IMPORTANT POINT
A defect in advertisement can be rectified before commencement of the test.

JUDGMENT

Aftab Alam, J. —

1. Leave granted.

2. These appeals arise from a batch of writ petitions filed before the Gujarat High Court questioning the validity of the appointments of Assistant Public Prosecutor (Class-II) made from the select list prepared on the basis of the written examination and viva voce and personality test held by the Gujarat Public Service Commission. The challenge was based on the ground that the minimum qualifying mark, separately fixed for the viva voce, was introduced just two or three days before the commencement of the oral tests though it was not stipulated in the advertisement issued by the Commission for filling up the posts. According to the writ petitioners (respondents before this Court), the introduction of the minimum qualifying mark for the viva voce, after the commencement of the selection process was, illegal and actuated by bias on the part of the Commission. It led to a number of highly anomalous results and completely vitiated the selections and the appointments made on that basis.

3. A learned single judge of the High Court did not accept the writ petitioners’ contention and dismissed all the writ petitions by judgment and order dated August 17, 2009, passed in Special Civil Application No.7699 of 2009 (and other analogous cases).

4. Against the judgment of the single judge, the writ petitioners filed intra-court appeals and a division bench of the High Court allowed the appeals and set aside the judgment of the single judge. It held that the action of the Commission in introducing the minimum qualifying mark for the viva voce, in the middle of the selection process, was bad and “the Commission appears to have guided by legal malafide (sic)”. It, accordingly, quashed the select list and the appointments made on its basis and directed that a fresh list be drawn up on the basis of the aggregate of marks obtained by the candidates in the written test and the viva voce regardless of the minimum qualifying mark prescribed by the Commission for the viva voce. It directed the concerned authorities to complete the process within 2 months from the date of the judgment and till then permitted the appointees to continue to serve in their respective positions.

5. Against the judgment of the division bench, the appeals are filed (i) by the candidates (102 in number) who were appointed as Assistant Public Prosecutors on the basis of the impugned selection made by the Commission (and who were not parties in the writ petitions, or the intra court appeals before the court) and (ii) by the Gujarat Public Service Commission.

6. Before proceeding to examine the facts of the case and the rival contentions of the parties, it may be stated that on behalf of the respondents, it was accepted that the direction by the division bench of the High Court to draw up the merit list ignoring the minimum qualifying mark separately fixed for the viva voce may not be sustainable as that would be contrary to the statutory rules governing the selection and appointment. The only course left open, therefore, was to scrap the entire selection process and start from the beginning all over again.

7. Coming to the facts of the case, it is interesting to note how the process of filling up the posts of Assistant Public Prosecutor in such large numbers was put into motion. From a limitation petition, for condoning the inordinate delay of 1695 days in filing a State criminal appeal, it came to light that there was acute shortage of Assistant Public Prosecutors and as a result, the functioning of the subordinate criminal courts in the State badly suffered. The High Court took up the matter and on its initiative, the State Government sanctioned 180 new posts of Assistant Public Prosecutors. After due consultation with the Gujarat Public Service Commission and the concerned authorities of the State Government, the Advocate General of the State, assured the High Court that all the newly sanctioned posts and the vacancies existing i