Pursuant to order dated 12th March 2012 passed by the Hon'ble the Acting Chief Justice, the matter is placed before this Court. The order is placed on record under the signature of Registrar (Judicial) of even date. 2. Learned advocate Mr.D.G. Shukla appearing for the appellant invited attention of the Court to an order passed by this Court (Coram: The Hon'ble the Chief Justice Mr.S.J. Mukhopadhaya & The Hon'ble Mr.Justice Akil Kureshi) dated 18th October 2012, which reads as under:
“Let notice be issued on the 1st respondent. Direct notice is permitted. Mrs. Krina Calla, learned A.G.P., accepts notice on behalf of the State Government. Notice is waived. Counsel for the appellant will serve a copy of the Paper Book on her by tomorrow. Appeal may be disposed of at the stage of admission. Post the case on 24.11.2010. Until further orders, the operation of order dated 19.01.2010 passed in Special Civil Application No.12453 of 2009 shall remain stayed. Civil Application No.9903 of 2010 stands disposed of.”
3. In view of the aforesaid order the matter is taken up for final disposal.
4. present Letters Patent Appeal No.2034 of 2010 is filed against judgement and order dated 19th January 2010 in Special Civil Application No.12453 of 2009, a copy of which is produced at pages 'I' to 'M' of this appeal. Besides, order dated 19th July 2010 passed in Misc. Civil Application No.734 of 2010 in Special Civil Application No.12453 of 2009 is also the subject matter of challenge in this appeal. A copy of order dated 19th July 2010 is placed at pages 'N' to 'P' of this appeal.
Learned advocate Mr.D.G. Shukla for the appellant-Gujarat Public Service Commission ('GPSC' for brevity) submitted that the learned Single Judge has committed error in allowing the petition and issuing directions as contained in para 5 of the judgement and order, which reads as under:
“5. In the facts and for the reasons discussed hereinabove, the petition is allowed with the direction that the impugned order dated 18.11.2009 shall stand quashed. Since under the order of interim relief the petitioner has been allowed to participate in the selection process and is stated to have been selected after interview, as a necessary consequence, he may be declared to have been selected and appointed unless there are any other reasons for not doing so. Rule is made absolute with no order as to costs.” (emphasis supplied)
5. Being aggrieved of the above judgement and order, Misc.
Civil Application No.734 of 2010 was filed by GPSC–present appellant for recall of judgement and order dated 19th January 2010 and/ or for modification of that order. The learned Judge is pleased to reject the Misc. Civil Application by oral order dated 19th July 2010, the operative part of which reads as under:
“4. Under the above circumstances, the grievances and objections presently sought to be raised in the application cannot be entertained by way of review or otherwise. Therefore, the application of the Commission for reviewing or recalling the order, as aforesaid, cannot be entertained. Accordingly, present application is dismissed and Rule is discharged with no order as to costs.”
Para 5 of the said oral order pertains to Misc. Civil Application No.416 of 2010 which was filed by the original petitioner. For ready perusal, the same is reproduced hereunder:
“5. In view of above order in Misc. Civil Application No.734 of 2010, Misc. Civil Application No.516 of 2010 is not pressed for any order and stands disposed accordingly and Rule therein is discharged with no order as to costs.”
6. The learned advocate for the appellant invited attention of the Court to the Rules – Gujarat Educational Service Class-II (Administrative Branch) Recruitment Rules, 1969 (hereinafter referred to as “the said Rules”). The learned advocate for the appellant submitted that Rule 3 of the said Rules provides as under:
“3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate must :-
(a) be not more then (sic., than) 30 years of age.
(b) have a Bachelor's degree in Arts, Science, Commerce, Agriculture or Law of a statutory Indian or Foreign University.
