GUJARAT PUBLIC SERVICECOMMISSION

120 Gujarat PSC

121Gujarat PSC

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS PATENT APPEAL NO.485 OF 2002 & CONNECTED CASES

D.D. 11.12.2002

Hon’ble Mr. Justice R.K.Abichandani

And

Hon’ble Mr. Justice Sharad D.Dave

K.D.Vohra

Vs.

Kamleshbai Gobarbhai Patel

Appointment – Appointment order issued to selected candidates after terminating the

services of Ad hoc Lecturers

GPSC made selection to 475 posts of Gujarat Educational Services Class-II (Collegiate Branch)

in Government Colleges in different subjects as per rules – As there was delay in issuing

appointment orders to the selected candidate they filed writ petitions before the High Court –

The Ad hoc Lecturers who were required to be replaced by GPSC selectees also moved the High

Court – The High Court allowed the writ petitions of the GPSC selectees and rejected Special

Leave Applications of Ad hoc appointees – Aggrieved by the same Ad hoc selectees filed these

Appeals – Ad hoc Lecturers were appointed and they were to hold the post till the availability of

GPSC selectees - The High Court in these Appeals after considering several aspects of Ad hoc

appointment and regular selection has rejected the Appeals filed by the Ad hoc lecturers.

Held:

Ad hoc Lecturers could have been continued only for one year without consulting the PSC and

their continuance for a long period beyond one year without consulting PSC was contrary to

Gujarat Exemption from Consultation Regulations, 1960. It is further held that if the ad hoc

employees who continued as ad hoc beyond one year are to be regularised or deemed to have

been regularised that would frustrate the very process of selection and appointment as per the

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mode and procedure prescribed by the statutory rules and as would happen in the present case,

no posts would be left for the regularly selected persons because two persons cannot hold the

same post on a regular basis.

It is further held that deliberate and consistent failure on the part of the executive to

consult the PSC in the matters in which it is constitutionally obliged to consult, notwithstanding

that the advice may not be binding on it, would bring about a situation in which it would appear

that the governance of the State is not carried on in accordance with the provisions of the

Constitution, by on one hand paralysing a constitutional body like the PSC from functioning and

on the other, short circuiting the provisions which require regulations under the proviso to clause

(3) to Article 320 to be framed and to be laid before the Legislature which can modify them for

deciding in which specified matters consultation with PSC is to be dispensed with.

Cases referred:

1. [1972] 1 SCC 409 - R.N.Nanjundappa v. Thimmiah

2. (1985) 2 SCC 604 – G.S.Lama v. Union of India

3. (1986) 2 SCC 157 – Narendar Chadha v. Union of India

4. AIR 1987 SC 478 – Rattan Lal v. State of Haryana

5. AIR 1987 SC 1554 – State of Bihar v. Kripala Shanker

6. AIR 91 SC 295 - H.C.Puttaswamy v. Hon’ble the Chief Justice of Karnataka High Court

7. 1992 Supp. (1) SCC 272 – Keshav Chandra Joshi v. Union of India

8. AIR 1994 SC 1808 – J&K Public Service Commission v. Dr.Narinder Mohan

9. 1995 Supp. (2) 407 – State of Maharashtra v. Sanjay Thakre

10. AIR 1995 SC 974 – State of Orissa v. Dr. Pyari Mohan Misra

11. (1996) 10 SCC 565 – E.Ramakrishnan v. State of Kerala

12. AIR 1996 SC 2775 – Dr. Surinder Singh Jamwal v. State of Jammu & Kashmir

13. (1997) 1 SCC 350 – P.Ravindran v. Union Territory of Pondicherry

14. AIR 1998 SC 375 - Government of Orissa v. Hara Prasad Das

[1998] 6 SCC 165 – State of M.P. v. Dharam Bir

15. AIR 1999 SC 152 – Dinkar Anna Patil v. State of Maharashtra

17. AIR 2001 SC 606 – State of Karnataka v. B.Suvarna Malini

123Gujarat PSC

ORDER

1. This group of appeals has been preferred by persons who are appointed as ad hoc lecturers

pending the availability of the regular recruits through the Gujarat public Service Commission

(GPSC for short), to the post of lecturer, Gujarat Educational Services, Class II, (Collegiate

Branch), against the common judgment and order dated 15th July 2002 passed by the learned

single judge allowing the Special Civil Applications No.2395 of 2001 and other cognate matters

which are filed by the candidates selected through the GPSC as per the Recruitment Rules

applicable to the said post and rejecting the Special Civil Application No. 4396 of 2001 and

other cognate matters which were filed by the ad hoc appointees, who were required to be replaced

by the GPSC selectees.

2. In Special Civil Application No. 2395 of 2001 and its cognate matters, which were filed by

the direct selectees through the GPSC, it was prayed that the petitioners should be appointed to

the posts of lecturer as per the recommendation of the GPSC. The GPSC had issued an

advertisement on 15th June 1990 for recruitment to the posts of lecturer, Gujarat Educational

Services, Class II, (Collegiate Branch) to the Government Colleges in different subjects in respect

of 475 vacancies which had arisen and many of which were being manned by the ad hoc appointees

over a long period of time. According to these petitioners, they were duly selected by the GPSC

and recommended for the post, and that, as per the extant instructions of the Government, the

appointment pursuant to the GPSC recommendations could not have been delayed beyond the

period of six months. It was pointed out that 300 Lecturers were continued on ad hoc basis

subject to the availability of the candidates selected through the GPSC, but, for the reasons best

known to the Government, these regularly selected candidates were not issued appointments.

Among these regularly selected candidates, there were also some candidates who while working

on ad hoc basis came to be selected by the GPSC. Some of the ad hoc lecturers locally appointed

were drawn from government schools from their Class III posts in which their lien was retained,

while the rest were locally appointed direct on ad hoc basis. All the ad hoc appointees knew that

they were to hold the post only till the availability of the GPSC candidates. Despite the PSC

asking the Government to explain why the appointments were not being made pursuant to its

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recommendation, the Government was delayed the matter. These direct selectees therefore prayed

for being appointed pursuant to their selection by the GPSC. As the matter now stands, appointment

orders of 132 direct selectees were issued on 10th November 2001, and further appointments of

210 such GPSC selectees have been issued on 9th October 2002 after the decision of the learned

single Judge. It is stated that many of these have joined their posts except 123 direct selectees

who, though appointed, are yet not posted in view of the interim orders which operated in favour

of the ad hoc appointees.

2.1 It appears that, during the pendency of Special Civil Application No.2395 of 2001, which

was filed by direct selectee, the present three appellants of the Letters Patent Appeal No. 485 of

2002 and three other ad hoc appointees had, at their instance, been impleaded as party respondents

No.5 to 10. The original respondents Nos.5, 6 and 8 are the appellants of the Letters Patent

Appeal No. 485 of 2002. All other Letters Patent Appeals are by such ad hoc appointees.

3. In Special Civil Application No. 2992 of 2001 and other cognate matters, the contentions

raised by the ad hoc appointees were almost common in all their petitions and their main grievance

was that, though initially they were appointed on ad hoc basis, their appointments having been

made after being selected by the local Committee constituted as per the resolution / circular

dated 21st December 1992, which comprised of Joint Director of Education or Deputy Director

as well as Principal and Lecturer of the respective college and one expert from amongst the

panel of lecturers, in accordance with the requirements of the Recruitments Rules as regards the

educational qualifications and they, having been continued for a number of years, have acquired

a right to continue on the post of Lecturer. Their appointments should be considered to have

been duly regularised and they have a better right to hold the said post over the direct selectees.

According to them, their appointments were made on the basis of merit after they were tested by

the interview Committee constituted under the aforesaid circular. It is contended by them that,

since they had a long teaching experience and have been teaching in various colleges without

any adverse reports against them, any action of discontinued them for accommodating the fresh

candidates was viorative of their fundamentals rights guaranteed by Articles 14 and 16 of the

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constitution. It is also their case that the Government had regularized similar temporary employees

as Doctors in Ayurvedic Colleges, as also the employees of the Narmada & Water Resources

Department, without being required to undergo the process of selection through the GPSC. Denial

of similar treatment to these ad hoc appointees was, therefore, violative of their fundamental

right to equality guaranteed by Articles 14 and to 16 of the constitution, as also their right to life

under Article 21 of the Constitution. The ad hoc lecturers therefore prayed that they should be

regularized as lecturers.

3.1 On 15th July 2002, the learned Single Judge, while allowing the petitions of the direct

selectees, rejected the prayer of the appellants for continuing the service, holding that they would

be treated as surplus but not entitled to any regular salary or financial advantage.

3.2 The case of the appellants of Letters Patent Appeal No.540, 558 to 561 of 2002 and other

matters was that they were interviewed by the duly constituted Staff Selection Committee in

January 1990 and appointed as Lecturers in Electronics in the Government Colleges. They applied

pursuant to the advertisement dated 15th June 1998 issued by the Gujarat Public Service

Commission for recruitment of Lecturers and they received which were rejected on the ground

that did not posses the prescribed educational qualification. In May 1999, they represented to the

Government for regularizing their ad hoc appointments, but without any response. They

apprehended that the GPSC selectees may be appointed in their place and their service would

terminated and therefore, they filed the petitions from which these appeals arise. They also

relied upon the affidavit-in–replay dated 14th June 2001 filed on behalf of the State Government

claiming to be regularised as Lecturers from the date of their initial ad hoc appointment

notwithstanding the change in the stand by the Government in its subsequent affidavit dated 30th

August 2002.

3.3 The Letters Patent Appeal No. 818 of 2002 is preferred by the ad hoc appointee who had

approached the Court for regularization on the ground that he had put in 11 years of service as ad

hoc appointee. It was his case that though he was desirous of getting appointment through the

PSC, no selection process was held by the State Government for more than 10 years. His petition

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in which he raised contentions similar to raised by the other ad hoc appointees, also came to be

rejected as the learned Single Judge had rejected the grounds similar to those urged in other

Appeals.

3.4 Letters Patent Appeal No. 492 of 2002 is filed by the original respondent No.7, who came to

be added in Special Civil Application No. 2395 of 2001 along with, other five persons as

respondents Nos. 5 to 10. In this appeal, contentions identical to those raised in other appeals by

the ad hoc appointees have been raised and hence, they need not be repeated.

4. The stand taken up by the State Government in the affidavit-in-replay dated 27th April 2001

filed in the Special Service Application No. 2395 of 2000 was that the post of lecturer in Gujarat

Educational Services (Collegiate Branch) are Class II posts and were required to be hired in by

the consultation with the GPSC. However, in accordance with the provisions contained in the

provision to Regulation 3 of the GPSC (Exemption from Consultation) Rules, 1960, appointment

to such posts can be made by the Competent Authorities for a period of one year without such

consultation. Since considerable time elapses in getting recommendation from the GPSC of

such candidates, the ad hoc appointments have been made from time to time so as to ensure that

the interest of the large number of students was not affected adversely for the reason of non-

availability of teaching staff. It was stated that several candidates selected by the local selection

committee constituted by the Commissioner of Higher Education under its circular dated 21-12-

1992, came to be appointed on ad hoc basis. Similarly, several candidates who were working in

the government schools and associated with teaching were also appointed on ad hoc basis keeping

their experience and educational qualification in view, as per the circular dated 21-12-1991

issued by the Commissioner of Higher Education in this regard. The above two circulars are

produced at Annexure “I” and “II” to the said affidavit-in-replay. It was stated that, as per the

scheme of the ad hoc appointments services of all such ad hoc appointees were to be terminated

on completion of academic term. However, such ad hoc appointees had obtained interim orders

from time to time from the Courts against such termination and therefore, they were continued

in service on ad hoc basis. Ultimately, it came to be decided in a group of petitions on 12-5-1999

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(Special Civil Application No. 841 of 1998 and other cognate matters decided by the Hon’ble

Mr. Justice S.R. Resnotej, that such ad hoc appointees were to be continued only till availability

of the candidates recommended by the GPSC. A group of appeals preferred by the ad hoc

appointees (Letters Patent Appeal No. 1057 of 1999 and other cognate appeals) against the said

decision dated 12-5-1999 came to be disposed on by the Court on 29-9-1999, and the appellants

were permitted to withdraw their original petitions, without reserving any liberty for them to file

fresh petitions and to make representations. The appeals were disposed of on the ground that

they did not survive in view of the withdrawal of the petitions. It was stated that, pursuant to the

said decision, which required the representations of these persons to be considered, they had

made the representations, which were considered by the Government. In the meanwhile, to fill

up the posts of lecturers available in the different subjects, necessary requisitions were sent to

the GPSC in the year 1997, with reference to which the Commission issued an advertisement

and on completion of process of selection, have recommended the names of selected candidates

to the Government for appointment. It was also stated that, in view of the Government having

accepted the package of University Grant Commission recommendations in respect of all the

teaching staff, it had undertaken the task of reviewing the strength of the sanctioned establishment

of lecturers as per the norms of the UGC guidelines. It was then stated that the Government was

making all possible endeavors to keep balance between those who have been directly selected

through the GPSC and those who working on ad hoc basis and who are required to be considered

as per the guidelines issued in group of appeals, and that, appropriate action would be taken

when decision was reached. It was also stated that all possible endeavor was made by the

Government to accommodate and appoint the persons selected through the PSC though such

selected person had no right to seek a mandamus for appointment.

4.1 In the affidavit-in–replay filed on 14th June 2001, in context of the direction of the High

Court to decide the representation of the ad hoc lecturers as early as possible and, in any case,

before 10th June 2001, which was issued on 4-5-2001 on the basis of the earlier directions given

in Letters Patent Appeal No. 1057 of 1999 on 29-9-1999, the Government had taken a decision

that the services of all the 330 persons appointed as lecturers in Government Colleges on ad hoc

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basis, from time to time, by the Commissioner of Higher Education pursuant to their selection

by the local Selection Committee constituted under the circular of 21-12-1992 should be

regularized from the date of their appointment as such, as was done in cases of Medical Officers

(Ayurved) by the Health and Family Welfare Department by its resolution dated 4-10-1999. It

was further stated that it was decided that, for regularizing the services of all such ad hoc

appointees, a reference to the GPSC should be made to obtain its approval as a special case. All

the 64 persons who had lien on the posts in respective schools from which they were drafted and

appointed as ad hoc lecturers in Government Colleges to be repatriated to their original post. It

was also decided that, after working out the subject-wise number of posts of lecturers in

Government Colleges in view of new workloads on account of revision of UGC scales and after

accommodating the ad hoc appointees, if clear posts of lecturers of the respective subjects become

available, the candidates recommended by the GPSC were to be considered for appointment as

per their rank in the select list. It as further decided as stated in the said affidavit-in-replay, in the

eventuality of the ad hoc appointees being declared surplus, their names would be registered by

the Commissioner of Higher Education and they would be adjusted by giving appointments on

the posts that may be available on account of retirement, resignation, promotion, death etc. in

future.

4.2 In the affidavit-in-replay dated 30th August 2001, the Government, however, took a stand

different from that which was taken in its affidavit dated 4th June 2001. it was stated that a High

Level Committee held its meeting on 16th August 2001 to consider the issue relating to ad hoc

lecturers / regular lecturers selected through the GPSC in the Education Department and after

the due deliberations over various issues and through examination of the background of the case

and various orders passed by the High Court in various matters, final as well as interim, and also

keeping in view the legal provisions and taking into consideration the representations submitted

by the ad hoc employees, the Committee had come the conclusions whish are narrated in paragraph

3 of the said additional affidavit-in-replay. Accordingly, it was decided that the candidates duly

recommended by the GPSC shall be given appointments by the State Government. It was decided

that the appointments may be given to the candidates recommended by the GPSC in various

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subjects against clear vacancies now worked out as per the UGC guidelines. It was also decided

to repatriate the ad hoc appointees working in Government Colleges, back to their respective

cadres in which they were having their lien, subject to the vacation of the stay order in this regard

by the High Court. It was noted that, out of 70 appointees having such lien, 11 were selected by

the GPSC and 4 could be continued against clear vacancies available after accommodating the

GPSC selectees and ad hoc appointees. But the repatriation could only be made if and when the

High Court vacated status quo orders. The Committee further noted that, out of 341 lecturers

who were presently working on ad hoc basis, 77 were already selected by the GPSC. It was

found that, on account of availability of vacancies as per permissible strength and after

accommodating GPSC selectees, several posts continued to be available against which 122 ad

hoc lecturers could be continued. It was noted that in a few subjects, appointments were in

excess of the permissible posts which had been worked out as per the UGC norms, and that the

services of 22 ad hoc appointees will have to be declared surplus with varying length of service

in different subjects, on the principal of “last come first go”. The Committee further noted that

for giving appointment to all 335 GPSC selected candidates, services of 120 ad hoc appointees

will have to be declared surplus forthwith. It was observed that, in view of the Government

policy to start Government Colleges in tribal taluka where there was no college available, four

new Government colleges were started this year, and similarly, some more colleges were likely

to be opened next year and keeping in view these aspects, the Government had taken a lenient

view with regard to regularization of ad hoc appointees which could be considered by the State

Government under Article 309 of the Constitution, as one-time measure. It was then stated in the

affidavit that, in view of the policy decision taken by the High Level Committee, it was decided

to repatriate the ad hoc appointees working in the Government Colleges, and lien, back to their

respective cadres subject to the vacation of the interim orders of the High Court so as to enable

the state to implement its policy decision. It was also stated that, pursuant to the said decision,

order of appointment in respect of 95 candidates selected by the GPSC were issued on 27th

August 2001 against clear vacancies. The petitioner of Special Civil Application No. 2395 of

2001 who was selected by the GPSC was one such candidate who was given appointment.

4.3 In the further affidavit dated 18th October 2001 in Special Civil Application No. 2992 of

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2001, it was stated some of the petitioners had withdrawn their petitions and therefore could not

approach the High Court again, on the principal of resjudicata. Statement at Annexure “A” of

that affidavit-in-replay showed the details of such persons who had unconditionally withdrawn

their petitions.

5. In the group of Special Civil Application No. 841 of 1998 and 17 other matters, including

those which where filed in the year 1990 by the ad hoc lecturers who were apprehending

termination of their services on the ground that the GPSC selected candidates would replace

them, the learned Single Judge, by his Judgment and order dated May 1999, holding that in

the eventuality of the availability of the selected candidates, these petitioners had no right to

continue on the post and immediately joining of the selected candidates, the respective petitioner

would have relinquish the post, directed the GPSC to complete selection process in different

subjects for the post of lecturers within six months from the date of the receipt of the order. The

Court observed that ad hoc the temporary appointments give rise to manifold litigation and a

sense of instability in service resulting in frustration and dissatisfaction amongst the appointees.

It was observed that the time has come where the Court has to take appropriate steps and measures

to see that the State of Gujarat, its functionaries and officers work within the framework of the

Constitution as well as to see that, because of inaction or omission, unnecessary and avoidable

litigation may not come before the Court. In Letters Patent Appeal No. 1057 of 1999 and cognate

appeals, these petitioner who had appealed against the said order of the learned Single Judge

withdrew their petitions without reserving any liberty to file fresh petitions on the same cause of

action. This is clear from the order dated 29-9-1999 passed by the Division Bench holding that

the Letter Patent Appeal did not survive and allowing the original petitioners to make a fresh

representation in the matter. On the basis of withdrawal of these petitions, it was rightly urged

that, since no liberty was reserved by these ad hoc lecturers who had filed the earlier petitions

and are also amongst those had filed the present petitions from which these appeals have arisen,

the present petitions were not maintainable at their instance on the same cause of action. However,

there were other ad hoc employees who had filed petitions for the first time and same question

arose in their case. Therefore, having regard to the general nature of the disputes involved, it

would not be appropriate to shun consideration of the issues on any such technical ground and

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the decision that would be taken would obviously apply to all the similarly situated persons.

6. There was yet another group of petitions filed by ad hoc appointees as lecturers being Special

Civil Application No. 2843 of 1971 and other cognate matters which came to be decided by

Hon’ble Mr. Justice M.R. Calla on 9th March 2001. In all those petitions grievance was raised by

the ad hoc lecturers that appointments were being given for a limited period till the end of the

academic term and though no candidates were yet selected through the GPSC, they were not

being given salary for the vacation period though they were being re-engaged as ad hoc employees

on the commencement of the new academic term. In that petition, the learned Single Judge

issued certain direction in paragraph 15 of the judgment which included that direction that the

services of such ad hoc employee shall not be terminated until a regularly selected candidate was

available for appointment in the concerned subject. Direction No. (ii) is material to be noticed in

the present context and therefore, it is reproduced hereunder “(ii) if regularly selected candidates

are available, they will not be made to wait and such regularly selected candidates shall be given

appointment and the ad hoc appointees shall have to make room for them. Of course in doing so,

the Government would follow the order of seniority according to the length of the service of the

ad hoc appointees in the respective Branch / Specialty / Subject. In other words, amongst the ad

hoc appointees in a given subject or specialty or Branch, the candidate who was appointed at the

earliest point of time will be the last candidate to be replaced”.

