent no.2 in issuing fresh list of eligible candidate on

28.6.2018 on the basis of the clarification dated 26.3.2018.

4.2 He has submitted that though the petitioners are

having sufficient qualification and the petitioners have

participated in the process, thereafter the respondent no.2 has sought clarification from the respondent no.1 who has

clarified that the experience rendered by the present

petitioners in the private institute is not required to be

considered and therefore the case of the petitioners was not

considered and therefore this petition is filed to get the relief

as prayed for in the prayer clause.

4.3 He has further submitted that looking to the

chronology of events, the State of Gujarat has notified Rules

under Article 309 of the Constitution of India for the purpose

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of appointment to the post of Information and Communication

Technology Officer, Class II on 14.3.2016; on 10.8.2016, by

further notification, amendment was made to the said Rules

by which the age of the candidate had been increased from

37 years to 39 years; that on 21.11.2016, the respondent no.2

has issued advertisement by inviting applications from eligible

candidates for total number of 72 vacancies of Information

and Communication Technology Officer, Class-II; the

applicants were invited online; the petitioners applied for the

post in question in pursuance to the said advertisement. The

respondent no.2 scrutinized all the applications of the eligible

candidates. The petitioners were found eligible as per the

Rules of respondent no.1 and the petitioners were allowed to

take participation in the examination which was scheduled to

be held on 12.2.2017. The petitioners appeared in the examination and have been found successful in the

examination.

4.4 He submitted that thereafter on 21.6.2017, the

first list of eligible candidates was published in which the

petitioners were included as eligible candidates. On 23.6.2017,

as the petitioners were successful candidates, by letter, the

petitioners were called upon to send certificates as mentioned

in the said letter. On 17.1.2018, after the first list of eligible

candidates, the respondent no.2 has sought certain

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clarification by letter dated 17.01.2018 from the office of

respondent no.1. The said clarification was pertaining to the

experience undertaken by the eligible candidates in private

institute; by letter dated 23.1.2018, the office of respondent

no.1 i.e. the Section Officer of respondent no.1 conveyed the

respondent no.2 that the candidates having teaching

experience in non-government institutions shall be required to

be considered as ineligible for the post in question; in

pursuant to the said clarification made by respondent no.1,

respondent no.2 declared list of ineligible list of candidates on

20.3.2018. The said list declared the petitioners as having

stood successful in the examination since this have not been

included in the ineligible list. Thereafter, he has submitted

that the petitioners were called for submitting experience

certificate.

4.5 Learned advocate for the petitioners has submitted

that the petitioners submitted the experience certificate as

required by respondent no.2. The petitioner no.1 has started

the work as faculty with Marwadi Education Foundation with

effect from 20.6.2013, however, regular selection process took

place on 28.7.2013 by GTU and accordingly the petitioner

no.1's appointment was endorsed provisionally on 28.7.2013

and thereafter finally on 21.7.2015, the petitioner no.1 has

completed two years' experience as required under the Rules

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as Assistant Profession in Computer Engineering. Similarly,

the petitioner no.2's appointment was endorsed provisionally

on 8.4.2012 in GTU and petitioner no.2 was appointed in

Sabar Institute of Technology with effect from 7.8.2009 and

was endorsed provisionsally with GTU on 1.10.2016. The

petitioner no.3 is appointed by GPERI, the college run by

Government Company GPCL. He has further submitted that

on 26.3.2018, without any reason, the respondent no.1 has

issued further clarification and sent to the respondent no.2.

Pursuant to the said letter dated 26.3.2018 of the respondent

no.1, the present respondent no.2 has issued list of ineligible

candidates on 28.6.2018. The said list of ineligible candidates

contain the seat numbers of the petitioners and in the

remarks, it has been mentioned that as per the letter of the

department dated 26.3.2018, candidate does not possess experience (candidate possess experience of private institution).

On the basis of new list published by respondent no.2, the

respondent no.2 has started further procedure for selection

process i.e. oral/viva voce interviews.