(c) have passed B.T./ B.Ed. or an equivalent Degree or Diploma of a recognized University. (emphasis supplied)
(d) xxx xxx”
7. The learned advocate for the appellant submitted that the fact that the phrase, “or an equivalent degree or diploma” is missing in sub-rule (b) of Rule 3 of the said Rules, is the decisive factor. If in sub-rule (b) of Rule 3 of the said Rules, the above phrase would have been there, then the claim of respondent no.1 – original petitioner could have been considered and accepted by the GPSC.
The learned advocate for the appellant submitted that the following facts are not in dispute. It is the case of respondent no.1- original petitioner that he holds B.R.S. Degree (Bachelor in Rural Studies). It is not the case of the GPSC that B.R.S. is not declared to be an equivalent degree by Resolution of the Government, which is referred to by the learned Single Judge in the judgement and order dated 19th January 2010. In para 2 of the judgement, the learned Single Judge has referred to the said Resolution, the relevant part of which reads as under:
“2. .. .. The petition is pressed mainly on the ground that, by Resolution dated 05.10.1991 of General Administration Department of the State, it is specifically resolved and declared that the degree of B.R.S. (Bachelor of Rural Studies) conferred by specified Institutes shall be considered to be equivalent to the degree of B.A. (Bachelor of Arts) for the purposes of employment and recruitment on the posts under the State Government. By another Circular dated 16.01.1978 of the State Government, it is further provided that, in case of Degrees/Diplomas awarded by Universities in India which are incorporated by an Act of the Central or State Legislature in India and other educational Institutes established by an Act of Parliament or declared to be deemed as Universities under Section 3 of the University Grants Commission Act, 1956, no formal orders recognizing such degrees/diplomas should be issued by Government. Such degrees/diplomas should be recognized automatically, for the purpose of employment under the State Government. The Institution granting B.R.S. degree to the petitioner is a statutory University. It is held by this Court in order dated 24.09.1997 in Special Civil Application No.6953 of 1997 that, in view of the aforesaid Resolution dated 05.10.1991 of the Government, a particular department cannot take a different view. That matter having been carried in appeal, Division Bench has, in the judgment dated 02.11.2009 in Letters Patent Appeal No.1348 of 1997, reiterated that the degree of B.R.S. was considered equivalent to degree of B.A. by the State Government by way of its resolution, and hence the view taken by learned single Judge did not suffer from any infirmity. Thus, equivalence of the degree of B.R.S. is confirmed and established by the resolution of the Government as well as orders of this Court.”
8. So far as equivalence of B.R.S. (Bachelor of Rural Studies) is concerned, it is not at all in dispute. It is not argued by the learned advocate for the appellant even for a minute that B.R.S. is not an equivalent degree, but he emphasized the fact that sub-rule (b) of Rule 3 of the said Rules does not provide for considering a person holding the degree equivalent to the degrees mentioned in that Rule, and therefore, it is not open for the appellant-GPSC to consider the candidature of respondent no.1- original petitioner, who holds B.R.S. Degree and not any of the degrees mentioned in the Rule.
9. The learned Single Judge has considered the submissions made by the learned advocate for the GPSC about the distinction between educational qualifications and the provision of equivalent degree in clauses (b) and (c) of Rule 3 of the said Rules, in para 3 of the judgement, which reads as under:
“3. It was, however, argued by learned counsel Mr.Shukla, appearing for the G.P.S.C., that the Recruitment Rules of 1969 clearly made a distinction between educational qualifications and the provisions for equivalent degree in Clauses (b) and (c) of Rule 3 which need to be scrutinized. He submitted that, if any degree equivalent to the degree of B.A. were to be accepted, such provision has to be found in the rule itself and wherever it was permissible to accept an equivalent degree, it was so specified in the rules. He, therefore, submitted that no degree other than the Bachelor's degrees mentioned in Rule 3 (b) could fulfill the condition of educational qualification. Learned A.G.P. has supported the arguments of Mr.Shukla.”
