MODH VINAYKUMAR DASRATHLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN this appeal, judgement of learned Single Judge is under question which was given in relation to a selection for the post of Assistant Public Prosecutors ("app" for short) Class-II as conducted by the Gujarat Public Service Commission ("commission" for short ). It was prayed before learned Single Judge that the select list which was prepared by GPSC on 16. 7. 2009 be declared to be illegal because it had infringed the scheme which was laid down for the selection. The case of the appellant is that the examination was to be conducted for the post of APP Class- II in terms of Rules known as "the Assistant Public Prosecutor, Gujarat General State Service, Class-II, Recruitment (Examination) Rules, 2008.

(2.) ACCORDING to the appellants, what was required to be done was that in terms of Rule 12, the qualifying marks were required to be fixed at the time when the Notification was to be issued. In the Notification so issued for the selection, minimum marks were delineated. In Part-I examination i. e. the written examination to be 105 marks but as far as viva voce i. e. oral examination is concerned, no minimum qualifying marks were delineated. Therefore, everybody understood that there was no qualifying marks required for the purpose of viva voce examination but what happened was at the time when those qualified in the written examination were to appear in viva voce examination, they were made to sign an undertaking that 10 minimum marks are required to be obtained in viva voce examination which was made subsequent to the issuance of the Notification which was issued on 17. 10. 2008 which is filed at Annexure-B on page 31 of the paper book.

(3.) LEARNED counsel for the appellants urged that this prescription of 10 marks which was made at the time when the candidates were to enter into the interview hall is de hors the Rules. Sub-Rule (3) of Rule 12 though prescribes that the Commission shall fix the qualifying marks to be obtained by a candidate in the viva voce examination but this fixing was required to be done prior to the process of selection started. In this case, the process of selection started with the issuance of the Notification at Annexure-B dated 17. 10. 2008. Thus, any subsequent providence could not have been made and Sub-Rule (3) of Rule 12 cannot be read to give an effect in the manner in which the Commission has sought to give effect to it.