Skip to content


Majabutsinh C Gohil Vs State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSCA/15165/2010 17/17 JUDGMENT.
Judge
ActsConstitution of India - Article 226 .
AppellantMajabutsinh C Gohil.
RespondentState of Gujarat and ors.
Appellant AdvocateMR PA JADEJA.
Respondent AdvocateMR MAULIK G NANAVATI And MR DG SHUKLA.
Excerpt:
[s. abdul nazeer j.] code of civil procedure, 1908 - order 3 rule 1 -appearance of a party in the court, either in person, by recognized agent or by pleader - action for ejectment of the defendant from the suit schedule premises - suit filed through the power of attorney holder of the plaintiff -decretal of the suit - appealed against - main ground of objection to the decree is that the plaintiff cannot maintain the suit through his general power of attorney holder -authority given to a power of attorney holder under the instrument - language used in the instrument - scope of interpretation - need for fair interpretation of the words, specific powers, general powers and incidental powers given under the instrument - held, a holder of power of attorney is the recognized agent of the party..........has vehemently submitted that though the petitioner is not questioning the rule whether the gate percentile has relevance or not, however, when the scorecard for gate 2010 examination reflects only the marks and does not contain the percentile score at all, the gpsc is neither competent nor authorized to calculate the same on its own. any such calculation arrived at by the gpsc cannot be considered to be correct as there are no relevant details in the scorecard of gate 2010 that could have been used in order to arrive at a correct calculation. the learned advocate for the petitioner has referred to a letter dated 27.04.2010 addressed by dr.chitralekha mahanta, organizing chairperson, gate 2010, iit (guwahati) to shri p.s.katesaria, joint secretary of gpsc, in this regard. it is.....
Judgment:
1. The challenge in this petition preferred under Article 226 of the Constitution of India, is to the rejection of the candidature of the petitioner by respondent No.2 Gujarat Public Service Commission (GPSC), on the ground that the petitioner does not possess the requisite qualifications for the post of Lecturer in the discipline of Mechanical Engineering. It is, interalia, prayed that the decision of the GPSC rejecting the candidature of the petitioner on the ground that he has not scored 75 percentile in the Graduate Aptitude Test in Engineering (GATE), be quashed and set aside and the petitioner be declared as eligible to be considered for appointment to the post of Lecturer, Class-II, in the Government Engineering Colleges and Polytechnics in the State of Gujarat.

2. The relevant factual background is that the GPSC published Advertisement No.186 dated 16.02.2010, calling for applications from eligible candidates to fill up the posts of Lecturers in Government Engineering Colleges and Polytechnics in the State of Gujarat. The petitioner, who was appointed as lecturer (Mechanical Engineering) on ad hoc basis vide order dated 28.01.2009, applied pursuant to the same. Earlier, the petitioner, along with others, had filed a petition, being Special Civil Application No.4651 of 2010, seeking a direction that his services be not terminated. This was done in view of the fact that the appointment of the petitioner was for a term of 11 months, or till he is replaced by a regularly selected candidate by the GPSC. The said petition was rejected vide order dated 19.04.2010, of the learned Single Judge. The appeal, being Letters Patent Appeal No.991 of 2010, as filed by the petitioner and others, was disposed of on 30.04.3020, on a statement made by the learned Assistant Government Pleader, that the services of the appellants would not be terminated till the regular process of recruitment for filling up the posts of Lecturers is completed and regularly selected candidates are available for appointment. In this scenario, the petitioner applied pursuant to the above-mentioned advertisement published by the GPSC. The requisite qualification and eligibility criteria for the post of Lecturer in the discipline of Mechanical Engineering, as stated in the advertisement, is that the candidate should possess a First Class Master's Degree in the appropriate branch of Engineering/ Technology or, alternatively, he should possess a First Class Bachelor's Degree in the appropriate branch of Engineering/ Technology with a valid GATE score of 75 percentile. Admittedly, the petitioner does not hold a 1^st Class Master's Degree in Engineering (ME). The case of the petitioner is that, though he has appeared in the GATE examination, the Scorecard does not mention the percentile score as this was not calculated by the concerned Indian Institute of Technology (IIT) in the GATE 2010 examination, though the percentile score had been calculated in the previous year, 2009. According to the petitioner, as the percentile marks have not been provided in GATE 2010, it could not have been calculated from the details available in GATE 2010 by the GPSC, therefore, it cannot be said that the petitioner has not scored 75 percentile, and is ineligible, therefore, his candidature cannot be rejected on this ground. Hence, the petition.