10. On perusal of the said Rules it is specifically noticed that in sub-rule (b) of Rule 3 of the said Rules, the phrase, “or equivalent degree or diploma” is not incorporated by the legislation. Meaning thereby, the Legislature never intended to confer a right on the persons holding a degree equivalent to the degrees mentioned in the said sub-rule. In other words, person holding any degree other than the ones which are mentioned in sub-rule (b) of Rule 3 of the said Rules are not considered eligible being not at par with the persons holding the degree mentioned in the sub-rule.
It is trite law that courts cannot legislate. Courts have to interpret the law as it stands. The legislature in its wisdom has thought fit not to incorporate the phrase, “or an equivalent degree or diploma” in sub-rule (b) of Rule 3. That being so, the court cannot insert that phrase in sub-rule (b) of Rule 3 of the said Rules.
If at any time, the Legislature feels like amending the rule, it can always do so. If it is felt that the rules as they stand do not cope up with the required social change, the same can be amended after following the procedure prescribed for the same.
11. In view of the above facts and submissions made by the learned advocate for the appellant, which could not be dislodged by the learned advocate for respondent no.1- original petitioner, the appeal deserves to be allowed. The same is accordingly allowed. The judgement and order dated 19th January 2010 in Special Civil Application No.12453 of 2009 and oral order dated 19th July 2010 passed in Misc. Civil Application No.734 of 2010 in Special Civil Application No.12453 of 2009 are quashed and set aside.
12. At this juncture, learned advocate Mr.Vaibhav A. Vyas for respondent no.1- original petitioner invited attention of the Court to para 7 of GPSC's communication dated 24th February 2010 (Annexure 'B' to Misc. Civil Application No.734 of 2010) (page 93). The learned advocate for the appellant wants time to take instructions in the matter. Only for this limited purpose the matter be listed on 20th March 2012.
20th MARCH 2012
13. The matter was heard yesterday i.e. on 19th March 2012 and the appeal was allowed for the reason set out in the judgment and order dated 19th March 2012. Para 12 of that judgment and order reads as under:
“At this juncture, learned advocate Mr.Vaibhav A. Vyas for respondent no.1 original petitioner invited attention of the Court to para 7 of GPSC's communication dated 24th February 2010 (Annexure 'B' to Misc. Civil Application No.734 of 2010) (page 93). The learned advocate for the appellant wants time to take instructions in the matter. Only for this limited purpose the matter be listed on 20th March 2012.”
14. Today, when the matter is called out, learned advocate Mr. DG Shukla for the appellant, on instructions from Mr. PS Kantesariya, Joint Secretary of Gujarat Public Service Commission ('GPSC' for short) submitted that order dated 18th November 2009 (Annexure 'A' in Special Civil Application No. 12453 of 2009) was challenged by filing petition on 24th November 2009. In that petition, on 1st December 2009, this Court passed an order, which reads as under:
“RULE. Learned A.G.P. and learned counsel Mr.D.G.Shukla waive service for the respondents. Interim relief in terms of para 7 (F). Respondents may file affidavitinreply, if any is proposed to be filed, by the next date of hearing, which is fixed on 14.12.2009. Matter may be finally disposed on that day.” (emphasis supplied) At this juncture, it will be necessary to refer to Para 7(F) (of Special Civil Application No. 12453 of 2009). The same reads as under:
“Pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the authorities of Gujarat Public Service Commission to permit the petitioner to participate in the selection process for recruitment on the post of Gujarat Education Service ClassII (Administrative Branch), subject to outcome of this petition, and” (emphasis supplied)
15. In view of that order, the GPSC allowed the petitioner, along with other similarly situated persons, who were also holding 'B.R.S.' qualification, in interview and prepared a Select List and published the same on 1st January 2010.
16. The learned advocate for the appellant made available for perusal a copy of that Select List published on 1st January 2010, wherein, the name of the respondent – original petitioner – Dhanjibhai Savjibhai Maru appears at serial No. 6 and the name of one Shri Chunajibhai Ishariyabhai Gamit appears at serial No. 8. In that Select List, there is a Note No. 2, which says that, 'the selection of the candidates at serial Nos. 6 and 8 is subject to the final decision in Special Civil Application No. 12453 of 2009 filed in the High Court'.