4.6 Learned advocate further submitted that since the

sufficient number of eligible candidates are not available, the

respondent no.2 has issued letter calling for applications from

the candidates below in merit list by letter dated 4.7.2018

and therefore the present petition is filed.

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5. Learned advocate Mr.Dave, giving this background,

has submitted that the action of the respondent authority is

totally illegal and unjustified action, more particularly of the

respondent no.1. When the petitioners were declared

successful candidates and were included in the first

selection/eligibility list published by respondent no.2, without

any justifiable reason, on the respondent no.1 giving

clarification on 26.3.2018, a fresh list came to be issued by

the respondent no.2 disqualifying the present petitioners.

Therefore, the said action is apparently ex-facie illegal. When

the applications of the petitioners were accepted for the

purpose of taking of written examination, they were declared

successful in the first list dated 21.6.2017, their names were

not seen in the list of ineligible candidates dated 20.3.2018 and now on unjustified and illegal grounds, the petitioners

were thrown out of the selection process by the respondent

though the petitioners are having necessary qualification as

well as necessary experience.

5.1 He relied on the judgment in the case of Tej

Prakash Pathak & Ors. V/s Rajasthan High Court & Ors., reported in 2025(2) SCC 1 and submitted that the action of the respondent no.2 is illegal, as the Hon'ble Apex Court has

held in the said judgment that altering eligibility criteria

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post-commencement of recruitment violates Articles 14 and 16,

that alteration contravened "rules of game", affecting

candidates' preparation and eligibility under Articles 14 and

16 of the Constitution of India. The Apex Court has further

observed that the recruitment fairness prohibits mid-process

changes to eligibility benchmarks without statutory or rule-

based authorization and therefore he has submitted that the

impugned action of the respondent authority is bad in law

and required to be interfered with by allowing the prayers in

the petition.

6. Per contra, learned advocate Ms.Patel for the

respondents has strongly opposed the submissions made at

the bar by learned advocate for the petitioner. She has

drawn attention of the Court towards the advertisement given by the petitioners and also to the fact that the experience

which is availed by the petitioners are from the institutes of

private nature and therefore either they are not having

requisite experience or experience is received from the

institute which is not to be considered as experience from

non-government institute should not be considered in view of

the Rules.

7. By drawing attention of this Court to the

averments made in the affidavit-in-reply filed by respondent

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no.2, learned advocate has contended that the chronology of

events mentioned by the petitioners is required to be dealt

with in appropriate manner. She submitted that qua the

advertisement which is published for total 72 posts of

Information and Communication Technology Officer Class-II by

inviting applications from 5.11.2016 to 21.11.2016 and qua

the said advertisement, total 4620 confirmed applications were

received by respondent no.2. The preliminary examination was

conducted on 12.2.2017 and on the basis of preliminary

examination, the list of total 290 candidates was published

on 21.6.2017. The applications of these candidates were liable

to be scrutinized. Since enough eligible candidates were not

available as per the office order dated 14.10.1986 of the

respondent no.2, second list dated 4.7.2018 was published

containing the names of more than 200 candidates as per merit list. In note no.2 in the call letters issued to the

candidates for preliminary examination, it was specifically

stipulated that the candidates were allowed to appear in the

preliminary examination absolutely provisionally subject to the

instructions mentioned in the advertisement, muster roll and

instructions/conditions stipulated in schedule 1 and 2

appended therewith and recruitment rules/recruitment

examination rules. It was provided that the decision of

respondent no.2 shall be finally in respect of entry in the

said examination. As such, candidates were allowed to appear

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in the preliminary examination conditionally without carrying

out any scrutiny of the applications and requisite documents.

After conducting preliminary examination for the post of

Information and Communication Technology Officer, Class-II,

pursuant to that advertisement, the list dated 20.3.2018 was

published containing names of ineligible candidates for oral

interview. The names of the petitioners were not included in

the list. Thereafter, in reference to the first list dated

21.6.2017 of the candidates whose applications were required

to be scrutinized, amended list dated 28.6.2018 was published

containing names of ineligible candidates for oral interview.