6.1 The said Judgment and order dated 9th March 2001 of the learned Single Judge has not

been challenged and therefore, the afore said directions remained and operative and binding.

6.2 In the present group of matters, namely, Special Civil Application No. 2395 of 2001 and

other petitions, which were filed in 2001, an order was made on 4th May 2001, by Hon’ble Mr.

Justice M.S. Shah, taking note of the earlier order of the Division Bench, dated 29-9-1999 in

Letter Patent Appeal No. 1057 of 1999 and cognate appeals, by which the ad hoc lecturers were

allowed to file representation to the Government while permitting them to withdraw their petitions,

gave a direction that the State Government should decide the representations of ad hoc lecturers

of their association as early as possible, in any event by 10-6-2001. The above directions will

have relevance on the question of appreciating the Government appointing a High Power

Committee for considering the question and taking a decision different from the one which was

132 Gujarat PSC

reflected in the earlier affidavit of the Government when it was decided to undertake the process

of regularizing the ad hoc lecturers and for that purpose, to refer the matter to the GPSC. However,

before that could be done, the decision of the High Power Committee was taken by which the

direct selectees were to be given appointments, replacing the ad hoc lecturers.

7. All the learned Senior Council appearing in these Letters Patent Appeals have argued their

respective appeals and adopted each other arguments. The learned counsel appearing in Letters

Patent Appeal No. 818 of 2002 and 1818 of 2002 and the learned counsel appearing in Letters

Patent Appeal No. 492 of 2002, also adopted those contentions, pointing out to them individual

facts of their case. These contentions of the learned counsel in all these appeals are as under:

(i) The matter should be viewed in context of higher education and not ordinary government

offices. Therefore, interest of the student community should be kept in mind while considering

whether these ad hoc lecturers who have put in several years of service, should be regularised by

relaxing the rules.

(ii) Both the sides are innocent and it is not as if the ad hoc lecturers are waiting in qualifications.

In fact, they have acquired experience, which gave them an edge over the fresh GPSC recruits,

and therefore, it could in the interest of the student community and education system to regularize

them.

(iii) The GPSC procedure was not started for more than a decade in these ad hoc appointees were

continued in the public interest. Their temporary appointments could have been made without

consultation of the GPSC only for a period of one year, and therefore, their continuance beyond

one year of their initial appointment should lead to an inference or presumption that the requirement

to consult PSC was deemed to have been relaxed under the power of relaxation vested in the

Government under rule 16 of the Gujarat Civil Services Qualifications & Recruitment (General)

Rules, 1967.

(iv) The non-initiation on consultation process for recruitment for a decade resulted in breakdown

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of consultation rule and therefore, it should be assumed that the Government must deemed to

have relaxed the recruitment rules and since their initial appointment was by selection made by

select committee, they should be treated as having been regularly recruited by the mode of direct

selection by such Committee instead of the PSC.

(v) Thirty three of the ad hoc lecturers were not called by the GPSC in the ground that they were

age barred. They should have been given an opportunity to compete by relaxing their age.

(vi) The State Government had held out a promise that ad hoc appointees will be regularized and

therefore, it was stopped from taking a different stand. There would be legitimate expectation on

the part of the ad hoc employees that they will be continued and regularized. Regularization

should be done, because, the Government has created this situation.

(vii) Decisions of the Apex Court fall in three categories. The Apex Court has, in some cases,

decided strictly according to the Rules and quashed the appointments, which are against the

rules. In some cases, while holding that the rules of recruitment should be followed, the Apex

Court has not disturbed the appointments on facts, and, in the third category, directions to regularise

the ad hoc employees by exercising power to relax have been given. According to the learned

counsel, instead of relying on a precedent of particular case, the general trend of all the precedents

should be kept in mind and a precedent should be evolved keeping in view the law laid down by

all these decisions.

(viii) The appointments of these ad hoc lecturers were not illegal, but made by adopting an

alternate method devised by the State Government itself, by its circular dated 21st December

1999, and therefore, there was no back-door entry in the appointments of these ad hoc lecturers.

If an appointment contrary to Rules is continued for many years, the Court will presume that

relaxation power was exercised.

(ix) Consultation with the GPSC was not mandatory and therefore, non consultation will not

vitiate the appointment.

(x) In case of some ad hoc lecturers, they were held to be ineligible on the basis of higher

qualifications prescribed under the amended rules. It was argued that, in such cases, the subsequent

134 Gujarat PSC

amendment in the rules could not have been applied to such ad hoc lecturers who were duly

qualified when they were initially appointed as per the then existing recruitment rules.

(xi) General parameters should be kept in mind whiled deciding the case and these are; what the

justice require, what the law require, the public interest involved, the nature of default committee

by the Government, and the innocent character of the parties.

7.1 in support of their contentions, the learned Senior Counsel for the appellants have relied

upon the following precedents:

(a) Decision of the Supreme Court in State of Haryana V. Piara Singh, reported in AIR 1992 SC

2130 was relied upon for the proposition that the persons who are ad hoc or temporary employees

have a right to claim regularization and the authorities are under an obligation to consider their

case for regularization in a fair manner keeping in view the principles enunciated by the Court.

It will be noticed that while making this observation, the Supreme Court also held that blanket

directions given for regularization cannot be sustained.

(b) Decision of the Supreme Court in Jakob .M. Puthuparambily Kerala Water Authority, reported

in AIR 1990 SC 2228 was cited to point out that a direction was given for regularizing the

services of the employees who were working on the establishment for long spells and had the

requisite qualification for the job. It was observed that such employees should not be thrown out

but their services should be regularized as far as possible. It would be noticed that this decision

was rendered in context of Rule 9(a)(i) of the Kerala State & Subordinate Service Rules, 1958 in

which it was provided that, where it is necessary in the public interest, owing to an emergency

which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or

category and there would be undue delay in making such appointment in accordance with these

rules and the Special Rules, the appointing authority may appoint a person, otherwise than in

accordance with the said Rules temporarily. It was held by the Court in paragraph 15 of the

judgment that the rule was not intended to fill a large number of posts in the service but only

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those which could not be kept vacant till regular appointments were made in accordance with

the rules. But once the appointments continued for long, the services had to be regularized if the

incumbent possessed the requisite qualification, as was done by sub-rule 2(e) of rule 9. It was

held that if the rule was so interpreted, it seemed clear that the employees who had been working

on the establishment since long and who possessed the requisite qualifications for the job as

obtaining on the date of their employment must be allowed to continue on their jobs and their

services should be regularized. It was held that if Rule 9(a)(i) was interpreted consistently with

the spirit and philosophy of the Constitution, which was permissible to do, without doing violation

to the rule, it followed that the employees who had served on the establishment for long spells

and had the requisite qualifications for the job should not be thrown out, but their services

should be regularized as far as possible.

(c) Decision of the Supreme Court in Government of Orissa V. Hara Prasad Das, reported in AIR

1998 SC 375 was cited for the proposition that, mere empanelment or inclusion of the name in

the selection list did not give the direct selectee a right to be appointed, and that if the government

decided not to make further appointments for a valid reason, it could not be said that it acted

arbitrarily by not appointing those whose names were included in the select list. Whether to fill

up a post or not was a policy decision and unless it is shown to be arbitrary, it would not be open

to the Tribunal to interfere with such decision of the government and direct to make appointments.

This matter arose from a petition filed by those who had appeared in the selection process. The

petition was resisted by the government on the ground that only six posts were notified and no

more posts can be filled up on the basis of selection list.

[d] Decision of the Supreme court in H.C Puttaswamy v Hon’ble the Chief Justice of Karnataka

High Court, reported in AIR 1991 SC 295 was cited to point out that the Supreme Court while

holding that the appointing made by Chief Justice of the High Court without consulting the

GPSC were not proper, issued a direction that, on humanitarian ground, all such appointees

should be treated as regularly appointed with all benefits of past service.

136 Gujarat PSC

[e] Decision of the Supreme Court in Karnataka State Private College Stop-Gap Lecturers

Association v State of Karnataka. reported in AIR 1992 SC 677, was cited to point out that, in a

case where teachers were appointed temporarily by private managed colleges receiving grant-in

aid, sought regularization of their services by invoking principle of equitable estopple arising

from implied assurance due to their continuance, as such, for years with a break of a day or two

every three months, the Supreme Court directed that the services of such temporary teachers

who had worked as such for three years including breaks shall not be terminated and they shall

be absorbed as and when regular vacancies arise. It was also directed that if regular selections

have been made, the government shall create additional posts to accommodate such selected

candidates. In that case, there was no question of availability of any candidate selected as per the

Recruitment Rules framed under Article 309 of the Constitution through the PSC.

[f] Decision of the Supreme Court in All Manipur Regular Posts Vacancies Substitute Teachers’

Association v. State of Manipur, reported in AIR 1991 SC 2088, was cited to point out that, it

was observed by the Supreme Court that, if the direct recruitment takes place on one hand and

substituted teachers are also directed to be regularised subsequently, it would create an enormous

problems for the department to accommodate both the categories of persons. Taking all these

factors into consideration, the Court made an order, earlier, directing the State Government to

consider the case of regularisation of the appellants before making direct recruitment. The

Court ordered that substituted or ad hoc teachers who had put in five years of service or more on

the specified date shall be regularised without pay by the D.P.C. and such regularisation would

be subject to their possessing the required qualifications at the time of their initial appointment.

It was also directed that those who had rendered less than five years service on the said date,

shall be allowed to appear before the DPC for selection and those who are selected shall be

regularised it was also directed that the services of those who did not appear before the D P C or

could not be selected by the DPC could be terminated unless their services were required for a

further period.

[g] Decision of the Supreme Court in State of Karnataka v B Suvarna Malini reported in AIR

137Gujarat PSC

2001 SC 606 was cited to point out that, in a case where the lecturers appointed by way of stop

gap arrangement had put in 10 to 20 years of service, the Court observed that such cases involve

not only a question of law, but also human problem in as much as these part-time lecturers had

served in different colleges for a long period and treated as regular servants, and they will not be

able to get themselves engaged anywhere else. Moreover, their experience in teaching will be a

great loss to the student community if they were removed Reliance was placed on paragraph 9 of

the judgement in which it was observed that, though the selection of such part-time lecturers was

not made by the Public Service Commission, yet there was a process of selection and it appeared

that unqualified people were not appointed as part-time lecturers. Part-time lecturers having

been formed a class by themselves and for some reasons or the other, they having been deprived

of the benefits of the earlier directions of the Court on account of inaction on the part of the State

Government, the matter was re-examined by a Committee of Experts as to how best their services

could be utilized without diluting the quality of teaching. Earlier in the judgment, it was noticed

that High Powered Committee considered the problems of the part time lecturers in grant detail

and bearing in mind the relevant decision on the question, made the recommendation for their

absorptions. It was recommended that special recruitment rules will have to be framed by the

State Government in exercise of powers conferred on it by the Karnataka State Civil Services

Act, 1978 for the purpose of absorption. Section 8 of that Act gave rule making powers to make

rules to carry out the purposes of the Act. The absorption rules were framed in exercise of these

Legislative powers. The Court held that those absorption rules were made to solve human problems

and that the High Court committed an error in striking them down, because they were validly

made after putting them to objection to general public and consulting the PSC before being put

before the State Legislature to have its concurrence. It was held that it is not that in every case the

Court would be justified in striking down the process of absorption or requisition, more so when

such absorption has been made as a legislative measure and that also as a one time measure. In

the present case, no such attempt is made for regularizing the ad hoc employees by resorting to

such statutory powers.

[h] Decision of the Supreme Court in Narendar Chadha v Union of India, reported in (1986) 2

138 Gujarat PSC

SCC 157 was cited to point out that the Supreme Court held that, where persons have been

allowed to function in higher posts for 15 to 20 years with due deliberation, it would be certainly

unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously

or treated as persons not belonging to the Service at all, particularly where the Government is

endowed with the power to relax the rules to avoid unjust results.

[i] Decision of the Supreme Court in Shainda Hasan v State of Uttar Pradesh, reported in 1993

SCC 48 was cited to pointed out that while holding that the High Court had rightly held that the

relaxation granted by the selection committee to be arbitrary, and that in the absence of statutory

rules providing power of relaxation, and the advertisement must indicate that the selection

committee / appointing authority has the power to relax the qualification, the Supreme Court

observed that, asking the appellant to leave the job after 16 years would be doing injustice to her,

in paragraphs 8 of the judgement, it is started that the case was taken up in chambers on April 20

1990 when the learned counsel for the State after obtaining instructions from the University,

agreed with the Court that asking the appellant to leave the job after 16 years would be doing

injustice to her. Accordingly, the directions were issued to grant necessary approval to the

appointment of the appellant as the Principal w.e.f. the date she was holding the said post.

[j] Decision of the Supreme Court in Dr. A.K. Jai v. Union of India, reported in 1987 (Supp)

SCC 497 was cited to point out that a case where the petitioners who were still ad hoc doctors on

the zonal railways, were those doctors who either failed to appear in the combined medical

services examination held by the UPSC or after appearing had failed to get regularized in

accordance with the prescribed rules and regulations for regular appointments and their services

had to be terminated and as such, there had been neither any arbitrary nor illegal action on the

part of the respondents, nor any violation of the fundamental rights guaranteed by Articles 14

and 16 of the Constitution, the Supreme Court gave a direction after hearing the counsel for both

the sides, inter alia, to the effect that the services of doctors appointed on ad hoc basis up to 1st

October 1984 shall be regularized in consultation with the UPSC on the evaluation of their work

and conduct on the basis of their confidential reports in respect of the period subsequent to

139Gujarat PSC

October 1 1982 which evaluation was to be done by the UPSC. The court dismissed the petitions

of such medical officers who were appointed subsequent to October 1, 1984 with certain directions.

[k] Decision of the Supreme Court in G.S. Lamba v Union of India reported in (1985) 2 SCC 604

was cited to point and that in paragraph 26 of the judgment, the supreme Court held that once the

power to relax is given mandatory rule exists and an action in derogation of the rule has been

repeatedly taken year after the year, it would be a permissible inference that the action was taken

in relaxation of the rule for which the power exists in rule 29(a) of the Indian Foreign Service

branch “B” (Recruitment Cadre, Seniority & Promotion) Rules,1964. it was held that to hold

otherwise would be to come to a rather disconnecting conclusion that a body like the govt. of

India acted deliberately in contravention of the mandatory rule from year to year. It would as far

as possible be proper to avoid such an inference unless it is inescapable. Rule 29(a) conferred

power to relax any of the provisions of the Rules of 1964 and in context of the quota rule, the

Court held in paragraph 27 of the judgment, that assuming that there was a failure to consult the

Union Public Service Commission before exercising the powers to relax the mandatory quota

rule and further assuming that the posts in the integrated grade II and III were within the purview

of the Union public service commission and accepting for the time being that the Commission

was not consulted before the power to relax the rule was exercised, yet the action taken would

not be vitiated, nor would it furnish any help to Union of India which itself cannot take an

advantage of its failure to consult the commission.

[l] Decision of the Supreme Court in Baij Nath Sharma Hon’ble Rajasthan High Court, reported

in (1998) 7SCC 44 was cited to point out that it was held that the second petition used after

withdrawing the petition was not barred by principle of judicata. It will be noticed from para 5

of the judgment that when the earlier petition was withdrawn, liberty was granted to the petitioner

to the another petition if occasion arises.

[m] Decision of the Supreme Court in B.C Chaturvedi v union of India reported in (1995) 6 SCC

749 was cited to point out that, in the concurrent judgment of justice Hansaria in paragraph 20,

140 Gujarat PSC

it was observed that, it would be wrong to think that other courts are not to do complete justice

between the parties. It was observed that it may be remembered that the framers of the constitution

permitted the high court to even strike down a Parliamentary enactment. The High Court would

be within its jurisdiction to modify punishment/penalty by molding the relief which power it

undoubtedly had.

[n] Decision of the Supreme Court in Dr.M.C. Bindal v R.C Singh, reported in AIR 1989 SC 134

was cited to point out that it was observed in paragraph 12 of the judgment that, it was well

settled legal position that the duty con consult the commission in the matter of appointment to

Civil Post by the Government is not mandatory, but directory, and as such, the absence of

consultation with the State Public Service Commission does not render any appointment made

by the Government in Civil posts invalid or illegal. The Supreme Court also, however, held in

paragraph 12 of the Judgment that, it cannot also be contended that since the duty to consult the

public service commission in the matter of making appointments to civil services of the state

was directory and not mandatory, the appointment by the Government cannot be questioned or

interfered with by the Court. In that case, candidature for the post in the question had already

been withdrawn by the Public Service Commission and the Court held that therefore, the question

of validity or invalidity of the appointment to the said post was no longer open to be considered

by the Court.

[o] Decision of the Supreme Court in Rabinarayan Mohapatra v State of Orissa, reported in 1991

2SCC 599 was seated to point out that, where the school teachers were working for almost four

years, the respondents were directed to treat the appellant as regularly appointed teachers. It is

pointed out that the court quoted with approval the observations made in Rattan Lal v State of

Harayana reported in AIR 1987 SC 478 in which it was observed that the Govt. appeared to the

exploiting the situation where the teachers who constituted bulk of the educated unemployed

were compelled to accept the job on an ad hoc basis with miserable conditions of service it was

observed that the policy of ad hocism followed by the Government for a long period had led to

the breach of article. 14 and article 16 of the constitution, and that the State Government was

141Gujarat PSC

expected to function as a model employer. The court deprecated the policy of the State Government

and which ad hoc teachers where denied the salary and allowances for the period of the summer

vacation by resorting to the fictional breaks.

[p] Decision of the Supreme Court in I J Divakar v Government of Andhra Pradesh reported in

(1982) 3 SCC 341 was cited for the proposition that inviting the applications for a post does not

by itself create any right to the post in the Candidate who in response to the advertisement makes

an application. His application only makes him eligible for being considered for the post. It was

held that the temporarily appointments which were made in the case were within the power of

the Government under rule 10(a)(i)(1) of the A. P State and Subordinate Services Rules, and

that, in the circumstance of the case, it had become compelling necessity to regularize services

of such temporary servants for piece and harmony in service it was held that the action of the

government was justified and was in consonance with the Rules however, on equitable

considerations and in order to do justice between the parties and not to leave the appellants,

fresh young engineering graduates, in lurch the Court Directed that the Commission shall record

to finalize the list of selection on the basis of the viva voce tests conducted and marks assigned

and forward the same to the Government within two months.

[q] Decision of the Supreme court in Gopal Krishna Rath v M.A.A. Baig reported in AIR 1999

SC 2093 was cited for the proposition that when the selection process has actually commenced

and the last date for inviting application is over any subsequent change in the requirement regarding

qualifications by the University Grant Commission will not affect the process of selection which

has already commenced, otherwise it would involve issuing fresh advertisement with the new

qualifications.

[r] Decision of the Supreme Court in Gujarat State Deputy Executive Engineers Association v

The State of Gujarat reported in J.T. 1994 (3) SC 559 was cited to point out that where the

direction was given to operate and implement the revised select list by the high court, the Supreme

Court in paragraph 5 of its judgment held that the High Court could not have given direction to

142 Gujarat PSC

appoint direct recruits from the waiting list prepared in 1980 in the vacancy which according to

the High Court should have been available as that would amount to interfering with discretion of

Government which as a matter of policy may decide to fill lesser vacancies.

[s] Decision of this Court in D.D.Upadhyaya v. State of Gujarat reported in 39(3) GLR 2264 was

cited to point out that the government had taken up a stand in that case that it had a power to

regularize the service by resorting to Rule 16 of the General Rules of 1967. In that case, it was

urged on behalf of the State Government that the Court may take humanitarian and sympathetic

approach and keeping in view the long services of the respondent, it may not interfere in the

matter. The learned Single Judge, however, negatived this contention by holding that the

requirement of “interest of public services” was altogether missing in the case and, exfacie, it

was a simple and plain resort to exercise of power under Rule 16 of the Rules of 1967 for the

purpose other than the interest of public services.