The learned advocate for the appellant submitted that taking into consideration the decision of this Court in Special Civil Application No. 1314 of 2009 dated 24th March 2009, the Joint Secretary deemed it fit to make a Note on the file on 3rd December 2009 to permit the other candidates, who were also possessing the same qualification of B.R.S., treating them at par with the petitioner. The Court appreciates the action of the Joint Secretary because this Court, by judgment and order dated 24th March 2009 in Special Civil Application No. 1314 of 2009 has reiterated the law that:
“...as and when not only in the case of grant of higher pay scale but in any other cases as and when it is brought to their knowledge the decision of the Hon'ble Supreme Court and / or this Court in other similar case they will apply their mind and grant the benefit without insisting for individual orders from the Court. All the authorities under the State are bound to consider the decisions of this Court as well as the Hon'ble Supreme Court even if the decisions are with respect to other similarly situated employees. The same would avoid the further litigation and decrease the burden of the Court and also similarly situated employee may not have to incur expenditure on the legal proceedings...” (emphasis supplied)
17. It is thereafter that on 19th January 2010, the petition came to be allowed. The appellant – GPSC on 19th January 2010 itself issued the amendment to the result and it is this amendment to the result is at page 93. It is dated 24th February 2010, wherein, Para 7 pertains to the person whose name was at serial No. 8 in the Select List – Shri Chunajibhai Ishariyabhai Gamit, as he was holding the B.R.S. Degree and which was required to be considered to be valid qualification, the result was amended and Note No. 2 in the Select List dated 1st January 2010 was deleted making his selection unconditional.
The judgment and order of the learned Single Judge dated 19th January 2010 is challenged in this Letters Patent Appeal and as the Letters Patent Appeal is allowed as aforesaid, the GPSC is required to communicate to the Government the result of the Letters Patent Appeal, as it will be affecting the selection of Shri Chunajibhai Ishariyabhai Gamit.
18. The learned advocate for the appellant, on instructions from Shri PS Kantesariya, Joint Secretary, GPSC, states that on receipt of the Certified Copy of the judgment and order of the Letters Patent Appeal, the GPSC will intimate to the Government about the same for taking necessary corrective steps in the matter.
19. The learned advocate for the appellant, at this juncture, submitted that yesterday he had argued two points, one pertaining to absence of words 'or an equivalent degree or diploma' in subrule (b) of Rule 3 of the Rules and the second one was that the respondent herein – original petitioner did not come within the zone of consideration on the basis of the marks scored and therefore, he was not called for the interview. The learned advocate for the appellant submitted that as directed by this Court, an affidavit is filed to explain this. The learned advocate for the appellant invited attention of the Court to the said affidavit and submitted that as per the norms laid down in Office Order dated 14th October 1986, if the vacancy to be filled in is 01, then 06 candidates are to be called for the interview. Similarly, if the vacancies to be filled in are 02, then 08 candidates are to be called for the interview and if the vacancies to be filled in are 03, then 10 candidates are to be called for the interview and if the vacancies are 04 or more, then 03 candidates for each vacancy are to be called for the interview.
20. The learned advocate for the appellant submitted that in the present case, 02 vacancies were to be filled from SC category and therefore, 08 candidates were to be called for the interview. Taking into consideration the 'qualifications', the requisite number of candidates were available having scored 152 marks, therefore, the respondent – original petitioner who had secured only 149 marks, was not required to be called. The learned advocate for the appellant invited attention of the Court to Annexure 'D', which is placed along with Additional Affidavit filed by one Shri Girishchandra, Son of Chandrashankar S. Upadhyay, Deputy Secretary of GPSC to elaborate his submission that the required number of persons i.e. eight were available with 152 marks and therefore, the respondent – original petitioner who had secured only 149 marks, was not required to be called for the interview. Thus, even this additional ground, raised by the learned advocate for the respondent – original petitioner is found without any merit. The learned advocate for the respondent is not able to point out that any discriminatory treatment is meted out to the respondent – original petitioner and therefore, this Court is of the opinion that the action of the GPSC does not warrant any interference at the hands of this Court.
