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2009 Supreme(Guj) 633
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HONOURABLE MR. JUSTICE BHAGWATI PRASAD HONOURABLE MR. JUSTICE BANKIM. N. MEHTA
MODH VINAYKUMAR DASRATHLAL & 24 - Appellant(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
SPECIAL CIVIL APPLICATION No. 7699 of 2009
LETTERS PATENT APPEAL No. 1586 of 2009
Decided on: 10/12/2009
MR. MIHIR JOSHI, LD. SR. ADVOCATE with MR. PS CHAUDHARY for Appellant (s): 1 - 25.
MR. KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MS. SANGITA VISHAN, AGP, for Respondent No. 1.
MR DG SHUKLA for Respondent(s): 2,
Headnote:
Transfer of Property Act, 1882 - Section 111 - Shop was under ownership of father of plaintiff -By Registered deed, father of plaintiff had gifted said property to plaintiff's brother and by Registered gift deed, plaintiff's brother gifted said property to present plaintiff, therefore, plaintiff has become owner of Suit property - It is submitted by plaintiff that plaintiff's father had executed a mortgage deed in favour of defendants who were tenants of suit property - Registered mortgage deed was executed - No interest was to be paid and period for redeeming mortgage was fixed for eight years from date of execution of mortgage deed - It is case of plaintiff that period for redemption was over and plaintiff is willing to redeem mortgaged property but defendants are not willing to redeem same, therefore, plaintiff was constrained to file suit against defendants for redemption of mortgaged property - Held, Lower Appellate Court while confirming judgment and decree passed by Trial Court - Findings given by Courts below cannot be considered to be contrary to record and no interference of this Court is required since Courts below have not committed any error of facts or law, and therefore, there is no substance in this Second Appeal - Accordingly, this Second Appeal is dismissed with no order as to costs - Appeal dismissed.
BHAGWATI PRASAD, J. In this appeal, judgment of learned Single Judge is under question which was given in relation to a selection for the post of Assistant Public Prosecutors (“APPELLANT” 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.
4. In this relation the argument of learned counsel for the appellant is that such providence can have an opportunity of manipulation as has been contended in the writ petition which reads as under:
“(C) The petitioners further submit that the aim of the Commission for suddenly adding this new rule is that after the written examinations, some of the petitioners were in such a position that even if they do not obtain a single mark in the oral examination, they were standing at a good merit level and they cannot be excluded even if desired by the Commission. So, its effect or result is, the candidates who are desired by the Commission could not have been included unless the undesired candidates are excluded anyhow. The petitioners state that this situation compelled the Commission to add this new rule of 10 marks at the stage of interview itself and the Commission has done accordingly to fulfill its aim i.e. to include the candidates desired by the Commission. The petitioners further submit that if we give a look at the selected candidate list for the said posts, we find that not 5 or 10 or 20 selected candidates but 81 candidates out of 203 selected candidates get the minimum marks prescribed by the Commission and take place in the final selection list. The petitioners further submit that if we look at the final selection list from other angle, not 5 or 10 or 20 candidates but 190 candidates have been excluded by the Commission by giving them either 8 or 9 marks in the oral examinations. The petitioners further submit that if we look at the selection list for t
