IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16140 of 2006 TO SPECIAL CIVIL APPLICATION NO. 16143 of 2006 With SPECIAL CIVIL APPLICATION NO. 16285 of 2006 TO SPECIAL CIVIL APPLICATION NO. 16286 of 2006 With SPECIAL CIVIL APPLICATION NO. 17844 of 2006 TO SPECIAL CIVIL APPLICATION NO. 17850 of 2006 With CIVIL APPLICATION NO. 1007 of 2012 In SPECIAL CIVIL APPLICATION NO. 16140 of 2006 With SPECIAL CIVIL APPLICATION NO. 13070 of 2006 With SPECIAL CIVIL APPLICATION NO. 14579 of 2006 With SPECIAL CIVIL APPLICATION NO. 14597 of 2006 With SPECIAL CIVIL APPLICATION NO. 15417 of 2006 With SPECIAL CIVIL APPLICATION NO. 15442 of 2006 With SPECIAL CIVIL APPLICATION NO. 15990 of 2006 With SPECIAL CIVIL APPLICATION NO. 21379 of 2006 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ VYAS PRAKASHKUMAR GUNVANTBHAI & 3 Petitioner(s) Versus STATE OF GUJARAT & 2 Respondent(s) ================================================================ Appearance:
MR. YN OZA, Senior Advocate with MS SRUSHTI THULA, MS. FARHANA Y.
MANSURI, MR. D.D. CHUDASAMA with MR. KD VASAVADA for the Petitioners MR PK JANI, GP with MR RASHESH RINDANI, AGP for Respondent No.1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As common questions of fact and law are involved in this batch of petitions, those were heard analogously and are being disposed off by this common judgment.
2. This batch of petitions under Article 226 of the Constitution of India is at the instance of unsuccessful candidates, who had applied for the post of Lok Rakshak pursuant to the advertisement published by the State respondent dated 7th February, 2004. The grievance voiced in these petitions is that the whole procedure undertaken by the State respondent, namely Gujarat Subordinate Services Selection Board (for short “the Board”) in selecting the candidates, who had applied in response to the advertisement dated 7th February, 2004 is illegal and violative of fundamental rights guaranteed under Part III of the Constitution of India. The petitioners have also challenged the resolution of the Government of Gujarat dated 21st January, 2004, which provides for a fix pay scale of Rs.2500/ for the post of Lok Rakshak on contractual basis for a period of five years instead of providing regular pay scale of Rs.27404400, which is provided to the constables.
3. The facts in brief leading to the filing of the present petitions may be summarized as under:
3.1 The State respondent issued a public advertisement dated 7th February, 2004 as advertisement No.1 of 2004 inviting applications from candidates interested in joining the armed as well as unarmed Police Lok Rakshak in the State Police Force on contractual basis and on a fixed salary of Rs.2500/ per month. The advertisement provided that after five years of service, if the services of the candidates are found to be satisfactory, then they would be absorbed on the permanent post of Constables (Class III Employees). The advertisement also included various details regarding educational qualifications, sanctioned posts and reservation of posts of Scheduled Caste (SC), Scheduled Tribe (ST) and Socially and Economically Backward class (SEBC).
3.2 In response to the above referred advertisement, more than 1,60,000 applications were received by the State respondent. The Board issued advertisement dated 7th February, 2004, whereby total 3000 posts were advertised. The break up of the post advertised is as under:
07.02.2004 ADVERTISEMENT FOR 3000 POSTS
3.3 The procedure for selection was on the basis of competitive test which included;
3.4 The physical test consisted of five different categories. The details are as under:
3.5 In all, 1, 55, 737 applications were received by the Board.
3.6 In all, 98,760 candidates remained present for the physical test.
3.7 Out of 98,760 candidates, 21,209 candidates were found eligible and were called for the written test. The written test comprised of 100 marks.
3.8 In all, 7488 candidates were called for interview.
3.9 It appears that in the interregnum period, a writ petition being Special Civil Application No.6110 of 2005 was filed before this Court raising a grievance that the candidates belonging to the SC category were not called for interview despite the fact that they had obtained same marks as compared to other general category candidates.
3.10 It also appears that the candidates belonging to the SC category were not called for interview though they had obtained 85 marks, but on the other hand, the candidates of the general category, who had obtained 40 marks, were called for in the interview.