21. The learned advocate for the respondent – original petitioner requested that as the matter is under consideration of this Court, he be permitted to invite the attention of the Court to a decision of the learned Single Judge in Special Civil Application No. 7903 of 2000 dated 3rd October 2011, whereby, the learned Single Judge has allowed the petition and has quashed the communication dated 17th February 1998 issued by the GPSC rejecting the candidature of the petitioner and directing the GPSC to call the petitioner for interview and consider him for appointment to the cadre of Gujarat Education Services ClassII (Administrative Branch) in connection with the Advertisement dated 3rd October 1995. The Court permitted the same.
22. At this juncture, the learned advocate for the appellant invited attention of the Court to a fact that the present respondent – original petitioner himself had filed a Special Civil Application being No. 7904 of 2000, which too came to be decided by this Court (learned Single Judge) by judgment and order dated 3rd October 2011. The Court called for the copies of the judgment and order dated 3rd October 2011 in Special Civil Application No. 7903 of 2000 as well as in Special Civil Application No. 7904 of 2000 along with the papers of the petitions.
23. On perusal, what is found, is really surprising. The factum of having filed Special Civil Application No. 7904 of 2000 is mentioned in the present petition in a very causal manner, which clearly makes out a case of 'misleading and misrepresenting' the facts before the Court. Special Civil Application No. 7904 of 2000 is referred in Para 5.1, which reads as under:
“The petitioner respectfully states that, the petitioner has not filed any other petition on the same subject matter of this petition in this Honourable Court or in the Honourable the Supreme Court of India or in any other Court of India. The petitioner further respectfully states that, on earlier recruitment occasion in the year 1995, when the petitioner was not having five years experience after obtaining Post Graduate degree in Arts, the candidature of the petitioner was rejected by Gujarat Public Service Commission and the same was challenged by way of a petition being Special Civil Application No. 7904 of 2000, which is admitted and pending for final disposal before this Honourable Court.” (emphasis supplied)
24. In the considered opinion of this Court this is a fit case wherein action under the Contempt of Courts Act for criminal contempt is required to be taken but taking a little lenient view in the matter, the Court restrains itself from ordering any proceedings to be initiated for criminal contempt but thinks it necessary to pass an order directing the Appointing Authority of the respondent – original petitioner to take disciplinary action against respondent – original petitioner for having stated wrong facts on oath before this Court.
25. Special Civil Application No. 7904 of 2000 is filed by the present respondent – original petitioner. It is prayed in Para 6 of that petition as under:
“6. The petitioner therefore prays that this Honourable Court may be pleased to issue a Writ of Mandamus and/or any other appropriate Writ, Writs, Order or Orders and may further be pleased to:
(A) Quash and set aside the communication dated 17/02/98 issued by the Gujarat Public Service Commission rejecting the candidature of the petitioner for being considered for appointment to the cadre of Gujarat Education Service Class II (Administrative Branch) (Annexure A)...” (emphasis supplied)
26. On perusal of the said communication dated 17th February 1998 it is noticed that it is conveyed to the petitioner that, 'he does hold the requisite education qualification'. It nowhere refers to 'the petitioner not having five years' experience after obtaining Post Graduate Degree in Arts'. In fact the communication dated 17th February 1998 does have four options in Para 2 and of that, Option No. 2 is tick marked, meaning thereby, the same is applicable and that pertains to only 'not holding the requisite qualification'. (emphasis supplied)
27. To avoid any confusion, it will be appropriate to refer to Para 2 of that petition, which reads as under:
“The petitioner states that the petitioner is constrained to approach this Honourable Court against the arbitrary action of the Respondent Commission, rejecting the candidature of the Petitioner for the Gujarat Education Service Class II, by a communication dated 17/02/98, on the ground that the Petitioner does not possess the educational qualification for the post in question. A copy of the said letter dated 17/02/98 addresses to the Petitioner by the Commission is annexed hereto and is marked as Annexure A to the present petition.” (emphasis supplied)
