Gujarat High Court
Kush Rashmikantbhai Dave vs State Of Gujarat on 15 October, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1175 of 2025
In R/SPECIAL CIVIL APPLICATION/20966/2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 1175 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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KUSH RASHMIKANTBHAI DAVE & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS MEGHA JANI FOR MR MIT S THAKKAR(11223) for the Appellant(s) No.
1,2,3,4,5,6,7,8,9
MR GH VIRK GOVERNMENT PLEADER WITH MS SHRUTI DHRUVE
ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.1,2
MR GH VIRK, WITH MR SIMRANJITSINGH H VIRK, MS RUCHI RAMPURIA
& MS MAITRI MODI (11607) for the Respondent(s) No. 3
MR.JAY M THAKKAR(6677) for the Respondent(s) No.10,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 15/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned Assistant Government Pleader
Ms.Shruti Dhruve waives service of notice of admission on
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behalf of the respondent Nos.1 and 2, learned advocate
Mr.Simranjitsingh H. Virk waives service of notice of
admission on behalf of the respondent No.3, and learned
advocate Mr.Jay M. Thakkar waives service of notice of
admission on behalf of the respondent Nos.4 to 10.
2. The present appeal is directed against the judgment and
order dated 04.09.2025 passed by the learned Single Judge in
Special Civil Application No.20966 of 2023, whereby the
learned Single Judge has been pleased to reject the writ
petition filed by the appellants - original petitioners, seeking
the following prayers:-
"8. The Petitioners pray:
(A) that the Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction, quashing and setting
aside the Select List of candidates to be recommended to the
Government for the post of Sub-Inspector Instructor-III,
Advertisement No.187/2020-21 (at Annexure-A) uploaded by
Gujarat Subordinate Services Selection Board on its website on
10.11.2023 to the extent it declares the Petitioners to be
unsuccessful and/or commanding the Respondents to declare
and/or treat the Petitioners as successful candidates in the said
select list and to prepare a fresh merit list on the basis of final
marks;
(B) that pending the hearing and final disposal of this petition,
the Hon'ble Court be pleased to direct the Respondents to
keep 12 posts of Sub-Inspector Instructor-III in the
Subordinate Services of Home Guards Organization, Gujarat
State vacant;
(C) that pending the hearing and final disposal of this petition,
the Hon'ble Court be pleased to direct the Respondents to call
the Petitioners for document verification and appoint them to
the post of Sub-Inspector Instructor-III in the Subordinate
Services of Home Guards Organization, Gujarat State, subject
to outcome of this petition;
(D) ad-interim relief in terms of Para (B);
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(E) for such other and further reliefs as the circumstances may
require."
3. Learned advocate Ms.Megha Jani appearing for learned
advocate Mr.Mit S. Thakkar for the appellants has submitted
that the learned Single Judge has fallen in error in
interpreting the true purport and meaning of the Recruitment
Rules, more particularly, Rule 9(c) read with Rule 11 of the
Sub-Inspector Instructor, Class-III (Competitive Examination
for Direct Recruitment) Rules, 2016 (hereinafter referred to
as the "Rules of 2016"). She has submitted that the
appellants, who have secured more marks than the private
respondents in the recruitment process, are declared 'failed'
only for the reason that they were unable to secure a
minimum aggregate of 40% marks as mentioned in Rule 11 of
the Rules of 2016. She has referred to the language of Rule
9(c), which pertains to the main examination (written test)
read with Appendix-III, and has submitted that as per Rule 11,
the minimum qualification standard that may be determined
by the Board does not permit it to be more than 40% in the
written test. In juxtaposition to Rule 10, she has referred to
the provisions of Sub-clause (3) of Clause 10 of the
advertisement dated 20.01.2021. It is submitted that as per
the aforesaid Sub-clause (3), 40% of the total marks secured
by a candidate in the main written test is required to be
considered and that the limit of 40% will not apply to the
individual four papers, as mentioned in Appendix-III, which
consists of 400 marks i.e. 100 marks each of Gujarati, English,
General Knowledge and Psychological test.
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4. While pointing out the observations of the learned Single
Judge, it is contended by learned advocate Ms.Jani that the
learned Single Judge fell in error in formulating Question No.2
in Paragraph No.14 by invoking the clarification dated
20.02.2024, which is subsequent to the recruitment process
issued by the respondent - Recruiting Agency.
5. Thus, it is urged that the present appeal may be allowed
by setting aside the judgment and order passed by the learned
Single Judge.
6. Opposing the submissions advanced by learned advocate
Ms. Jani, learned Government Pleader Mr. G.H. Virk, at the
outset, has referred to the judgment of the Supreme Court in
the case of Director General Telecommunications and Anr. vs.
T.N. Peethambaram, (1986) 4 S.C.C. 348, and the decision in
the case of Sanchit Bansal and Anr. vs. Joint Admission Board
and Ors., (2012) 1 S.C.C. 157. By placing reliance on the
aforesaid judgments, it is submitted that, in fact, the Rules do
not intend that 40% of the aggregate 400 marks of total
subjects is required to be considered and since the appellants
did not secure minimum 40% marks in the individual papers,
their cases are not recommended for appointment to the post
of Sub-Inspector Instructor, Class-III.
7. We have heard the learned advocates appearing for the
respective parties.
8. At the outset, we may clarify that we are of the
considered opinion that the learned Single Judge has precisely
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held that the appellants are not entitled to be recommended
to the post of Sub-Inspector Instructor, Class-III under the
Director General Home Guards, Department of Home,
Government of Gujarat.
9. The facts as recorded by the learned Single Judge are
not in dispute. Pursuant to the advertisement issued on
20.01.2021, the appellants participated in the recruitment
process and ultimately, their cases were not recommended by
the Board for appointment on the premise that they had not
secured 40% marks in each of the papers. The entire case of
the appellants hinges on the aforesaid Rules. The learned
Single Judge has incorporated the same, which read as
under:-
"9. Stages and Mode of Examination
(c) Main Examination (written test):
The candidates who qualify in the physical efficiency test and
the physical standard test shall be allowed to appear in the
main examination (written test). The main written
examination shall be held in accordance with the scheme as
specified in Appendix III.
11. Qualifying Standard and Marks:
The Board shall fix the qualifying standard for main
examination from time to time, and of physical test for the
non-reserved categories candidates and separately for
reserved categories of candidates. However, minimum
qualifying standard that may be determined by the Board shall
not in any case be less than 40% of marks in written test."
10. We may also incorporate Condition No.10(3) of the
advertisement, which is translated as under :-
"10(3). Minimum Qualifying Standard:
The qualifying standard for preparing the merit list shall be
determined by the Board. However, as per the provisions of
the Examination Rules, the minimum qualifying standard for
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candidates of all categories, including reserved categories,
shall be a total of 40% marks in Part-1 Preliminary
Examination and Part-3 Main Examination (Written Test)."
11. The learned Single Judge has elaborately dealt with the
issue regarding the fixation of minimum 40% marks, which is
as under :-
"20. Considered from the above perspective, it would appear
that the Rule in question could be looked at from two methods
of interpretation i.e. the literal method of interpretation and
the purposive method of interpretation. Interpreting the Rule
as per literal meaning, it would appear to this Court that the
Rule envisages that the selection board is empowered to fix the
minimum qualifying standard required for passing of the main
examination and the minimum qualifying standard shall in no
case be below 40% marks to be obtained in each subject. The
interpretation being on the basis that the Rule in the first part
states about the power of the board to fix the minimum
qualifying standard in the 'main examination'. In the second
and the more important part in the present context, the Rules
use the phrase 'written test'. The difference of phraseology
used in very selfsame Rule, is too obvious and stark to ignore.
The literal meaning that could be gathered by the usage of two
separate phrases for the same thing, would lead a very clear
conclusion that the later portion of the Rule is the 'default
provision' which would come into play, if the 'principal power'
is not resorted to. To clarify, the later portion conveys two
different and distinct meanings i.e. to state that while the
selection board could fix the minimum qualifying standard for
the main examination as well as the physical test, yet the
power of the board is circumscribed in so far as the main
examination is concerned, inasmuch as the minimum
qualifying standard could not be below 40% marks and
furthermore, in case, the board does not fix a minimum
qualifying standard then the minimum qualifying standard
would be 40% of marks to be obtained in each subject of the
main examination.
21. To, this Court, it would appear that above interpretation
would be the only interpretation available, if one interprets the
Rule literally i.e. as per the Rule of strict grammatical
construction. The above on the basis that the Legislature, if it
intended the later part to either mean that the candidate could
obtain 40% marks for qualifying in aggregate, then the phrase
used in later part would also be 'main examination'. The usage
of term 'written test' (i.e. singular as against 'written tests' i.e.
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plural which may have meant aggregate of marks) indicates
the intent of Legislature that the board is not empowered even
while prescribing the minimum qualifying standard to breach
the bottom line of 40% marks to be obtained in each subject.
22. On the other hand, the phrase 'written test' would mean
that a written test of each subject individually as against
cumulatively. Again, it would be profitable to note that the
word 'tests' is not the word, which is referred to, rather the
word 'test' has been used, signifying the meaning attached to
the term is to be considered singularly and not cumulatively or
plurally. Thus, if the intent of Legislature was that the board
would not be empowered to fix the minimum qualifying
standard cumulatively or in aggregate, then the phrase used
would have been 'main examination' or 'written tests' as
against which the word 'written test' used. The meaning that is
sought to be conveyed very clearly based upon strict
grammatical interpretation would be that the minimum
qualifying standard as could be fixed by the board could not be
below 40% marks to be obtained in each of the subjects in
main examination."
12. We are in complete agreement with the observations
recorded by the learned Single Judge, as mentioned
hereinabove..
13. It is the case of the appellants that they are deprived of
being recommended for appointment only because of the
misinterpretation of the Statutory Rules, as mentioned
hereinabove, as well as the clause of the advertisement. At
this stage, we may incorporate the observations of the
Supreme Court in the case of T.N. Peethambaram (supra),
which are as under:
"2. Rule 2 in Appendix III of the Telegraph Engineering Service
(Group 'B') Recruitment Rules, 1981, for Limited Departmental
Qualifying Examination, in the context of which the
controversy has arisen, reads thus:
2. Limited Departmental Competitive Examination:
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(I)(a) Advanced Technical Paper--General. . 100 marks
(b) Advanced Technical Paper -- Special . . 100 marks
(c) General Knowledge and Current Affairs . . 50 marks
(d) Assessment of Confidential Reports . . 75 marks
(ii)(a) The minimum pass marks in the examination shall be 50
per cent for general candidates and 45 per cent for Scheduled
Castes and Scheduled Tribe candidates.
This rule was interpreted by the concerned department as
requiring the candidates to secure 50 per cent minimum pass
marks for the general candidates and 45 per cent minimum
pass marks for Scheduled Castes and Scheduled Tribes in
"each" of the four subjects or items The Tribunal has taken the
view that the department was wrong in so interpreting the
Rule and has formed the opinion that on a true interpretation,
the requirement as regards securing minimum pass marks in
the examination by the candidates concerned is referable to
"aggregate" marks and not to each of the four subjects or
items of the examination. It has been overlooked by the
Tribunal that the "rule" does not employ the expression
"aggregate", and that it is impossible to inject the said word in
the Rule in the disguise of interpretation, as it would lead to
absurd results. An illustration will make the "obvious" point
"more obvious". The illustration might be viewed in the
scenario of a medical degree examination. Can one who
secures zero, say in surgery, but secures high marks in the
other papers, so that the minimum aggregate standard is
attained, be declared to have passed the examination? Such an
interpretation would result in havoc and have catastrophic
consequences. Examining the examination rule in the present
context, the nihilist result is equally conspicuous. Say, a
candidate secures zero in the first paper of Advanced
Technology (General), or second paper of Advanced
Technology (Special), but secures full marks in the rest of the
subjects (or items). He would be securing (0 plus 100 plus 50
plus 75) or (100 plus 0 plus 50 plus 75) (equal to 225 i.e. 56.25
per cent) minimum passing marks and would be entitled to be
declared as having passed and having become entitled to the
outflowing preferential treatment. Similar would be the
outcome also in a case where a candidate's Confidential
Record is bad and he earns no point in that item. Such an
interpretation would thus be self-defeating and lead to absurd
results, and accordingly, would be contrary to well established
canons of construction, not to speak of a common-sense-
oriented approach. Since the Rule does not specify a different
passing standard for "each" subject, the prescribed minimum
passing standard must be the yardstick to apply to each of the
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subjects or items. Minimum must mean a minimum in each, as
much as, minimum in aggregate. The Tribunal should not have
therefore upset the decision of the concerned department and
imposed on the department the mistaken interpretation
propounded by it. In the result, the decision of the Tribunal
must be reversed."
14. A plain and simple reading of the Recruitment Rules
would explicate that there is no intention on behalf of the
Recruiting Agency to consider 40% marks out of the
total/aggregate 400 marks, ignoring the marks of each paper.
If we adopt the logic/interpretation put forward by the
appellants, it would mean that even if a candidate, who has
not secured any marks in any one of the papers but has
secured 40% of the aggregate of 400 marks, he/she would be
declared successful and be eligible for appointment to the
post. This is not the intention which has been conveyed by the
Supreme Court in the case of T.N. Peethambaram (supra).
15. Hence, we do not find any infirmity in the action of the
respondent-authorities in not recommending the case of the
appellants to the post of Sub-Inspector Instructor, Class-III.
So far as the issue with regard to the clarification issued by
the Recruiting Agency on 20.02.2024 is concerned, the same
is subsequent to the recruitment process and hence, it could
not have been invoked in the case of the present appellants.
Be that as it may, we are of the considered opinion that, in
fact, no clarification was required, for clarifying the
aforementioned Rules, as the intention of the Rules is self-
explanatory. Neither the Rules nor the clause of the
advertisement suggests any relaxation in the limit of 40%
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marks in individual papers on the substratum of aggregate
400 marks of four papers.
16. Accordingly, the present Letters Patent Appeal fails and
the same stands dismissed. Civil Application No.1 of 2025
does not survive and the same also stands dismissed.
(A. S. SUPEHIA, J)
(L. S. PIRZADA, J)
Hitesh / SB-5