3.11 It appears that since the aforesaid discrepancy came to the notice of the State Government, a decision was taken after obtaining the legal opinion of the Additional Advocate General to call all the candidates for the interview, who had obtained the marks, which the last candidate of the general category had obtained.
3.12 As a result of such decision, total 8732 candidates were additionally called for the oral interview over and above 7488 candidates, who were earlier called for the interview.
3.13 Thus, oral interview was conducted of in all 7488 + 8837 and a merit list of 3000 candidates was prepared. The final merit list was published in the official gazette on 1.7.2006.
3.14 Amongst 8732 candidates, who were called for the interview at a later stage, 70 candidates found place in the final merit list.
3.15 In the final merit list, the cut off marks of all the candidates category wise were as under:
Advt. No:01/04 MERIT LIST (CUT OFF MARKS)
3.16 Amongst 70 candidates, who were selected out of 8732 candidates, the bifurcation was as under:
3.17 It is also the case of the petitioners that the reserved posts for SC, ST and SEBC were 146, 307 and 710 respectivey, whereas, according to the policy adopted by the State Government in respect of the reservation, the same should have been 225, 450 and 810 respectively. Thus, according to the petitioners, out of total candidates selected, 15% of the selected candidates should have belonged to the ST, while 7.5% of the candidates should have been of the SC category. However, out of total 3000 candidates selected, only 142 candidates belonged to the SC category, which was less than 5%.
3.18 It is also the case of the petitioners that candidates of the SC category, who were selected on the basis of their own merit in the above competition, were counted against the quota reserved for the SC candidates. After including such persons in the general category having been found meritorious with the candidates of general category, select list should have been prepared in such a manner that the candidates belonging to the reserved category gets benefit of the reservation. It is the case of the petitioners that the reservation quota should have been calculated after the open merit list are filled up and could not have been counted against those seats.
3.19 In the aforesaid background of the entire case, the petitioners have prayed for the following reliefs:
“(A) Your Lordships may be pleased to allow this petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order of direction quashing and setting aside the whole procedure undergone by the State authorities in the selection of the candidates who had applied in response to the advertisement dated 7.2.2004 quash and set aside the final select list for the post of Lok Rakshak and direct the respondent authorities to make fresh recruitment for the post of Lok Rakshak by issuing fresh advertisement.
(C) Your Lordships may be pleased to quash and set aside the Government Resolution dated 21/1/2004.
(D) Your Lordships may be pleased to appoint the vigilance inquiry and direct such vigilance committee to inquire into and examine the irregularities and illegalities as alleged in the above mentioned petition against the respondents by not making the selection of 3000 candidates, as successful candidates.
(E) Your Lordships may be pleased to call the record of oral test of the candidates for the scrutiny of the Hon’ble High Court of Gujarat.
(F) Pending hearing and final disposal of this petition.
(1) Your Lordships may be pleased to stay the implementation and execution of the Resolution dtd. 21/1/2004.
(2) Your Lordships may be pleased to restrain the whole procedure undergone by the State authorities and restrain the respondents from further proceeding with the recruitment process for filling the post of Lok Rakshak.
(3) Your Lordships may be pleased to appoint the vigilance inquiry in this regard and direct such vigilance committee to inquire into and examine the irregularities and illegalities as alleged in the above mentioned petition against the respondents by not making the selection of 3000 candidates, as successful candidates.
(4) Your Lordships may be pleased to call the record of oral test of the candidates for the scrutiny of the Hon’ble High Court of Gujarat.
(G) Your Lordships may be pleased to grant such other and further relief and/or order as deemed fit in the facts and circumstances of the case and in the interest of justice.”
4. Stance of the State respondent
4.1 The State respondent appeared and denied the allegations levelled in the petitions by filing Affidavitinreply. According to the State respondent, none of the fundamental rights or any other legal rights of the petitioners could be said to have been infringed or violated so as to make the present petitions maintainable under Article 226 of the Constitution of India. Sufficient care has been taken while protecting the rights of the candidates belonging to the SC and ST category. According to the State respondent, more candidates from the reserved category have been selected as against the number of reserved posts mentioned in the advertisement dated 7th February, 2004. In the Affidavitinreply filed on behalf of the State respondent, a statement has been provided showing category wise selection of the candidates.
4.2 According to the State respondent, the above referred statement would go to show that as against 1160 reserved category posts published in the advertisement, 2173 candidates found place in the select list of general category, and against 1837 seats of general category, only 827 had gone to the general category seats. Over and above, 1010 seats of general category candidates have been occupied by reserved category candidates.