28. This takes away the possibility of any confusion or misunderstanding on the part of the petitioner.
29. From the aforesaid discussion it is clear that the petitioner has made a willful misstatement of fact in Special Civil Application No. 12453 of 2009 and therefore, this should be an additional ground on which, the respondent herein – original petitioner should be held to be not entitled to any relief under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. It is trite law that one who approaches this Court for a relief under Article 226 of the Constitution of India, there is duty cast on him to approach the Court with clean hands. If it is found that he has misrepresented the facts before the Court, then not only he disentitles himself of grant of any discretionary relief but he also renders himself liable for taking action in accordance with law. This is a fit case wherein, this Court deems it necessary to direct the Government authorities to take action against the present respondent – original petitioner.
30. The Registry is directed to send 'Certified Copy' of Special Civil Application No. 7904 of 2000 and also of Special Civil Application No. 12453 of 2009 to the Commissioner of Higher Education and to the Secretary, Education Department, who in turn shall take a note of the facts and take necessary departmental proceedings against the respondent – original petitioner for the aforesaid act, which in the opinion of this Court renders him unfit to be in Government service. The action taken be placed on the record of the case for perusal of the Court.
31. From the petition (Special Civil Application No. 7904 of 2000) it is noticed that when the said petition was filed, the petitioner was working as an Assistant Teacher at a Government High School, Nesda and was holding the charge of Incharge 'Head Master'. It is also mentioned that the petitioner was a Teacher since 1st January 1991 (Para 3.3, after educational qualification, the aforesaid facts are stated).
32. Of all the persons as a Teacher, who is otherwise under duty of laying the foundation of the character of the students resorts to such shortcuts for promotion, it will lead to a very gloomy future. This Court is conscious of the fact that the aforesaid direction directing the Appointing Authority of the respondent original petitioner to take disciplinary action against him in accordance with law is going to work harsh not only on him but also his family, but then, in the considered opinion of this Court, if the Court does not do that, it will send wrong signals to the people like petitioner (respondent herein) who will be tempted to resort to such means on the ground that the Court is not going to take serious view of the matter.
33. We are at pains to record that the petitioner has tried to create all sorts of confusion in the matter. The simple question which fell for consideration was 'whether in absence of the words 'or an equivalent degree or diploma' in subrule (b) of Rule 3 of the Rules, whether the petitioner could at all have been considered for the post in question'. All subsequent confusion created on the point that B.R.S. is declared to the equivalent to B.A. is with oblique motive. The question of B.R.S. being equivalent to B.A. would have arisen only if those words: 'or an equivalent degree or diploma', would have been there in subrule (b) in Rule 3. The fact that those words are not there, there was no question of respondent – original petitioner claiming that he possesses B.R.S., which is equivalent to B.A., and therefore, he should be considered as qualified and his candidature should be considered for the post in question. Without going much in detail, reference to G.Rs. dated 5th October 1989, 5th October 1991 and 16th January 1978 is also unwarranted and have no relevance to the question involved in the matter.
34. We are of the considered opinion that this appeal while being allowed, the respondent – original petitioner must be saddled with cost and that too exemplary cost and deposit of this cost be made a condition precedent for taking recourse to any other remedy. In the result, while the appeal is allowed as aforesaid, the respondent – original petitioner is directed to pay an amount of Rs.25,000/ (Rupees Twenty Five thousand only) to the GPSC before taking recourse to any other remedy.
(RAVI R. TRIPATHI, J.) (G.B. SHAH, J.) karim/ hiren