[t] Decision of the Supreme Court in N.S.K. Nayar v Union of India, reported in 1991 (6 )

SLR 155 was cited to point out that it was held, in context of Rule 27(b) of the Telegraph

Engineering Services (Class I) Rules,1965,that the object of the Rule was to provide a source of

appointment to meet an administrative exigency of short tenure and it could never be the intention

of the framers of the rule to permit the appointments there under to go on for 10 to 15 years. It

was held that the appointments for such a long period cannot be considered to be purely temporary

or officiating. In paragraph 7 of the judgment, it was held that while doing justice to the petitioners,

the Court did not wish to cause any prejudice to the direct recruits. It was held that the promotee

officers, who had worked in STS for a continuous period of five years and were holding the

posts, shall be deemed to be regular members of Group “A” service in STS.

[u] Decision in Shanti Devi v. The State of Haryana, reported in 1988 (1) SLR 483 (P&H), was

cited to point out that, in a case where the ad hoc appointees held the posts for sufficiently long

period, it was help that they formed a separate class, and that the power of relaxing the rule were

validly exercised in their favour.

[v] Decision of the Supreme Court in Surya Narain Yadav v. Bihar State Electricity Board,

143Gujarat PSC

reported in 1985 (2) SLR 479 was cited to point out that, where trainee engineers of State Electricity

Board were initially appointed on probation but temptation of being absorbed permanently was

given from time to time, and they continued to work since long, the Supreme Court in paragraph

8 of the Judgment held that the Board was bound to regularize the appointments of the appellants

who had been taken as trainee engineers initially and had continued to be in the employment of

the Board.

[w] Decision in JJ Muralidhara Rao v The State of Andhra Pradesh reported 1971(1) SLR 523

(AP) was cited to point out that it was held that the new rules under which the petitioner who had

been serving for nearly ten years did not possess qualification, could not have been applied to

him as the government was really estopped to say that his services cannot be regularized [x]

Decision of the Supreme Court in Dr. Ami Lal Bhat v state of Rajasthan reported in (1977) 6

SCC 614 was cited to point out that it was held in paragraph 11 that the power of relaxation was

required to be exercised in public interest in a given case. The Court upheld the validity of the

rules concerned relating to the cut off date being fixed with reference to 1st January of the year

following rules .

[y] Decision of the Supreme Court in Dr. (Mrs) Meera Massey v Dr. S.R. Mehrotra, reported in

(1998) 2 SLJ 178 was cited to point out that while deprecating the situation brought about by the

University by deviation from the normal mode of appointment, the Court upheld the appellant’s

appointment as lecturer.

[z] Decision in V.M. Sikka v Union of India reported in (1986) 1 SLJ 330 was cited for pointing

out that in paragraph 5 of the judgment, it was held that the vacancy which occurred prior to the

amended rules would be governed by the old rules and not by the amended rules.

[z-1] Decision of the Supreme Court in Chandraprakash Madhavrao Dadwa v. Union of India,

reported in (1998) 8 SCC 154 was cited for the proposition that additional qualifications and job

requirements could be applied prospectively only.

144 Gujarat PSC

8. The learned Advocate General contended that there was never any assurance given by the

appointing authority that the ad hoc lecturers will be regularized or made permanent. They were

appointed only by way of a stopgap local arrangement till the availability of direct recruits through

the PSC. There can be no estopple against statutory rules on the basis of negotiations reflected in

the minutes on which reliance is sought to be placed. It was stated that no order was made on the

basis of such minutes under Article 166 of the Constitution and therefore, no decision which

could be implemented, was taken. I was then contended that the procedure of regular recruitment

through the PSC was never followed in respect of these ad hoc lecturers and there was no decision

made to relax the recruitment rules or the general rules while appointing these ad hoc lecturers

or while continuing them thereafter on ad hoc basis. It was submitted that it is only because of

the interim orders which were obtained by the ad hoc lecturers for being continued until the

availability of the GPSC candidates that they came to be continued as ad hoc employees for a

long period, which cannot create any equity in their favour or against the Government. It was

also contended that the recruitment rules for the posts in question were being reviewed and

therefore, the process of recruitment could not start. In this regard, he referred to the

correspondence between the GPSC and the State Government, copies of which were placed on

records.

It was then contended that the requirements of consultation was not dispensed with and the

Government could have made ad hoc appointments only for one year, and therefore, according

to him, there was a lapse on the part of the State Government in not consulting the GPSC before

continuing such ad hoc appointees for more than one year, as was required to be done under the

rules and regulations. He, however, argued that this did not give any right to such ad hoc lecturers

to continue in the post, notwithstanding the availability of the GPSC candidates. It was contended

that the Government cannot legitimately continue these ad hoc lecturers without consultative

process with the PSC and contrary to the rules, and they have to be replaced by the regular GPSC

selectees. It was also argued that there was neither any regularization, nor any deemed

regularization or deemed relaxation took place, and that, no mandamus could be issued for

regularising these ad hoc lecturers in contravention of the recruitment rules. Such ad hoc lecturers

145Gujarat PSC

could be continued only in that ad hoc capacity till the availability of the regular recrits or till

they get regularly appointed. The Government can, at best, consider only relaxing of age limit in

consonance with the recruitment rules and the general rules for allowing them chances to compete

as may be permissible as per the rules. It was also submitted that many of the appellants had

withdrawn their earlier petitions and filed fresh petitions on the same cause of action, though no

liberty was reserved when the Letters Patent Appeals were disposed of, on withdrawal of those

petitions.

Explaining the different stands taken in the affidavits filed on behalf of the State Government,

the learned Advocate General contended that, though initially on the representations of the ad

hoc lecturers, meetings were held and it was thought of trying to continue them by making a

reference to the GPSC, that decision came to be changed in view of the directions given in

paragraph 15(ii) by the Court on 9th March 2001 in Special Civil Application NO.2843 of 1991

and cognate matters, and also on a comprehensive consideration of the representations of the ad

hoc employees as well as the rules and regulations applicable to the post and the Constitutional

provisions.

8.1 The learned counsel who appeared for the direct recruits, who are respondents in Letters

Patent Appeal No.485 of 2002, adopted the contentions raised by the learned Advocate General,

pointing out that the appointment orders of all the direct recruits have already been issued.

8.2 The learned Advocate General, in support of his arguments, referred to the following decisions:

[a] Decision of the Supreme Court in Commissioner, Assam State Housing v. Purna Chandra

Bora, reported in (1998) 6 SCC 619 was cited for the proposition that the out-going temporary

appointee cannot challenge regular appointments to benefit himself. In that case, the first

respondent was appointed temporarily and until appointment of Accounts Assistant was made

on a regular basis, and he was discharged from service on the day on which five persons were

appointed after selection.

146 Gujarat PSC

[b] Decision of the Supreme Court in State of M.P. v Dharam Bir, reported in (1998) 6 SCC 165

was cited for the proposition that when the post was not filled up on a regular basis in accordance

with the Rules, it could be treated by the State to be vacant. The Court held that whether a person

holds a particular post in a substantive capacity or is only temporary or ad hoc is a question

which directly relates to his status. It all depends upon the terms of appointment. It is not open to

any government employee to claim automatic alteration of status unless that result is specifically

envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the

statutory rules for alteration of status in a particular situation, it is not open to any government

employee to claim a status different than that which was conferred upon him at the initial or any

subsequent stage of service.

[c] Decision of the Supreme Court in Keshav Narayan Gupta v.Jila Parishad, Shivpuri (MP),

reported in (1998) 9 SCC 78 was cited to point out that, in a case where the approval of the

Collector was not obtained in terms of resolution for regular appointment, and where no

applications were invited for the post and initially only temporary appointments for limited

period were sanctioned by the Collector, it was held that it would be difficult to consider such

appointments as regular.

[d] Decision of the Supreme Court in State of Orissa v Dr. Pyari Mohan Misra, reported in AIR

1995 sc 974 was cited to point out that, in paragraph 4 of the judgment, it was held that mere

prolonged continuous ad hoc service does not ripen into a regular service to claim permanent or

substantive status. Such appointee shall remain on ad hoc basis until further orders.

[e] Decision of the Supreme Court in Dr. Surinder Singh Jamwal v. State of Jammu & Kashmir,

reported in AIR 1996 SC 2775 was cited to point out that, it was held by the Supreme Court

following its earlier decision in J. & K. Public Service Commission v. Dr. Narinder Mohan,

reported in [1994] 2 SCC 630, that under the Rules, the regular recruitment to the posts shall be

made by the Public Service Commission and consequently, the ad hoc appointments would be

only temporary appointments dehors the Rules, pending regular recruitment without conferring

any right to regularization of service.

147Gujarat PSC

[f] Decision of the Supreme Court in E.Ramakrishnan v. State of Kerala, reported in (1996) 10

SCC 565 was cited to point out that the Court, rejecting the contention canvassed on the basis of

Piara Singh’s case that in view of the fact that the petitioners had been continued for more than

14 years, they were required to be regularized on the ground that the posts were to be filled up

through selection by the PSC Recruitment Norms, and therefore, the candidates who were found

eligible and selected and recommended for appointment by the PSC, were required to be appointed.

In paragraph 3 of the judgment, it was held that the Government cannot take any decision contrary

to the Constitution to regularize the services of the candidate dehors the recruitment rules and

the statutory process for selection through the PSC, in view of the provisions of Article 320 of

the Constitution.

[g] Decision in case of J & K Public Service Commission v Dr. Narinder Mohan reported in AIR

1994 SC 1808, was cited for the proposition that the executive power under Article 162 of the

Constitution could be exercised only to fill in the gaps but such instructions cannot and should

not suppliant the law, but would only supplement the law. It was held that, having made the rules

governing recruitment, the executive cannot fall back upon its general power under Article 162

to regularize the ad hoc appointments under the Rules. It was held that the Rule 9(3) of the J &

K Medical Education (Gazeted) Services Recruitment Rules (1979), empowered only to relax

the qualification of age in particular exigencies which cannot be called in aid to relax the rules of

recruitment. It was held that the Government had no power to make regular appointments under

the Rules without selection by the Public Service Commission under Article 153(1) of the J & K

Constitution.

(h) Decision of the Supreme Court in Dr. M.A. Haque v Union of India, reported in (1993) 2

SCC 213 was cited to point out that, in paragraph 9 of the judgment, the Supreme Court held

that, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the

Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-

passing of the Public Service Commission are permitted, it will open a back-door for illegal

recruitment without limit. The Supreme Court noted that, of late, it had witnessed a consent

violation of the recruitment rules and a scant for the constitutional provisions requiring recruitment

149Gujarat PSC

therefore, the Government had sought the concurrence of the Public Service Commission and

the Public Service Commission had not concurred. it was held that the Commission rightly did

no concur with the request made by the government and therefore, any regularization in violation

of the recruitment to be made by the Public Service Commission was in contravention of the

law.

[l] Decision of the Supreme in the Commissioner, Corporation of Madras v Madras Corporation

Teachers Mandram, reported in AIR 1997 SC 2131 was cited for the proposition that the creation

of post or prescribing qualification for post was a matter of executive policy of the Government,

and that the Administrative Tribunal cannot give directions for creation of post or to prescribe

minimum qualification for the post.

[m] Decision of a Division Bench of this Court in Bhartiben Nanubhai Balsara v State of Gujarat,

reported in XXX(1) GLR 659 was cited for the proposition that, any appointment to any post

dehors the Rules or without being selected as per statutory Rules should be held as irregular and

invalid and that the irregularly appointed employees cannot assert right to hold the post or continue

in service.

[n] Decision of the learned Single Judge of this Court in case of Maisuria Mahendra Bhagawandas

v State of Gujarat, reported in XXX (2) was cited for the proposition that the appointments were

made purely or temporary and ad hoc basis was the condition that such appointees will have to

vacate the post on availability of the GPSC selectees, it was not open for such appointees to

make any grievance against their termination on the availability of the GPSC selectees

[o] Decision of this Court in Mukesh B. Desai v State of Gujarat reported in 1997 (3) GCD 645

was cited to point out that where the appointment order clearly stipulated that the appointment

of the appellant was till a candidate was regularly selectedby the GPSC or for a period of 11

months, whichever earlier, it was held that, assuming that he was allowed to continue even for

the period of 11 months had expired, that would still not give any right to such an ad hoc appointee

150 Gujarat PSC

to ask for a part of mandamus, which would, in effect, allow him to continue in service, even

though his appointment would be contrary to his own appointment order.

[p] Decision of the Supreme Court in State of Haryana v Piara Singh reported in AIR 1992 SC

2139 was cited to point out the problems that according to the Apex Court would arise if blanket

directions are issued for regularizing the ad hoc or temporary employees. The Supreme Court

held that, in the event of such directions being given, there would be no post left for regularly

selected persons even if they are selected, moreover, two persons cannot hold the same post on

a regular or permanent basis. If such ad hoc employee is to be regularized, it would not only

mean foreclosing appointment of regular qualified person, it would also mean appointment of an

unqualified person. It was also held that issuing general declaration of indulgence was not part

of ‘Court’s jurisdiction. It is further held it is for the respective Governments to consider the

feasibility of giving them appropriate relief, particularly in case where persons have been

continuing over a long number of years, and were eligible and qualified on the date of their ad

hoc appointment and further whose record of service was satisfactory. The Supreme Court also

held that the appointment of the regularly selected candidate cannot be withheld or kept in abeyance

for the sake of such an ad hoc / temporary employee. The Supreme Court also observed that the

persons continuing in service over a number of years have right to claim regularization and the

authorities were under an obligation to consider their case for regularization in a fair manner,

and that the proper course would be that each State prepares a scheme, if one is not already in

vogue, for regularization of such employees consistent with its reservation policy, and if a scheme

is already framed, the same may be made consistent with the observations made in the judgment

so as to reduce avoidable litigation. It was observed that each government or authority has to

devise its own criteria or principles for regularization having regard to all the relevant

circumstances, keeping in view the observations made in the judgment.

[q] Decision of the Supreme Court in P. Ravindran v Union Territory of Pondicherry, reported in

(1997) 1 SCC 350 was cited for the proposition that the Public Service Commission having been

entrusted with the constitutional duty to select suitable candidates by inviting applications from

151Gujarat PSC

the open market, every candidate has a fundamental right to seek consideration and for selection

through open competition. It was held that the process of recruitment through the Commission

as envisaged under the Constitution cannot be bypassed by issuing directions for regularization

of services of the ad hoc persons who had come to services through back-door entry.

[r] Decision of the Supreme Court in Keshav Chandra Joshi v Union of India, reported in 1992

Supp. (1) SCC 272 was cited to point out that, in paragraph 24 of the judgment, it was held that

ad hoc fortuitous appointments on a temporary or stop-gap basis cannot be taken into account

for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on

a regular basic. It was observed that, in order do justice to the promotees, it would not be proper

to do injustice to the direct recruits. The ratio of direct recruits case {(1990) 2 SCC 715} was

culled out in paragraph 25 of the judgment, as per which, where the initial appointment was only

ad hoc and not according to rules and made as stop-gap arrangement, the officiation in such

posts cannot be taken into account for considering the seniority.

[s] Decision in State of West Bengal v Aghore Nath Dey, reported in J.T 1993 (2) SC 598 was

cited to point out that, in paragraph 20 of the judgment, it was held that Narendra Chadha’s case

cannot be construed to apply to cases where the initial appointments was not according to rules.

[t] Decision of the Supreme Court in Dinkar Anna Patil v State of Maharashatra, reported in AIR

1999 SC 152 was cited to point out that, in paragraph 17 of judgment, in context of the rules

framed by the Government of Maharashtra under Article 309 of the Constitution, it was held by

the Supreme Court that, it would give unbridled power to the government to dispense with the

consultation with the Maharashatra Public Service Commission, if the word “may” used in Rule

4 was held to be directory and it would render the very object of consultation with the MPSC,

wherever necessary, nugatory. The Supreme Court held that the word “may” must mean “shall”

and therefore, consultation was mandatory. The Supreme Court followed the decision in

Keshavchandra Joshi v Union of India, reported in 1992 Supp. (1) SCC 272, in which, dealing

with the interpretation of Rule 27 of U.P Forest Service Rules, 1952, the Court construed the

152 Gujarat PSC

word “may” used in Rule 27. It was held that the word “may” has to be read as “shall” and

therefore, consultation was mandatory.

[u] Decision of the Supreme Court in M/s Upadhaya & Co. v State of U.P, reported in AIR 1999

SC 509 was cited for the proposition that when the party had withdrawn the Special Leave

Petition filed to challenge the order of the High Court in writ petition without seeking permission

to file SLP, he cannot file another SLP challenging the same order again.

[v] Decision of the Supreme Court in Executive Officer, Anthanareswara Temple v R. Sathya

Morthy, reported in AIR 1999 SC 958 was cited to point out that, in paragraph 14 of the judgment,

it was held that, if an appeal was preferred by an unsuccessful plaintiff against the judgment of

the trial Court dismissing the suit and if the plaintiff appellant wanted to withdraw not only the

appeal but also the suit unconditionally, then such a permission so far as the withdrawal of the

suit concerned can be granted if there was no question of any adjudication on merits in favour of

the defendants by the trial being nullified by such withdrawal.

[w] Decision of the Supreme Court in State of Maharashtra v Sanjay Thakre, reported in 1995

Supp. (2) 407 was cited for the proposition that appointment of promotees in excess of quota

was violative of Rules and could not count for the purpose of seniority.

[x] Decision in Dinkar Patil v State of Maharashtra, reported in J.T 1998 (7) SC 513 was cited

for the proposition that placement of direct recruits vis-à-vis the promotees will have to be

determined on the basis of date of regularization and excluding the period of fortuitous

appointments.

[y] Decision of the Supreme Court in the Direct Recruit Class II Engineering Officer’s Association

v State of Maharashtra, reported in AIR 1990 SC 1607 was cited for the proposition that, where

the initial appointment is only ad hoc and not according to the rules and made as a stop-gap

arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(See paragraph 44 of the judgment).

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[z] Decision of the Supreme Court in U.P Secretariat U.D.A Association v State of U.P., reported

in (1999) 1 SCC 278 was cited for the proposition that, merely because temporary appointment

or promotion is made, seniority cannot be counted from the date of officiation except when the

appointment was made in accordance with rules.

[aa] Decision of the Supreme Court in Maharashtra Vikrikar Karamchari Sanghathan v State of

Maharashtra, reported in (2000) 2 SCC 552, was cited to point that, where it was contended on

behalf of the appellants that some of them had put in more than 17 years of service, when a few

of direct recruits were either schooling and / or not born in the cadre, and that if the appellants

were pushed down, it would cause great hardship to them, the Supreme Court, in paragraph 26

of the judgment, negatived that contention on the ground that, if there is a patent violation of the

quota rule, the result must follow and the appellants who remained in the office for all these

years cannot take the advantage of such situation.

[bb] Decision of the Supreme Court in State of Kerala v A. Lakcmikutty reported in AIR 1987

SC 331 was cited for the proposition that the High Court could not issue a writ of mandamus

directing the State Government to appoint person recommended by the High Court as District

Judge.

[cc] Decision of the Supreme Court in Sarguja Transport Service v State Transport Appellate,

reported in AIR 1987 SC 88 was cited for the proposition that a petitioner after withdrawing a

writ petition filed by him in the High Court under Article 226 without the permission to institute

a fresh writ petition cannot file a fresh writ petition in respect of the same cause of action in the

High Court (See para 9 of the judgment).

[dd] Decision of the Supreme Court in State of Bihar V. Kripalu Shanker, reported in AIR 1987

SC 1554 was cited for the proposition to the effect that, an opinion becomes a decision of the

Government only when it must be communicated to the person concerned, and that nothings in

a “notes file”, not only of officers but even that of a minister will not constitute an order to affect

others unless it is done in accordance with Articles 166(1) & (2) and communicated to the

person concerned. (See para 18 of the judgment).

154 Gujarat PSC

9. The entire controversy centers around the issued whether the ad hoc lecturers who were locally

appointed until regular Public Service Commission candidates were available and were continued

as ad hoc without consultation with the Public Service Commission and dehors the recruitment

rules, should be deemed to have been or should be regularized in the post by virtue of their

having been continued for long years, notwithstanding the availability of the Public Service

Commission selectees.

