[Cites 3, Cited by 0]
Gujarat High Court
Chiragkumar Dashratlal Patel vs State Of Gujarat on 17 March, 2026
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C/SCA/10595/2018 JUDGMENT DATED: 17/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10595 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 10595 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
√
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CHIRAGKUMAR DASHRATLAL PATEL & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HEMANG M SHAH(5399) for the Petitioner(s) No. 1,2
MS NIDHI VYAS, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/03/2026
JUDGMENT
1. Rule returnable forthwith. Ms.Nidhi Vyas, learned AGP
waives service of rule for the respondent-State and Mr.Premal
Joshi, learned advocate waives service of rule for respondent
No. 2. Though served, none appears for respondents No. 3 to
6, but their presence is not required as Mr.Shah, learned
advocate for the petitioners, does not press the present
petition qua them.
1.1 With the consent of the learned advocates for the
respective parties, the petition is taken up for hearing.
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2. This petition is filed under Article 226 of the Constitution
of India, seeking the following reliefs:
"(A) Your Lordships be pleased to declare the action of
removing the requirement of minimum qualifying marks
and applying the same to a pending recruitment process
where personal interview was yet to be held as
discriminatory, bad in law and unreasonable and not
tenable in law;
(B) Your Lordships be pleased to issue a writ of mandamus
or any other appropriate writ, order or direction directing
respondent authorities no 1 and 2 to extend the benefit of
the amended provision of important instruction to the
recruitment for which the petitioners had appeared and
thereby declare revised select list in accordance with the
amended recruitment rules;
(C) Your Lordships be pleased to issue a writ of mandamus
commanding respondent authorities no. 1 and 2 to grant
benefit of amended important instruction as stipulated vide
notification dated 31.03.2018 and thereby recommend to
State Government to issue appointment order to petitioner
no. 1 to the post of Assistant Director (Biology) and
petitioner no. 2 to the post of Assistant Director (Physics);
Or in the alternatively;
(D) Your Lordships be pleased to issue a writ of certiorari to
quash and set aside the result declared on 05.05.2018 by
which respondents no. 3 to 6 came to be recommended for
appointment to the post of Assistant Director (Chemistry)
by applying the amended important instruction as notified
vide notification issued on 31.03.2018;
(E) Your Lordships be pleased to issue a writ of certiorari to
quash and set aside the result declared on 08.01.2018 by
which petitioner no 2 was not selected for appointment to
the post of Assistant Director (Physics) as well as the result
declared on 12.02.2018 by which petitioner no. 1 was not
selected for appointment to the post of Assistant Director
(Biology) as the same had been declared on the basis of
old instructions;
(F) Pending admission and final hearing of the present
matter. Your Lordships be pleased to direct respondent no.
2 to extend the benefit of amended important instruction
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to the recruitment for which the petitioners had appeared
and thereby declare revised select list in accordance with
the amended recruitment rules;
(G) Pending admission and final hearing of the present
matter, Your Lordships be pleased to direct respondent no.
2 to issue a letter of recommendation to the State
Government to issue appointment order to petitioner no. 1
to the post of Assistant Director (Biology) and also to issue
appointment order to petitioner no. 2 to the post of
Assistant Director (Physics);
(H) Pending admission and final hearing of the present
matter, Your Lordships be pleased to stay the operation,
implementation and execution of the amended provision of
important instruction as notified vide notification dated
31.03.2018 in so far as the present recruitment process is
concerned;
(I) Pending admission and final hearing of the present
matter, Your Lordships be pleased to stay the operation,
implementation and execution of the result declared on
5.5.2018 by which respondents no. 3 to 6 came to be
recommended for appointment to the post of Assistant
Director (Chemistry) by applying the amended provision of
important instructions as notified vide notification issued
on 31.03.2018;"
SHORT FACTS OF THE CASE :
3. The short controversy germane to the matter is arising
from a common advertisement dated 15.02.2017 published by
respondent No.2 herein for direct selection of persons on
different posts in different departments of the State. As per
the said advertisement, the cut-off marks were prescribed for
selecting the candidate. The petitioners herein have applied
pursuant to the aforesaid advertisement for the post of
Assistant Director (Biology) and Assistant Director (Physics),
respectively. After completion of their interviews, results were
published on 12.02.2018 and 08.01.2018, respectively. Since
none of the petitioners have secured minimum cut-off marks
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as prescribed in the advertisement, they were not appointed
and as such, from the results, it can be seen that none of the
candidates were selected by respondent No.2 for the said
posts.