3. Mr.P.A.Jadeja, learned advocate for the petitioner, has vehemently submitted that though the petitioner is not questioning the rule whether the GATE percentile has relevance or not, however, when the Scorecard for GATE 2010 examination reflects only the marks and does not contain the percentile score at all, the GPSC is neither competent nor authorized to calculate the same on its own. Any such calculation arrived at by the GPSC cannot be considered to be correct as there are no relevant details in the Scorecard of GATE 2010 that could have been used in order to arrive at a correct calculation. The learned advocate for the petitioner has referred to a letter dated 27.04.2010 addressed by Dr.Chitralekha Mahanta, Organizing Chairperson, GATE 2010, IIT (Guwahati) to Shri P.S.Katesaria, Joint Secretary of GPSC, in this regard. It is further contended that the percentile marks were used only to shortlist candidates by the GPSC, and as no percentile marks were given in the GATE 2010 examination, the said respondent could have resorted to any other method for short listing, instead of proceeding to calculate the percentile marks on its own. It is emphatically urged by the learned advocate for the petitioner that when the IIT (Guwahati) has informed the GPSC by letter dated 27.04.2010 that the percentile score cannot be calculated from the details provided in the Scorecard of GATE 2010, then the calculation done by GPSC cannot be considered to be correct. It is further elaborated that for the purpose of calculating the percentile score, the complete data with regard to the total number of candidates who have appeared in the GATE as well as total number of candidates who have secured lesser marks than the concerned candidate is a sine qua non. As this data is only available with the GPSC, it is not possible to calculate the percentile score and any calculation made in the absence of the complete data would result in injustice being caused to the concerned candidates, such as the petitioner.

It is, therefore, prayed that the petition be allowed and respondent-GPSC be directed to call the petitioner for interview, forthwith.

4. The petition has been strongly resisted by both, the respondent No.1 State Government and respondent No.2 GPSC.

5. Mr.Maulik G.Nanavati, learned, Assistant Government Pleader, has contended that the State Government has accorded sanction to the proposal of the GPSC that the GATE percentile be permitted to be calculated as per the formula adopted in GATE 2009, since no percentile marks have been calculated in GATE 2010. In this regard, letter dated 01.06.2010 has been addressed by the Principal Secretary, Education, to the Secretary, GPSC and the GPSC has calculated the percentile marks accordingly.

It is further emphasized that a uniform method of calculating the percentile marks has been adopted in all cases. The method of calculation used is that the total number of candidates who have secured lesser marks than the respective candidate are divided by the total number of candidates appearing in a paper, which figure is then multiplied by 100 to achieve the percentile calculation. This formula has been uniformly adopted in respect of all candidates and the GATE 2010 Scorecard provides sufficient details in order to effectively arrive at calculation of percentile as the All India Rank of the candidate and the total number of candidates who have appeared in the paper are mentioned therein. These details are sufficient for calculating the number of candidates who have secured lesser marks than the concerned candidate and to apply the formula. No exception has been made in the case of the petitioner, who has not secured 75 percentile. Hence, his candidature has been correctly rejected on this ground.

It is further contended that the selection procedure is almost complete and only appointments remain to be made. No other candidate has made any complaint regarding the calculation of the percentile marks and, at this late stage, the Court may not interfere.

On the strength of the above arguments, it is prayed by the learned Assistant Government Pleader that the petition be dismissed.

