Gujarat High Court
Gohil Vishvaraj Hanubhai & 115 vs State Of Gujarat & on 27 June, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Anant S. Dave
C/LPA/73/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 73 of 2016
In
SPECIAL CIVIL APPLICATION NO. 11149 of 2015
with
LETTERS PATENT APPEAL NO. 74 of 2016
In
CIVIL APPLICATION NO. 11685 of 2015
with
CIVIL APPLICATION NO. 1066 of 2016
In
LETTERS PATENT APPEAL NO. 74 of 2016
with
SPECIAL CIVIL APPLICATION NO. 11149 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R. SUBHASH REDDY
and
HONOURABLE MR.JUSTICE ANANT S. DAVE
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
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C/LPA/73/2016 CAV JUDGMENT
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
GOHIL VISHVARAJ HANUBHAI & 115....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
Mr.GAUTAM M. JOSHI, ADVOCATE for the Appellant(s) No. 1 - 116
Mr.MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER assisted by
Mr.D.M. DEVNANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 2.
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 27/06/2016
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) These Letters Patent Appeals are preferred under Clause 15 of the Letters Patent, aggrieved by interim order passed in Special Civil Application No.11149 of 2015. When such appeals were listed for hearing, with consent of the learned advocates appearing for the parties, we have directed to list these appeals along with Special Civil Application itself. As such Special Civil Application itself is heard and is being disposed of along with the appeal by this order.
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2. The Special Civil Application is filed under Article 226 of the Constitution of India, seeking writ of mandamus or any other appropriate writ, order or direction declaring Government Resolution No.Talati- 102014-2294-N dated 03.07.2015 (by which Government has cancelled recruitment process for the post of Revenue Talati) as illegal and arbitrary with a further direction to the respondents to issue appointment orders to selected candidates from the select list which is already prepared.
2.1 In Gujarat Government service, there was a post, known as, Talati-cum-Mantri, which was under Panchayat Department. Talati-cum-Mantri was performing duties relating to maintenance, alteration and modification of land records, apart from various other duties of the Panchayat Department. Government of Gujarat has taken a policy decision to computerize the revenue record in the State of Gujarat as it was noticed that Talati-cum-Mantris, who were hitherto working under Gujarat Panchayat Department were over-burdened and it was decided to create new posts of Revenue Talati, which posts would be in full control of the Revenue Department. It was decided to allot the work of maintenance of revenue records, collection of revenue, etc. In all, 1800 posts were created by Government Resolution dated 23.10.2008. Government has also framed rules in exercise of powers under proviso to Article 309 of the Constitution of India for recruitment to the said posts. Ordinarily, recruitment to such posts Page 3 of 35 HC-NIC Page 3 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT is carried out by Gujarat Subordinate Service Selection Board (GSSSB), but when GSSSB was requested to do so, they have opined that it was not possible for the Board to undertake the aforesaid exercise, within the time-frame as decided by the State. Having regard to the urgency, decision was taken to fill up the newly created posts of Revenue Talati by the Department itself. A proposal to that effect was sent and the same was approved by the General Administration Department, and approval was granted vide Resolution dated 04.12.2013. Thereafter, Revenue Department had constituted Revenue Talati Recruitment Committee under the Chairmanship of Revenue Inspection Commissioner, who is the Ex- Officio Secretary; Collector, Ahmedabad and Collector, Gandhinagar as Members; and Joint Secretary (Services) of Revenue Department as a Member-Secretary of the Committee, to examine the method and various other aspects for such recruitment. The said Committee has decided to take assistance of Gujarat Technological University (GTU) for the purpose of recruitment, viz. for conducting examination. The University has accepted such proposal and advertisement to fill 1500 posts of Revenue Talati was published in local newspaper. It was also placed on the website of the State Government on 15.01.2014 and the examination was held on 16.02.2014.
3. One day earlier to examination, viz. 15.02.2014 a complaint was lodged bearing F.I.R. No.46 of 2014 before Sector-7 Police Page 4 of 35 HC-NIC Page 4 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT Station, Gandhinagar which was registered under section 406, 420 and 144 of the Indian Penal Code against one Kalyansinh Mulsinh Champavat and another Nileshbhai Umeshbhai Shah. The complaint was to the effect that they had accepted money from some of the candidates who were to appear in the examination of Revenue Talatis by giving them assurance that they would see that those candidates are appointed. Further information was received from the Police Department that a case has been registered pursuant to such complaint and those two persons were arrested. The authorities proceeded to conduct examination on 16.02.2014 and further the Police authorities had informed the Chairman of the Recruitment Committee with regard to steps taken on such complaint by their communication dated 17.02.2014. While further steps were being taken pursuant to the examination held on 16.02.2014 and when Gujarat Technological University was under
process of checking OMR Sheets and preparation of provisional merit list, it has also come to the notice of the authorities that there were large number of OMR Sheets where specific marking was being made by the candidates, who appeared in the examination.