3.1 Thereafter, respondent No.2 vide its circular dated
31.03.2018 has decided to done away with minimum
qualifying marks in such type of competitive exams like the
examination conducted by respondent No. 2 in the present
case. It has been observed in the said circular that it would
apply in the case of direct recruitment wherein, after
advertisement, either preliminary tests and/or interviews are
yet to be undertaken and any advertisements for direct
selection published after 01.04.2018.
3.2 So far as interview of the candidates for the post of
Assistant Director (Chemistry) pursuant to the aforesaid
advertisement is concerned, was not taken as on 31.03.2018,
which had taken place on 03.05.2018, the benefit of the
aforesaid circular came to be granted to the candidates who
applied for the post of Assistant Director (Chemistry) by
respondent No. 2. Accordingly, the final result/merit list was
prepared by respondent No. 2 for the post of Assistant
Director (Chemistry) on 05.05.2018 after granting benefit of
said circular.
3.3 Since the interviews of the petitioners took place and
their results were published prior to 31.03.2018, no benefit of
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the said circular was given to them. Hence the present
petition.
SUBMISSIONS OF THE PETITIONERS :
4. Mr. Shah, learned advocate for the petitioners, would
submit that there is no justification on the part of respondent
No.2 in not granting the benefit of the aforesaid circular dated
31.03.2018 to the petitioners. It is submitted that merely
because the interviews of the petitioners got over prior to
31.03.2018, it would not be a ground to discriminate the
petitioners from other similarly situated persons like the
candidates who applied for the post of Assistant Director
(Chemistry).
4.1 Mr. Shah, learned advocate for the petitioners, would
submit that the issue germane to the matter is squarely
covered by the decision of the Hon'ble Division Bench of this
Court in the case of Dr. Tejas Mahasukhlal Tank and
others vs. Guajrat Public Service Commission Thru
Chairman & another, being Letters Patent Appeal
No.397 of 2022 in Special Civil Application No.7791 of
2018, decided on 21.02.2024. It is submitted that the said
decision was challenged before the Hon'ble Supreme Court by
respondent No.2, being Special Leave to Appeal (C) No.17274
of 2024, which was not entertained by the Hon'ble Apex Court
as the same was dismissed on 09.08.2024.
4.2 Making the above submissions, Mr.Shah, learned
advocate requests this Court to allow the present petition.
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SUBMISSIONS OF THE RESPONDENTS :
5. Per contra, Mr. Joshi, learned advocate for respondent
No.2 - Commission, would submit that no benefit of the
circular dated 31.03.2018 can be granted in favor of the
petitioners. It is submitted that undisputedly the interviews of
the petitioners got over prior to 31.03.2018 and the results
were also published much prior to 31.03.2018.
5.1 It is further submitted that the case of candidates who
applied for the post of Assistant Director (Chemistry) would
stand on a completely different footing as their interviews
were undertaken subsequent to the aforesaid circular dated
31.03.2018.
5.2 It is further submitted that the judgment cited by
Mr.Shah, learned advocate for the petitioners of the Division
Bench of this Court is not applicable to the facts of the
present case.
5.3 Ms.Vyas, learned AGP, would adopt the arguments
canvassed by Mr.Joshi, learned advocate for respondent No.2.
5.4 By making the above submissions, learned advocates for
the respondents would urge this Court to dismiss the present
petition.
5.5 No other and further submissions have been made by
learned advocates for the respective parties.
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ANALYSIS :
6. Having heard the learned advocates for the respective
parties and upon perusal of the pleadings and documents
made available on record, it is not in dispute that both these
petitioners have applied for the post of Assistant Director
(Biology) and Assistant Director (Physics), respectively and
the results were declared by respondent No.2 on 12.02.2018
and 08.01.2018, respectively. There is also no dispute that the
advertisement in question was common for different posts in
different departments of the State including for the post of
Assistant Director (Chemistry). The Respondent No.2 came
out with a circular on 31.03.2018, whereby it has done away
with the minimum marks required to be secured by the
candidates to be selected in the competitive examination. As
per the said circular, it would apply in a case where, pursuant
to the advertisement, either the preliminary test or interview
are yet to be undertaken and any advertisement that will be
published after 01.04.2018.
7. It is also not in dispute that so far as the interviews of
candidates who applied for the post of Assistant Director
(Chemistry) were concerned, it was undertaken by respondent
No.2 subsequent to the said circular; thereby, the benefit of
the said circular was passed on to them. Accordingly, the
minimum marks which were prescribed in the advertisement
have not been considered by respondent No.2 for them while
preparing their final select list. The petitioners are
complaining about the differential treatment meted out to
them and seeking the same benefit as given to the candidates
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who applied for the post of Assistant Director (Chemistry).