6. Mr.D.G.Shukla, learned advocate for the GPSC, has submitted that the petitioner has already approached this Court by filing a petition, namely Special Civil Application No.3229 of 2010 wherein the Recruitment Rules providing for GATE percentile have been challenged. The said petition has been admitted and is pending final adjudication. It is submitted that similarly situated candidates had filed Special Civil Application No.10124 of 2010 and allied matters, challenging the requirement of GATE percentile, as they were aggrieved by the non-inclusion of their names in the list of candidates to be called for interview for the post of Lecturer in Biomedical Engineering in Government Engineering Colleges. The said petitions have been rejected by order dated 09.09.2010. In the appeal filed against the said order, being Letters Patent Appeal No.2760 of 2010 in Special Civil Application No.10124 of 2010, the Division bench has, by order dated 12.01.2011, held that the nature of qualification required for the post is in the domain of the recruiting agency and the Court should not leniently interfere with the requisite qualifications provided in the advertisement by the recruiting agency. It is submitted that applying the principles of law enunciated by the Division Bench to the facts of this case, the qualifications stipulated in the advertisement have to be met with by the petitioner, and as he has not obtained 75 percentile marks, he does not meet with the eligibility criteria, as prescribed in the Recruitment Rules and stated in the advertisement, therefore, he has rightly been excluded from the list of eligible candidates to be called for interview.

Referring to the letter dated 27.04.2010, written by the Organizing Chairperson, IIT, Guwahati, to the GPSC, it is submitted that the letter clearly stipulates that other details of GATE 2010 will have to be used for the purpose of recruitment and, as such, the details available in the GATE 2010 Scorecard such as All India Ranking of the candidate and the total number of candidates who have appeared in the paper, have been used in order to arrive at the GATE percentile marks.

It is strongly contended by the learned advocate for the GPSC that, it is not the case of the petitioner that the method of calculation of the percentile marks is incorrect or not in conformity with the Rules. The GPSC has formally obtained the sanction of the State Government in order to calculate the percentile score of the candidates appearing in GATE 2010, by using the formula adopted in GATE 2009, as the Scorecard of GATE 2010 does not contain the percentile. It is only after the concurrence of the State Government that the calculation of percentile has been made. It is further emphasized that out of 22,000 applications that were received by the GPSC, no candidate has complained about the calculation of percentile. In any case, pursuant to 46 advertisements out of 55, the procedure of interviews is complete and 38 recommendations have already been made, and for the rest, the results are awaited. That the process of recruitment is now at an advanced stage and the prayers made by the petitioner may not be granted, as the petitioner has been found to be ineligible, not having secured 75 percentile, as required by the Rules.

7. In rejoinder to the arguments made by the learned counsel for the respondents, Mr.P.A.Jadeja, learned advocate for the petitioner, has reiterated his earlier submissions by submitting that the calculation of GATE percentile cannot be done in the manner suggested and that the concurrence of the State Government is, in fact, no concurrence in the eyes of law, as it has been given without application of mind. It is further submitted that the respondents have not clarified in the advertisement whether the percentile marks are required as a scrutiny to shortlist candidates or whether it is to be used as an educational qualification. If it is to be considered as an educational qualification, then as the Scorecard of GATE 2010 does not reflect the same, the respondents cannot make it an eligibility criteria, as has been done in the present case.

