J C PARMAR Vs. GUJARAT PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) IN this petition the petitioner has prayed for a direction to quash the decision of the Gujarat Public Service Commission of rejecting the candidature of the petitioner for the post of Assistant Engineer (Civil), communicated to the petitioner vide its order dated 1st August 1997 and to accept the candidature of the petitioner for the post of Assistant Engineer (Civil ).

(2.) THE facts in a nutshell as emerging from the record of the petition are as under: 2. 1 When the petitioner was in school the father of the petitioner died in harness and, therefore, the petitioner was taken up as Junior Clerk on compassionate grounds. At that time he was doing his Higher Secondary and after the job was offered he was constrained to leave his studies in order to accept the job and to look after the family. According to the petitioner, he always wanted to study further and since he was employed in the office of Engineers of the State of Gujarat, he thought it fit to go for civil Engineering Course. However, since he had passed SSC examination with commercial Arithmetic and not with Mathematics and science subjects, he could not apply for diploma in Civil Engineering. Therefore, he again appeared in the ssc examination with Mathematics and Science subjects and cleared the same with good marks. On the basis of this educational qualification the petitioner applied for Diploma in Civil Engineering Course, got admission, and passed the same in the year 1986. Thereafter on the basis of his diploma in Civil Engineering, the petitioner appeared in the Entrance test for admission in the course of B. E. (Civil) in M. S. University of Baroda. After passing in the Entrance Test the petitioner was admitted in B. E. (Civil)Course and the petitioner cleared the B. E. (Civil) examination in the year 1994. 2. 2 The Gujarat Public Service Commission had given public advertisement on 30. 04. 1996 for the post of Assistant Engineer (Civil) under Narmada and Water resources Department. The said advertisement was published as a special advertisement No. 6 of 1996 to fill up the backlog of posts reserved for Scheduled Caste and scheduled Tribe. 22 posts were reserved for Scheduled Caste candidates and 230 posts were reserved for Scheduled Tribe candidates. The petitioner is a scheduled Caste candidate. 2. 3 As per the advertisement the essential qualification for the post is B. E. (Civil)and the incumbent should not be more than 33 years of age as on 30. 4. 1996. However, the candidates who are servants of the Government of Gujarat are given age relaxation as per the provisions of Gujarat Civil Services Classification and recruitment (General) Rules, 1967. 2. 4 The date of birth of the petitioner is 1. 6. 1962 and he is possessing the degree of b. E. (Civil ). The petitioner is working as Junior Clerk in Narmada and Water Resources Department of Government of Gujarat since 16. 8. 1979. When the petitioner was appointed as Junior Clerk he was within the upper age prescribed for the post of Junior Clerk. 2. 5 Since the petitioner is possessing all the criteria prescribed in the advertisement, he had applied for the aforesaid post. The petitioner was called for viva voce vide letter dated 13. 12. 1996, wherein it was specifically mentioned that the petitioner was required to produce No Objection Certificate at the time of interview. Accordingly the petitioner had produced the No Objection Certificate from his employer at the time of interview which was accepted by the respondents. 2. 6 After due process of selection, the result was published by the Gujarat Public service Commission and the same was placed on the Notice Board of the gpsc. In the said list the name of the petitioner was shown at serial No. 7 in the select list. In the en-tire list in all 14 candidates belonging to Scheduled Caste were declared successful. In pursuance of the same the name of the petitioner was recommended by the GPSC to government of Gujarat for appointment and the said information was given by the gpsc to the petitioner vide letter dated 25th March, 1997. 2. 7 According to the petitioner, in the month of June 1997 he came to know that government has already issued appointment orders to the persons recommended by the gpsc and the name of the petitioner was not included in the appointment order issued by the Government. On inquiry the petitioner was orally informed that the petitioner was overaged and, therefore, the petitioner could not be appointed. 2. 8 The petitioner made a representation to the Government as well as to GPSC on 23. 6. 1997 stating that the petitioner cannot be dropped on the ground that the petitioner is overaged. The petitioner also made a further representation on 22. 7. 1997 to the authorities. According to the petitioner he can get benefit of the age relaxation which is available to the Government employees as per the Rules 8 (5) and 8 (5-A)of the Gujarat civil Services (Classification and Recruitment) General Rules, 1967. 2. 9 The petitioner received a communication from GPSC dated 1. 8. 1997 whereby it was communicated to the petitioner that the petitioner is not eligible for age relaxation under Rule 8 (5) of the said Rules and, therefore, the candidature of the petitioner was cancelled and the recommendation which was made to the government also stood cancelled. 2. 10 It is under the aforesaid circumstances the petitioner has approached this court by way of the present petition.