In this list, it has been categorically mentioned that the

applications have been scrutinized afresh in view of

clarification letters dated 23.1.2018 and 26.3.2018 received

from respondent no.1. Therefore, the list dated 20.3.2018 containing names of ineligible candidates which was published

previously was cancelled. Resultantly, new list dated

28.6.2018 was published containing names of ineligible

candidates for oral interview. In the said list, names of the

petitioners appeared at sr.no.33,67 and 120 and thereafter list

of total 232 eligible candidates for interview was published on

17.11.2018 by respondent no.2. She has further submitted

that considering the Rule 3(c) of the Recruitment Rules

published on 14.3.2016, it provides for specific requirement

and therefore looking to the petitioners experience which is

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mentioned in tabular form in the affidavit-in-reply, the

petitioners have experience of serving in private institute and

therefore have been declared ineligible for oral interview.

Therefore, she has submitted that the judgment which is

cited at bar by the learned advocate for the petitioner, will

not be applicable as there is no change in rule of game after

the game has started, as contended. She submitted that the

said judgment of the Hon'ble Apex Court is helpful to the

case of the respondent on the ground that rules itself provide

the eligibility criteria and merely clarification of the rules

will not amount to change of rules of game and therefore

such contention based on said judgment of the petitioners is

required to be discarded. She, therefore, submitted that this

petition be dismissed.

7.1 Learned AGP for respondent no.1 has supported

the submissions made at the bar by respondent no.2 and has

referred to the affidavit-in-reply filed by respondent no.1 and

submitted that the experience in the private institute is not

covered under Rule 3(c) of Information and Communication

Technology Officer, Class-II in the General State Services,

under the Directorate of Information and Communication

Technology Officer and e-governance Recruitment Rules, 2016

published vide notification dated 14.3.2016. Therefore, the

teaching experience of the petitioners in private institute

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cannot be considered. Learned AGP has also contended that

as the petitioners were found ineligible in respect of

experience required as stipulated in the advertisement for the

post of Information and Communication Technology Officer,

Class II, therefore, respondent no.2 has declared the

petitioners as ineligible and therefore there is no illegality or

impropriety in the action of the respondent authority and as

such the judgment which is cited at the bar by the learned

advocate for the petitioner is not helpful to the petitioners.

He, therefore, submitted to dismiss this petition.

8. I have considered the rival contentions and also

perused the material on record.

9. The various dates which are relevant are as under:

14.3.2016 - Advertisement was published

5.11.2016 to 21.11.2016 - Applications were invited.

12.2.2017 - Preliminary examination

21.6.2017 - List of 290 successful candidates was published

4.7.2018 - Second list was published

20.3.2018 - ineligible candidates' list was published

23.1.2018 and 26.3.2018 - clarification letters received from

respondent no.1.

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28.6.2018 - amended list of ineligible candidates was

published

17.11.2018 - list of eligible candidates was published.

10. Now in view of this background, it is relevant to

refer to Rule 3 (c) of the Recruitment Rules published on

14.3.2016, which reads as under:

"have about two years' experience in the field of Information Technology or Computer Technology or Communication Technology in the Government or Local Body or Government undertaking Board or Corporation or Limited Company established under the Companies Act, 2013 and having annual turnover of Rs.30 crores or above."

11. The details of the experience of the present

petitioners which are given in the affidavit-in-reply, which is

not disputed by the petitioners is mentioned as under:

"Petitioner No.1 - possessing 3 years and 3 months 5 days

experience as Assistant Professor in Marwadi Education

Foundation.

Petitioner No.2 - 3 years 2 months experience as Assistant

Professor in Gujarat Power Engineering Institute.

Petitioner No.3 - More than 7 years experience as Hod in

Sabar Institute of Technology."

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12. Considering the same, I am of the opinion that

the when the verification process was carried out about the

certificates of the respective candidates, it was found that the

petitioners are not having the requested experience in

consonance with Rule 3 (c) of the Rules and as per the

requirement of the advertisement which is published on

14.3.2016, it is necessary that they should have necessary

qualification as per the rules, which is not there, as

mentioned hereinabove.

