Allowed

Solanki Parvatikumari Rameshbhai v. State of Gujarat

Gujarat HC27 Dec 2018SCA/22981/2017

Case brief

AI extract

What is this about?

Caveat Special Civil Appeal regarding a recruitment selection for Commercial Tax Officer post by GPSC. Petitioner was declared ineligible due to alleged non-production of SSC.E. credit certificate. Court distinguished analogous precedent and held the omission was a curable procedural irregularity, not an illegality. Petition allowed and ineligibility set aside.

What did the court decide?

The action of Gujarat Public Service Commission in treating the petitioner as ineligible is set aside. The petition is allowed and rule made absolute.

Solanki Parvatikumari Rameshbhai Vs State of Gujarat — Service and Employment | Gujarat HC (2018)

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C/SCA/22981/2017 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 22981 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE N.V.ANJARIA

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

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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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SOLANKI PARVATIKUMARI RAMESHBHAI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR ANSHIN DESAI, SR. ADVOCATE WITH MR MANISH S SHAH(5859) for the PETITIONER(s) No. 2,3

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PETITION WITHDRAWN/DISMISSED(73) for the PETITIONER(s) No. 1 MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1

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MR MANISH J PATEL(2131) for the RESPONDENT(s) No. 2

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NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 27/12/2018

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CAV JUDGMENT

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It is known to the realm of law also that
certain errors or omissions, by their very nature and

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C/SCA/22981/2017 CAV JUDGMENT

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attendant circumstances, do not become prone to
address consequences.

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2.This petition was originally filed by three
petitioners contending prayer for setting aside the
action on part of respondent No.2 in declaring the
th
petitioners as ineligible as per result dated 20
November, 2017. The three petitioners then figured in
the result at Serial Nos.556, 653 and 1124
respectively were treated as ineligible in the
result.

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2.1It may be stated at the outset that by order
nd
dated 22nd January, 2018 read with order dated 22
March, 2018, this Court granted ad-interim relief to
the petitioners permitting them to appear in the
interview and further directed the respondent No.2 –
Gujarat Public Service Commission (GPSC) to keep the
result of interview of the petitioners in sealed
cover, to be produced before this Court. Thereafter
on 01st May, 2018, learned advocate for GPSC produced
sealed cover. On the basis thereof, the Court noted
that as per the result produced by opening of the
sealed cover, petitioner No.1 – Parvatikumari
Rameshbhai and petitioner No.2 – Viradiya
Bhaveshkumar Govindbhai had not secured the requisite
marks so as to position themselves in the merit list
for final selection.

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2.2The petitioner No.3 – Rajapara Savan
Jagdishbhai secured the marks, which enabled him to
get position in the merit-list for final selection.

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C/SCA/22981/2017 CAV JUDGMENT

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The Court, by order dated 01st May, 2018, dismissed
the petition in respect of petitioner Nos.1 and 2.
Accordingly, the present petition survived only for
petitioner No.3. In the said order dated 01st May,
2018, it was further observed that the appointment,
if any, shall be subject to further orders of the
Court.

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3.Noticing the relevant facts, respondent No.2
– Gujarat Public Service Commission issued
advertisement No.37/2016-17 for the recruitment to
the posts of Commercial Tax Officer and Account
Officer, Class-II. As per the said advertisement
dated 22nd January, 2017, preliminary examination was
taken and the candidates including the petitioner
No.3 who had applied for the post in question,
appeared in the examination. This preliminary
examination was to follow the main written
examination.

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3.1It appears that as per the instructions in
the advertisement, the applicant-candidates were
required to submit the necessary documents which
would enable them to appear in the main examination.
It was the instruction that true copies of the
certificates relating to qualifications including
S.S.C.E. credit certificate were required to be
submitted. The S.S.C.E. credit certificate was needed
for the purpose of fortification of the birth date of
the candidate.

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was declared on 25th April, 2017. The petitioner
cleared the said examination. Thereafter the
respondent published an instructive notification on
20th May, 2017 that the candidates who cleared the
examination would be required to submit on-line form
for the main examination between 20th May, 2017 to
05th June, 2017 and would have to send the necessary
documents. It is the case of the petitioner that he
has sent all the documents as required including the
S.S.C.E. credit certificate by Registered A.D. Post
which were received by the respondent No.2. The
petitioner was thereafter permitted to appear in the
main written examination. It appears that at this
stage the respondent No.2 allowed all those
applicants to pay up the fees/process charge, who had
not paid the same within the time limit.

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3.3The result of the main written examination
was declared on 20th November, 2017. It was in two
parts being the list of eligible candidates and the
list of ineligible candidates. It is stated that 902
candidates were declared eligible whereas 1153
candidates were declared ineligible. It is stated by
the petitioner that his name did not figure in the
list of eligible candidates but was included in the
list of ineligibles. The ground on which the
petitioner was treated ineligible and included in the
class of ineligibles, was that S.S.C.E. credit
certificate was not produced.