10. Public Service Commissions are constitutional entities created by Article 315(1) of the

Constitution of India. The provisions of Chapter II of Part XIV of the Constitution dealing with

Public Service Commissions indicate the importance that the Constitution seeks to attach to the

independence and the utility of the Public Service Commissions in the realm of the services

under the Union and the States.

11. The principal function of the Public Service Commissions is to conduct examinations for

appointment to Union and State Services as provided by Article 320(1) of the Constitution.

Article 320(3), inter alia, provides that the Public Service Commissions shall be consulted,

(a) On all matters relating to methods of recruitment to civil services and for civil posts, and

(b) On the principles to be followed in making appointments to civil services and posts and in

making promotions and transfers from one service to another and on the suitability of candidates

for such appointments, promotions or transfers. Proviso to clause (3) of Article 320 empowers,

inter alia, the Governor as respects services and posts in connections with the affairs of the State,

to make regulations specifying the matters in which either general, or in any particular class of

case or in any particular circumstances, it shall not be necessary for a Public Service Commission

to be consulted. Under clause (5) of Article 320, such regulations made under the proviso to

clause (3) are required to be said before the Legislature of the State. It is thus left to the State

concerned to specify, by such regulations the matters in which it shall not be necessary to consult

the Public Service Commission.

11.1 The Government of Gujarat, in exercise of the powers conferred by the proviso to clause (3)

of Article 320 of the Constitution, made the Gujarat Public Service Commission (Exemption

155Gujarat PSC

from Consultation) Regulations, 1960. As per Regulation 3 thereof, it shall not be necessary to

consult the Gujarat Public Service Commission in any of the matters specified in paragraphs (a)

and (b) of clause (3) of Article 320 of the Constitution in respect of the posts which are specified

in the Schedule to these Regulations and temporary appointments to all other posts and services

for a period not exceeding or not likely to exceed one year. However, if such temporary

appointment involves any relaxation of the recruitment rules which are finalised in consultation

with the Commission, it is necessary to consult the Public Service Commission, as mentioned

below the said Regulation 3. The service and its posts in the cadre of lecturer, Gujarat Education

Service, Class II (Collegiate Branch), admittedly are not exempted from the purview of Public

Service Commission under the said regulations.

11.2 The Governor of Gujarat, in exercise of the powers conferred by the proviso to Article 309

of the Constitution, made the Gujarat Civil Services Qualifications & Recruitment (General)

Rules, 1967, which apply to services and posts the recruitment to which is regulated in accordance

with the Rules made under Article 309 of the Constitution as laid down by sub-rule (3) of Rule

1 of the Rules. The posts of Lecturers in the Government colleges in the State are admittedly

Class II civil posts.

11.3 An appointment to any service or post included in the State service shall be made by the

State Government or by any authority duly empowered in that behalf by the State Government

either on the result of a competitive examination held for the purpose, or by direct selection or by

promotion or by transfer from amongst the persons satisfying the conditions prescribed in these

General Rules and other Rules, if any, relating to the recruitment to such service or post, as laid

down under Rule 9(1) of the General Rules. Under sub-rule (2) of Rule 9, every such appointment

shall be made after consultation with Gujarat Public Service Commission, unless under a

regulation made under the proviso to clause (3) of Article 320 of the Constitution, such consultation

is not necessary.

11.4 In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the

Governor of Gujarat made rules for regulation of recruitment to the post of the Lecturers in the

156 Gujarat PSC

Government Arts, Science and Commerce Colleges in the Gujarat Educational Services, Class II

(Collegiate Branch) called the “Lecturers in the Government Arts, Science and Commerce

Colleges Recruitment Rules, 1980”. By Rule 2, it is provided that the appointment to the post of

Lecturers in such colleges in Gujarat Educational Services, Class II (Collegiate Branch) shall be

made by direct selection. Rule 3 of the Recruitment Rules laid down the eligibility for appointment

by direct selection to the said posts. If the Gujarat Public Service Commission was of the view

that the research work of a candidate as evident either from his thesis or from his published work

was of a very high standard, it may relax the qualifications prescribed in clause (b) of rule 3 so

far as it related to class at the Master’s Degree, under the first proviso to rule 3. If a candidate

possessing the qualifications prescribed under clause (c) of Rule 3 is not available or not considered

suitable, the Gujarat Public Service Commission may recommend person possessing qualifications

of clause (b), with consistently good academic record i.e. overall record of all assessments

throughout the academic career leading to Master’s Degree on condition that he will have to

obtain a Master of Philosophy degree level within 5 years of his appointment, failing which he

shall not be eligible to earn future increment till he obtains that degree or produces evidence of

equivalent published work of a high standard, as laid down in the second proviso to Rule 3 of the

Recruitment Rules. The General Rules would apply, in view of Rule (6) thereof to Gujarat

Educational Services, Class II, (Collegiate Branch) the recruitment to which is regulated as per

the said Rules of 1980 made by the Governor under the proviso to Article 309 of the Constitution.

11.5 It will thus be seen that the mode prescribed for recruitment to the post of lecturers in

GES, Class II (Collegiate Branch), appointment by direct selection and no other mode is envisaged

by the recruitment rules, governing such appointment. The recruitment rules clearly contemplate

that the selection will be made by the Gujarat Public Service Commission. This is evident from

the aforesaid two provisos of Rule 3 of the Recruitment Rules, which empowered the GPSC to

relax certain qualifications. Rule of the General Rule of 1967 requires such appointment to be

made after consultation with the Gujarat Public Service Commission, because admittedly, there

is no regulation made under the proviso to clause (3) of Article 320 of the constitution, dispensing

with the process of consultation so far as these posts are concerned. Both the General Rules and

the Recruitment Rules have the force of law, having binding effect on all concerned. Once the

157Gujarat PSC

Governor frames the Rules under the proviso to Article 309, the action of the State Government

in respect of the matters covered by the Rules should be regulated by such Rules. The Rules

framed under the proviso to Article 309 of the constitution are solemn rules having binding

effect. In A.K.Bhatnagar v. Union of India, reported in (1991) 1 SCC 544, the Supreme Court

cautioned against flouting of such rules by observing that acting in a manner contrary to the

Rules creates problem and dislocation and that very often the government themselves get trapped

on account of their own mistakes or acts in excess of what is provided in the rules, and held that

the Government, both at the Centre and in the State, should take note of this position and refrain

from acting in a manner not contemplated by their own rules.

11.6 The Rules made under the proviso to Article 309 regulating the recruitment and conditions

of services of persons appointed to such services or posts will operate with full force, subject to

the provisions of the Constitution or any Act made by the appropriate Legislature, as contemplated

by Article 309. Apart from this limitation and in the absence of any Act of the appropriated

Legislature on the matter, the Rules will have full effect and must be enforced. In the present

case, the recruitment rules for the post of Lecturer, GES, Class II (Collegiate Branch) stipulates

only one mode of recruitment i.e. of “direct selection” from amongst the modes available under

Rule 9(1) of the General Rules. Rule 9(2) of the General Rules framed under Article 309 of the

Constitution require, as noted above, that, every such appointment shall be made after consultation

with the Public Service Commission unless under a regulation made under proviso to clause (3)

of Article 320, such consultation is not necessary. It would, therefore, follow that there can be no

relaxation of the basic or fundamental rules of recruitment which prescribed direct selection

through the Public Service Commission as the only mode of recruitment to the post for which

the recruitment rules are framed under Article 309. Mere executive instructions under Article

162 read with Article 166 cannot supercede the recruitment rules made under the proviso to

Article 309 which have the force of law. Since there is not option left with the government under

the Lecturers, GES, Class II Rules 1980, to adopt any mode other than of direct selection for

appointment to the post, will fly in the face to the recruitment rules and cannot be validly

recognized. In fact, regularization cannot be said to be a mode of recruitment. [See R. N.

Nanjundappa v Thimmiah, reported in (1972) 1 SCC 409].

158 Gujarat PSC

11.7 The power of regularization, in absence of any provisions in the Act or Rules made under

Article 309, would be referable to the executive power under Article 162 and not to the legislative

or rule making power under Article 309. Therefore, when the field is occupied by law which

expression will include rules having force of law, there would be no scope for exercising executive

power in a manner that would be in conflict with such law. In the present case, there was no

attempt made by the State Government to absorb the ad hoc appointees by making any

regularization or absorption rules having force of law. The process of recruitment of Lecturers,

GES, Class II (Collegiate Branch) by way of direct selection through the PSC which was

undertaken, as per the recruitment rules, cannot, therefore, be halted. In fact, the appointment

orders of such 342 direct recruits who were selected are already issued (132 orders were issued

on 10th November 2001 and 210 on 9th October 2002, of which 123 are awaiting posting, as

stated by the learned Advocate General). As held by the Supreme Court in Piyara Singh’s case

(supra), the appointment of the regularly selected candidates cannot be withheld or kept in

abeyance for the sake of the ad hoc / temporary employees. In the present case, the ad hoc

employees are being replaced by the regularly selected employees and therefore, the appellants

cannot make any grievance against such replacement which was contemplated by the very nature

of their ad hoc appointments, which temporary status never was altered.

12. It was sought to be urged on behalf of the appellants that the appointments of the appellants

should be treated as regular, because, they were having the requisite educational qualifications

when selected as per the policy of local recruitment by a committee prescribed by the government

orders, dated 21st December 1992. The circular dated 21st December 1992, which is on record,

shows that the instructions were issued by the office of the Commissioner of Higher Education

as regards the procedure to be followed for local appointments in the government colleges. It

was, inter alia, mentioned therein that there would be a Selection Committee for taking interview

of the candidates for the purpose of such local appointments on ad hoc basis comprising Joint

Director of Higher Education or an officer of the rank of Joint / Deputy Director authorized by

the Joint Director of Higher Education, who would be the Chairman, the Principal of the concerned

college, the senior most lecturer of that college, and an expert in the subject concerned, to be

appointed from the panel of senior lecturers prepared for the purpose. It was further provided

159Gujarat PSC

that, there should be at least three members present in the Committee for discharge of its functions,

and that if the Chairman was not able to remain present, the Principal of the College would

function as a Chairman. If the senior most lecturers who were the member did not remain present,

then it was left to the Principal to call another senior lecturer of the same college. In the same

way, if the expert member who was lecturer from the panel was not able to remain present for

taking the interview, it was left to the Principal to call the lecturer teaching the subject concerned

in the concerned college itself. Marks were to be allotted from 25 marks by each of the four

members individually, and a merit list was to be prepared on the basis of such allotment of

marks. The circular also provided for open interview. In paragraph 11 of the circular, it was

stated that, ordinarily, the lecturers were to be selected through the Gujarat Public Service

Commission only on permanent basis. However, as an exception, the ad hoc temporary

appointments were made as per the above procedure. If it is not possible to make local

appointments in the above manner, in some special circumstances, local appointments could be

made after prior permission by adopting the method of open interview. It is clear to us that the

local appointments of ad hoc lecturer by way of stopgap arrangement as per the procedure

prescribed by the said circular was not intended to prescribe any alternate mode of regular

appointment to the cadre of Lecturers, GES, Class II Services, but by their very nature, such

appointments were subject to the availability of the regular recruits. The conditions of local

appointments provided that the ad hoc appointees would be relieved as soon as the PSC candidate

or a transferee reported for the post as is clear from the condition No.7 of the conditions of local

appointments, which are placed on record along with the said circular. In the appointment orders,

admittedly, it was specifically mentioned that the appointment of these persons was purely on ad

hoc basis and they would have n right to the post of lecturer, it was specifically stated in these

orders that, on the availability of the regular candidate through Public Service Commission or by

transfer of lecturers, the ad hoc employee will have to be replaced. Such of those selectees who

were appointed keeping their lien in Class III posts in the Government schools, they were required

to be reverted and in other cases where there was no such lien,” the ad hoc recruits were to be

relieved. There is no dispute over the fact that the appointments of all these appellants were

made purely on ad hoc basis, with a clear stipulation that they were to be relieved subject to the

availability of the GPSC candidates.

160 Gujarat PSC

13. Selection by way of local arrangement for a stop gap appointment of lecturer by local

committee in which the college concerned had a major voice by virtue of its principal and senior

most lecturer being the member of the Committee such Committee cannot be compard with the

selection by the Gujarat Public Service Commission, which is a constitutional body for regular

appointment to the post in the cadre of Lecturers, Gujarat Education Service Class II as per the

recruitment rules.

The purpose of such recruitment is aimed at securing the best available talent for the teaching

post. There is nothing common between such local committees and the GPSC. The functions of

the PSC are meant to ensure that vacancies are filled by deserving and capable hands and are not

filled either by the relatives or friends or flatterers. Though the powers of the PSC are advisory

in character, it is required to be consulted, as provided by clause (3) of Article 320 of the

Constitution, unless such consultation is dispensed with by a regulation made under the proviso

to clause (3) in respect of the specified matters or particular class of case or circumstance. The

Commission having been entrusted with the constitutional duty to select suitable candidate by

inviting applications from the open market every eligible candidate will have a fundamental

right to seek consideration for selection through open competition (See P. Ravindran v Union

Territory of Pondichery, reported in (1997) 1 SCC 350).

13.1 The fact that there is no provision in the Constitution which makes the acceptance of the

advice tendered by the PSC, when consulted, obligatory renders the provision of Article 320(3)

directory, and not mandatory, but that does not amount to saying that it is open to the executive

government completely to ignore the existence of the Commission or to pick and choose cases

in which it may or may not be consulted. The proviso to clause (3) of Article 320 clearly envisaged

framing of regulations which are to be led before the legislature, if at all the process of consultation

is to be dispensed with in matters which are to be specified. Once such regulations have been

made, they are meant to be followed in letter and spirit. It would not be open to the executive

government to bypass the process of recruitment through open competition to be held by the

PSC in services, which fall within its purview under Article 320 of the Constitution.

14. After having the experience of working of the Government of India Act, 1935, which, in

161Gujarat PSC

section 266, provided for functions of the Federal and Provincial Public Service Commissions,

the defects that were noticed in practice were sought to be remedied in Article 320 (embryonic

form of which was Article 286 in the Constituent Assembly Debates), by seeing to it that the

regulations exempting certain things from the scope and jurisdiction of the PSC have to be

placed before the Parliament or Legislature, as the case may be, for its scrutiny from time to

time. Article 320 provides a check, and indeed a very good check, on the vagaries of the Executive

by providing that the regulations specifying matters in regard to which it will not be necessary to

take the advice of the PSC, are laid before the Legislature and the Legislature will have the

power not merely to criticize such regulations, but to amend them in any manner that it likes.

This would ensure that no regulations would operate unless the Legislature approves them. Further

more, by Article 323 (2) of the Constitution, the State Public Service Commission has been

enjoined with a duty to present annually a report of its work to the Executive and the Governor

is required, on receipt of such report, to cause a copy thereof together with a memorandum

explaining, as respects the cases, if any, where the advice of the Commission was not accepted

and the reasons for such non-acceptance, to be laid before the Legislature of the State. Thus,

should the Executive be tempted unduly to disregard the advice of the PSC, the representatives

of the people will have an opportunity of scrutinizing such action of the Executive and preventing

the Executive, in future, from disregarding the considered advice of the Commission. With the

checks provided in these Articles, there is a reasonable certainty that the Executive will be disposed

to act with caution and not to exercise its powers in an arbitrary fashion and act as if the Public

Service Commission did not exist.

14.1 It will not be out of place here to remind ourselves that, on 26th November 1949, while

adopting the Constitution, the President Dr. Rajendra Prasad, while pointing out the salient features

of the Constitution, inter alia, observed; “Our Constitution has devised certain independent

agencies to deal with particular matters. Thus, it has provided for Public Service Commissions,

both for the Union and for the States and placed such Commission on an independent footing so

that they may discharge their duties and without being influenced by the Executive. One of the

things against which we have to guard is that there should be no room as far as it is humanly

162 Gujarat PSC

possible for jobbery, nepotism and favoritism. I think the provision which we have introduced in

our Constitution will be very helpful in this direction.

15. It would follow from the nature of the functions of the Public Service Commission that,

being associated with all matters relating to methods of recruitment to civil services and for civil

posts and on the principles to be followed in making appointments, promotions and transfers, as

also with the suitability of candidates for such appointments, promotions or transfers, the PSC is

under a constitutional obligation to exercise its powers to be consulted in all matters in which it

is required to be consulted and the Executive is under the constitutional obligation to consult it

in all matters which are not specifically excluded by the regulations made under the proviso to

clause (3) of Article 320. Deliberate and consistent failure on the part of the Executive to consult

the PSC in matters in which it is constitutionally obliged to consult, notwithstanding the advice

may not be binding on it, would bring about a situation in which it would appear that the

governance of the State is not carried on in accordance with the provisions of the Constitution,

by on one hand paralysing a constitutional body like the PSC from functioning and on the other,

short circuiting the provisions which require regulations under the proviso to clause (3) to Article

320 to be framed and to be laid before the Legislature which can modify them, for deciding in

which specified matters, consultation with the PSC is to be dispensed with. The power of the

Legislature in context of such regulations cannot be scuttled by the Executive by going beyond

the regulations which specify the matters for which it is not necessary to consult, by refraining

from consultation as regards the matters not so required by such regulations. The PSC is under a

Constitutionalm obligation to send annual report which has to be laid before the Legislature

under Article 323 and in such report, it would be obligatory on its part to report about any

deliberate inaction on the part of the Executive Government to consult the PSC in respect of the

matters in which it is required to be consulted in the absence of the regulations under the proviso

to clause (3) of Article 320, and point out the fact that it could not do its work due to such

inaction, deliberate of negligent or because of reckless indifference, on the part of the State

Government so that the Legislature and take action for breach of the constitutional requirement

of consultation from such report and take necessary action expected of it.

163Gujarat PSC

16. As noticed above, consultation with the Commission in any of the matters specified in

paragraphs (a) and (b) of clause (3) of Article 320 is not necessary in respect of the posts specified

in the Schedule to the Exemption from Consultation Rules of 1960 and the post of Lecturer,

Gujarat Education Services, Class II, is not included in that Schedule. Such consultation is,

however, not necessary in respect of the temporary appointments to all other posts and services

for a period not exceeding or not likely to exceed one year as per clause 3(b) of the Regulations

of 1960. Thus, no consultation is required when the post is to be filled in for temporary period

not likely to exceed one year. This exemption does not authorize the State Government not to

consult the PSC in respect of the appointments which are likely to exceed one year. This would

mean that, in all such cases, the Government is required to apply its mind and decide before

making any temporary appointment whether such appointment is “for a period not exceeding or

not likely to exceed” one year. Even in cases where the temporary appointment is not likely to

exceed one year the Government issued circular dated 22nd January 1998 which is mentioned

below Regulation 3 of the said Regulations of 1960 that it is necessary to consult the PSC if such

temporary appointment involves relaxation of recruitment rules of the post, finalised in

consultation with the PSC even in urgent cases. The Circular of 1992 issued by the Government

under Article 162 of the Constitution for making local appointments cannot expand the scope of

Regulation 3, and enable the Government to make temporary appointments for an indefinite

period exceeding one year. It is an unfortunate situation that the GPSC did not worry about the

erosion of its power of being consulted by the culpable inaction on the part of the Government to

consult it for appointments to the post of Lecturers, Gujarat Education Service, Class II, despite

more than 400 vacancies having arisen.

16.1 It was contended on behalf of the PSC that, in absence of getting the requisition from the

Government inspite of its reminders, it could not exercise its functions. Correspondence was

shown to us reflecting the inaction on the part of the Executive in not consulting the GPSC in

respect of these vacancies and the lukewarm attitude of the Executive. The GPSC need not have

felt itself helpless in not being able to do its work and could have resorted to appropriate legal

proceedings for seeking a remedy against the State Government for compelling it to perform its

164 Gujarat PSC

local obligation to consult the Commission in matters in which it was as per the Rules, Regulations

and Constitutional provisions required to be consulted. Such inaction on the part of the GPSC as

well as the State Government, which had put the machinery of consultation in context of these

posts to disuse, verges on negligence in performance of the statutory functions, and amounts to

a reckless disregard to the consequences of such inaction in breach of statutory duties entrusted

to them. Such reckless inaction and breach of statutory duties would obviously be attributable to

the individuals who were required to discharge their functions according to the rules, regulations

and the constitutional provisions requiring consultation with the GPSC in the matter of such

appointments.