(3.) MR. Paresh Upadhyay, learned counsel for the petitioner has contended that the advertisement specifically states that those who are servants of gujarat Government servants, are eligible for age relaxation as per Rule 8 of The Gujarat Civil Services classification and Recruitment (General) Rules, 1967. Therefore, the petitioner was wrongly denied the benefit of Rule 8 (5) of the said Rules. He submitted that when the petitioner is eligible for age relaxation as per Rule 8 (5-A) (1) of Gujarat classification and Recruitment (General) Rules, 1967, there was no reason for the respondents to reject the candidature of the petitioner. 3. 1 Mr. Upadhyay further submitted that it is the policy of the Government to see that all efforts are taken to clear backlog of vacant post of Scheduled Caste and scheduled Tribe. The Government had made relaxation in recruitment rules also to see that the adequate number of candidates are made available. In spite of this policy, the denial of appointment to the petitioner is against the policy of the Government. 3. 2 Mr. Upadhyay submitted that whenever some relaxation is to be given to any candidate, first it should be given with regard to age, then with regard to experience and as a last course with regard to educational qualification. The petitioner being a scheduled Caste candidate, he has not asked for relaxation of experience or educational qualification. He has requested for age relaxation by a few months which should have been granted by the respondents. According to him, on true interpretation of rule 8 (5)of the Gujarat Civil Services Classification and Recruitment (General)Rules, 1967, it is clear that the petitioner is eligible for being considered for the post in question. 3. 3 Mr. Upadhyay submitted that in the present case there were 22 posts reserved for Scheduled Caste candidates and the Select List included only 14 candidates belonging to Scheduled Caste which clearly shows that adequate number of candidates belonging to Scheduled Caste are not available to the Commission and, therefore, the posts reserved for Scheduled Caste will go unfilled on the ground that eligible candidates are not available. Therefore, looking to the overall facts and circumstances the petitioner should have been given the appointment on the post reserved for Scheduled Caste candidate. 3. 4 Mr. Upadhyay submitted that when the petitioner was in school his father died in harness and, therefore, the petitioner was taken up as Junior Clerk on compassionate grounds. He has taken up the job when he was doing his higher secondary in order to support his family. Therefore, he had no option but to accept the job to maintain his family by abandoning his studies. In spite of this position because of the zeal to study further and to try for public employment on the basis of the superior educational qualification, the petitioner had approached his teachers and friends and on their advice he had gone for Dimploma Certificate on the basis of his SSC certificate. 3. 4. 1 The petitioner was employed in the office of Engineers of the State of Gujarat and, therefore, he thought it fit to go for Civil Engineering Course. However, since he had passed his SSC examination with commercial Arithmetic and not with mathematics and Science subjects, he could not apply for diploma in civil Engineering course. Therefore, he again appeared in the SSC examination with mathematics and science subject and cleared the same with good marks. On the basis of the said educational qualification he had applied for Diploma in Civil Engineering course and later on passed in the same in the year 1986. On the basis of his diploma in civil Engineering, the petitioner appeared in the Entrance Test for admission in the course of B. E. (Civil) in the M. S. University of Baroda. The petitioner passed in the same and he was admitted in B. E. (Civil) Course and the petitioner cleared the B. E. (Civil)examination in the year 1994. After the petitioner got his B. E. (Civil) degree the petitioner applied for the post in question and got selected in the same. In the background of these facts. Mr. Upadhyay submitted that looking to the facts and circumstances and in view of the fact that the petitioner hailing from Scheduled Caste community, his case should have been considered by the respondents.