Punjabhai Merkhibhai Bharai Vs. State [Gujarat High Court, 23-06-2016]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE G.R.UDHWANI

Date : 23/06/2016

LETTERS PATENT APPEAL NO. 437 of 2013

In SPECIAL CIVIL APPLICATION NO. 1425 of 2013

PUNJABHAI MERKHIBHAI BHARAI & 7….Appellant(s)

Versus

STATE OF GUJARAT THROUGH SECRETARY & 40….Respondent(s)

Appearance: MR ASIM PANDYA, ADVOCATE with MR K S CHANDRANI, ADVOCATE for the MR UTKARSH SHARMA, ASSTT. GOVERNMENT PLEADER for the MR PREMAL S RACHH, ADVOCATE for the Respondent(s) No. 11 – 12 , 14 – 16 , 18 MR YN OZA, SR. ADVOCATE with MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 3 – 6 , 17 , 21 , 23 – 24 , 26 – 27 , 29 , 31 – 32 , 38 – 40 MRS.DHARITA P MALKAN, ADVOCATE for the Respondent(s) No. 13 MS.KHUSHBOO V MALKAN, ADVOCATE for the Respondent(s) No. 13 RULE SERVED for the Respondent(s) No. 2 , 7 – 10 , 19 – 20 , 22 , 25 , 28 , 30 , 33 – 36 , 41 UNSERVED-EXPIRED (N) for the Respondent(s) No. 37

JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. This letters patent appeal is directed against the judgment and order dated 12.02.2013 passed by the learned Single Judge in Special Civil Application No.1425 of 2013 whereby, the petition has been summarily dismissed.

2. The appellants herein (original petitioners) had filed the above referred writ petition being Special Civil Application No.1425 of 2013 seeking the following substantive reliefs:

“(18) In the above-said premises, the petitioners pray that:-

[A] This Hon’ble Court may kindly be pleased to declare the proviso to Rule 2, sub-rule (2) Clause (a) of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, as amended by the Police Sub-Inspector (Unarmed) Class-III Recruitment (Amendment) Rules, 2012, being violative of Articles 14, 16 and 21 of the Constitution of India;

IN THE ALTERNATIVE

[A] This Hon’ble Court may kindly be pleased to read the word “and” in the phrase “has applied and appeared” as “Or” in the proviso Rule 2, sub-rule (ii) clause (a) of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, as amended by the Police Sub-Inspector (Unarmed) Class-III Recruitment (Amendment) Rules, 2012;

[B] This Hon’ble Court may kindly be pleased to issue appropriate writ, order or direction directing the respondents to treat all the petitioners who had filed petitions in the year 2009 and who were permitted to fill up the forms for the competitive examination to be held in 2009 as a single and uniform class of candidates and to give them equal treatment in the matter of promotion to the post of Police Sub-Inspector (Unarmed) and the respondents be further directed to hold a competitive examination specially for the petitioners and other candidates left out from appearing in the examination held in the year 2009 by the wrongful action of the respondents;”

3. The facts stated briefly are that in the year 2009, a large number of petitions came to be filed by several Constables serving in the Gujarat State Police Services, challenging the validity of the rule 2 of the Police Sub-Inspector (Unarmed), Class III, Recruitment Rules, 2008 (hereinafter referred to as the “rules”) and other ancillary reliefs. In the said petitions, the main grievance of the petitioners was that in some districts, the Constables would get chance to become Head Constable or Assistant Sub-Inspector by fortuitous circumstances much earlier than the persons working on the post of Constables in other district. In some districts, despite working for more than twelve to fifteen years on the post of Constable, the candidates had no opportunity to get promotion to the post of Head Constable or Assistant Sub-Inspector. It was the policy at the relevant time to give higher grade pay to the Constables who had worked for more than nine years and to treat those Constables on a par with the Head Constables. The petitioners, in those petitions, therefore, claimed that they should be allowed to appear in the competitive examination for promotion to the post of Police Sub-Inspector considering them as having worked as Head Constables after nine years of service, thereby fulfilling the eligibility criteria for appearing in the competitive examination for the promotional post of Police Sub-Inspector. By an interim order dated 26.05.2009 made in the said petitions, the respondents were directed to accept the application forms of the petitioners therein for the competitive examination to be held by the respondents in the year 2009. Pursuant to the said interim orders issued by this court in those petitions, the forms of the appellants herein as well as other petitioners were accepted. The said writ petitions being Special Civil Application No.4998 of 2009 and cognate matters, came to be decided by a common judgment dated 28.08.2009 whereby, the learned Single Judge dismissed the petitions and vacated the ad-interim relief granted earlier.