16.2 The provisions contained in Article 320 with regard to the matters in respect of which the

PSC shall be consulted have been held not to be mandatory, because, it was not stated what

would be the consequences of the disregard of these provisions, and, clause (3) warranted exclusion

of matters from consultation by the Executive. This would mean that, from the point of view of

the public, the obligation laid on the Executive was not an enforceable right but only a directive

principle. However, in such a case, the PSC is now able to mention in its report under clause (5)

of Article 320 about the matters in which its recommendation was not accepted or where it was

not consulted though required to be so consulted and such report will have to be placed before

the Legislature. The provisions of clause (5) of Article 302 was clearly enacted to ensure that

there would be a reasonable certainty that the Executive will be disposed to act with caution and

not exercise its powers in an arbitrary fashion and act as if the Public Service Commissions did

not exist. If the Executive or the personnel of the Commission do not discharge their duty properly

and without fear or favour, then they demean these welcome constitutional provisions. After all

the Constitution cannot either create competent men or compel the Executive to choose the

officers required to discharge important functions with care and impartiality.

17. It was argued that, from the continuance of the ad hoc appointees for long period, it

should be inferred that the recruitment rules were relaxed in their favour and they are deemed to

have been regularised. The appointments of the appellants and the like were mere local

165Gujarat PSC

appointments made dehors the rules and such ad hoc appointments could not have been made

for a period exceeding one year, without consulting the Public Service Commission. The posts

having not been filled up on regular basis in accordance with the statutory rules were required to

be treated as vacant for the purpose of undertaking the process of regular recruitment. The terms

of appointment of the ad hoc appointees clearly stipulated that they would be relieved when the

PSC candidate or a transferee was available. Such ad hoc status of these appointees did not at

any stage alter by any rules or regulations having force of law. The appellants and like who were

appointed in ad hoc capacity, therefore, continued to hold the post in that capacity only, and there

would be no alteration of their status from ad hoc appointees to regular recruits. As held by the

Supreme Court in state of M.P. v Dharam Bir. Reported in (1998) 6 SCC 165, it is not open for

any government employee to claim automatic alteration of status unless that result is specifically

envisaged by some provision in the statutory rules. The exigencies of service often require ad

hoc arrangement till the regular selection gets finalized. If the ad hoc employees who continued

as ad hoc beyond one year are to be regularized or deemed to have been regularized as argued on

their behalf, that would frustrate the very process of selection and appointment as per the mode

and procedure prescribed by the statutory rules, and, as would happen in that present case, no

posts would be left for the regularly selected persons, because, two persons cannot hold the same

post on a regular basis. As held by the Apex Court in Piyara Singh’s case (supra), efforts should

always be to replace such ad hoc employee by a regularly selected employee as early as possible.

Such temporary employee may also compete along with others for such regular selection /

appointment and if he gets selected, well and good, but if he does not, he must give way to the

regularly selected candidate. The appointment of the regularly selected candidate cannot be held

in abeyance for the purpose of allowing the ad hoc employee to continue. When the field is

covered by the statutory rules laying down the mode of regular appointments, the Courts will not

be justified in directing any regularization which may be dehors the rules. No illegality should

be allowed to perpetuate under the Court orders. Therefore, the Court while holding that the

regular appointments by direct selection to the post of Lecturers can be made only as per the

recruitment rules and the general rules in consultation with the GPSC as contemplated there

under, cannot, in the same breadth, order that the ad hoc appointees irregularly continuing beyond

166 Gujarat PSC

one year pending the availability of regular GPSC recruits should be treated as regularized due

to their prolonged continuance on ad hoc basis. That would amount to asking the government to

violate the statutory rules in the context of the ad hoc appointees while professing to uphold and

enforce them in context of the direct recruits. Such self-contradictory approach would be a mockery

of the legal system. It would be for the State Government to devise any scheme consistent with

the recruitment rules or a validating statutory provision, if at all the ad hoc appointees are to

validly hold the post. It is obvious that the State cannot be compelled by the Court to legislate in

the matter for making any statutory exception in the recruitment rules or to retrospectively validate

by a statutory provision any such ad hoc appointment.

18. It was contended that the theory of precedent did not mean picking up one of the cases

decided by the Apex Court and applying its ratio, but it meant taking into account the ratio

emerging after the study of all the ratios of different decisions. Such formidable task may evolve

some hybrid ratio which may not have been intended by the Apex Court even in its collective

wisdom. The proper course is to keep in mind the ratio as it emerges in each case in the background

of its facts and the decision rendered and each decision of the Apex Court on its own will constitute

a binding precedent.

19. The contention that the direct selectees have no right to claim the appointment even

when included in the select list prepared by the PSC and therefore, the learned Single Judge

should not have issued directions to appoint them as contained in paragraph 77 of the judgment,

is not open to these ad hoc employees. The State Government has not raised any such contention

and has, as per the recruitment rules, issued appointment orders of these PSC selectees. The fact

that the PSC selectee on the select list cannot claim appointment as a matter of right create any

entitlement in favour of the ad hoc employee to continue as ad hoc employee in a post which, as

per the statutory rules, can be filled only by direct selection through the PSC. There is also no

substance in the grievance made on behalf of the lien holder ad hoc appointees against the

directions contained in paragraph 77 of the impugned judgment for applying the principle of

“last come first go” to the ad hoc appointees.

167Gujarat PSC

20. The contention that some of the ad hoc employees were wrongly not called for interview on

the ground that they did not satisfy the educational qualifications prescribed by the recruitment

rules which were subsequently amended, is erroneous. Their qualifications were necessarily

required to be judged by the provisions of the recruitment rules prevailing at the time of their

applying for such regular appointment and not with reference to the time when they were initially

appointed by way of local arrangement on ad hoc basis about 10 years back, as was urged on

their behalf.

21. Thus, a very sad picture emerges. There has been a total callousness on the part of the

Executive as well as the Gujarat Public Service Commission which is a constitutional authority,

in the discharge of their important constitutional functions in the matter of making appointments

to the cadre of Lecturers, Gujarat Education Service, Class II (Collegiate Branch). Appointments

on ad hoc basis were made from time to time and there has not been any attempt to consult the

GPSC by sending requisitions for all these posts or for extension of ad hoc appointments beyond

one year of the initial appointments. From what the learned Advocate General and counsel for

the GPSC have stated before us during the arguments, though quarterly statements of the ad hoc

employees were required to be sent to the GPSC, as per the government orders in force, they

were in fact not so sent for over a decade. The government, in their Education Department, put

up an excuse in their communication dated 18th August 1998 addressed to the GPSC that the ad

hoc lecturers were appointed locally till the end of the academic term, but some of them obtained

interim orders from the Courts for being continued till regular PSC recruits were available, and

therefore, they had to be continued. The PSC in their letters dated 27th January 2000 and 12th

March 2001 addressed to the Government lamented that despite their reminders, no information

of ad hoc lecturers was being furnished to it, nor was any proposal received by it for continuing

such ad hoc employees. In the letter dated 12th March 2001, the GPSC raised its mock voice

stating that it was neglected for over ten years in respect of these ad hoc appointments, and that

it took serious note of indifference and negligence of the Government and further that, if reply

was not sent in 15 days, the PSC will make a note of this matter in its annual report (under clause

(5) of Article 320). On 20th March 2001, the Government sent reply to the GPSC with a request

not to make a note about its lapse (of not consulting the GPSC) in its annual report. The

168 Gujarat PSC

correspondence was shown to us by the learned Advocate General and the learned counsel for

the GPSC, because, during the hearing, we asked them to explain to us the inaction on the part of

the Executive and the GPSC that had resulted in the present impasse of the ad hoc lecturers

continuing for long years and many over ten years and the GPSC candidates not being appointed

as per the recruitment rules for all these years. Copies of this correspondence are placed on

record and it makes a dismal reading showing the utter careless and indifference of both these

august bodies.

22. No chastisement nor expressions of dismay and disappointment have yielded any result

in the past. This is because the concerned officials of the Executive and the GPSC may be

labouring under an impression that nothing more can be done in respect of such conduct amounting

to negligence, recklessness in discharge of duties in public office or breach of statutory duties.

Administrative law directly affects the functioning of the Executive by issuing writs or orders

instructing the administration how to act or what to refrain from doing, in accordance with their

statutory duties. Yet, there are many situations where the administration may have functioned

improperly, but no effective remedy can be employed post facto. What is done is done, to be left

as “faitaccompli”. Usually administrative law does not award monetary compensation over losses

caused by the infringement of rights except in rare cases, but in this regard, tort law makes a

huge difference. As one of the aims of judicial review is to encourage the public authority to

function properly through deterrence, it stands to reason that tort law may and often prove to be

more effective deterrent than administrative law, for, the authority may take risk of being ordered

to change its ways if court order is issued, but it may hesitate to take such risk if it involves

liability to pay substantial compensation. In cases where plea of immunity is not legally available,

the court may consider whether to impose tort liability on public authorities exercising statutory

powers and while doing so, it is actually engaged in judicial review of the decision and functioning

of the executive in order to decide whether the latter exercised its powers properly. The imposition

of tort law liability is tantamount to a finding that the executive failed to function properly, and

that, affected person is entitled to rectifying remedies against the authority. This venue of judicial

review would co-exist with the judicial review conducted by the Courts by applying administrative

law, to make the constitutional remedies more effective in the public law field.

169Gujarat PSC

22.1 Though standard of negligence applied by the Courts in determining where a duty of care

has been breached cannot be applied to policy decisions, it can be applied to operational decisions.

Accordingly, it is possible that a duty of care may exist in relation to discretionary considerations

which stand outside the policy category in the division between policy factors on one hand and

operational factors on the other. A public authority may be under no duty of care in relation to

decisions which involve

dictated by financial, economic, social and political factors or constraints. But, it may be otherwise

when the courts are called upon to apply standard of care, to action or in action that is merely the

product of administrative direction, expert or professional opinion, technical standards or general

standards of reasonableness. The duty of care should apply to a public authority unless there is a

valid basis for its exclusion as in case of a true policy decision of the government. Why should

people cause foreseeable injury by the careless acts of others not have a right to compensation

against those with some responsibility or an authority to prevent the wrong in question merely

because the activity related to public law sphere? The executive authorities enjoined with the

duty to consult the Public Service Commission for recruitment as per the recruitment rules were

acting in the sphere of the operational part of the process as distinguished from the policy decision

division requiring the recruitment to be made as provided by the recruitment rules. Even relaxation

aspect may be considered as a part of policy decision under the Rules. But the function to send

requisition to consult the GPSC was purely an administrative function involving no policy

consideration or a quasi-judicial process. The consequences of continuing the ad hoc appointments

beyond permissible one year without consultation, resulting in the ad hoc employees remaining

in ad hoc status for a number of years which was wholly irregular in absence of the consultative

process could have easily been foreseen by the concerned executive officers, who did not take

reasonable care in discharge of their functions, which required them to send requisitions for

regular direct recruitment through the PSC and even to consult it for ad hoc continuance of these

temporary employees or to do any permissible relaxation in consultation with the PSC. Such

careless default on the part of the executive authority directly resulted in ad hoc continuance of

all those lecturers for so many years that it may have virtually washed away any opportunity to

settle again, which they would have had if they were reveled after one year of ad hoc appointment

or on being considered as to whether they could be absorbed by a legitimate process within the

170 Gujarat PSC

bounds of statutory rules governing the services. There are no legitimate and proportionate reasons

to show why the authority failed to act in the way it did. Now that compensation can be awarded

against public authorities for violation of fundamental rights in exercise of their powers, there is

no rationale for any wide exclusionary rule for such liabilities,

23. The tort of misfeasance in public office has two forms, which are the alternative ways in

which such tort can be committed, namely, (1) cases where public power was exercised for an

improper purpose with the specific intention of injuring a person or persons (i.e targeted malice),

and (2) cases where a public officer acted in knowledge that he had no power to do the act

complained of and that it would probably injure the claimant. In the second category of cases, an

act performed in reckless indifference as to the out come was sufficient to ground the tort, when

the public officers acts with a state of mind of reckless indifference to the illegality of his act, it

involves bad faith inasmuch as the public officer does not have an honest belief that his act is

lawful. The misfeasance consists in the purported exercise of a power otherwise than in an

honest attempt to perform the relevant duty. It is that lack of honesty which makes act an abuse

of power. The rationale of this tort of misfeasance in public office is that in a legal system based

on rule of law, executive or administrative power may be exercised only for the public good and

not for ulterior and improper purposes. Reckless indifference to consequences is as blameworthy

conduct as deliberately seeking such consequences. It has been treated as steeled law in England

that an act performed in reckless indifference as to the outcome is sufficient to ground this tort.

(Lord Steyn in three Rivers DC v Bank of England (No.3), reported in [2000] 3 AII ER 1, also

see Lord Hope in Three Rivers DC v Bank of England, reported in (2001) 2 AII ER 513, paragraphs

42 and 44].

23.1 Torts may arise as a result of malfeasance, misfeasance or non-feasance. Malfeasance

would be wrongful act by a state officer in performance of the officer’s duties that is substantially

outside the scope of the authority of the officer and that substantially infringes on the rights on

the rights of a person or entity. As malfeasance requires the intentional commission of an unlawful

or wrongful act, the focus is on the action taken by the official. In contrast, non-feasance focuses

171Gujarat PSC

on the official’s failure to act. Misfeasance has been defined as malicious abuse of power, deliberate

maladministration and lawful atcs causing injury by public officer. While actual malice, if proved,

would render the public officer’s action, both ultra and tortuous, it would not be necessary to

establish actual malice in every claim for misfeasance in public office. (See Common Cause, a

registered society v Union of India (1999) 6 SCC 66, paragraph 82 and 98). Misfeasance is now

recognized as imputable to discharge of duty arbitrary. Misfeasance being a deliberate tort, the

focus is on the state of mind of the wrong-doer at the time the relevant act is done or omission is

made. For the purpose of misfeasance, the mental element is satisfied by either (1) evidence of

malice, or (2) knowledge of the absence of power which includes reckless indifference as to

extent of power. Malice will exist if the act was done with an actual intention to cause injury. The

requirement of malice will also be satisfied if the act was done with knowledge of invalidity or

lack of power and with knowledge that it would cause or be likely to cause such injury. The

present case is a case of the executive recklessly discharging both a known constrain on its

power and the permissible means of fulfilling its known duty of acting as per the statutory rules

in the matter of appointments to the posts of Lecturers, GES, class II. Here the constitutional

provisions, the recruitment rules and the general rules having force of law protect the interests of

the eligible persons of being given an equal opportunity in the matter of public employment i.e

from being considered for the post of lecturer, GES, Class II as per the recruitment rules in

consultation with the GPSC which interest was jeopardized by the executive by continuing ad

hoc appointees contrary to law. The present case is not of targeted malice but of knowledge of

absence of power which includes the reckless indifference as to the extent of power. A broad

notion of malice would include such knowledge and reckless indifference. The inclusion of

reckless indifference as a relevant state of mind is consistent with the notion that misfeasance is

a deliberate tort.

23.2 The exercise of power by not sending the requisition causing the ad hoc lecturers to

continue contrary to the recruitment rules was invalid in the sense that the concerned public

officer had no power to continue them beyond one year without consultation with the PSC and

by continuing them beyond one year, the power had been miscarried by the public officer. Thus,

172 Gujarat PSC

the first element of the tort of misfeasance in public office, namely, the public officer committed

an invalid act or omission stands established on admitted facts.

23.3 Second element of this tort which requires that the public officer knowingly acted in

abuse of power is also established, because, it is evident that the public officer involved acted

with actual knowledge of lack of power to continue ad hoc appointees beyond one year in face of

the specific provisions of the Constitution, the Recruitment Rules and the General Rules and in

arbitrarily continuing the ad hoc appointees and not following the recruitment rules and procedure

prescribed for recruitment to the post.

23.4 The third element of this tort of injury being suffered by the persons concerned is also

present, because, as a result of the wrongful act of the public officer in not sending requisitions

for 435 posts from time to time to the GPSC as per the statutory requirements, and wrongfully

continuing the ad hoc appointees for more than ten years acting with reckless disregard to the

legal consequences of such act and omission, the aspirants for the posts have suffered

disadvantages that they may not have suffered if the power had been validly exercised.

23.5 Thus, apart from the tort of negligence (which is the failure to exercise reasonable and

prudent care in relation to a situation), the public authority would commit tort of misfeasance in

public office when acting in reckless indifference as to the outcome of its act which he had no

power to do, tort of nonfeasance in public office on failure to perform specific acts that are the

required duties of the officer, and general tort of bench of statutory duty where it commits breach

of a particular statutory duty. In the present case, statutory obligation required the executive

authorities to fill up the posts of lecturers in government colleges by following the procedure of

direct selection through the GPSC for which the requisitions were to be sent when the vacancies

arose. The law did not permit ad hoc appointments to these posts beyond one year without

consulting the GPSC. The executive authorities did not consult the GPSC for over ten years and

continued the appointments of the ad hoc lecturers illegally. This breach of statutory duty cast

upon the executive was obviously known to the concerned authorities. They acted with reckless

173Gujarat PSC

indifference to the consequences of their inaction in the matter of undertaking the process for

direct recruitment and committed breach of the statutory provisions by continuing the

appointments of ad hoc appointees beyond one year without consulting the GPSC. The

consequences of their reckless disregard to the statutory provisions was that the periodic PSC

examination in which selection could have been made for direct recruitment were not held thereby

denying those who could have competed, an equal opportunity in the matter of public employment.

The conduct of the authorities in arbitrary of ad hoc appointees was violative of fundamental

rights of others, who would have otherwise had an opportunity to compete for selection, had the

executive initiated the process of ‘recruitment to 435 vacant posts in time, as per the recruitment

rules. The executive authority, therefore, clearly acted with a state of mind of reckless indifference

to the illegality of its act and the risk of violating the fundamental rights of the prospective

candidates under Article 14 and 16 of the Constitution. By not sending the requisitions to the

GPSC in time, the executive authority failed to perform its required duties. Even though special

damages cannot be the subject matter of public law proceedings, the improper interface between

notions of unlawful acts in judicial review proceedings and rights to damages in tort means that

some victims of bureaucratic recklessness in discharge of statutory duties currently go

uncompensated. We may however put the public authorities guilty of the tort of misfeasance or

non-misfeasance in public office or the general tort of breach of statutory duty to guard that they

would be liable to action for damages for such acts, if claimants were to seek damages for

consequential economics loss by establishing that the public officer acted in the knowledge that

his act would probably injure the claimant.

24. In public law, claim for compensation is a remedy available under Article 226 for

enforcement and protection of fundamental and human rights and the defence of sourvereign

impunity is inapplicable and alien to the concept of guarantee of fundamental rights. As held by

the Supreme Court, such remedy is a practical and inexpensive mode of redress available for

contravention made by the State and its servants in purported exercise of their powers and

enforcement of the rights or duties under the Constitution or the law. (See Consumers Education

& Research Center v Union of India, reported in (1995) 3 SCC 42). Moreover, the principle of

174 Gujarat PSC

vicarious liability apply as much to misfeasance in public office as to other torts involving malice,

knowledge or intention, (See Racz v Home Office (1994) 1 All ER 97). The Supreme Court has

held that the remedy of compensation available in public law is

“distinct from and in to the remedy in private law for damages for tort” resulting from the

contravention of the fundamental rights [See Nilabati Behera(Smt) alias lalita v State of Orissa

reported in (1993) 2 SCC 746, D.K Basu v State of W.B., reported in (1997) 1 SCC 416, Common

Cause, A Registered Society v Union of India, reported in (1999) 6 SCC 667]. In case where the

tort of misfeasance or non-feasance in public office or of general of breach of statutory duty is

established and no factual dispute arises in respect of such default in public law proceedings, the

court will be within its power to award compensation as a remedy against the defaulting public

officer and also the State Government for its vicarious liability. Such interface between the

public law remedy and tort law would be essential to meet the ends of justice and will act as a

deterrent against the public authority for preventing it from acting with a reckless disregard of

the statutory provisions to the detriment of the public.