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3.4It is the case of the petitioner that soon
after the result was declared on 20th November, 2017,

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without wasteing time on 22nd November, 2017, the
petitioner made representation stating that the
S.S.C.E. credit certificate was already sent with
application along with other documents. The
petitioner said that it was entirely possible that
the same was misplaced in the office of respondent
No.2 – GPSC, and stated that since it was actually
sent. The petitioner produced attested copy of the
certificate and requested the respondent No.2 to
treat him eligible.

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3.5This Court granted ad-interim relief by way
of order passed in Civil Application directing that
the petitioner shall be called in interview, but
requiring the result of the interview of the
petitioner to be produced before the Court. As noted
hereinabove, out of the three petitioners, two
petitioners failed in the interview and the petition
survived only for petitioner No.3.

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4.Heard learned senior advocate Mr.Anshin
Desai assisted by learned advocate Mr.Manish Shah for
the petitioners, learned Assistant Government Pleader
Mr.K.M. Antani for respondent No.1 – State and
learned advocate Mr.Manish J. Patel for respondent
No.2 – Gujarat Public Service Commission.

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4.1It was asserted on behalf of the petitioner
that the S.S.C.E. certificate was actually sent along
with the other documents. Learned senior advocate for
the petitioner submitted that respondent No.2 acted
contrary to their own advertisement and instructions

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which stated that upon the application being found
satisfactory, the candidate would be permitted to
appear in the examination, and that the petitioner
was allowed to appear in the main examination
accordingly. It was submitted that the certificate
was sent along with the application and even after
the intimation of respondent No.2, within two days,
the petitioner vigilantly approached the authority
making representation and submitting another attested
copy of the certificate. Learned senior advocate also
highlighted the aspect that in the matter of payment
of application fee, respondent No.2 had relaxed the
time limit and even subsequent to the last date
prescribed for payment of fees, the fees were
accepted. It was submitted that in treating the
petitioner ineligible on the aforesaid ground of
allegednon-productionofS.S.C.E.credit
certificate, the respondents acted unreasonably and
arbitrarily. It was submitted that in the facts and
circumstances of the case it was too technical a
ground to be countenanced by court of law.

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4.2In the affidavit-in-reply what was sought to
be contended by the respondent No.2 was that the main
writtenexaminationwasconductedwithout
verification of the documents. It was submitted that
documents when not found in respect of any candidate,
such candidate cannot be permitted to be interviewed.
It was submitted that without school leaving
certificate, the date of birth could not be
considered. It was submitted that the certificate in
question was required to reach the office of

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respondent No.2 before particular date and time and
subsequent production of attested copy along with the
representation after two days could not cure the
defect for the petitioner.

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4.3In the rejoinder affidavit, the petitioner
inter alia contended that he had immediately
responded after finding himself in the list of
ineligiblecandidates.Itwasfurther
uncontrovertedly stated that the students belonging
to M.B.A. who had the subject of Finance, were
declared disqualified but upon their representation,
they were accommodated and they were declared
qualified. On this count, the petitioner alleged
discrimination. It was further averred in the
additional affidavit that respondent published
amendment notice dated 08th May, 2018 whereby the
candidates who were declared ineligible after the
examination of the documents and certificate for the
post of Class-I, their evidences were considered and
they were declared eligible. It was further averred
undeniably that these candidates who appeared in
Class-I examination were granted opportunity to
produce S.S.C.E. certificates. It was submitted that
even if going by the stand of the respondent that the
petitioner had not sent the certificate, the
petitioner ought to have been granted the opportunity
to make good the requirement, instead of adopting a
technical and discriminatory stance.

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5.The arena of facts and the rival case, leads
to suggest that the case of the respondents that

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S.S.C.E. certificate was not sent by the petitioner,
was beset with a serious dispute. It was the specific
case of the petitioner that through R.P.A.D. post,
while sending the application, the S.S.C.E. credit
certificate was sent along with the other documents.
Respondent No.2 took a stance that the same was not
received and treated the petitioner to be ineligible
for the purpose of interview, after permitting the
petitioner to participate in the process by taking
main written examination. Even on demurer, what turns
out is the alleged non-sending of S.S.C.E.
certificate along with the application. However, the
existence of S.S.C.E. certificate at the material
time, that is sending of the application and other
documents, and the availability of such certificate
with the petitioner was not in dispute.

