PATEL SABHIR HUSSAIN MUSABHAI Vs. BARODA DISTRICT PANCHAYAT

JUDGEMENT

(1.) This Letters Patent Appeal is preferred against the order of the learned single Judge in Special Civil Application No. 5873 of 1985. The petitioner in the Special Civil Application is the appellant in this Letters Patent Appeal. The respondents in the Special Civil Application are the respondents in this Letters Patent Appeal. We prefer to refer to the parties as per their array in the Special Civil Application, for the sake of convenience.

(2.) The petitioner having applied for the post of Gram Sevak, took part in the written examination held in February 1984. The petitioner was called for an oral interview on 18-4-1984. The petitioner was not selected and included in the select list prepared by the Interview Committee. The petitioner expressed a grievance over his non-selection by pointing out that instead of totalling of the marks achieved in the written examination with those of oral interview, there had been an exclusion of the petitioner from the select list on the ground that he has not achieved the minimum qualifying marks in the oral interview. The petitioner preferred the Special Civil Application impeaching his non-selection and asking for appropriate reliefs. Before the learned single Judge, who heard the Special Civil Application, the grievance of the petitioner was expatiated by pointing out that there could not be a fixing of the minimum qualifying marks for the oral interview and the rules governing the selection do not enable such prescription and hence this Court must intervene. The learned single Judge did not countenance the grievance of the petitioner, opining that the rules did authorise the authority concerned to prescribe the minimum qualifying marks for oral interview and even otherwise, the prescription of minimum qualifying marks for oral interview by the concerned authority was not arbitrary. In this view, the learned single Judge rejected the Special Civil Application.

(3.) Mr. B. P. Tanna, learned Counsel for the petitioner/appellant herein would submit rules concerning examination for recruitment to the post of Gram Sevak (Panchayat Service) bearing the nomenclature "Gram Sevak" (Panchayat Service) Recruitment (Examination) Rules, 1982, hereinafter for brevity called "Gram Sevak Rules", got formulated pursuant to powers conferred by Sec. 323 read with sub-sec. (3) of Sec. 203 of the Gujarat Panchayats Act, 1961, hereinafter referred to as the Act, and the Gram Sevak Rules do not envisage and authorise the prescription of minimum qualifying marks for oral interview and in absence of such authority and prescription by the Gram Sevak Rules, no such power could be claimed by necessary implication and hence in the present case the prescription of the minimum qualifying marks has got to be declared as illegal and without authority.