25. The continuance of these ad hoc lecturers for many years beyond the first year for which the

consultation from GPSC was not necessary in view of the ad hoc nature of appointment may

have nurtured hope in them that they will be regularized. In fact, in the office note, which is at

Annexure “II” of the affidavit filed on 14th October 2002 in Letters Patent Appeal No. 17 of

2002, there is a reference to the fact that the office bearers of the Association were heard by the

Hon’ble Chief Minister on 17-5-1999 in a public relation meeting, and that the Chief Minister

had given a direction that the decision would be taken on the basis of the report of the Cabinet

Sub-Committee, and that, in principle, it was decided to continue these ad hoc employees and

the concerned Minister will give directions as to the matter of holding of examination by the

PSC. Though this note cannot be said to be an order of the Government and only reflects that the

matter was in contemplation the Government, such consideration would have given the ad hoc

lecturers to understand that they will be regularized in service. Even in affidavit of the Government

filed on 14th June 2001 in Special Civil Application No. 2395 of 2000, it was stated that the

government had, pursuant to the order dated 4-5-2001, made in the said petition, directing the

175Gujarat PSC

State Government to decide the representations of the ad hoc lecturers, taken a decision that the

services of all the 330 persons appointed as lecturers in government colleges on ad hoc basis

from time to time by the Commissioner of Higher Education pursuant to their selection by local

selection committee constituted under the circular dated 21-12-1992 should be regularized from

the date of their appointment as was done in the case of Medical Officers, Ayurved, Class II,

under the G.R dated 4-12-1999, and that for regularising the services of all ad hoc appointees, a

reference to the GPSC should be made to obtain its approval, as a special case. There was.

Therefore, clear indication that the case of these ad hoc employees would be regularized in

consultation with the GPSC. However, that stand was changed, when it dawned on the executive

that they committed a legal blunder, in the affidavit, because, these ad hoc appointees could not

have been regularized contrary to the Recruitment Rules in the post for which direct recruits

were already selected through the PSC. In fact, according to us, these matters should not be

viewed as having a “lis” between the ad hoc lecturers and the regular direct selectees. The direct

selectees cannot be penalized to wait though selected as per the statutory rules through the PSC.

They are rightly allowed to man the posts earmarked to be filled by them. The Ad hoc lecturers,

if at all, will have a legitimate grievance against the executive for continuing them on ad hoc

basis for all these years without consultation with the GPSC, creating a hope in them that they

will be some day absorbed. The executive acted in an arbitrary fashion in continuing them contrary

to the statutory rules which empowered it to make ad hoc appointments only for a year and in

breach of its statutory obligation to fill the post in the manner prescribed by the rules. It will be

for the government to consider the feasibility of giving appropriate relief in consonance with

their statutory powers were such ad hoc appointees have been continuing over a long number of

years. Issuing general declaration of indulgence is not the part of a Court’s Jurisdiction, as held

in Piyara Singh’s case (supra) by the Supreme Court. The contentions raised on behalf of the

appellants cannot, therefore, be accepted. 26. Though these ad hoc lecturers cannot be directed

to be continued contrary to the recruitment rules, nor can they be ordered to be regularized by

any mode not warranted by the statutory rules governing the appointments to the cadre of Lecturers,

GES, Class II (Collegiate Branch), in the facts and circumstances of the case, we direct that these

ad hoc lecturers be treated as a separate class in view of their ad hoc continuance for nearly a

176 Gujarat PSC

decade due to reckless indifference in discharge of duties on the part of the executive and be

considered for absorption in such posts as may be available with the government or under the

authority of the government in consonance with the statutory provisions applicable to such posts.

The State Government is also directed to inquire into the serious lapse of not consulting the

GPSC while continuing these ad hoc lecturers contrary to Recruitment Rules beyond one year

and fix the responsibility for the careless default that has resulted in the ad hoc lecturers being

continued for long without consultation with the GPSC and for the posts not having been filled

through the GPSC, as per the Recruitment Rules and the General Rules for over a decade,

especially when there was no intrim order of any Court, as we are told, which could have prevented

the process of regular recruitment.

26.1 For the reasons indicated above, we also direct that each of the appellants ad hoc lecturers

who are ordered to be relived by the impugned action of the State Government be paid, by way

of a token compensation, one month’s salary, and such amount be recovered from the defaulting

officers who may be found by the State Government to be responsible for the inaction in sending

requisitions to the Gujarat Public Service Commission or in not consulting it while illegally

continuing the ad hoc lecturers beyond one year of their initial local appointments, without

bothering to consult the GPSC under the Rules.

26.2 Subject to the above directions, all these Letters Patent Appeals are dismissed with no

order as to costs. All the Civil Applications which are filed in these Letters Patent Appeals stand

rejected with no order as to costs.

27. At this stage, the learned counsel for the appellants prays that the operation of this order

may be stayed to enable the appellants to approach the Higher Forum. This prayer is not justified

at this distant point of time and especially when the direct recruits who are already issued

appointment orders are waiting for their posting. The request is, therefore, not acceded to.

***

177Gujarat PSC

IN THE HIGH OURT OF GUJARAT AT AHMEDABAD

Special Civil Application No.3145 of 2002 & connected cases

D.D. 26.2.2003

HON’BLE MR. JUSTICE JAYANT PATEL

M.J.Patel & Others ... Petitioners

Vs.

Director & Others ... Respondents

Examination – Scaling Method:

In recruitment to examination held for Class-I and Class-II posts scaling method applied to both

Preliminary Examination and Main Examination – Scaling formula applied found flawed – Hence

petitions by those challenging scaling method applied to Preliminary Examination were treated

as eligible for appearing for the Main Examination – Petitions challenging scaling formula applied

to the Main examination were allowed quashing the result of the Main Examination as illegal

with a direction to the P.S.C. to declare the result of the Main Examination on the basis of raw

marks or to apply the method of moderation and scaling after consulting the experts and to

declare the result thereof in either case.

Held:

It is well settled that the Court would normally extend the benefit of relief to only those persons

who have approached the Court unless it results in causing injustice to other similarly situated

persons. The candidates who did not challenge the result of preliminary examination would not

be entitled to any relief since they accepted the result. So far as the petitioners who have challenged

the result of the preliminary examination and those who were permitted to appear at the main

examination would only be entitled to the benefit of final orders passed.

Cases referred:

1. AIR 1977 SC 2328 – Union of India vs. Sankalchand Himmatlal Sheth & Anr.

2. AIR 1979 SC 193 – Chief Justice of A.P. vs. L.V.A.Dikshitulu

178 Gujarat PSC

3. AIR 1982 SC 1230 – Om Prakash Gupta vs. Dig Vijendrapal Gupta

4. 1987 (1) GLR 157 – Kamlesh Haribhai Goradia vs. Union of India

5. 2000 (10) SCC 49 – State of U.P. vs. Shyam Sunder

6. AIR 2001 SC 152 – Praveen Singh vs. State of Punjab & Ors.

ORDER

1. Rule. Concerned learned counsel for respondents appear and waive service of rule. With the

consent of learned for parties matters are finally heard.

2. The principal question involved in these group of petitions is: Whether it is open to the

Gujarat Public Service Commission (“GPSC” for short) to apply the scaling method to Raw

marks scored by the candidates in optional subjects in the competitive examination for Cl.I and

Cl.II Posts? And if yes, whether the method applied is on rational basis or arbitrary? The

another point which incidentally arises for the consideration of this Court is regarding the

declaration of the marks scored by the candidate either at preliminary examination or at main

examination so as to enable the candidate concerned to apply for rechecking of marks, if it is so

desired by the candidate after such declaration.

3. The short facts of the case are that the petitioners are the candidates who appeared in the

competitive examination for the post of Cl.I and Cl.II Officers pursuant to the advertisement

issued by the GPSC. The total number of posts advertised is 164. In the present group of

petitions, the petitioners can be categorised mainly into two groups. The first group of the

petitions are filed by the petitioners who appeared in the preliminary test and at the preliminary

test in optional subjects the method of scaling of marks was applied by the GPSC and this group

of petitioners are challenging the application of method of scaling and marks at preliminary

examination and praying for declaration of result of preliminary examination. This court while

admitting those petitions by interim order directed the GPSC to allow the petitioners to appear in

the main examination without prejudice to the rights and continents of petitioners subject to

final outcome of the petitions. After appearing in the main examination such petitioners have

179Gujarat PSC

preferred civil applications in the concerned main special civil applications praying for appropriate

directions to GPSC to allow them to appear at the oral interview. The second group of petitions

are filed by the petitioners who appeared at the main examination and when they were not called

for interview only they came to know that scaling method in optional subjects upon the raw

marks scored by them is applied by the GPSC at the main examination and they have approached

this court challenging the legality and validity of method applied for scaling in the main

examination. As stated herein above, the petitioners may either be referred as first category of

petitioners or Second category of petitioners, as the case may be, wherever distinction for such

aspect is required. The common, consequently, in both the group of petitions is the method of

scaling applied by GPSC either at preliminary examination or at the main examination.

4. It appears that the number of posts advertised is 164 and pursuant to such advertisement,

ultimately, 70324 candidates appeared at the preliminary examination and 4766 candidates were

declared passed at the preliminary examination/test. The first category of petitioners did not

obtain qualifying marks at the preliminary examination. As per Gujarat Civil Services (Class I

and Class II) Competitive Examination Rules, 2000 (hereinafter referred to as “Rules”) a candidate

who passes preliminary examination and obtains qualifying marks shall be allowed to appear in

the main examination. 4776 candidates appeared at the main examination and 815 candidates

who passed at the main examination and also obtained qualifying marks have been called for

interview. All these petitioners of first and second category who did not obtain qualifying marks

at the main examination have not been called for interview.

5. There is no dispute on the point that the GPSC has applied the scaling method in optional

subjects upon the raw marks scored by each candidate and the GPSC on the contrary has declared

accordingly. The affidavit in reply has been filed in SA No.1257501 by Mr.Lalitbhai N.Patel,

Joint Secretary, GPSC and as per the statement made by Mr.D.N.Patel, Ld.Counsel appearing on

behalf of GPSC in all matters the said affidavit in reply filed in SCA No.12575/01 is to be treated

as common affidavit in apply in respect of first category of petitioners for justifying the scaling

method at the preliminary examination and the very affidavit in reply is also to be treated as

180 Gujarat PSC

defence of GPSC in the petitions preferred by the second category of petitioners for justifying

the scaling method at the main examination. In the said affidavit in reply, which is filed in SCA

No.12575/01 and to be treated as common in all the petitions, as stated herein above, the statement

made is as under:

“This was done with a purpose to equate the marks obtained in preliminary

examination by different candidates having chosen different subjects. Thus, the

purpose was to render marks obtained “comparable” and thereby raw marks of

optional subjects (marks obtained by the candidates in Part II of preliminary

examination) obtained by the candidates are scaled by applying a formula. Thereafter,

the result is prepared on the basis of aggregate marks of general studies added to the

scaled marks of optional subjects. Thereafter, the list of candidates in seriatim is

declared on the basis of their aggregate marks. In view of this fact, I deny the

averment of the petitioner that “candidates with less marks than the petitioner are

permitted to appear in the main examination.”

Mr.D.N.Patel Ld. Counsel appearing on behalf of the GPSC has made statement at Bar that the

same be treated on the part of GPSC to apply scaling method in optional subjects at the main

examination and with the consent of all the counsel appearing on behalf of petitioners the statement

is recorded and the matter is examined accordingly.

6. Before the rival contentions of the parties are examined, it is necessary to take note that

conducting of examination in the present case is governed by the Rules which were on 19.10.2000.

Rule 4 of the said Rules provided for of two examinations, namely, preliminary examination

(objective type) and main examination (Written and Interview Test). Sub Rule (2) of rule 4

provides that the preliminary examination and the main examination shall be held in such a

manner as specified in Schedule II. Schedule II and more particularly Section I for the Preliminary

Examination provides that the candidates shall be declared qualified for admission to the main

examination on the basis of marks obtained in the preliminary examination. So far as main

examinations concerned it has been provided that the candidate who obtains such minimum

181Gujarat PSC

qualifying marks as may be fixed by the Commission at the main examination shall be called for

interview/test. Section II of Schedule II provides one subject of General Studies of 150 marks

which is compulsory and one subject of 200 marks from 27 optional subjects. Section III of

Schedule II provides for Gujarati. General English and General Studies each of: 200 marks are

compulsory subjects and two optional subjects of 200 marks each from amongst 28 optional

subjects. Various notes under Section III of the scheduled interalia provides for the standard of

Gujarati paper equivalent to Gujarati (Higher level) 12th standard of Gujarat Secondary Education

Board. English paper equivalent to English subject (Lower level) of 12th standard of Gujarat

Secondary Education Board, standard and course contents of the syllabi for general studies paper

and optional subject shall be of a degree level, the syllabus for each of the paper shall be such as

may be prescribed and notified by the Commission. The candidates shall not be allowed to offer

the combination of certain optional subjects, namely, Mathematics and Statistics, Politics and

International Relation and Public Administration, Public Administration and Management,

Commerce, Accounts and Management, Agriculture and Animal Husbandry and Veterinary

Science, Civil Engineering Electrical Engineering and Mechanical Engineering Rule 6 which is

relevant for the purpose of these petition reads as under:

“6. (1) Subject to sub-rules (2), (3) and (4) the medium of the examination shall be

Gujarati.

(2) The answer to the question paper of general English shall be given in English

language and in optional papers relating to other languages shall be given in the

respective languages;

(3) The answers to question on optional paper relating to Sanskrit Literature may

be given in Sanskrit or in Gujarat.

(4) The answers to questions on the paper of Geology, Agriculture, Civil

Engineering, Electrical Engineering, Mechanical Engineering, Medical Science,

Animal Husbandry and Veterinary Science, Management and Public Administration

may be given in either Gujarati or English.

Rule 14 provides for the decision of the Commission to be final as to the eligibility of

candidates for permission to main examination.

182 Gujarat PSC

Rule 16 provides that the candidates who score qualifying marks as may be fixed by the

Commission in the preliminary examination shall be allowed to appear in main examination.

Rule 17 which is relevant for the purpose of these petitions reads as under:

“17. The names of candidates shall be arranged by he Commission in the order of

merit on the basis of aggregate marks finally awarded to each candidate in the main

examination (written) and interview test and in that order the Commission shall

recommend the qualified candidates for appointment to the extent of the number of

vacancies to be filled in:

Provided further that where the vacancies reserved for the candidates

belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally

Backward Class (including Nomadic Tribes and Denotified Tribes) can not be

filled up on the basis of qualifying aggregate marks fixed for general category,

the Commission may relax the standard of aggregate marks to make up the

deficiency in the reserved posts.”

The pertinent aspect is that the language used is merit on the basis of aggregate marks

finally awarded to each candidate in the main examination (written and interview/test).

Rules 19, 20 and 21 which are relevant for the purpose of these petitions read as under:

“19. (1) The Commission shall publish, in the official gazette the result of the

examination in a single list of Cl.I and Cl.II posts.

(2) (a) The result of the candidates, whose names are to be recommended to

the Govt. for the appointment to the posts of Cl.I and Cl.II shall be arranged

according to the order of merits of candidates along with the seat number and the

total marks obtained by each candidate.

(b) The Commission shall also display on its notice board the result of

183Gujarat PSC

unsuccessful candidates containing the names, seat number and total marks

obtained by each of the candidate.

(3) The Commission shall send a copy of result so published in the official gazette

to the Govt.

20. A candidate who desires to have his marks of preliminary examination rechecked, may apply

to the Commission along with such fees as may be fixed by the Commission for each paper

within a period of 15 days from the date of declaration of result of the preliminary examination.

21(1) A candidate who desires to have his marks of main examination rechecked may apply to

the Commission along with such fee as may be fixed by the Commission for each paper within

a period of forty five days from the date of declaration of the final result of the main examination.

(2) A candidate who desires to have the marks sheet of the main examination shall apply to

the Commission along with such fees as may be fixed by the Commission within a period of

fifteen days from the date of declaration of the final result.”

Rule 22 provides for forwarding the result to Government and the list of candidates who

are recommended for appointment.

7. The first grievance voiced on behalf of the petitioners of both these categories is in respect of

non declaration of result or the marks obtained by the candidate in the preliminary examination

or the main examination, as the case may be. In my view, there is considerable force in the

contention raised on behalf of the petitioners in challenging the action of the GPSC in not declaring

the marks secured by the candidate of both the aforesaid examinations. Mr. D.N.Patel, Ld.

Counsel appearing for the GPSC submitted that there are different opinions regarding disclosure

of marks to the candidate and the obligation on the part of GPSC. However, he made the statement

at Bar that the GPSC shall abide by the direction as may be given by this Court for declaration of

marks and the GPSC shall not raise the issue for such purpose.

184 Gujarat PSC

8. In my view, as such, GPSC ought not to have waited for the direction of this court and the

perusal of Rule 6 itself provides for the declaration of result of unsuccessful candidates, seat

numbers and total marks obtained by each candidate. Since there is an express provision made

for rechecking of marks at preliminary examination as per rule 20 and at the main examination

at Rule 21, on harmonious construction of Rules 19, 20 & 21 it appears that it is obligatory on

the part of the Commission to display on its notice board the result of unsuccessful candidates

with their names, seat numbers and total marks obtained at the time while declaring the result of

preliminary examination and also at the time while declaring the result of the main examination.

If such construction of rules 19, 20 & 21 is not made and if it is read that the total marks and the

result of unsuccessful candidates has to be declared after the completion of process of interview/

test then Rules 20 & 21 shall be rendered redundant. Therefore, it is required that after completion

of preliminary examinations or the main examination, as the case may be if the marks scored by

the candidates are declared the same would enable the candidate to apply for rechecking either

of the marks of preliminary examination or of the marks of main examination. Even otherwise

also the construction and interpretation of rules in my view would be in he larger public interest

to have the transparency in conducting the examinations of public administration and public

employment. If the result is declared with the marks, more particularly, of the unsuccessful

candidates, then only they would be able to know as to whether they should apply for rechecking

or not. It may be that the Commission may make such declaration of marks fixed for qualifying

standard but in any case it should be declared prior to the deemed date of next step in the selection,

namely, that the result of preliminary examination must be declared prior to deemed date of

conducting main examination and the result of main examination with the marks should be

declared before the deemed date of oral interview. Since learned counsel for GPSC has made

statement at Bar for inviting directions from this Court as stated herein above I find it proper not

to discuss the said aspects further in detail but suffice it to say that the approach on the part of

GPSC in not declaring the result with the marks to the candidate concerned runs counter to the

statutory provisions and is against the principles of transparency in the public examination of

public administration and public examination of public administration and public employment

and the action to that extent of the GPSC of not declaring the result of marks of candidates

185Gujarat PSC

concerned deserves to be depricated and quashed. The aforesaid, in my view, would be sufficient

for the point which incidentally has arisen for consideration of the court.

9. The aforesaid takes me to examine the contentions raised on behalf of petitioners for challenging

the power of GPSC to apply method of scaling, and the method and manner applied by GPSC for

scaling and thereby to deny the equal opportunity to candidates in the public employment for

public demonstration. Ld.Counsel M/s K.B.Pujara, mukul Sinha R.K.Mishra, Y.S.Lakhani and

Karia have made submissions on behalf of petitions. Mr.Pujara has mainly contended that there

is no authority to travel beyond the rules by the GPSC and in his submission there is no power to

apply scaling method. He submitted that even if it is assumed for the sake of argument that there

is power then also it should have been notified either in the advertisement or in the rules and in

the absence thereof it results into modifying various stipulations of the advertisement and making

alteration in the eligibility criteria. Mr.Pujara relied on the judgment dated 11.12.2002 of the

Division Bench of Allahabad High Court in the matter of Subhash Chandra Pandey Vs. State of

UP and others to contend that the application of scaling is creating absurd results and hence

method of applying scaling of marks by Uttar Pradesh Public Service Commission was struck

down by the decision bench of Allahabad High Court and he submitted that SLP against the said

judgment is also dismissed by the Supreme Court, Mr.Mukul Sinha while supporting the

contention of Mr.Pujara has submitted that the work “marks obtained” must receive its natural

meaning which would be raw marks and not scaled marks. Mr. Sinha also submitted that even

the formula which has been applied for the purpose of scaling by GPSC is not as per the

recommendation by Mr.Natarajan’s book upon which reliance has been placed by the GPSC. He

submitted that there is total non application of mind on the part of GPSC in applying the formula

which has brought about absurd results. Mr. Sinha also submitted that the purpose of any

competitive examination is to examine the competitive merits and applying statistical formula

results into conversion of competitive merit which crates drastic results. The conversion formula

in his submission cannot be applied for assessing competitive merit of candidate concerned. Mr.