4.3 The allegation of the petitioners as regards providing quota of 5% and 10% of the SC and ST category respectively in the advertisement instead of 7.5% and 15%, according to the policy, was baseless.
4.4 It is also the case of the State respondent that in the first phase, only 7488 candidates were declared as successful, but to avoid procedural delay in light of a writ petition being Special Civil Application No.6110 of 2005 being filed by one of the candidates of the reserved category, it was decided after seeking opinion of the Additional Advocate General to call additional 8732 candidates for oral interview. According to the State respondent, such action on the part of the Board could not be termed as mala fide or bias since the contingency, which arose at the relevant point of time, compelled the Board to take such a decision.
4.5 The ratio laid down by the Hon'ble Supreme Court in the case of Indira Sahani Vs. Union of India, 1992 Supplimentary (Part – III) SCC 217, has been followed by the Board in selecting the candidates of reserved quota from the general category on the basis of their individual merit. The State respondent, in its affidavitinreply, has provided a chart highlighting category wise figures of candidates selected in respect of the advertisement. The chart is as under:
4.6 It has been prayed that there being no merit in the petitions, the same may be dismissed.
5. Legal submissions on behalf of the petitioners.
5.1 Mr. YN Oza, the learned senior advocate appearing on behalf of the petitioners very vehemently submitted that the entire procedure adopted by the State in the process of recruitment for the post of Lok Rakshak could be termed as unconstitutional and deserves to be struck down. Mr. Oza submitted that the entire select list deserves to be cancelled and the State respondent be directed to undertake a fresh exercise of preparing the select list after following the mandate as laid down by the Supreme Court in catena of decisions.
5.2 Mr. Oza further submitted that gross injustice has been caused to the candidates belonging to the SC, ST and SEBC category since a candidate, who is entitled to be admitted on the basis of merit, though belonging to reserve category, cannot be considered to be admitted in seats reserved for reservation category.
5.3 Mr. Oza therefore, very streneously urged to issue appropriate directions upon the State respondent to cancel the select list and prepare afresh after following the settled position of law.
6. Legal submissions on behalf of the State respondent
6.1 Mr. PK Jani, the learned Government Pleader appearing for the State Government vehemently submitted that therebeing no merit in the petition, the same deserves to be dismissed. According to Mr. Jani, the advertisement is of the year 2004 and the select list was also finalized in the year 2006. Almost 6 years have elapsed, and after long passage of time, if any relief, as prayed for by the petitioners, is granted, then the same may lead to lot of hardships and difficulties to the candidates, who are already in service. Mr. Jani also tried to impress upon us that the entire select list may not be disturbed at the instance of few individuals, who could not find place in the select list, as they were not found meritorious. Mr. Jani submitted that the Affidavitinreply filed on behalf of the State Government very exhaustively explains the entire procedure, which was undertaken by the Board and no illegalities or any error, not to speak of any error of law, could be said to have been committed by the Board in the recruitment process. Mr. Jani therefore, prayed to dismiss the petitions.
7. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in these petitions is whether the State respondent adopted the correct procedure while preparing and finalizing the select list for the post of Lok Rakshak.
8. The first infirmity which we noticed during the course of hearing of the appications was that the reserved posts for SC, ST and SEBC were 146, 307 and 710 respectively, whereas we found that taking into consideration the policy adopted by the State Government in respect of the reservation, the same should have been 225, 450 and 810 respectively. We, therefore, thought fit vide our order dated 31st August, 2012 to call upon the State respondent to explain whether after the year 1986, there had been any change of policy decision regarding reservation. Pursuant to our order, the Additional Director General of Police (Administration), Gujarat State, Gandhinagar filed an affidavit stating that vide resolution dated 30th September, 1994 issued by the Government of Gujarat (GAD), the reservation ratio for SEBC was earlier 10%, which was enhanced to 27%. The State Government vide resolution dated 6th March, 1999 determined the ratio of reservation for Class I, Class II, Class III and Class IV empoyees. Accordingly, the reservation ratio for SC, ST and SEBC candidate was fixed at 7%, 14% and 27% respectively. It has also been stated in the Affidavitinreply that vide resolution dated 5th September, 2000, the ratio for reservation was thereafter amended and the reservation ratio was determined as 7% for SC, 15% for ST and 27% for SEBC. Thus, even according to the State respondent, the reservation ratio for SC, ST and SEBC candidate should have been 7%, 14% and 27% respectively. It is apparent from the materials on record and fairly conceded by Mr. Jani, the learned Government Pleader that the ratio was not maintained at the time of recruitment and preparation of the final select list.