On 26.05.2014 the concerned Police authority had informed the Chairman of the Recruitment Committee that during interrogation of those persons, who were arrested it has come to the notice of the Police authorities that they had advised the candidates to put 'b' mark on right side of the OMR Sheets so that they can be identified and about 23 such candidates had, in fact, put special 'b' Page 5 of 35 HC-NIC Page 5 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT mark on the right side of the OMR Sheet. Thereafter, the entire data was sent to Forensic Science Laboratory, Gandhinagar for further investigation. Further investigation revealed that 284 OMR Sheets were found with specific mark 'b'. The Recruitment Committee has decided to cancel candidature of such candidates.
Thereafter, it was proceeded further and in view of urgency to fill up the posts provisional merit list was declared on 10.10.2014 and about 8456 candidates were placed in the provisional merit list.
Such merit list was prepared by taking into account five times candidates of the category-wise vacant posts. Thereafter, document verification was made from 17th to 21st October 2014.
4. At that stage, there was further complaint received by the State authorities from one Babubhai Damor on 17.10.2014, alleging large scale malpractices having been committed in the examination of Revenue Talati. The Collector, Sabarkantha District had forwarded the complaint which was received by him from one Mr.R.D. Patel alleging various irregularities in recruitment of Revenue Talati. On 11.12.2014, one Vipul K. Panchal had addressed complaint to the Principal Secretary and to the Office of the Hon'ble Chief Minister alleging large scale irregularities committed in recruitment of Revenue Talati. Thereafter, there was a further complaint dated 08.01.2015 addressed to the Principal Secretary, General Administration Department by one Kamleshbhai from Rupakheda, District Dahod, levelling similar allegation of Page 6 of 35 HC-NIC Page 6 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT large scale irregularities committed in the recruitment process.
There was also a further complaint alleging that one Dhirubhai Bhil, who was working as Peon in the Office of the Secretary, Land Reforms and one woman employee from the same office have accepted large amount of money from number of candidates on the ground that they would ensure that candidates will clear the examination. At this stage, it is to be mentioned that Chairman of the Recruitment Committee was also holding the post of Secretary, Land Reforms as his official post and allegations are made against persons working in the said office.
5. In view of large number of complaints received as referred to above the Recruitment Committee had deliberated the issue and decided to scrutinize the allegations. After scrutiny, it was noticed that 127 candidates belonging to one family were found place in the provisional merit list. A list of 178 candidates was also prepared wherein group of persons have given same residential address. In both the lists 47 candidates were found to be common. When Recruitment Committee was considering the matter a further complaint came to be lodged before the Local Crime Branch of Surendranagar against one Hiren Narottambhai Koisha (Mali) alleging that he has collected an amount of Rs.1.55 crores from 62 candidates, who have participated in recruitment process. At that stage the Committee considering the complexity of the matter, having received series of complaints and also keeping in mind the Page 7 of 35 HC-NIC Page 7 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT fact that number of OMR Sheets were having special identification marks, has decided to cancel the examination and to that effect Government Resolution dated 03.07.2015 was passed cancelling the recruitment process. Resolution dated 03.07.2015 which is the subject matter of challenge is in vernacular- Gujarati, a translation of which is placed on record. Clauses (1) to (4) of the above said Resolution are reproduced hereunder:
"1. On carrying out investigation into the different complaints received by the Revenue Department, since substance is found therein, it is hereby resolved to cancel the entire selection procedure for the posts of Revenue Talati.
2. It is resolved to initiate criminal proceedings in connection with the various complaints received by the Government.
3. On cancelling the entire recruitment procedure for filling up the 1500 posts of Revenue Talati class and by adding 900 vacancies from the other years, it is hereby resolved to fill up the total 2400 posts through Gujarat Subsidiary Service Selection Board.
4. As stated at No.1, the candidates, whose name figured in the list, whose upper age limit is about to attain, now as they shall not be entitled to appear in the examination that shall be conducted now, as a special case, a relaxation of five years is given in the upper age limit.
These orders are issued on the basis of the approval granted by the General Administration Department, dated 01.07.2015, on the even number file of the Page 8 of 35 HC-NIC Page 8 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT department."
6. As averred in the Special Civil Application mainly Government Resolution No.Talati- 102014-2294-N dated 03.07.2015 is questioned on the ground that decision of the respondents to cancel the recruitment process is nothing but gross abuse of the authority and is only colourable exercise of power. Such a step for cancellation of recruitment process is taken 16 months after conduct of the test, and 8 months after publication of the result and preparation of provisional merit list. It is stated in the petition that more than 7,50,000 candidates have appeared and the respondents have conducted the test in 2691 centres. As such allegations of some sort of irregularity are bound to be there in one or the other centre. As such there is no reason or justification on the part of the respondents to cancel the entire recruitment process. Mainly it is the case of the petitioners that many irregularities are noticed from OMR Sheets and the respondents should have taken steps to weed out such candidates who are responsible for such irregularities rather than cancelling the entire recruitment process for no fault of the petitioners who have bona fidely appearing in the examination and were placed in merit list prepared by the respondents. Precisely, as averred there is no reason for taking such decision to cancel the recruitment process which will have effect on all the candidates, who have appeared in the examination.
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7. Affidavit in reply and Additional Affidavit in Reply are filed on behalf of the respondents. In the first Affidavit in reply filed on behalf of the respondents, the respondents while denying various allegations made by the petitioners have stated that pursuant to public advertisement, on-line applications were received from 16th to 30th January 2014, through OJAS Website. More than 8,49,068 applications were received on-line, out of which 7,53,703 candidates had appeared for the examination held on 16.02.2014. In the Affidavit in reply it is stated that on the day preceding the examination, viz. midnight of 15.02.2014, District Superintendent of Police, Gandhinagar informed the committee that owner of tuition classes has collected crores of rupees from the candidates, the Committee had requested the District Superintendent of Police, Gandhinagar to ascertain whether the question paper of the examination in question is found from the tuition class and if so, it was requested to inform the concerned authority. The Police authority had informed after investigation that no such question paper was found from the premises of the tuition class. Therefore, the Recruitment Committee had decided to continue with the process of examination scheduled on 16.02.2014. Investigation was going on by Local Crime Branch of Gandhinagar and the investigating agency has sent OMR Sheets to Forensic Science Laboratory (FSL) for scrutiny. The FSL had found markings on OMR Sheets of about 284 candidates. Therefore, the Recruitment Page 10 of 35 HC-NIC Page 10 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT Committee had decided to cancel candidature of those candidates. Thereafter, the Recruitment Committee after obtaining consent from the Police Department published provisional lists of 8456 candidates and their documents were verified. Thereafter, one complaint was made by Vipul K. Panchal, a resident of Sector-21, Gandhinagar, alleging demand of money from the candidates for passing Revenue Talati Examination. Second complaint was received thereafter from Babubhai J. Damor, a resident of Dahod on 17.10.2014 alleging that candidates who cleared examination were from one family only. In the Affidavit in reply reference was made to a newspaper article published in a local newspaper - 'Sandesh', in which it was reported that one Talati of Amreli District was selling papers of Revenue Talati Examination and said Talati had given paper to relatives of Rajendrasinh Mulsinh Rahevar, a teacher of Jyoti High School, Radhivad of Taluka Khedbrahma, District Sabarkantha. It is further stated that the Recruitment Committee after scrutinizing veracity of the allegations made in the complaints had prepared list of 127 candidates who belong to one family and list of 178 candidates who have same residential address. OMR Sheets of 258 candidates have been sent to Forensic Science Laboratory, Gandhinagar. The Affidavit in reply further proceeds to state that a further complaint has been made against Hiren Narottambhai Koish (Mali) for having collected a sum of Rs.1.55 crores through malpractice, from 62 candidates and assuring them appointment. Referring to various Page 11 of 35 HC-NIC Page 11 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT clauses in the advertisement itself it is pleaded that in view of such complaints the Committee having considered the matter has taken decision to cancel the recruitment process.
8. In the Additional Affidavit in reply filed by the Joint Secretary to the Government of Gujarat, Revenue Department, while reiterating their stand which was taken in the earlier affidavit, details of all the complaints are elaborately mentioned. After giving details of all the complaints in the second reply affidavit it is stated that after considering large number of complaints which are further substantiated through Police investigation the respondents have consciously decided that recruitment process undertaken be cancelled and fresh investigation be entrusted to Gujarat Subordinate Service Selection Board. It is also stated that keeping in mind that some of the candidates may get disqualified on account of age bar, decision was also taken that all the candidates, who appeared in the provisional merit list will be granted age relaxation in the next examination as provided in the aforesaid Government Resolution dated 03.07.2015. Relevant paras of the Affidavit in Reply dated 06.11.2015 filed by the respondents in response to rejoinder filed by the petitioners are reproduced hereunder:
"26. All these complaints were deliberated by the recruitment committee all after considering such applications as well as the complaints from different Page 12 of 35 HC-NIC Page 12 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT applicants recruitment committee decided to scrutinies the allegations and after scrutiny, it was found that 127 candidates who are belonging to one family found place in the provisional merit list. Moreover, a list of 178 candidates who are having same residential address was also prepared by the committee. Within both the two lists 47 candidates are common. Therefore, OMR sheets of total 258 candidates have been sent to the FSL, Gandhinagar for further inquiry by the recruitment committee. Meanwhile the Home Department directed to order the CID inquiry. Letter of the Home Department dated 27.03.2015 is annexed herewith for your ready reference as ANNEXURE-R- XVIII.
27. I say and submit that the recruitment committee was considering about to give appointment or not. Meanwhile another complaint was registered before the LCB of Surendranagar against Mr.Hiren Narottambhai Koisha (Mali) was (sic., for) having collected the amount of Rs.1.55 crores through malpractice from 62 candidates of the recruitment process. Thus, Government received several complaints against the recruitment process of January 2014.
28. I say and submit that thus, after taking into consideration various complaints which were received and the investigation done by respective police authorities, it was decided by the recruitment committee to cancel the examination of recruitment process of Revenue Talati. The government resolution to that effect was issued on 03.07.2015. A resolution dated 03.07.2015 is annexed herewith and marked as Page 13 of 35 HC-NIC Page 13 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT ANNEXURE -R-XIX.
29. I say and submit that considering the large number of complaints received as further substantiated through police investigation it was consciously decided by the committee that the recruitment process undertaken may be cancelled and a fresh recruitment may be entrusted to the Gujarat Subordinate Service Selection Board. I say and submit that it was also decided keeping in view the interest of the candidates who had appeared in the present recruitment who might be disqualified because of the age criteria and thus, a decision was taken that all candidates who has (sic., have) appeared in provisional merit list will (be) granted age relaxation for the next recruitment by aforesaid Government Resolution dated 03.07.2015.
30. I say and submit that it is not as if that the State Government has canceled the whole recruitment process without any basis, as can be seen from the affidavit, even before the date on which examination conducted, there was a police complaint which was filed on 15.02.2014 but the State authorities had decided to go on with examination. Since no concrete material was found to merit cancellation of the entire recruitment process. Large scale allegation was made against office bearers Mr.Dhirubhai Bhil and one woman employee before police authority and committee which on prima facie supported the allegation.
31. I say and submit that it is well established by various pronouncement of the Hon'ble Apex Court that a person whose name figures in the selection list does Page 14 of 35 HC-NIC Page 14 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT not get an indefaceable (sic., indefeasible) right to be appointed to the post. Only because, the petitioners herein have appeared for examination and their name appears in provisional merit list. The challenge to cancellation of whole recruitment process may not have entertained by the Hon'ble Court.
32. I say and submit that it is also required to be noted that since there was urgent need of filling up of post of Revenue Talati, the process of recruitment was undertaken for the first time by the Department itself by forming a special recruitment committee and when the serious allegations of collecting money from the probable candidates are levelled against the staff working with the Chairman of the committee, the committee decided to cancel the whole recruitment process."
9. Further, on behalf of the petitioners, rejoinder to the affidavit in reply has been filed. The petitioners, in the rejoinder, while disputing the allegations levelled by the respondents it is further stated that one civil suit was filed seeking cancellation of recruitment process. The respondents have stated that Regular Civil Suit No.83 of 2014 has been filed before the learned Senior Civil Judge, Bhavnagar. The State has appeared and filed its reply specifically stating in para 18 that examination conducted on 16.02.2014 was transparent.
10. Heard Shri Gautam M. Joshi, learned counsel for the Page 15 of 35 HC-NIC Page 15 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT petitioners and Ms.Manisha L. Shah, learned Government Pleader assisted by Mr.D.M. Devnani, learned Assistant Government Pleader for the respondents. It is contended by Shri G.M. Joshi for the petitioners that even after complaint was lodged before the Police on 15.02.2014, the respondents had proceeded to conduct the examination on 16.02.2014. Thereafter, they had prepared provisional merit list and also verified documents of the candidates, whose names were figured in the select list. When the petitioners were anticipating issuance of appointment orders, at that stage the respondents have passed impugned resolution canceling the entire recruitment process. It is contended that there is no justifiable reason or any relevant material before the authorities to take such an extreme step to cancel recruitment process. It is contended that if any of the candidates have indulged in malpractice by indicating identification mark on OMR Sheet, such candidates are to be segregated from the process of examination, but at the same time the same is no ground to cancel the entire recruitment process, more particularly, after preparation of select list. It is further pleaded by the learned counsel that no lists were referred to containing names of candidates belonging to same families or the list of candidates having same residential addresses, nor such material was furnished and no particulars are furnished in the affidavit in reply filed on behalf of the respondents. As such the same could not have formed a reason to cancel the recruitment process. The learned counsel for the petitioners in support of his Page 16 of 35 HC-NIC Page 16 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT arguments has placed reliance on the following judgments of the Hon'ble Supreme Court in the case of:
(i) Bharat Singh and others Vs. State of Haryana and others, reported in (1988) 4 SCC 534;
(ii) Inderpreet Singh Kahlon and others Vs. State of Punjab and others, reported in (2006) 11 SCC 356;
(iii) Joginder Pal and others Vs. State of Punjab and others, reported in (2014) 6 SCC 644; and
(iv) Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another, reported in (2003) 7 SCC 285.
11. On the other hand it is contended by Ms.Manisha L. Shah, learned Government Pleader for the respondents that the posts of Revenue Talati are created so as to entrust exclusive job of computerization of revenue records and to look after revenue collection, etc. inasmuch as earlier Talati-cum-Mantris were mainly attending the duties of Panchayat Department, though examinations were being conducted by Gujarat Revenue Subordinate Board. But when request was made to the Board it has expressed its inability on the ground that several recruitments were on hand and they cannot complete selection process within Page 17 of 35 HC-NIC Page 17 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT short time. As such, for the first time, decision was taken to conduct such test by the Revenue Department. It is submitted that though full care was taken when several complaints have poured in and the Recruitment Committee, after deliberating the subject at length, has decided to cancel the recruitment process. It is contended by the learned Government Pleader that initially when the first complaint was received on 15.02.2014, when the Police had informed that the examination paper was not leaked and no such paper was found in the tuition class, as such the respondents have proceeded to conduct examination on 16.02.2014. It is further submitted that even when written statement was filed in Regular Civil Suit No.83 of 2014 before the learned Senior Civil Judge, Bhavnagar, the respondents have not thought of cancellation of recruitment process, but subsequently in view of the complaints, which were streamed in and also from the information received from the University as well as from the Forensic Science Laboratory as it was noticed that large number of OMR Sheets contained identification marks by indicating 'b' or otherwise, Recruitment Committee deliberated on the issue and had taken conscious decision to cancel the recruitment process. It is contended that as large number of posts are notified had selection process proceeded with there would have been possibility of more number of cases coming to Court questioning the selection with regard to allegations made in various representations. It is further contended that having regard to nature of allegations and material Page 18 of 35 HC-NIC Page 18 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT placed on record it cannot be said that decision taken by the recruitment committee is either arbitrary or illegal so as to invalidate the decision as contended in this petition filed under Article 226 of the Constitution of India. It is finally submitted by the learned Government Pleader that in an examination like this it is not possible to weed out candidates, who indulge in malpractices. As such there was only option left with the respondents to cancel the recruitment process.
12. During the course of hearing the learned Government Pleader has produced relevant record in support of averments made in the affidavit in reply and copies of such records were submitted to this Court in a sealed cover. We have perused such record.
13. The learned Government Pleader has placed reliance on the following judgments of the Hon'ble Supreme Court:
(i) Union of India and others Vs. Anand Kumar Pandey and others, reported in (1994) 5 SCC 663;
(ii) Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others, reported in (2010) 6 SCC 614; and Page 19 of 35 HC-NIC Page 19 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT
(iii) Tanvi Sarwal Vs. Central Board of Secondary Education and others, reported in (2015) 6 SCC 573.
14. From the rival contentions advanced by the learned counsels appearing for the parties the following issues emerge for consideration in this writ petition.
(a) Whether the decision of the respondents for cancellation of recruitment process is arbitrary, illegal and is based on relevant material placed before this Court having regard to the nature of the complaints?
(b) Having regard to nature of complaints whether it is possible to segregate the candidature of the candidates who are found to have indulged in malpractice?
15. From the pleadings and material placed on record it is to be noticed that at the first instance, on 15.02.2014, viz. a day prior to the date of examination, a complaint came to be lodged, which was registered as F.I.R. No.46 of 2014, against one Kalyansinh Mulsinh Champavat and another Nileshbhai Umeshbhai Shah. It is alleged that they have accepted money from the candidates, who were appearing in the examination for the post of Revenue Talati, giving them assurance for appointment. After receipt of such complaint the Police authorities have informed the recruitment committee Page 20 of 35 HC-NIC Page 20 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT and have arrested such persons and they were taking action. Barely a day before the examination, a complaint was lodged. Before the same could be investigated, examination was conducted on 16.02.2014 as notified. There was further communication on 17.02.2014 by the Police to the Recruitment Committee, signifying the steps they have taken on such complaints. Thereafter, there was communication from the Gujarat Technological University. During the process of checking OMR Sheets and preparation of provisional merit list, it has come to the notice of the authorities that there were large number of OMR Sheets where specific markings were made by the candidates, who have appeared in the examination. Further on 26.05.2014 the Police have also informed the Chairman of the Committee that during interrogation, it has come to light that some candidates have informed that they were asked to make 'b' mark and 23 such candidates had, in fact, made such 'b' mark on right side of OMR Sheet. Further investigation was made. When OMR Sheets were sent to Forensic Science Laboratory, it has come to light that 284 such OMR Sheets were found with specific marks and the Recruitment Committee has decided to cancel the candidature of such 284 candidates. Thereafter, provisional list was published on 10.10.2014. When document verification process was going on, there was further complaint received by the State authorities from one Babubhai Damor, wherein he has alleged large number of irregularities in the examination of Revenue Talatis. The Collector, Sabarkantha Page 21 of 35 HC-NIC Page 21 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT has forwarded such complaint, which was received by him. There was further complaint made on 11.12.2014 by one Vipul K. Panchal alleging large scale irregularities which was sent to the Principal Secretary and to the Office of the Hon'ble Chief Minister alleging large scale irregularities committed in the examination of Revenue Talati. Even on 08.01.2015 another complaint was received by the Principal Secretary from one Kamleshbhai from Rupakheda, District Dahod, wherein large scale irregularities were alleged in the recruitment process. Further complaint was received on 15.08.2015 by the respondents. One Dhirubhai Bhil, who was working as Peon in the Office of the Secretary, Land Reforms and one woman employee from the same office have accepted large amount of money from probable candidates assuring them that they will get such candidates selected. Chairman of the Recruitment Committee, who was holding the post of Secretary, Land Reforms at the relevant time and the persons, who were alleged to have collected money were working in the same office. Though it is alleged in the affidavit in reply filed on behalf of the respondents that 127 candidates belonging to one family found place in the provisional merit list, but on perusal of the record produced before this Court it is clear that said 127 candidates are not from one family. On perusal of such list it becomes clear that there are more than one candidates from one family in groups and altogether such list constitutes 127 candidates. Similarly there is a list of 178 candidates having same residential address. Said list of Page 22 of 35 HC-NIC Page 22 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT 178 candidates contained more than one candidates who have furnished same residential address. In some cases there are 4 or 5 candidates who have mentioned same residential address and 47 candidates are common in both the lists. While it was not proved that aforesaid all 127 candidates are from one family and 178 candidates have given the same residential address it is clear from such list which was found from the record that there are number of candidates from the same family having been selected and in the list of 178 candidates, several candidates in groups have given the same residential address as is evident from the address furnished by them. Further complaints received by the Local Crime Branch, Surendranagar wherein it is alleged that one Hiren Narotambhai Koisha (Mali) had collected money from various candidates amounting to Rs.1.55 crores assuring jobs to the candidates. From the averments made and the material placed before this Court we are satisfied that several selected candidates are from one family and similarly several candidates who are selected have given same residential address. In addition to the same, from the information furnished by Gujarat Technological University and report of the Forensic Science Laboratory it is clear that large number of OMR Sheets contained one or other kind of marks. About 258 OMR Sheets contained 'b' mark on the extreme top right side of the OMR Sheet. In a case of this nature it is to be noticed that having regard to the discrepancies found during the verification process and number of complaints received by the respondents, it cannot be Page 23 of 35 HC-NIC Page 23 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT said that decision taken by the respondents is not based on any material. As per instructions no identifiable marks can be made on OMR Sheets. The very fact that some or other mark is made so as to identify such particular sheet itself indicates that such practice is adopted only to tamper the result at the instance of disgruntled elements. Even at the stage of filing written submissions the respondents have not taken decision by that time, but having regard to further complaints received which were scrutinized by the Recruitment Committee with reference to information furnished by Gujarat Technological University and also report of the Forensic Science Laboratory they have come to correct conclusion to cancel the recruitment process. Having regard to such material on record it is difficult to accept the contention advanced on behalf of the petitioners that the respondents have taken such extreme step to cancel the recruitment process in absence of any material on record. It is settled proposition of law that even if a candidate is placed in the select list he will not acquire any indefeasible right for appointment. It is always open to take decision by the Recruitment Committee to cancel the process, if it finds that there is sufficient material in support of such decision. As we find that such material is available in this case, the respondents are justified in canceling the selection process. Thus, we hold that the respondents have taken decision based on the material which is relevant. As such the same will not call for interference.
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16. With regard to second issue, namely, whether having regard to nature of complaints, candidature of the candidates who indulged in malpractice be segregated from the process of examination and selection shall be confined to rest of the candidates only also cannot be accepted. It is also clear that more than 13,000 sheets bear some sort of marks, particularly, 284 candidates have made specific mark 'b' on the top right side of the OMR sheet. So far as such sheets are concerned the Committee has decided to cancel candidature of such candidates, but there is material to show that about 13,000 answer sheets contained some mark or the other for its identification. In that view of the matter and having regard to nature of complaints we are of the view that this is not one such case where recruitment process can be continued by segregating candidates, who have indulged in malpractice. The learned counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another (supra), wherein the Hon'ble Supreme Court has held that wherever it is possible to weed out beneficiaries of irregularities or illegalities there is no justification to deny appointment to others, who are selected candidates, whose selection was not vitiated in any manner. In the case of Inderpreet Singh Kahlon and others Vs. State of Punjab and others (supra), the Hon'ble Supreme Court has not approved Page 25 of 35 HC-NIC Page 25 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT cancellation of entire selection process after appointees putting a few years of service. In the said judgment distinction is made where such appointments were made and where no appointments were made after completion of selection process. In the case of Joginder Pal and others Vs. State of Punjab and others (supra), the Hon'ble Supreme Court has held that once it was accepted that some of the candidates were untainted and they enter service by virtue of merit and not because of any extraneous consideration, candidature of such candidates can be segregated from the tainted candidates. In the said case the Hon'ble Supreme Court has disapproved cancellation of entire selection process. In the case of Bharat Singh and others Vs. State of Haryana and others (supra), the Hon'ble Supreme Court has held that when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. In absence of pleadings to prove such facts, such pleas cannot be examined. With reference to the aforesaid judgments relied on by the counsel for the petitioners, we are of the view that the ratio decided in the said judgment would not render any assistance to support the case of the petitioners. In this case it is to be noticed that though selection lists were drawn, but no appointments were made. Those who are appointed pursuant to selection list will stand on a different footing than that of the Page 26 of 35 HC-NIC Page 26 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT persons whose names merely figure in the selection list. It is well settled law. As rightly contended by the learned Government Pleader and it is very well settled, mere inclusion in selection list will not confer any right of appointment. In that view of the matter whether having regard to the fact situation it is possible to segregate, tainted and untainted candidates is the factual aspect which is to be considered with reference to the facts of each case. In the case on hand, in absence of any appointment and if the material placed before this Court is looked into, coupled with the averments made in the affidavit in reply filed on behalf of the respondents, we are of the considered view that this is not a case where tainted persons can be segregated and appointments are to be made to large number of posts of Revenue Talati. Investigation made reveals that some irregularities were committed. The same is evident from the OMR Sheets itself, where some sort of identification marks are made. It is not possible to segregate such candidates, as large number of answer sheets have such identification marks. It appears that in a matter of this nature we are of the considered view that it is not possible to segregate tainted and untainted candidates for the purpose of proceeding with the recruitment process. It is true that in a case of this nature some innocent candidates, who aspire to enter into jobs will suffer, but the respondents were constrained to take such a harsh decision having regard to the material placed on record and the complaints made. Thus, we are of the view that the judgments relied on by the Page 27 of 35 HC-NIC Page 27 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT learned counsel for the petitioners would not render any assistance to the petitioners. On the other hand in the case of Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others (supra), where there is allegation of leakage of question paper, large scale impersonation of candidates, mass copying, etc. in written test, and the view taken by the High Court that recruitment process confining investigation to 62 candidates against whom there were serious allegations of impersonation, is held erroneous and unsustainable. The judgment of the High Court was set aside by the Hon'ble Supreme Court by applying the test of Wednesbury unreasonableness. The Hon'ble Supreme Court has held as under:
"41. We have already indicated the three alternatives available to the decision- maker (the Board) when serious infirmities were pointed out in the conduct of the first written test. Let us examine which was the best alternative the Board could have accepted applying the test of Wednesbury unreasonableness.
Was the decision taken by the Board to conduct a re- test for those candidates who had obtained minimum qualifying marks in the first written test so unreasonable that no reasonable authority could ever have decided so and whether the Board before reaching that conclusion had taken into account the matters which they ought not to have taken into account or had refused to take into account the matters that they ought to have taken into account and the decision taken by it was so unreasonable that no reasonable authority Page 28 of 35 HC-NIC Page 28 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT could ever have come to it? Judging the decision taken by the Board applying the standard laid down in the Wednesbury principle of unreasonableness, the first alternative that is the decision to cancel the entire written test and to conduct a fresh written test would have been time- consuming and expensive. Initially 10,02,909 applications were received when the advertisement was issued by the Board out of which 5,86,955 were found to be eligible and call letters were sent to them for appearing in the written test held at various centres. 3,22,223 candidates appeared for the written test, out of which 2690 were selected. Further the candidates who had approached the Court had also not opted that course instead many of them wanted to conduct a re-test for 2690 candidates, the second alternative. The third alternative was to go ahead with the first written test confining the investigation to 62 candidates against whom there were serious allegations of impersonation. The Board felt in the wake of the vigilance report and the reports of the CBI, it would not be the best option for the Railway Administration to accept the third alternative since there were serious allegations of malpractices against the test. From a reasonable man's point of view it was felt that the second option i.e. to conduct a re-test for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative."
17. Similarly, in the case of Tanvi Sarwal Vs. Central Board of Secondary Education and others (supra), the Hon'ble Supreme Court, while considering cancellation of examination relating to All India Pre-Medical and Pre-Dental Entrance Test, conducted by Page 29 of 35 HC-NIC Page 29 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT Central Board of Secondary Education, New Delhi, where there were allegations of paper leakage, large scale cheating and malpractice during the examination, aided by organized gang for monetary consideration, held that even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of, the claim of more deserving candidates and directions were issued to conduct re-examination. In the said judgment observations made by the Hon'ble Supreme Court, which are relevant, are as under:
"20. As would be available from the status reports, out of 123 solved answers of a particular code and retrieved from the mobile set of one of the persons arrested i.e. Dr. Bhupender, 102 answers were found correct on a comparison with the answer key provided by the CBSE. As referred to herein above, 358 mobile numbers had been pressed into service and at least 300 vests fitted with electronic devices have been used. Having regard to the uncompromising essentiality of a blemishless process of examination involving public participation, we have no alternative but to hold that the examination involved, suffers from an infraction of its expected requirement of authenticity and credence. We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep seated and pervasive impact, which ought not to be disregarded or glossed over, lest it may amount to Page 30 of 35 HC-NIC Page 30 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT travesty of a proclaimed mechanism to impartially judge the comparative merit of the candidates partaking therein. If such an examination is saved, merit would be a casualty generating a sense of frustration in the genuine students, with aversion to the concept of examination. The possibility of leaning towards unfair means may also be the ultimate fall out. Even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of, the claim of more deserving candidates. At present, the examination stands denuded of its sanctity as it is not possible to be cleansed of all the participating beneficiary candidates with certainty. We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination. We must observe that till this stage of the investigation, no conscious lapse or omission on the part of the Board, contributing to the otherwise appalling mischief has surfaced.
21. Conscious are we that, as a consequence, the All India Pre-Medical and Pre-Dental Test 2015 would have to be annulled, thereby disturbing the time schedule fixed by this court in Mridul Dhar (supra) and Priya Gupta (supra). Though we respectfully subscribe to the calendar of dates fixed in these cases, more particularly in the textual context thereof, we perceive that in the extraordinary fact situation that confronts us, where the examination involved is vitiated to the core by use of deceitful means and measures to benefit some, the consideration of departure from the said time schedule per se would not be a wholesome justification to sustain the otherwise tainted exercise. The time frame fixed by Page 31 of 35 HC-NIC Page 31 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT this court in the above cases, in our opinion, was not intended to be inflexibly adhered to in the situation of the kind with which we are seized of. The schedule of dates was fixed, so as to streamline and discipline the process of admission by its uniform application. In that view of the matter, we are of the understanding that the annulment of the examination and the consequences to follow, in the singular facts and circumstances of the cases, would not in any way be repugnant to the renderings of this court in Mridul Dhar (supra) and Priya Gupta (supra).
22. The course we proposed to embark upon, is the demand of the situation based on contemporaneous official records and that facts corroborated thereby. The pleadings of the Board, that its answer key had been prepared on 11.5.2015 and that the same for all the four sets of question paper, had been displayed on its website from 18.5.2015 to 20.5.2015, along with the individual OMR images of each candidate between 21.5.2015 and 23.5.2015 whereafter the challenges from the candidates have been received and have been verified with the subject experts, in the teeth of the disclosures in the investigation lack in persuasion to save the examination.
23. We are aware, that the abrogation of the examination, would result in some inconvenience to all concerned and that some extra time would be consumed for holding a fresh examination with renewed efforts therefor. This however, according to us, is the price, the stakeholders would have to suffer in order to maintain the impeccable and irrefutable Page 32 of 35 HC-NIC Page 32 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT sanctity and credibility of a process of examination, to assess the innate worth and capability of the participating candidates for being assigned inter se merit positions commensurate to their performance based on genuine and sincere endeavours. It is a collective challenge that all the role-players would have to meet, by rising to the occasion and fulfill the task ahead at the earliest, so as to thwart and abort the deplorable design of a mindless few seeking to highjack (sic., hijack) the process for selfish gain along with the unscrupulous beneficiaries thereof. Though the Board has taken a plea that having regard to the enormity of the exercise to be undertaken, the same cannot be redone before four months, we would emphasize that this is an occasion where it (the Board) ought to gear up in full all its resources in the right spirit, in coordination with all other institutions that may be involved so as to act in tandem and hold the examination afresh at the earliest."
From the above observations and the ratio laid down, we are of the view that the aforesaid judgment relied on by the learned Government Pleader supports the case of the respondents, to accept their plea. Having regard to material available and allegations made, the only option left to respondents was to cancel the examination and to hold fresh examination.
18. Further, it is also to be noticed that 900 vacant posts of Revenue Talati have arisen for subsequent years. Fresh advertisement for recruitment was already issued and examination Page 33 of 35 HC-NIC Page 33 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT was conducted for posts including 900 posts of subsequent years, totalling to 2400 posts, to make selection for the posts of Revenue Talati.
19. For the aforesaid reasons as referred to above, we are of the view that no case is made out by the petitioners warranting interference for grant of writ as prayed for in this writ petition filed under Article 226 of the Constitution of India. The Special Civil Application is devoid of merit. Accordingly it is dismissed. Rule is discharged. Interim order is vacated. No order as to cost.
20. In view of disposal of Special Civil Application itself, both the Letters Patent Appeals have become infructuous and are dismissed.
21. Consequently, no order on Civil Application No.1066 of 2016 in Letters Patent Appeal No.74 of 2016. The same stands disposed of.
FURTHER ORDER After pronouncement of the judgment Mr.Gautam M.Joshi, learned advocate for the appellant requested that the interim order may be extended for some time. The request is refused.
Page 34 of 35 HC-NIC Page 34 of 35 Created On Wed Jun 29 02:26:10 IST 2016 C/LPA/73/2016 CAV JUDGMENT (R. SUBHASH REDDY, CJ) (ANANT S.DAVE, J.) karim Page 35 of 35 HC-NIC Page 35 of 35 Created On Wed Jun 29 02:26:10 IST 2016