4. Against the said judgment and order dated 28.08.2009, some of the said petitioners filed letters patent appeals on 01.09.2009, whereas some of them filed letters patent appeals on 04.09.2009. The competitive examination was to be held on 05.09.2009 and 06.09.2009. It appears that some of the letters patent appeals came to be listed for hearing on 03.09.2009 before the Division Bench which, by an order dated 03.09.2009 passed in Civil Application for Stay No.9453 of 2009 in Letters Patent Appeal No.1628 of 2009 and cognate matters, directed the respondents to allow the applicants before it, who had earlier been permitted to fill up the forms, to appear in the examination, subject to the final result of the appeals. The Division Bench further directed that the result of the examination of the applicants therein will not be declared till the appeals are decided and shall be kept in a sealed cover. It was observed that if the applicants succeed, the result would be declared and only the successful candidates at the examination would be considered for promotion as per the rules, but at the same time, the successful applicants shall be precluded from claiming equity of any kind either by way of seniority or promotion. It was further clarified that such directions were by way of interim relief till the final disposal of the appeals.

5. Pursuant to the above order, not only the applicants in the letters patent appeals, but four other candidates who had not preferred letters patent appeals on 01.09.2009, but on 04.09.2009, were also called to appear in the competititve examination to be held by the department on 05.09.2009 and 06.09.2009. Not only that, three candidates who had not preferred letters patent appeals were also called to appear in the said examination, whereas the petitioners and several other persons who had been allowed to fill up their forms by virtue of the interim orders passed by the learned Single Judge, were not called to appear in the examination.

6. It is the case of the appellants that in all forty one candidates were allowed to appear in the competitive examination selectively and arbitrarily without applying any logical criterion for determining their eligibility. The results of all those persons who were allowed to appear in the examination were kept in a sealed cover as per the interim direction issued by this court vide its order dated 03.09.2009 passed in the above letters patent appeals.

7. During the pendency of the above letters patent appeals, the first respondent, in exercise of powers conferred by clause (b) of section 5 of the Gujarat Police Act, 1951, made rules called the Police Sub-Inspector (Unarmed) Class III, Recruitment (Amendment) Rules, 2012 (hereinafter referred to as the “amendment rules”) to amend the Police Sub-Inspector (Unarmed), Class III, Rules, 2008 whereby, clause (a) of sub- rule (2) of rule 2 of the said rules came to be substituted by providing that the appointment to the post of Police Sub- Inspector (Unarmed) Class III in the Gujarat State Police Services shall also be made by promotion of a person on the basis of merit rank obtained in the special competitive examination conducted in accordance with the rules prescribed by the Government in that behalf and who have worked for not less than fifteen years combinedly or separately in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III or Constable (Unarmed), Class III in the Gujarat Police Service. Since by the aforesaid amendment, the major grievance of the appellants of all letters patent appeals came to be redressed, the letters patent appeals were disposed of by a common order dated 27.06.2012 without entering into the merits of the case. After the aforesaid amendment in the rules, some of the appellants made representations to the respondents whereby, they claimed equal treatment in the matter of promotion and requested the respondents to hold a competitive examination for them as the appellants and those candidates who were allowed to appear in the examination held in 2009 were similarly situated. However, the respondents have failed to extend equal treatment to the appellants. It appears that out of 41 candidates who were permitted to appear in the competitive examination, promotion of 39 candidates to the post of Police Sub Inspector (Unarmed) was being considered by the respondent State authorities and such fact came to the knowledge of the appellants by FAX dated 03.01.2013 and 07.01.2013 (Annexure “I” collectively to the petition). It was the case of the appellants that the candidates, who were equally situated to the appellants, were being treated unequally by the respondent State authorities in the matter of promotion to the post of Police Sub-Inspector (Unarmed), which was clearly violative of Articles 14, 16 and 21 of the Constitution of India. Since the case of thirty nine persons for promotion was being considered on the basis of the proviso to clause (a) of sub-rule (2) of rule 2 of the rules as amended by the Police Sub-Inspector (Unarmed), Class III, Recruitment (Amendment) Rules, 2012, the appellants herein (original petitioners) have filed the captioned writ petition seeking the reliefs noted hereinabove.