9. If the aforesaid ratio would have been adopted, then, the number of posts reserved for SC category should have been 225, for ST, should have been 450 and for SEBC should have been 810 respectively.
10. We have also gone through the entire select list, which provides for merit number, interview number, name of the candidates and category. We have also gone through the entire list, which also provides for the category, interview marks, written marks, physical marks and final marks. It is very apparent that the reserved category candiates selected on the rule of merit (and not by virtue of rule of reservation) have been counted as reserved category candiates and by counting such candidates, it has been tried to highlight that appropriate representation has been given to the members of the reserved category.
11. The sole question that revolves around for determination is, as to whether those reserved category candidates, who were selected on merit and were placed in the list of open category candidates could still for the purpose of placement (preference) be considered to be reserved category candidates thereby exhausting the quota reserved for relaxed SC, ST and SEBC candidates from allocation of service.
12. In our view, the present controversy is no more res integra in view of the judgment of Hon’ble Supreme Court in the case of Indra Sawhney v. Union of India 1992 Supp (3) SCC 217. This Court at (SCC p. 735, para 811) held as under:
"In this connection it is well to remember that the reservations under Article 16 (4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."
13. In the case of R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, a Constitution Bench of the Hon’ble Supreme Court considered the question of appointment and promotion and roster points visavis reservation and held at SCC p. 750, para 4 as under:
"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the nonreserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition."
14. In Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 it has been held by the Hon’ble Supreme Court (at page SCC 705) that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
15. The Hon’ble Supreme Court in Ritesh R. Sah v. Dr. Y.L. Yamul & Ors. (1996) 3 SCC 253 after considering the various decisions of this Court, as referred to above, has come to the conclusion at SCC p.261 262 as under:
"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less, meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.
(emphasis supplied)”
16. In the facts and circumstances of the case, we are also of the opinion that the decision of the State respondent to call for additional 7200 candidates for oral interview taking recourse of a writ petition being Special Civil Application No.6110 of 2005 filed by one of the candidates of the general category and the opinion of the Additional Advocate General was also unjustified. However, we have noticed that out of 7200 candidates, who were additionally called for the oral interview, only 70 candidates could find place in the final select list. In the first instance, while directing the State respondent to refix the entire select list, we had thought to direct that those 70 candidates be excluded from the select list, but taking note of the fact that they are not before us as party respondent and further that they are serving past almost six years, we are not inclined to disturb them at this stage.
17. So far as the prayer as regards setting aside of the Government Resolution dated 21st January, 2004 is concerned, we may only say that the prayer would not survive in view of the decision of this Court in Writ Petition (PIL) No.49 of 2011 (Shree Yogkshem Foundation for Human Dignity), wherein, we have held that such policy of the State Government is violative of the constiturional provisions. Thus, the said prayer would not survive.
18. We are of the view that the ends of justice would be served if we dispose of these writ applications by issuing following the directions.
(1) The State respondent is ordered to cancel the entire select list, which is the subject matter of challenge in the present petitions.
(2) On cancellation of the entire select list, the State respondent shall undertake a fresh exercise of preparing the select list by first preparing a general merit list of 1515 candidates and thereafter, prepare the merit list of 1485 candidates of the reserved category.
(3) If a candidate of a reserved category finds himself in the merit list of the general category, then such a candidate of the reserved category shall not be counted against the quota reserved for SC/ST or SEBC.
(4) We also direct that the reservation shall be provided in terms of the resolution of the State Government dated 5th September, 2000 i.e. in the ratio of 7% for SC, 15% for ST and 27% for SEBC.
(5) We direct the State Government that till completion of the entire exercise of refixing/preparation of the select list, the candidates, who are already in service, may not be disturbed till the finalization of the entire select list.
(6) Such exercise shall be undertaken by the State Government within a forthnight from today, and the same should be completed within two months thereafter.
19. With the aforesaid observations and directions, we dispose of all the writ applications. Rule is made absolute to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs.
20. In view of the order passed in the main matters, the connected civil applications are also accordingly disposed of.
(BHASKAR BHATTACHARYA,CJ) (J.B.PARDIWALA, J.) shekhar