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5.1In view of what is born out as above, it
leaves no reason for doubt that the petitioner did
have the S.S.C.E. Certificate indicating the age
proof and on the basis of such availability, he made
the application. The application form was sent on-
line and non-producing the Certificate along with the
on-line application was a sheer omission. The
petitioner did produce the Certificate which was
already in existence at the time of written
examination. The petitioner was permitted in the
written examination. In addition that the conduct of
the respondents in receiving and accepting the
appellant form, not rejecting it, and further
permitting the petitioner to participate in the
process even until the stage of written examination,

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may attract successfully the doctrine of estople by
conduct, the clinching aspect could be that the non-
production of the Certificate at the time of making
application being out of inadvertence and in no way
fraudulent or misrepresentative in nature, it is not
liable to be treated as a defect in the nature of
illegality due to which candidature of petitioner may
be treated as ineligible. It was a procedural lapse
condonable, and which was made good at the later
juncture when irreversible situation had not arisen.

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5.2Law conceives a clear differentiation
between illegality and irregularity. This nice
distinction brings home the case of the petitioner.
An illegality is something which amounts to
substantial failure in compliance of requirement. It
denotes such breach of rule or requirement which
alters the position of a party in terms of his right
or obligation. Illegality denotes a complete defect
in the jurisdiction or proceedings. Illegality is
properly predictable in its radical defects. It is a
situation contrary to the principle of law. As
against this, an irregularity as defined
lexicographically, is want of adherence to some
prescribed rule or mode of proceedings. It consist in
omitting the rule something that is necessary for due
and orderly conducting of a suit or doing it in an
unreasonable time or improper manner. In Law Lexicon
by R. Ramanatha Aiyar, 1997 Edition, irregularity is
defined as “a neglect of order or method; not
according to regulations; the doing of an act at an
unreasonable time, or in an improper manner; the

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technical term for every defect in practical
proceedings or the mode of conducting an action or
defence, as distinguished from defects in pleading.
Irregularity is failure to observe that particular
course of proceedings which, conformable with the
practice of the court, ought to have been observed”.

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5.3 A thing irregularly done is not regularly
done. It is not in conformity of rule or principle.
The concepts “illegal”, “irregular” and “procedurally
irregular”, are often understood in terms of their
degree which they bear to be not in conformity with
rule of particular course of action. The illegality
is a highest kind of breach of law which will taint
and vitiate the action. One who commit “illegality”
has to be denied the assertion of his right and he
stands disentitled to relief in law. Irregularity, as
noticed, is breach of procedure of rule or some
orderly conduct but not of such nature which could be
said to be in the nature of a debilitating defect. It
is pardonable in law. The concept of procedural
irregularity is indicative of lapse of minor nature
in procedure which could not affect adversely rights
of a party, nor would exceptionally reverse the
obligation of the other side.

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5.4On behalf of the respondents, decision of
this Court in Shaileshkumar Maharubhai Chaudhari v.
Gujarat Public Service Commission being Special Civil
Application No.7465 of 2012 decided on 24th July, 2012
was pressed into service to submit that in that case
also the candidate had not submitted the marksheet of

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the S.S.C. examination which was not condoned by the
Court. Not only that the said decision stood on its
own facts, the distinguishing aspects were that the
petitioner therein was informed for specific number
of times, yet he had failed to provide the requisite
documents. In this case, the petitioner's case was
that he had sent the S.S.C.E. Certificate and even
otherwise, after being declared as ineligible,
immediately, without wasting time, he produced
another certificate duly attested. Secondly, in
Shaileshkumar Maharubhai Chaudhari (supra), the
selected candidates had already been recommended and
appointed, therefore the Court did not think it fit
to interfere. Furthermore, in that case the Court did
not consider whether non-supply of the copy of
S.S.C.E. Certificate by the petitioner of the said
case was an illegality or irregularity. In the facts
and circumstances of the case, the omission was
treated as illegality by the Court, whereas it is
entirely possible to take a different view in the
present set of facts.

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6.A Certificate already in existence and the
factum of birth date on the basis of such Certificate
being indisputable, when bona fide omitted to send
along with the on-line application by a candidate
whose such application was accepted and who has
subsequently participated in the stages of selection
process, could not be allowed to be prejudiced on the
ground of inadvertent non-sending of the Certificate,
produced later before the rights and obligations
underwent change, more particularly when no other

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adverse or accentuating aspects override. The defect
incurred on part of the petitioner-candidate could be
categorised as procedural irregularity so as not to
disentitle him in participating in the further
process of selection, and not rendering him as
ineligible if he is otherwise eligible to be
appointed.

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7.In view of the aforesaid discussion and
reasons, the petition deserves to be allowed. The
action and decision of respondent No.2 – Gujarat
Public Service Commission in treating the petitioner
– Rajapara Savan Jagdishbhai as ineligible in the
result dated 20th November, 2017 is set aside. The
petition stands allowed accordingly.

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Rule is made absolute accordingly.

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Anup

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Solanki Parvatikumari Rameshbhai v. State of Gujarat

Case brief

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Solanki Parvatikumari Rameshbhai v. State of Gujarat

Case brief

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