Miss Jayshree J. Solanki vs State of Gujarat and Another

P.R. Gokulakrishnan, C.J.—This Special Civil Application is for issuing a writ of mandamus or any other appropriate writ setting aside the decision of respondent No. 2 declaring the petitioner unsuccessful on the ground of not holding the requisite educational qualification on the date of advertisement and for issuing a writ of mandamus directing the authorities to place her name at the appropriate place in the list of successful candidates prepared by the 2nd respondent for appointment to the post of Assistants in the Secretariat of the Government of Gujarat. It is further prayed for issue of a writ of mandamus declaring Rule 9 of Gujarat Secretariat Assistant, Deputy Mamlatdar and Sales Tax Inspectors Recruitment (Examination) Rules, 1979 as ultra vires Articles 14 and 16 of the Constitution of India with a direction for deletion of the said Rules. Further directions prayed for are to issue a direction to appoint the petitioner to the post of Assistant in Super Division of Subordinate Secretariat Service in her turn and for restraining respondent No. 1 to operate the select list prepared by respondent No. 2 for appointment of persons to the post of Assistants in Super Division of Subordinate Secretariat Service under the Government of Gujarat at Gandhinagar.

Mr. Tripathy, the learned Counsel appearing for the petitioner, submitted that there is a conflict between the Rules framed under Article 309 on different dates. If that be so, according to the learned Counsel, the rule which prescribes that a candidate must hold a degree in Arts, Law, Science, Agriculture or Commerce of a University recognised by the Government of Gujarat or possess on equivalent qualification to be eligible for appointment by direct selection must prevail over the rule which reads that the candidate, while applying for any of the scheduled posts must hold a degree in Arts, Law, Science, Agriculture or Commerce of a University recognised by the Government of Gujarat or possess qualification equivalent thereto, which, according to the learned Counsel, is only procedural. In this case the advertisement for the post was made on 1-3-1986 and it is clear from the facts that the petitioner graduated herself only in May, 1986. The examination for the post was held in October, 1986. Inasmuch as the petitioner was not a graduate on the date of applying for the post, the respondents, following Rule 9 of the Rules framed under Article 309 on 28th September, 1979, held that the petitioner while applying for the scheduled post did not have the requisite qualification and as such, is not eligible for selection. The Rule framed under Article 309, which is Annexure ''A'', states that :

To be eligible for appointment by direct selection, the candidate must,

(a) Hold a degree in Arts, Law, Science, Agriculture or Commerce of a recognised University or possess an equivalent qualification xxx xxx

Rule 9 framed under Article 309, which is Annexure ''F'', states:

A candidate applying for any of the scheduled posts must hold a degree in Arts, Law, Science, Agriculture or commerce of a University recognised by the Government of Gujarat or possess qualification equivalent thereto.

Reading both the Rules, we do not find any conflict between the same since the rule at Annexure ''A'' did not say that at the time of the appointment, a candidate must possess a degree, but Rule 9 at Annexure ''F'', it is very specific that on the date of applying for the scheduled post, the candidate must have a decree mentioned therein. Hence, we do not find any conflict as such between these two rules. In that light, it is not necessary to refer to the decision cited by Mr. Tripathy which deals with a case when there is a conflict between such rules. It is next contended by Mr. Tripathi that the advertisement for the post ought to have been made ordinarily in the month of June each year, la this case, the advertisement was made on 1-3-1986. According to the learned Counsel, if that has been made in the month of June, the petitioner, who has graduated herself in the month of May, would have had an opportunity of applying for the post. The learned Counsel further interprets the word ''ordinarily'' occurring in Rule 6 at Annexure ''F'' and states that the Commissions should not have arbitrarily fixed the date and if it has done so, such advertisement has to be quashed following the decision in the case of Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, . In the present case, it is very, clear that the examination was held in October, i.e. within a period of 6 to 7 months from the date of advertisement. The mere fact that the candidate would have had an opportunity to apply, cannot be a ground for questioning the wisdom of the Commission to make the advertisement. If the advertisement has depend upon the results that will be announced for Degree Courses in various Universities no progress can be made in filling up the vacancies. Ordinarily, it has been suggested that, such advertisement will be made in the month of June each year. The decision in the case of Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, deals with date of fixing the seniority of the candidates. In such circumstances, the Supreme Court held that such fixation cannot depend upon the arbitrary decision of the authorities concerned and if that be so, it will be termed as arbitrary and discriminatory and will squarely offend Articles 14 and 16 of the Constitution. As far as the fixing of the examination, which has to be made ordinarily in the month of June each year, the same cannot be equated with the fixing of the seniority of a person concerned. Hence, we do not think that the ratio of the decision reported in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, can have any application to the facts of the present case. Even Rule 5, which reads as follows:

Every year the concerned Department of the Secretariat shall intimate to the General Administration Department not later than 30th April the requirements of new recruits for the different Scheduled posts for the next year commencing from the 1 st April of the next year, with such particulars, if any, as the Government may, by general or special orders, direct. The General Administration Department shall communicate such requirements together with its own requirements, if any, to the Commission before the end of June of that year.

Does not show that the advertisement was given for filling up the vacancies for 1987-88. Thus, we do not find any merit in any of these contentions raised by Mr. and accordingly, we dismiss this Special Civil Application.