Sinha also submitted that when the scaling method is applied and for the first time as admitted

by GPSC in the competitive examination of public demonstrations the burden is upon the GPSC

186 Gujarat PSC

to justify the scaling method and in his submission there is absolutely no justification in applying

the scaling method in optional subjects. He submitted that there is no material placed before the

court as to why such comparison of the marks was necessary and the material which has weighed

with the GPSC for applying scaling method in optional subjects. In furtherance to his contention,

he has given an example by adding one optional subject as “Greek” and he submitted that if the

candidate who has scored “0” marks in Greek language and if the formula which is applied by

the GPSC is made applicable for the purpose of scaling taking base of total number of candidates

appearing in the Greek language are 2, then in that case the scaled marks shall be marks shall be

“1” though the candidate has secured “0” marks in the said subject. Therefore, in his contention

same brings about absurd result by applying scaling method. He also submitted that the principle

of providing optional subject as per rule as a consequence of applying scaling method in the

optional subjects is not only frustrated but the benefit is also taken away and in his submissions

by applying scaling method unequal candidates are treated as equal which violates Articles 14 &

16 of the Constitution of India. Mr.R.K.Mishra submitted that the strict interpretation of rule is

required to be made and when the rule itself is clear it can not be read so as to include application

of scaling while awarding marks. Mr. Lakhani submitted that since the actual raw marks are not

declared the correct picture is not energing and in his contention on account of scaling the

meritorious candidates are pushed down as against non-meritorious candidates. Mr.Paresh

Upadhyay submitted that the scaling would be required only when the raw marks are not

comparable. In his submission raw marks are comparable and therefore it was not at all necessary

for applying scaling method. He submitted that the GPSC has blindly adopted the formula by

mechanical exercise of power as discussed in the judgment of Rajasthan High Court. Mr. Karia

has supported the contentions raised on behalf of petitioners.

10. Ld. Counsel Mr.Patel appearing for the GPSC has submitted that the scaling is a well-accepted

modern method of comparing the merit of the candidates inter se in different optional subjects.

In his submission a candidate securing raw marks in History cannot be compared on the basis of

raw marks secured by another candidate in Science subject and therefore scaling is required.

Mr.Patel submitted that the Division Bench of this court in its judgment reported in 1987 (1)

187Gujarat PSC

GLR 517 has accepted the method of scaling applied by UPSC as a modern method and he also

submitted that the Division Bench of Rajasthan High Court in its unreported judgment dated

19.8.94 in case of Mahesh Kumar and others vs State of Rajasathan & Ors has also confirmed

the application of method of scaling by the RPSC and against the said judgment of the Division

Bench of Rajasthan High Court SLP is also rejected. Mr.Patel submitted that the method of

scaling examined by the Division Bench of Allahabad High Court was different and was wrong

because it was on the basis of assessment of one examiner only as the model which is not in the

present case, he submitted that the method applied by the GPSC is as per the recommendation of

Mr.Natarajan in the book called “Scaling Techniques, what, why and how” and the very method

was applied by RPSC and its legality and validity is accepted by the Division Bench of Rajasthan

High Court. He submitted that the contentions which are raised on behalf of the petitioners are

in terms negatived by the Division Bench of Rajasthan High Court and therefore there is nothing

wrong in applying scaling for assessing comparative merit. He also submitted that as per well

settled principles of law this court would normally not substitute its wisdom in the field of

education and of conducting examination and they are left to the expert bodies constituted for

such purpose. Mr. Patel during the course of his arguments has submitted that even by applying

scaling method the merit order within the subject is not being altered until while considering the

total number of marks in all subjects are considered. He also submitted that the majority of

candidates who are meritorious are not affected by applying scaling method. In furtherance to

his submission Mr. Patel has made statement at Bar that after applying scaling method on the

total aggregate marks 815 candidates are called for interview. If the basis would have been raw

marks number of candidates who were required to be called and interviewed would be 832

because for a particular number of marks there may be more than one candidate in terms of raw

marks. He further stated that out of the candidates called on the basis of scaled marks or on the

basis of raw marks 898 candidates are common, in other words, whether system of raw marks or

system of scaling is applied, it makes no difference to their merit and they stand in the merit upto

Sl.No.698. He further sated that if the scaling method is approved by the court then 117 candidates

will be required to be called who have been called for interview in addition to 698 candidates

will enter into interview itself, and if the scaling method is not approved and order is passed for

188 Gujarat PSC

preparing merit order on the basis of raw marks then in that case 134 candidates shall be required

to be called for interview itself and the aforesaid 117 candidates shall go out from the interview

itself.

11. He clarified that there is a difference of 117 candidates as pr the scaled marks as against 134

candidates on the basis of raw marks. He also submitted that the aforesaid picture is in general

irrespective of the fact that whether the candidate has preferred petition before this court or not.

Mr. Patel has further stated that in all there are 320 candidates before the court who have preferred

petitions either in group or individually and out of the petitioners before the court if the method

of scaling is upheld by the court, then the position shall remain unaltered but if the court gives

direction to GPSC to call the candidates on the basis of raw marks restricting to the case of the

petitioners before the court then only 19 candidates who are petitioners before the court shall be

eligible for interview itself on the basis of raw marks and all other petitioners who have secured

less marks than the qualifying marks at the examination are not in any case eligible for interview

itself. He submitted that therefore there is no much difference in he merit on all the meritorious

students are not affected in any manner seriously because in any case even after the interview

itself the list to be prepared would be only of 255 candidates as against total number of candidates

to be interviewed which is of 815 as per the scaled marks or 832 as per raw marks, as the case

may be.

12. Mr. Sonal Vyas appearing on behalf of candidates who have been called for interview after

applying the scaling method and who are allowed to be joined as respondents in SCA No.310/03

has supported and adopted the stand taken by the GPSC in applying the method of scaling at the

marks.

13. In view of the aforesaid contentions raised so far as the application of scaling method by the

GPSC is concerned, in my view, the first contention which is required to be considered is regarding

the power to apply the scaling method by the GPSC. As observed earlier the contention on

behalf of the petitioners is that there is no authority on the part of the GPSC to apply scaling

189Gujarat PSC

method since the rules do not provide for application of such scaling. Reliance was placed upon

the rules on behalf of the petitioners to show that there is reference to the marks obtained and

marks obtained necessarily mean the raw marks and not scaled marks. It was also contended

that by plain and simple reading of rules the meaning can be given by interpretation of rules and

the court would not add words. In my view such contention deserves to be rejected on the face

of it because as per article 320 of the Constitution of India the Union and State Public Service

Commission are enjoined with the duty to conduct the examinations and the Commissions are

constitutional bodies for the purpose of conducting examinations. All actions from the inception

and until the declaration of results of all types of tests which may be found proper by the

Commission are put under the direct control and supervision of GPSC. Rule cannot be read as

exhaustive for the purpose of conducting of examinations. There may be large number of

eventualities which are not and/or which may not have been envisaged under the rules, but it will

be within the control and power of the Commission to decide the modalities and the method to

be adopted for such purpose. Therefore, I can not accept the contention that the marks obtained

is necessarily to be meant as raw marks and not scaled marks. In any system of examination the

moderation is a well accepted principle for the purpose of getting the best result through the

examiner. If the argument is accepted as that of raw marks then in that case even will have to

be excluded and thereafter marks examiner are to be accepted as final. Intention of

the rule making authority and such construction, in my view, would run counter to the purpose

for which the Public Service Commissions are constituted. Therefore, in any view the work

“marks” as referred to in the rules can be read as marks finally awarded or approved by the

GPSC and it cannot be read as raw marks awarded by examiner concerned. Even reference to

Rule 17 shows that the language used is “aggregate marks finally awarded to each candidate”. It

would be worthwhile to take reference to the judgment of the Division Bench of the Rajasthan

High Court in case of Maheshkumar Khandelwal (supra). Even in the case before the Rajasthan

High Court such a contention was raised and reference to the same was made at para 44 of the

judgment of the Division Bench of Rajasthan wherein view taken is that the scaled marks are

also marks obtained for the purpose of said rules and scaling of marks does not violate the

scheme of the examination. Ld. Counsel Mr.Pujara appearing for the petitioners has relied upon

190 Gujarat PSC

he judgment of the Apex Court in he matter of State of UP vs Shyam sunder reported in 2000

(10) SCC 49 and in the matter of Praveen Singh vs State Punjab & Ors reported in AIR 2001 SC

152 as well as M.Mihra also relied on the judgments of the Apex Court reported in the matter of

Union of India vs Sankalchand Himmatlal Sheth and Anr. reported in AIR 1977 SC 2328 in the

matter of Chief Justice of A.P. vs L.V.A.Dikshitulu reported in AIR 1979 SC 193 and in the

matter of Om Prakash Gupta vs Dig Vijendrapal Gupta reported in AIR 1982 SC 1230 to contend

that the strict interpretation is called for on the work “marks” and if the scored marks are to be

considered it is a deviation form the norms settled for the purpose of awarding marks. In my

view, there is no question of interpreting the works “marks” as sought to be canvassed by the

learned counsel for the petitioners. It is always left to the body which conducts the examination

decide the method or the manner of assessment of marks. Even if the examiner has awarded

marks it is now well settled that the system of moderation is always permissible with a view to

reduce the difference amongst the assessment between two examiners. When the number of

students and number of examiners are also more the assessment may differ from one examiner

to another examiner. As observed earlier, the scheme for conducting examination as provided

under the rules cannot be exhaustive in all respects. In my view there is no express provision

made in the rules about method and manner of assessment of marks and therefore in the absence

thereof it is to be deemed that such scheme is left to the discretion and wisdom of public service

commission which is conducting the examination. It cannot be read that since there is no provision

under the rules there is no authority with the GPSC to decide the modality or mode of assessment

of marks. Similarly, in the advertisement for such purpose in my view all steps are not required

to be mentioned which can be undertaken for the purpose of conducting the examination or for

the purpose of deciding the modalities for assessment of marks. The judgments upon which

reliance placed by Mr.Pujara are altogether different in facts and circumstances and hence reliance

placed is ill-founded. Therefore, I am of the view and contention that the GPSC has no power to

decide the modality or method for assessment of marks, may be by scaling, is devoid of any

merit and therefore deserves to be rejected.

14. Even if it is assumed that there is power with the GPSC to decide the modalities and

methodology for assessment of marks and its finalisation, then also it would be necessary to

191Gujarat PSC

examine the crucial issue as to what is scaling and whether scaling is accepted as a modern

method for the purpose of assessment of marks and the another aspect which would be required

to be examined is whether the formula applied by the GPSC for the purpose of scaling of marks

is on rational basis with the full consciousness of mind and after undertaking the studies and

whether by application of such formula for scaling absurd results are brought about. In my view

before the aforesaid aspects are examined, it is necessary to take note of the scope of judicial

power in the matter of conducting of examination or in the matter of assessment of marks. The

law is settled on the said point that normally the court would not be substituting its wisdom in

place of wisdom of academicians to decide the method and manner of conducting the examination

and also for the method and manner of assessment and awarding of marks unless such action is

arbitrary, irrational, unconstitutional or prohibited by law or such application brings about absurd

results which has resulted into great injustice. Keeping the aforesaid scope of judicial review

the matter will have to be examined.

15. Since on the method of scaling or what can be scaling no other book is made available nor

the learned advocates of the petitioners have drawn the attention of this Court with a view to

better understand “the scaling” in detail, this court with a view to advance the cause of justice

has found it proper to make reference and to some extent rely upon some of the websites available

on internet. In my view, when our country has made law prohibiting cyber crimes and on the

basis of modern methods of computer, E-mails, internets, the laws are also amended, in such

relevant material available on internet can be used for knowledge purpose and also for resolving

disputes sometimes. In www. Satac.Edu.Au. a web site available on internet under the head of

“Scaling—What, why and how-2001” the scaling is described as under:

“Scaling is a mathematical process which adjusts the results students achieve in

their various SACE stage 2 (year 12) subject to that the students can compete on a

fair basis for entry to University and TAFE courses.”

With a view to understand in a better way it has also been provided in the said scaling as to why

scaling is necessary which is quoted as under:

“The subject content, the types of skills they measure, the way they are assessed and

192 Gujarat PSC

the range of abilities among the students varies from subject to subject. Because of

this, no direct comparison can or should be made between subject achievement

scores in one subject with those in another:

Look at the scores below:

Danny Jason

Subject Subject Subject Subject

Achievement score Achievement Score

Biology 16 Biology 14

Business Maths 16 English 14

We can say that Danny did better in Biology than Jason did. But, this is all we can

say. We can not say for instance that Danny did better in Biology than Jason did in

English. We cannot even say that Danny did equally well in both Biology and

Business Maths. Even more importantly, we can not say that danny’s ‘total’ of 32

for his two subjects is ‘better’ than jason’s ‘total’ of 28 for his two.”

The material shows various modes including “equal achievement” from scaling in practice has

been provided. The important points to be noted about the scaling are mentioned as under:

“Scaling is done on the raw scores which are scores out of 200 rather than on the

subject achievement scores which are out of 20—this allows for greater accuracy. It

is, therefore, possible for two students to have the same subject achievement score

in a subject but different scaled scores. Say, for example, that Kim gets a raw score

of 138 in Biology and Lee gets 144 but both receive a subject achievement score of

14. Kim’s raw score of 138 might be scaled to 14 but Lee’s a raw score of 144

might be scaled to 14.5.

Scaling has the greatest impact on middle range scores-very high and very low

scores are least affected by scaling.

193Gujarat PSC

The amount by which a subject is scaled depends upon group preference, not the

performance of an individual.

Scaling does not chance the order of students in a subject. If Tanya’s raw score of

Biology was higher than Sophie’s then her scaled score for Biology will also be

higher or atleast equal to Sophie’s scaled score”

“When the scaling process has been completed the scaled scores are used to calculate

a TAFE Selection Score and a University Aggregate for each eligible student. For

University courses, a Territory Entrance RANK is calculated from the University

Aggregate for each eligible student.”

16. In the material available on web site on internet http:Science.ntu.ac.uk/msor/ccb/ scaling.html

marking and scaling of course work and tests in different examinations have been provided.

17. In view of the aforesaid material and other material available for scaling on internet, it

appears that the scaling is a technique adopted for assessment of merit of student who has passed

examination from different Colleges or Board for entry to degree course in the university. There

may be a different syllabus in A school or A Board while comparing with A School or A Board,

the standard of assessment by the examiner may also vary. With a view to extract comparative

merit of two candidates in different subjects the scaling is considered to be a modern technique.

However, as observed earlier, in the material referred to herein above, it appears that the merit

order remains same within the subject and by scaling the majority sufferers are the middle merit

group candidates neither topers nor those who are in the lower grade. In developed countries

normally there is no marking system and the system prevalent is on the basis of gradation. The

scaling is considered to be well established method for the purpose of entry to a common stream

or various better streams having their different origins in education. The ultimate purpose appears

to be to assess the comparative merit or performance of candidates in different subjects or in

same subject having different origins or different examiners. Even in the judgment of the Division

194 Gujarat PSC

Bench of Rajasthan High Court as well as of this court in the matter of Kamlesh Haribhai Goradia

vs Union of India reported in 1987 (1) GLR 517 reference is made to the method of scaling for

the purpose of assessing comparative merit. Therefore, I am of the view scaling or raw marks is

one of the modern methods accepted amongst academicians for assessing the comparative merit

of student from different college or university, as the case may be.

18. The aforesaid takes me to examine the reasons behind scaling and the method adopted for

scaling by the GPSC. I find from various material which re available on internet there are large

number of scaling techniques which ay e applied by the Body which is using the scaling method

for assessing the comparative merit of candidates. In the web site on internet http://

science.ntu.ac.uk/msor/ccb//scaling.html under the head “Scaling, advice and guidelines for

students 9 September, 2002) material is provided to the students regarding scaling method adopted

by all universities. One of the methods provided is as under:

Scaled = 50 + 3 (Raw-50)/5

It has been provided that this formula brings raw marks of 100% down to a scaled mark

of 80%. It has also been provided that mean to be applied which will be a standard mean

depends upon the overall assessment of difference and the formula to be adopted for such purpose,

which may vary from case to case.

19. So far as the GPSC is concerned, as per the defence raised in the affidavit in reply it has been

submitted that they have followed the method recommended in a book of IV.Natarajan known as

“Scaling Techniques, what, why and how”. Reliance was placed upon the concluding portion

which is also reflected in the affidavit in reply at para 5 onwards. The book of Mr.Natarajan is

made available to the court and at the concluding portion it is narrated at page 43 as under:

“Based on the findings of the research studies quoted earlier the following seven

areas have been identified which warrants adoption of scaling/equating techniques:

(1) When many examiners are involved in marking the scripts relating to a subject;

(2) When scripts relating to two subjects one set answering in English and the

other in a regional language have to be scored;

195Gujarat PSC

(3) When marks relating to different subjects are to be added so as to get an

aggregate;

(4) When internal audit and external assessment marks are to be added and/or

compared;

(5) When student performance from different school Boards, Universities are to

be compared;

(6) When marks relating to objective part is to be added with that of essay part in

a paper; and

(7) When candidates’ performance in alternate forms of an objective question

paper are to be compared.”

20. Mr.Patel Ld. counsel appearing for the GPSC has submitted that so far as the present case is

concerned, the GPSC has taken into consideration the contingencies or the areas narrated at

items (1) and (3) above for the purpose of applying method of scaling. After identifying the

areas in the very book, the techniques have been further narrated areawise. So far as the first

area where many examiners are involved in marking the scripts in a subject so concerned, the

discussion begins from page 146 onwards of the said book. Possibly the contention sought to be

raised on behalf of the GPSC is that since there are number of students and number of examiners

marking scripts in a subject it was advisable to apply scaling method as recommended by

Mr.Natarajan in the said book. Prima-facie, the said contention appears to be attractive but upon

close scrutiny it appears that same is the case for compulsory subjects too. Number of examiners

marking the scripts in compulsory subjects are more in comparison to optional subjects. However,

for the reasons which are not disclosed in the affidavit in reply the GPSC has not decided to

apply scaling method on the raw marks obtained in the compulsory subjects. If the contention

had been so genuine and bonafide, in my view in the compulsory subjects it was more required

to apply scaling method in comparison to optional subjects because on the basis of figures supplied

during the course of hearing in the preliminary examination sine the number of students was

70115 the number of examiners in any case in compulsory subjects would be much more in

comparison to the number of examiners in optional subjects. The original file of the GPSC

196 Gujarat PSC

containing the noting and other relevant papers was made available to the court for perusal and

statement on page 27/C shows that as against total number of students of 70115 in compulsory

subject in optional subjects the number of students in majority of cases appearing below 5,000

and it was only in case of Economics the number of students was 7803, in History 14714, in

Gujarati literature it was 6631 and in Commerce it was 7191. Therefore, out of 37 optional

subjects, in 33 optional subjects there were less number of students than 5000 and as a consequence

thereof the number of examiners would be naturally less on account of students less than 5000.

Similar was the case for main examination. The figures which are supplied to the court goes to

show that in compulsory subjects number of students were 7963 whereas number of students in

optional subjects in majority of cases were less than 500. It was only in Economics it was 540,

in History it was 1352, in Geography it was 2008 and Political Science it was 633. In other

words, not only in 4 subjects out of 2 optional subjects the number of students were above 500

and in the compulsory optional 28 subjects number of students was less 500. Mr. Patel has made

a statement at Bar that total number of students who appeared at the main examination are 4086

and figure shown in the statement which is supplied to the court during the course of hearing was

7963 is on the basis of candidate who have opted for two optional subjects and each appearance

is separately considered and therefore if a candidate has appeared in two optional subjects though

there may be one candidate but the figure would be two and if he is absent during the examination

of any optional subject he will go away from the total figure of 7963 and that is how the figure of

7963 is arrived at. The aforesaid figure clearly goes to show there were 209 candidates at the

main examination in optional subjects who appeared in either out of two or in one optional

subject. In spite of the same their marks are taken into consideration for the purpose of arriving

at the figure of combined mean.

21. The aforesaid figures clearly goes to show that the number of examiners marking scripts in

compulsory subject at the preliminary examination as well as the main examination would be

much higher and to be more specific in majority of the cases 14 times more in preliminary

examination and 15 times more in the main examination. In spite of the same, the GPSC has

taken decision to apply formula of scaling method only in optional subjects at the preliminary

197Gujarat PSC

examination as well as at in examination and not in compulsory subject. Had the defence of the

GPSC been genuine for accepting the recommendations of Mr.Natarajan as mentioned in the

book the first step in this regard should have been to apply scaling method also in compulsory

subject but there is no explanation in this regard as to why the decision is not taken to apply

scaling method formula as suggested by Mr.Natrajan in compulsory subjects.