13. At this stage, it is relevant to refer to the

paragraphs of the judgment cited at the bar by the learned

advocate for the petitioner.

"12. To effectively analyze and adjudicate upon the questions referred, we would divide our discussion into following parts:

(a) When the recruitment process commences and comes to an end;

(b) Basis of the doctrine that 'rules of the game' must not be changed during the course of the game, or after the game is played;

(c) Whether the decision in K. Manjusree (supra) is at variance with earlier precedents on the subject;

(d) Whether the above doctrine applies with equal strictness qua method or procedure for selection as it does qua

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eligibility criteria;

(e) Whether procedure for selection stipulated by Act or Rules framed either under the proviso to Article 309 [10] of the Constitution or a Statute could be given a go-bye;

(f) Whether appointment could be denied by change in the eligibility criteria after the game is played.

[10] Article 309. Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

                                (A)      COMMENCEMENT/END                         OF     THE       RECRUITMENT
                                PROCESS

13. The process of recruitment begins with the issuance of advertisement and ends with the filling up of notified

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vacancies. It consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.

(B) BASIS OF THE DOCTRINE

14. The doctrine proscribing change of rules midway through the game, or after the game is played, is predicated on the rule against arbitrariness enshrined in Article 14 [12] of the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the concept of equality in all matters relating to public employment. These two articles strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles alike to all similarly situate and not to be guided by any extraneous or irrelevant considerations. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest.

15. The principle of fairness in action requires that public

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authorities be held accountable for their representations. Good administration requires public authorities to act in a predictable manner and honour the promises made or practices established unless there is good reason not to do so.

16. Candidates participating in a recruitment process have legitimate expectation that the process of selection will be fair and non-arbitrary. The basis of doctrine of legitimate expectation in public law is founded on the principles of fairness and non-arbitrariness in government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. This doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure. However, the doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision. The courts are generally cautious in interfering with a bona de decision of public authorities which denies legitimate expectation provided such a decision is taken in

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the larger public interest. Thus, public interest serves as a limitation on the application of the doctrine of legitimate expectation. Courts have to determine whether the public interest is compelling and sucient to outweigh the legitimate expectation of the claimant. While performing a balancing exercise, courts have to often grapple with the issues of burden and standard of proof required to dislodge the claim of legitimate expectation.

31. As already noticed in Section (A), a recruitment process inter alia comprises of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Subject to the rule against arbitrariness, how tests or viva voce are to be conducted, what questions are to be put, in what manner evaluation is to be done, whether a short listing exercise is needed are all matters of procedure which, in absence of rules to the contrary, may be devised by the competent authority. Often advertisement(s) inviting applications are open-ended in terms of these steps and leave it to the discretion of the competent authority to adopt such steps as may be considered necessary in the circumstances albeit subject to the overarching principle of rule against arbitrariness enshrined in Article 14 of the Constitution.

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41. Thus, in light of the decision in Shankarsan Das (supra), a candidate placed in the select list gets no indefeasible right to be appointed even if vacancies are available. Similar was the view taken by this Court in Subash Chander Marwaha (supra) where against 15 vacancies only top 7 from the select list were appointed. But there is a caveat. The State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State's action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List.

42. We, therefore, answer the reference in the following terms:

(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with lling up of vacancies;

(2) Eligibility criteria for being placed in the Select List, notied at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the

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test of non-arbitrariness;

(3) The decision in K. Manjusree (supra) lays down good law and is not in conict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;

(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non-arbitrary and has a rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility.

However, where the Rules are non-existent, or silent, administrative instructions may ll in the gaps; (6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona de reasons may choose not to ll up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list."

14. There cannot be any dispute with regard to the

proportion laid down in the said judgment. However, as

stated hereinabove, in the present case, the criteria of the

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petitioners does not match with the criteria mentioned in the

recruitment rules of 3(c) of the said rules and therefore, it

cannot be said that the "rules of game" are changed after

the game has started. Therefore, the judgment cited will not

be helpful to the petitioner as it is laid down in the

judgment that the recruitment fairness prohibits mis-process