8. Mr. Asim Pandya, learned advocate appearing with Mr. K.C. Chandrani, learned advocate for the appellants, assailed the impugned judgment and order by submitting that the learned Single Judge has erred in holding that the appellants herein were satisfied with their inclusion or their consideration in the examination to be conducted in the future and that they having consented for the appeals to be disposed of, were not entitled to any relief, inasmuch as, nothing prevented the appellants from agitating their grievances and continuing with the appeals so as to claim and safeguard their rights, if any, arising out of their only filling in the form and not appearing in the examination. It was submitted that in the earlier round, there was no challenge to the validity of the amended rules which were enacted and brought into force during the pendency of the letters patent appeals. Reference was made to the order dated 27.06.2012 passed by the Division Bench in Letters Patent Appeal No.1655 of 2009 and allied matters, to point out that the court had observed that in view of the amendment brought about by the amendment rules, the appeals did not survive for any order as the said rules would govern all the cases including the cases of the appellants therein. It was submitted that the impugned judgment and order suffers from various infirmities, viz., that it has been held that since the earlier letters patent appeals have been disposed of by recording that the new rules would govern the case, they are now precluded from challenging the amended rules. It was submitted that the subject matter in the letters patent appeals related to the unamended rules, under the circumstances, the appellants would not be precluded from challenging the amended rules as the same give rise to a fresh cause of action.

8.1 Referring to the facts of the case, as averred in the memorandum of petition, it was pointed out that not all the thirty nine persons who were promoted by giving them the benefit of the proviso to clause (a) of sub-rule (2) of rule 2 of the rules had appeared in the examination pursuant to the interim order passed by the Division Bench. It was pointed out that Jaymalbhai Rajabhai Karotara and Janaksinh Gajubha Rana had filed letters patent appeal on 04.09.2009, despite which they were allowed to appear in the competitive examination held on 05.09.2009 and 06.09.2009. It was submitted that one Karsanbhai Punjabhai Mehta had not even filed letters patent appeal, but he was allowed to appear in the examination. One Rajendrasinh Parbatsinh Chudasama was one of the petitioners in Special Civil Application No.5102 of 2009, wherein the appellant No.2 herein was also a party, but Rajendrasinh was allowed to appear in the examination, whereas the appellant No.2 herein was not allowed to appear in the examination. Similarly, Mulrajsinh Surubha Rana who had filed letters patent appeal on 04.09.2009, was allowed to appear in the examination, and Jayprakash Ramtejbhai Shukla who had not filed any letters patent appeal, was also called to appear in the examination by FAX dated 04.09.2009. It was pointed out that Shaktisinh Yashwantsinh Zala, Arvindsinh Bharatsinh Jadeja and Rameshbhai Kanabhai Vania were petitioners in Special Civil Application No.5208 of 2009, wherein the appellants No.1, 3, 4, 5, 6 and 8 herein were also petitioners, but for reasons best known to the respondent State authorities, the aforesaid three persons were called and allowed to appear in the examination, whereas the appellants herein were not given similar treatment. It was also pointed out that for reasons best known to the respondent State authorities, all the petitioners of Special Civil Application No.5034 of 2009 were allowed to appear in the examination, whether or not they had filed letters patent appeals. It was argued that the respondent State authorities have, therefore, in an arbitrary and irrational manner, selectively allowed forty one candidates to appear in the examination and deprived the appellants and other similarly situated persons who were permitted to fill in the examination forms of the chance to appear in the examination and thereby, have sought to create two different classes of candidates, namely, those who “applied” and the those who “applied and appeared in the examination”. It was contended that the aforesaid act on the part of the respondent State authorities on the face of it is arbitrary, illegal and irrational and hence, violative of Articles 14, 16 and 21 of the Constitution of India.

8.2 It was pointed out that by virtue of the proviso, the private respondents who had appeared in the competitive examination and cleared the same are held to be eligible for being appointed on the post of Sub-Inspector, despite the fact that, in 2009, thirty one of them were not qualified even as per the amended rules to appear in the said examination. It was submitted that it was only on account of a fortuitous circumstance, viz., that some of the private respondents had filed letters patent appeal on 1.9.2009 and were granted interim relief by this court vide order dated 3.9.2009, and were accordingly permitted to appear in the examination. Referring to paragraph 5 of the order dated 03.09.2009 passed by the Division Bench in Civil Application No.9453 of 2009 in Letters Patent Appeal No.1628 of 2009 and allied matters, it was pointed out that, out of 110 persons who had been permitted to fill up the forms, the respondents selectively called thirty nine persons for appearing in the examination by giving them preferential treatment. Referring to the impugned proviso, it was submitted that a final order passed by the court can be the basis for rational classification, but an interim order cannot be the basis for such classification. It was submitted that the appellants and those candidates who are covered by the impugned proviso, form a single class of persons, all of whom were not qualified at the time when the competitive examination was held. It was submitted that there is no intelligible differentia between the class created and the class left out. It was contended that the object behind the classification must have a rational nexus to the classification and the object sought to the achieved, whereas in the present case there is no rational nexus to the object sought to be achieved. It was, accordingly, urged that the proviso is clearly discriminatory and needs to be struck down.

8.3 As to what is the court’s role as a primary reviewing authority, the learned counsel placed reliance upon the decision of the Supreme Court in