8. Having heard the learned advocates for the respective parties at length, and on perusal of the material on record, it emerges that the only question in issue is that the petitioner has been excluded from appearing in the interview as he has not scored 75 percentile marks. As per the eligibility criteria advertised, the candidate should possess a First Class Master's Degree or a First Class Bachelor's Degree with a valid GATE score of 75% percentile. The petitioner does not possess a Master's Degree in Engineering and has a Bachelor's Degree, therefore, as per the Recruitment Rules and the advertisement, he would have to possess minimum 75 percentile in GATE 2010 to be eligible for the post in question. The issue has arisen because the percentile marks have not been provided in the GATE 2010 Scorecard, though they had been provided in the previous year, that is, GATE 2009. The GPSC approached Proffesor Chitralekha Mahanta, Organizing Chairperson, GATE 2010, IIT (Guwahati), vide letter dated 20.04.2010, seeking information regarding calculation of percentile for the GATE 2010 examination, held in February 2010. By letter dated 27.04.2010, GPSC was informed that "Percentile mark is not provided in GATE 2010. As such, percentile cannot be calculated from details provided in GATE 2010. Your organization will have to use other details of GATE 2010 for your recruitment purpose". Much emphasis has been laid by the learned advocate for the petitioner on this letter by contending that the percentile cannot be calculated from the details provided in GATE 2010. However, this letter has to be read as a whole and it is clearly stipulated therein that the GPSC will have to use other details of GATE 2010 for the purpose of recruitment. The GPSC approached the State Government vide letter dated 27.05.2010, informing it of the above-mentioned communication and suggesting that the percentile be calculated on the basis of the formula adopted in GATE 2009. This suggestion of the GPSC found concurrence with the State Government, as is evident from letter dated 01.06.2010 of the Principal Secretary, Education Department. Accordingly, the GPSC went ahead and calculated the percentile marks by adopting the formula used in GATE 2009. The formula adopted for calculation of the percentile marks, as stated in the affidavit-in-reply filed by the GPSC is as follows: "Total Number of Candidates Appeared in the Paper All India Rank of the Candidate x 100 / Total Number of Candidates appeared in the paper = Percentile"

This calculation has been done on the basis of details available in the GATE 2010 Scorecard. In the case of the petitioner, it is mentioned in his Scorecard for GATE 2010 that the total number of candidates who appeared in the paper are 59338. The All India Rank of the petitioner is 15749. The calculation of percentile in the case of the petitioner has been made as follows: 59338 15749 x 100 / 59338 = 73.45 percentile

It is not the case of the petitioner that there is any error in the calculation made as per the formula but only that there were no details available with the GPSC to arrive at the percentile marks. The petitioner does not possess 75 percentile marks as per the formula adopted by the GPSC, therefore, as he does not possess the requisite eligibility criteria, no illegality has been committed by the GPSC in rejecting his candidature. The advertisement was published on 16.02.2010, much before the result of the GATE 2010 examination was declared, and it was only after the declaration of the result that it was found that in the GATE 2010 examination, the percentile score had not been calculated. As the Recruitment Rules and advertisement stipulated the eligibility criteria of minimum 75 percentile in GATE for the candidates possessing First Class Bachelor's Degree, the GPSC, with the concurrence of the State Government, proceeded to calculate the percentile by adopting the formula used in the GATE 2010 examination. On the facts and in circumstances mentioned above, in the view of this Court, no illegality or irregularity has been committed by the GPSC or the State Government in doing so. It has been submitted on behalf of the GPSC that about 22,000 applications were received. In all cases, the same formula has been uniformly applied to arrive at the percentile marks and there has been no complaint regarding the same. The GPSC is a recruiting agency and is within its rights to decide the nature of the qualifications required for the post in question as also to scrutinize and decide whether the candidate in question meets the eligibility criteria, or not. In the present case, there is no legal infirmity in the action of the GPSC in calculating the percentile marks by adopting the formula used in GATE 2009. Had this not been done, the entire recruitment procedure pursuant to GATE 2010 would have been stalled for the reason that no percentile marks had been calculated. The calculation has been made using the details available in the GATE 2010 Scorecard itself, therefore, the assertion of the learned advocate for the petitioner that there was no data available to make calculations and the calculation made on the basis of insufficient-data is incorrect, and cannot be countenanced. From the formula adopted by the GPSC, it is clear that all details used are available on the Scorecard of GATE itself, therefore there can be no question of error due to insufficient data, as alleged.

9. The process of recruitment is almost complete and the interviews are over. As the petitioner does not possess 75 percentile marks as required, no direction can be issued to the respondent-GPSC to call him for the interview. Apart from that, the petitioner has failed to demonstrate by any means that he possesses 75 percentile marks in the GATE 2010 examination.

10. No fundamental, legal or indefeasible right of the petitioner has been violated by any action of the respondents, so as to warrant the interference of this Court in exercise of its extraordinary jurisdiction.

11. For the foretasted reasons, the petition must fail. It is, accordingly, rejected. Rule is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //