JUDGEMENT
K M THAKER, J. -
(1.)THIS group of petitions is filed by the candidates who are treated "unsuccessful" by the respondent Gujarat Public Service Commission (hereinafter referred to as "respondent commission" or "GPSC") in the selection process for the posts of Assistant Conservator of Forest (ACF) and Range Forest Officer (RFO) conducted by it, pursuant to an Advertisement Notice dated 1.3.2010 (Advertisement No.209/2009 -10) and in two cases the petitioners are successful candidates but aspire for allocation of service to higher post.
(2.)BEFORE proceeding further, it is necessary and appropriate to clarify certain factual aspects connected with and related to the proceedings.
(a) In almost all cases, the petitioners had not joined, as party respondents, the candidates whose names are mentioned by GPSC in the impugned list of "successful candidates" though they may be affected if any relief is granted;
(b) However many candidates out of such candidates preferred applications seeking permission to join the proceedings and such applications requests have been granted and such candidates have been impleaded as party respondents;
(c) Moreover, it is stipulated by and on behalf of the candidates whose name are mentioned in the list of selected candidates (hereinafter referred to as "successful candidates") and also by the learned advocate for the respondent GPSC and the respondent State that the successful candidates are before the the Court and they are duly represented and any objection on ground of 'non -impleadment of necessary or proper or affected party', does not survive. In view of such submission, the matters have been heard in light of the consensus that necessary and/or proper and/or affected parties have joined the proceedings and they are duly represented;
(d) In some of the petitions, the Court had, at initial stage, granted ex -parte relief against which the subsequently impleaded candidates i.e. the successful candidates preferred applications requesting the Court to vacate ad -interim relief. In view of the said applications, the Court passed order dated 13.1.2015 (in Civil Application No. 193 of 2015) that the petitions may be heard finally at admission stage and any order with regard to the application praying for vacation of ad -interim order would not be necessary. Therefore, the petitions have been finally heard with consent of all concerned and contesting parties;
(e) During the pendency of the petitions and while hearing of the petitions was in progress, the respondent GPSC preferred application claiming that it may be permitted to declare and notify the revised result. In light of such application, a conditional order dated 21.1.2015 came to be passed with consent of all concerned and contesting parties whereby the Court granted conditional permission to the respondent GPSC. Thereafter, the respondent GPSC declared and notified the revised result vide notification dated 23.1.2014.
(3.)A common thread of objection which passes through this group of petitions is woven by string of similar contentions and challenge raised by the petitioners against the selection list notified by the respondent GPSC, viz. (a) that the process undertaken by the respondent GPSC, pursuant to the Preliminary Test, Main Written Test and Interview, is faulty and defective; and (b) against exclusion of female candidates who are entitled for 30% horizontal and compartmentalized reservation; and (c) inclusion of male candidates (instead of completing the quota reserved for female candidates) in the selection list; and (d) against the action of introducing and applying socalled 10% relaxation by adopting the marks obtained by last "male candidate" in respective category as "qualifying marks/criterion" and not following the well recognized principles; and (e) against the action of transferring positions/vacancies reserved for female candidates to male candidates and the positions/vacancies reserved for candidates with special qualifications to the candidates not possessing special qualification though sufficient number of female candidates as well as the candidates possessing special qualification are available; (f) and on the ground that the principle of migration is applied in wrongful manner which has resulted into reduction in number of vacancies for reserved category candidates and also in reduction of vacancies reserved for female candidates.
In order to consider and decide diverse contentions, it is necessary and appropriate to take into account the factual backdrop which can be summarized thus: -
4.1 The dispute raised in this group of petitions is related to and arises from the selection and recruitment process for appointment of Assistant Conservator of Forest ("ACF" for short) and Range Forest Officer ("RFO" for short).
4.2 The respondent No.1 State forwarded requisition to the respondent GPSC to initiate and complete the process of selection for filling up 47 vacancies for post of ACF and 120 vacancies for the post of RFO. In pursuance of the said requisition, the respondent GPSC initiated the said process by publishing an advertisement dated 1.3.2010 (followed by a corrigendum), the respondent GPSC invited applications for appointment of 47 ACFs (Class -II) and 120 RFOs (Class -II).
4.3 The selection and recruitment to the post of ACF and RFO is, inter alia, governed by (a) the Assistant Conservator of Forest in Gujarat Forest Service, Class -II Recruitment Rules, 2007 ("ACF Recruitment Rules" for short); (b) the Assistant Conservator of Forest in Gujarat Forest Service, Class -II Recruitment (Amendment) Rules, 2007; (c) the Range Forest Officer, Class -II Recruitment Rules, 2008 ("RFO Recruitment Rules of 2008" for short); (d) the Range Forest Officer, Class -II Recruitment (Amendment) Rules, 2008; (e) the Range Forest Officer, Class -II Recruitment (Second Amendment) Rules, 2009; (f) the Range Forest Officer, Class -II Recruitment (Third Amendment) Rules, 2009; and (g) ACF and RFO Competitive Examination Rules, 2008 ("Examination of Rules" for short). The said Rules are framed in exercise of power under Article 309 of the Constitution of India.
4.4 The Gujarat Civil Services (Reservation of Posts for Women) Rules, 1997 (hereinafter referred to as "Reservation Rules of 1997") prescribe 30% reservation for women candidates. According to the said Rules, the reservation prescribed in favour of women candidates is "horizontal and compartmentalized". Therefore, out of total 167 posts, distributed amongst four categories (viz. General Category, SC, ST and SEBC), 51 posts are reserved for female candidates.
4.5 The distribution of said 167 posts (47 ACFs and 120 RFOs) is summarized, in the advertisement, in below quoted manner:
4.6 Besides the above -mentioned horizontal reservation for female candidates further special reservation is provided for by virtue of ACF Recruitment (Amendment) Rules, 2007 and RFO Recruitment (Second Amendment) Rules, 2009 for the candidates possessing special qualification viz. B.Sc. Degree with Forestry as special subject. The said special reservation is to the extent of 25% of notified vacancies.
4.7 After inviting applications for selection and recruitment to the posts of ACF and RFO, the respondent GPSC initiated and conducted combined competitive examination in accordance with the said Examination Rules, 2008.
4.8 It is given out by the petitioners and the respondent GPSC that in response to the said advertisement, about 50,000 applications were received. In that view of the matter, the respondent GPSC, at initial stage, followed elimination procedure by conducting OMR test. Thereafter, the examination as contemplated under Rule 4 of Examination Rules, 2008 was conducted.
4.9 It is given out by the respondent GPSC that finally 505 candidates were selected for written test and interview. Out of the said 505 candidates, 36 candidates were disqualified since they did not fulfill prescribed requirement as regards physical standards and 5 candidates did not appear after conclusion of the said preliminary examination and main examination (written test and interview). Therefore, a general / first merit list of 464 candidates was prepared.
4.10 Initially, the respondent GPSC prepared a merit list of all candidates who appeared in the written test and were called for interview and thereafter, the respondent Commission introduced and applied qualification standard / marks and on that basis prepared and notified the selection list on 25.9.2014. The petitioners are aggrieved by the said final selection list.
4.11 From the said notification dated 25.9.2014, it has emerged that for fixing qualifying standard, GPSC picked -up the marks secured by the "last male candidate" in respective category and on that basis decided the qualifying marks for female candidates in respective category. As an outcome of such process GPSC determined below mentioned marks as cut -off marks (i.e. qualifying standard/marks): -
1. General (Female) - - 387 Marks
2. General - - 429 Marks
3. SEBC (Female) - - 338 Marks
4. SEBC - - 375 Marks
5. S.T. - - 316 Marks
6. S.C. - - 387 Marks
7. S.T. (Female) - - 286 Mark
4.12 During pendency of these petitions, respondent GPSC unilaterally and on its own motion made substantial changes in the said selection list notified on 25.9.2014 and prepared a revised select list and after making changes and after revising the list informed the Court and the petitioners, that it has, on its own, undertaken such procedure and has revised the select list result which was notified on 25.9.2014. In view of the said declaration and submission by respondent GPSC, it was expressed by all concerned parties that the revised select list / result may be looked at and if the grievance are addressed, then appropriate orders be passed without further deliberation.
Therefore, with consent of the petitioners and other respondents, a conditional order dated 13.1.2015 came to be passed whereby conditional permission was granted and subsequently in view of the request by respondent GPSC, order dated 21.1.2015 came to be passed with consent of the petitioners and thereafter GPSC declared and notified the said revised select list vide notification dated 23.1.2015.
4.13 At this stage, it is necessary to mention that in first paragraph of the said notification dated 23.1.2015, respondent GPSC mentioned certain inaccurate and incorrect facts and that, therefore, respondent GPSC was directed to issue appropriate corrigendum. By virtue of corrigendum dated 7.2.2015 GPDC modified and corrected the details mentioned in said paragraph No.1 vide corrigendum dated 7.2.2015.