22. It was also alternatively submitted on behalf of GPSC that the purpose of not applying

scaling method in compulsory subjects was because subjects were common and it was only in

case of different subjects the comparative merit was to be assessed and therefore the area identified

at figure 3 in the book of Natarajan was made applicable. Even close scrutiny of said alternative

submission shows that the discussion for such purpose is at page 201 para 6.2.2 in the said book

which shows that if a university is reporting the performance of the students in terms of grades

which are in turn based on certain range of marks then it can prescribe the percentage of candidates

to get various grades. But even while suggesting the said method the author has recommended

as under: “Of course, the scripts have to be randomised before being sent for valuation”. There

is no material produced by GPSC before the court nor even such is the defence in the affidavit in

reply that for correction by any examiner in any subjects is sent for valuation by way of random,

simple or otherwise. Mr. Patel made an attempt to contend that in the very paragraph an alternative

mode is suggested, namely, the Linear Standard score may be applied keeping the mean and

standard deviations to which the marks are to be scaled constant for all the subjects. But it is

pertinent to note that the author has used the language in this aspect as under:

“Of course, this is a difficult problem to tackle. For a period of time, the performance

of the students after scaling of marks in different subjects may be observed. If the

mean and standard deviation marks used as the standard in different subject do not

differ appreciably then those figures may be taken as the standard. Therefore, a

continuous study of data is necessary.”

23. It appears that the author has suggested the same in a matter where there is continuous

assessment of a candidate. He has suggested to accept the figure if the different subjects do not

198 Gujarat PSC

differ appreciably. No material is produced nor such submission is made that the figure of

different subjects do not differ appreciably. On the contrary, the contention of GPSC is that there

can be no comparison of raw marks in two optional subjects.

24. Before the question is examined regarding the method applied by the GPSC for scaling, it is

necessary to consider certain aspects which prompted the GPSC to apply scaling method. As

recorded earlier, the statement has been made at Bar that the reasons for applying the scaling

method at the preliminary examinations is the same as that for main examination. Upon the

request of the learned counsel for the parties original file has been called upon with the notings

thereto from the GPSC. A perusal of the noting dated 26.9.01 at the time when the GPSC had to

undertake the exercise of scrutiny of preliminary examination results it has been mentioned that

if the marking is given on the basis of raw marks the candidates of History subject shall have

more representations and the other candidates who opted for the other subjects will not have

proper representation. Even Note No.3 shows that the intention is to give representation to the

candidates of all optional subjects equally. The pertinent aspect is that upon the note one of the

members of the GPSC had recorded that if such criteria is adopted it may result into making

reservation or extracting of the candidates on the basis of optional subject and whether the same

would be in accordance with the rules or law or precedent and it is also mentioned that it may be

examined as to whether in UPSC such things are adopted or not. Even Note No.3 which is there

in the file of preliminary examination shows that the same is permitted with a view to give equal

representations to the candidates opting for each optional subject. Even the second note, dated

1.10.01 reiterates the same thing, namely, there is representation of 63.64% to the candidates

opted for one or two optional subjects and the rest of the candidates opting for 26 different

subjects as well as representation of 38 and therefore it has been mentioned that for equal

representation to the candidates of all the subjects proper justice should be rendered. The aforesaid

clearly goes to show that the intention on the part of GPSC is not to assess the comparative merit

of a student for the purpose of applying scaling method, but is with a view to give equal

representation or to make equal treatment to the candidates on the basis of optional subjects by

not only considering raw marks. The consequence can be that each candidate opting for different

199Gujarat PSC

optional subjects must be given a representation at the time of deciding the method of marking.

In my view such reasoning would basically frustrate the purpose for giving choice to the candidates

of having optional subjects. There is no warrant or authority with the GPSC to make equal

representation to the candidates of different subjects. It is volition on the part of candidates to

opt for subjects and the scheme of aforesaid statutory rules itself provide for. Whereas, the

candidate having opted for A or B subject, the performance is only to be assessed and it cannot

be said that merely because A has opted for X subjects and the number of candidates in X

subjects are more they should not be given representation or less representation be given. The

net effect is that the GPSC had made an attempt to make reservation on the basis optional subjects

which is not at all warranted in law. What is called for or what is rather required for GPSC is to

assess the merit and it is open to the GPSC to assess comparative merit also but the consideration

for which the scaling is applied and the noting in the file of GPSC clearly goes to show that the

same is not with an intention to assess the comparative merit but is with an intention which is not

warranted under law of making reservation on the basis of optional subject to each candidate.

Even the formal statement which appeared on page 23/C shows that for each optional subject a

degree of representation from each subject is kept in mind. The consequence would be that there

will be a less representation of a candidate opting for X or Y subject if there are more number of

candidates and the candidate who opted for an optional subject and the number of candidates are

less in that optional subjects will get higher opportunity. In my view this was not at all warranted

on the part of GPSC to make reservation on the basis of optional subject or to apply scaling

method with an intention to give representation to the candidates opting for different optional

subjects. In any event, no such criteria or stipulation was provided at the time when the

advertisement was issued nor there is any warrant for applying such reservation on the basis of

optional subject even as per the statutory rules framed for the purpose of conducting examination.

On the contrary, the scheme of the rules is to see that candidates are equated equally irrespective

of their choosing optional subjects. Under the circumstances, I find that the reasons prompted

the GPSC to apply scaling method is in reality not for assessing the comparative merit of the

candidate in different optional subjects but is with an intention to give representation on the

basis of optional subject equally in such a manner that where number of candidates is more such

200 Gujarat PSC

candidates will get lesser representation and where number of candidates is less such candidates

will et higher representation, both in compression to total number of candidates appearing in the

preliminary examination.

25. Since it has been submitted that the reasons for applying scaling method for preliminary

examination and the main examination are the same, the consequence is that the application of

scaling method or rather purpose for applying scaling method at the preliminary examination as

well as at the main examination is ultra vires the power of GPSC. In the affidavit in reply there

is no tenor or whisper regarding said aspects, but the GPSC which is a constitutional body in my

view cannot go beyond the notings or cannot disclose the stand contrary to their own original

record and as observed earlier the original record more particularly the file of preliminary

examination and the noting made therein clearly goes to show that it is with an intention to make

reservation on the basis of optional subjects which in my view has frustrated the laudable public

purpose of applying the scaling method for assessing the comparative merit in different same or

optional subjects.

26. In order to understand the scaling method and its application while giving final marking in

the examination some observations and the material is referred to in the earlier part of this

judgment and as observed earlier the reliance is placed on the material available on internet

because except the book of Natarajan no other material of any expert is produced by either side.

Such material referred herein above shows that it can also be used as the material by experts

known worldwide website. Basically the scaling is with a view to equalise the marks by

eliminating the differences. Such equalisation is required because of different method of

assessment by different examiners and also because of different nature and complexity of a

subject and also the different method of question papers etc. There cannot be any wholesome

exercise of putting all marks in a common pool and to arrive at mean which will be treated as a

standard mean and the deviation therefrom shall be excluded and the marks will be scaled. The

first and foremost requirement would be to undertake the exercise of difference of marking

system by each examiner. After such difference is recorded and taken note of a formula as

201Gujarat PSC

provided by the expert shall be applied for arriving at difference between the method of assessment

by each examiner or rather a particular examiner. A group of papers assessed by an examiner are

required to be taken as a sample and thereafter the assessment by various examiners is compared

and then the difference is taken note of. Such difference shall vary on facts of each examiner but

then only the standard difference can be arrived and thereafter the said difference would be made

applicable on the basis. There is absolutely no material worth the name is produced on record by

the GPSC nor it is even the case of GPSC that they had any material to show that there was

difference in the assessment between the examiners or difference in question papers, complexities

among optional subjects. I am of the view unless and until the difference between the method of

assessment between the examiners is found out and thereafter the standard mean is arrived the

formula cannot be applied at all. Even in the judgment of Rajasthan High Court upon which the

reliance is placed by GPSC on the basis of assessment made and the difference between the

examiners, M was taken as 95.59 being the average marks obtained by the candidates in general

knowledge and general science papers. Therefore when the Rajasthan PSC applied the formula

at the preliminary examination the basis was the average marks obtained by the candidate in

general knowledge and general science and the same was taken as 95.59. There is no whisper on

the part of GPSC to show the value of M arrived at by it taking into consideration the marks

obtained by the candidates in general or compulsory subjects at the time of preliminary

examination or at the time of main examination, as the case may be. The stand of the GPSC is

that they have applied the same method as it was applied by Rajasthan PSC and also even

applied by the UPSC is factually not correct. As observed earlier the method applied by Rajasthan

PSC was on the basis of mean given value of 95.59 which was on the basis of performance in

general and compulsory subjects by the candidates which is to at all considered by the GPSC

while applying the formula for scaling. Even the original file of GPSC on “Seminar (Orientation

Programme) on the issue relating to supplying of Moderation and Scaling” shows that so far

UPSC is concerned it has been recorded at Column applied by UPSC for inter-subject moderation

is applied different and that system of moderation is applied for comparing the interse merit and

thereafter if there is variation in the marking of optional subjects then only the suitable scaling

method is applied. Even the noting dated 9.9.2001 of the aforesaid file of the GPSC shows that

202 Gujarat PSC

it was initially suggested to apply moderation on all optional subjects by taking sample of about

25%. However, since it was likely to take more time the same is given go by. As observed

earlier, unless the moderation takes place, it is practically impossible to find out the difference in

the method and manner of assessment of marks between two examiners but nothing of the aforesaid

file shows that since it was to result into examination of about 1000 answer books and since it

was likely to take more time the decision is taken by the GPSC not to adopt the method applied

by the UPSC and to proceed with same scaling method as it was there at the time of preliminary

examination. It further appears from the said original file that thereafter in 10 subjects to some

extent the moderation had taken place and regarding the same the reference is there in the note

dated 16.11.2002 and not only that but thereafter as per note dated 3.12.2002 it was also decided

for remoderation. Still, however, it appears that the stand of the GPSC in the present case is to

insist for making system on the basis of scaling method without fulfilling the conditions before

such method is applied. Therefore, the GPSC is not right in contending that the even in the

public service examination conducted by the UPSC the method and formula applied for

moderation and scaling is the same.

27. As observed earlier, even while taking decision of applying scaling method it has not at all

undertaken the basic requirement of finding out the difference between examiners and then to

apply scaling method on the basis of difference which is known as valuation or value. It appears

that by mechanically applying the formula in part, the scaling method is applied. The formula is

applied on the basis of the performance of a candidate in various optional subjects would be the

same and the method of marking system by different examiners in an optional subject is also the

same. This non-application of mind on the part of GPSC would certainly bring about absurd

results. Mr. Sinha appearing for some of the petitioners has given a hypothetical statement to

say that how this formula applied by the GPSC has brought about absurd results. The same is as

under:

203Gujarat PSC

Subject Student Raw Marks Value of M XRoll No (XI)

A 1 90 63 90 0 @

B 2 85 63 85 0 @

C 3 70 63 70 0 @

D 4 45 63 45 0 @

E 5 25 63 25 0 @

The consequence is that a student score 90 raw marks will get 43 scaled marks. A student scores

even 25 marks in a different optional subject will also get 63 scaled marks. Had it been the case

of GPSC that because of difference in the method of assessment by the examiner or the difference

in the method of question paper it was necessary to equalise the marks by applying scaling

method the matter would have been different. In any case, even before applying the formula the

difference must be examined and must be taken note of. On the basis of said difference, a

standard mean shall be arrived at and then only the formula can be applied. Even in the judgment

of the Division Bench of the Rajasthan High Court in the matter of Mahesh Kumar Khandelwala

(supra) upon which the reliance is placed upon internal page 50 the same is taken note of and the

raw marks are scaled examiner wise and then they are equated, whereas in the present case the

marks are not at all scaled by eliminating the difference of marking system by the examiner nor

they are scaled by eliminating the difference in the complexity of difference optional subjects

and the method of marking therein. The aforesaid in my view goes to show that a medicine or a

system may be modern, but its application thereof is absolutely without proper application of

mind and it is a case of mechanical exercise of applying arithmetical formula that too in part

without there being any proper material for the same and without fulfilling the condition precedent

for such purpose of finding out the difference by taking note of assessment by different set of

examiners. It was expected for the GPSC to consult the expert for the said subject and then to

have the moderation and to find out the difference and with a view to eliminate the different

scaling method proper formula could have been applied. Such is not the case here and therefore

I am of the view that the scaling method which is applied by the GPSC at the preliminary and

also at main examination is with the purpose which is not warranted in law and is without there

being proper material and is also without proper application of mind.

204 Gujarat PSC

28. Much reliance is placed upon the judgment of the Division Bench of this court in the matter

of Kamlesh Haribhai Goradia vs Union of India reported in 1987/(1) GLR 157 and the Division

Bench of the Rajasthan High Court in the matter of Mahesh Kumar Khandelwala (supra). In the

case of Kamlesh Haribhai Goradia (supra) a view was taken by the Division Bench of this court

that the process of moderation is necessary to find out the merit of candidates inter se and the

marks cannot be awarded till such uniformity achieved in the examination. The view taken by

the Division Bench is that the system of moderation and scaling can be applied by Public Service

Commission at the time while conducting the examination and while giving final marking.

Therefore, the judgment of the Division Bench of this court in my view is of no help to the GPSC

for supporting the present scaling method applied by it and it can support only to the extent that

the system of moderation and scaling method can be applied. The Division Bench has never

approved or had any occasion to consider the formula of scaling as applied by the GPSC in the

present case.

29. In case of Mahesh Kumar Khandelwala (supra) as observed and discussed above the pertinent

aspect is that the affidavit in reply was filed by Mr.M.L.Sharma for which reference was in para

46 onwards in the judgment of the Division Bench of the Rajasthan High Court where the figure

Xi is arrived at for moderated marks. Even on internal page 49 “m” is referred for mean mark of

an examiner. It is taken note in the judgment of the Rajasthan High Court that “for scaling the

marks each examiner’s marks are considered separately”. Internal page 50 shows that the Division

Bench of the Rajasthan High Court has also considered the conversion equations of different

examiners to convert raw marks to scaled marks. But, the pertinent aspect is that the conversion

is considered examinerwise. At para 47 of the judgment the Division Bench of Rajasthan High

Court has recorded as under:

“We have no reason to doubt the veracity of the sworn statements of S/Shri Y.Singh

and M.L.Sharma in this regard”.

At para 49 of the Division Bench has further recorded that “no attempt was made by the

petitioners to file any counter affidavit of any expert in the subject to demonstrate that the

application of the formula used suffered from any material flaws and aberration.”

205Gujarat PSC

Further at para 49 of the aforesaid judgment of Rajasthan High Court shows that the

challenge was made to the M at 95.59 and while negativing said challenge the Division Bench

has extracted the assertions made in the additional affidavit in reply of Mr.Sharma that “the

value of M was deliberately taken by the Commission as 95.59 (average marks obtained by the

candidates in General Knowledge and General Science paper which was common to all)”.

Therefore, it was true that in the case before the Division Bench of Rajasthan that the value of M

was arrived at on the basis of average marks obtained by the candidates in General Knowledge

and General Science subjects which is common to all whereas in the present case as observed

earlier for finding out value of M no material whatsoever of any candidate or examiner in

compulsory subject is taken note of (emphasis supplied). Therefore, I find that the judgment of

the Division Bench of the Rajasthan High Court would be of no help to the GPSC for maintaining

the method and manner of applying the formula for scaling.

30. In view of the aforesaid discussion, I find that even if it is accepted that scaling is one of the

modern methods of assessing the comparative merit and even if it is accepted that there is power

with the GPSC to take decision of applying the modern method for assessing the comparative

merit, the facts of the present case show that the formula applied by the GPSC for scaling is for

different purpose which is not warranted in law and even the formula applied is also in part and

that too is without proper application of mind and without there being requisite material of

difference in the marking system by the examiner and difference of complexity of subjects.

In view of the aforesaid discussion, I find that the formula of scaling applied by the

GPSC upon the raw marking deserves to be quashed and set aside and hereby quashed and set

aside.

31. It is well settled that the court would normally extend the benefit of relief to only those

persons who have approached before this court unless it results into causing injustice to other

similarly situated persons. Since all these matters are being considered at a stage where the

preliminary examination is over a long back and the main examination is over and on the basis

of performance at the main examination the interview are to be held by the GPSC, those petitioners

206 Gujarat PSC

who appeared at the preliminary examination and challenged the system/method of applying the

scaling at the preliminary examination have preferred these petition were admitted, the court

had passed the interim order of allowing the concerned petitioners to appear in the main

examination. Those petitioners who did not challenge the result of preliminary examination

before this court, in my view, would not be entitled to any relief since they accepted the result.

So far as the petitioners who challenged the result of preliminary exam and those who were

permitted to appear at the main examination would only be entitled to the benefit of final orders

passed these petitions.

32. Further if on the basis of the present challenge to preliminary examination, the relief is

granted to all other candidates who suffered but did not prefer petitions then also since they have

not appeared at the main examination, even otherwise also, no useful purpose would be served.

If declaration of result of preliminary examination is set aside in toto the consequences would be

to set at naught the main examination even though such other candidates had accepted the marks

given and method applied for scaling at the preliminary examination. If, the main examination

which is already held is cancelled, in my view it may not only result into serious irreversible

situation but would also result into huge expenses for conducting the main examination again,

which would require more public time and money etc. Therefore, I find that since the matters

are being finally heard at a stage when the concerned petitioners were permitted to appear in

main examination and the main examination of or dates is already held, judicial

discretion demands that relief be extended only to the concerned candidates who preferred petitions

challenging the result of preliminary examination and such relief should be considered by taking

care that the main examination may not be required to be held again.

33. Whereas, such is not the case so far as the main examination is concerned the result of the

main examination is yet not finally given effect and it has come on record that the process of

interview has not yet begun and are postponed by GPSC itself. Therefore, I am of the view that

so far as result of main examination is concerned, it would stand on a different footing than that

of the preliminary examination. Further, as the second stage after declaration of result of the

main examination has not started, namely the interview, the matter is at the stage after the

207Gujarat PSC

declaration of result of main examination. If the result of main examination is ordered to be

cancelled on the basis of such scaling method applied by GPSC in respect of concerned petitioners

only then in that case the GPSC may proceed to act upon the result of other candidates who have

not approached the court and if the interim relief to that extent is considered it would result into

creating irreversible situation. Moreover, on the basis of performance in main examination and

at the interview the select list is to be prepared. Therefore, considering the facts and circumstances

of the case and the stage at which matters are being decided finally, I find that the relief should

not be restricted to present petitioners but it should be in general with a view to rule out possibility

of causing injustice to any candidate who has appeared at the main examination but has not

approached this court because the rights, if any, would be interconnected, if performance at

interview is subsequently considered.

34. In view of the aforesaid discussion, I find that following directions would meet with the ends

of justice:

(A) The petitions of the petitioners who have challenged the result of preliminary examination

on the ground of application of scaling formula by he GPSC shall stand allowed only to the

extent that they shall be treated as eligible by GPSC for appearing at the main examination.

(B) So far as the petitions of the petitioners who have prayed for declaration of result of main

examination as illegal and void and who have challenged the application of formula of scaling at

the main examination are concerned they shall stand allowed to the extent that the method and

manner of applying the scaling method by GPSC at the main examination in optional subjects is

quashed and set aside and as a consequence thereof the declaration of result by the GPSC of

main examination shall also stand cancelled.

(C) It is further clarified and ordered that the GPSC shall not be required to conduct the main

examination again but shall consider the matter afresh keeping in view the discussion and the

observations of this court in this judgment and it will be at liberty to declare the result of the

main examination on the basis of raw marks or to apply the method of moderation and scaling

208 Gujarat PSC

after consulting the experts and shall declare the result thereafter in either case. In any event,

such exercise of declaration of result shall be completed by the GPSC as early as possible, and in

any case, before the expiry of a period of four months from the date of receipt of writ of this

court.

(D) The GPSC shall also declare the result of each candidate with marks which may finally be

awarded by the GPSC at the main examination and such declaration shall be made in any case

prior to holding of interviews for the post question.

35. All the petitions are allowed to the aforesaid extent and rule in each petition is made absolute

accordingly. Considering the facts and circumstances, there shall be no order as to costs.

36. In view of the judgment in main petitions, there shall be no order in CAS and all the CAS

stand disposed of accordingly.

***