The main resistance on the part of respondent No.2-Gujarat
Public Service Commission is that the petitioners' interviews
were undertaken prior to the aforesaid circular, whereas the
interviews of candidates who applied for the post of Assistant
Director (Chemistry) were undertaken after 31.03.2018 and
thus, no benefit can be granted to the petitioners as claimed.
8. Upon the appreciation of the aforesaid facts and the
submissions, at this stage, it would be apt to refer to the
pertinent observations made by the Division Bench of this
Court in the case of Dr.Tejas Mahasukhlal Tank (supra),
wherein it is observed and held thus:
"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 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.
*** *** ***
3.1 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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*** *** ***
3.5 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 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.
*** *** ***
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
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.
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6.3 The action was discriminatory as well. The
qualifying marks were same for all irrespective of
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 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."
(emphasis supplied)
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9. Thus, considering the aforesaid decision of the Division
Bench of this Court, which appears to have been confirmed by
the Hon'ble Apex Court by dismissing the special leave
petition filed by respondent No.2-GPSC on 09.08.2024 as
referred to hereinabove, the issue germane to the matter is
squarely covered by the aforesaid decision.
10. The Division Bench of this Court in clear terms has
criticized the practice of the respondent-Commission in not
granting the benefit to the similar class of persons only on the
ground that their interviews were undertaken prior to the
aforesaid circular. It has been observed that if the rules of the
game are to be altered in the midst of the process, they have
to be applied uniformly. According to my view also, the benefit
of the aforesaid circular dated 31.03.2018 is required to be
given to the candidates like the petitioners by respondent
No.2 and having not granted such benefit, it violates the
fundamental rights of the petitioners. The impugned decision
of respondent No.2 in not granting the benefit of said circular
dated 31.03.2018 is violative of Article 14 & 16 of the
Constitution of India.
11. At this stage, it requires to be noticed that during the
pendency of this petition, respondent No.2 published an
advertisement dated 31/12/2018 for the posts in question. The
petitioner by way of Civil Application No.1 of 2026 placed on
record the communications addressed by the petitioner to
respondent No.2-GPSC as well as respondent No.1 - State
employer, informing about the pendency of this petition. Since
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this matter was filed in the year 2018 prior to the aforesaid
advertisement, any decision taken by the respondents
appointing anyone to the post in question would always be
subject to the outcome of this petition.
11.1 Upon inquiry, Ms. Vyas, learned AGP, would state before
this Court that pursuant to the aforesaid advertisement, the
appointments were given to respective candidates who were
found meritorious. Ms.Vyas, learned AGP would further
inform this Court that as on date, so far as the post of
Assistant Director (Physics) is concerned, one post is still
vacant to be filled by direct selection, whereas for the post of
Assistant Director (Biology), no post to be filled by direct
selection is vacant, but one post is vacant to be filled through
promotion.
11.2 This Court would not like to disturb the appointments
which are already given by the respondent- State pursuant to
the subsequent aforesaid advertisement issued by respondent
No.2-GPSC. Yet, this Court would not like to deprive the
petitioners from being considered for selection pursuant to
the advertisement in question by granting the benefit of the
aforesaid circular dated 31.03.2018.
12. Thus, considering the aforesaid peculiar facts and
circumstances of the case, if the petitioners are found to be
meritorious upon preparation of a fresh merit/select list by
respondent No.2 and their names will be recommended to
respondent No.1, they shall be appointed against the vacant
post, i.e., direct selection or promotion, as the case may be. It
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goes without saying that it is always open for the respondent-
State to create supernumerary post to be filled by direct
selection so far as the post of Assistant Director (Biology) is
concerned.
CONCLUSION :
13. In view of the foregoing observations and reasons, the
prayers made in this petition deserve consideration.
Consequently, respondent No.2 is hereby directed to prepare
a fresh merit list for the post of Assistant Director (Physics)
and Assistant Director (Biology) by giving the benefit of the
circular dated 31.03.2018. If the petitioners herein are found
to be successful upon granting the benefit of the aforesaid
circular, their names shall be recommended to the respondent
- State Government for appointment on the respective posts.
13.1 The petitioners shall be appointed against the vacant
post, i.e., direct selection or promotion, as the case may be. As
observed hereinabove, to implement the said part of the
order, it is always open for the respondent-State to create
supernumerary post to be filled by direct selection so far as
the post of Assistant Director (Biology) is concerned.
14. In view of the foregoing conclusion, the present petition
is partly-allowed. Rule is made absolute, to the aforesaid
extent. There shall be no order as to costs. Consequently, the
connected Civil Application is disposed of.
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15. Direct service is permitted.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
