Gujarat High Court
Devabhai Shamlabhai Balya vs State Of Gujarat & on 8 June, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/19454/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 19454 of 2016
With
CIVIL APPLICATION No. 5471 of 2017
In
SPECIAL CIVIL APPLICATION No. 19454 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH Sd/
================================================================
1 Whether Reporters of Local Papers may be allowed to see Yes the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law as No to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ DEVABHAI SHAMLABHAI BALYA....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 MR KM ANTANI, AGP for the Respondent(s) No. 1 MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 08/06/2017 COMMON CAV JUDGMENT
1. Heard learned advocate Mr.K.B. Pujara for Page 1 of 34 HC-NIC Page 1 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT the Petitioner, Mr.K.M. Antani, learned Assistant Government Pleader for Respondent No.1 and Mr.Premal Joshi, learned advocate for Respondent No.2. Perused the record.
2. The Petitioner herein has sought indulgence of this Court under Articles 14, 16, 19, 21 and 226 of the Constitution of India in the matter of recruitment for the Post of Gujarat Administrative Services Class I and Gujarat Civil Services Class I and Class II pursuant to advertisement issued by Respondent No.1 being Gujarat Public Service Commission (For Short `GPSC') on 10.6.2014 being advertisement No.9/2014-15.
3. The Petitioner has, in background of the facts and circumstances pleaded and submitted before this Court, prayed for appropriate Writ, order or direction in following terms:
"[16]
(a) to direct the Respondent No.2
- GPSC to hold the Main Examination (written) for the optional paper - III for the Page 2 of 34 HC-NIC Page 2 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT subject of Geography for the Petitioner and other similarly situated total 14 candidates and giving them an opportunity to answer the said paper in Gujarati medium, for which the Petitioner is ready and willing to deposit any reasonable amount towards the costs as may be directed by this Hon'ble Court in the interest of justice;
(b) to direct the Respondent No.2
- GPSC to examine and evaluate the Petitioner's paper of Optional Subject - Geology and to assign marks for the same to the Petitioner at the Main Examination (Written) held by GPSC for the Posts of Gujarat Administrative Service, Class I and Gujarat Civil Service, Class I and II, pursuant to the Advertisement No.09/201415 issued by GPSC on 10.6.2014, and to declare the Petitioner's result accordingly."Page 3 of 34
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4. Petitioner has also prayed for interim relief to restrain the Respondents from declaring the result of the main examination and for interim relief to direct Respondent No.2 to examine and evaluate the Petitioner's paper of Geology subject and to assign marks for the same to the Petitioner for the main examination (written) held by Respondent No.2 and to declare the Petitioner's result accordingly, subject to further orders that may be passed in the present petition.
5. Therefore, practically, he has neither claimed to relax any condition of the selection process nor prayed to select him on any such Post for which he has applied, but simple prayer of the Petitioner is to the effect that when there was misconception or unavoidable situation in processing the application of the Petitioner and other similarly situated 14 persons by the Respondents, the Respondent should have accepted their mistake or misunderstanding and that they should permit the Petitioner to compete in the selection process. It is made clear that if Petitioner could not succeed in selection Page 4 of 34 HC-NIC Page 4 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT process, he may not get the job but denying the Petitioner or any other candidate to compete in the selection process would certainly amount to irregularity, arbitrariness and selectiveness which may result into illegality and denial of equal opportunity to similarly situated candidates for no fault on their part or for some lacuna in the process itself.
6. Therefore, at the outset, let it be made clear that the stand of the Respondent is not only misconceived but not applicable to the present case when they are relying upon the decision in the case of State of Jammu and Kashmir v. Ajay Dogra reported in 2011(14) SCC 243. It is quite clear and obvious that if factual details or issue raised in the present petition is similar to the issue decided by the Hon'ble Supreme Court in such reported cases, then, Petitioner would have no case in their favour.
7. However, the scrutiny of the cited decision makes it clear that the Petitioners in such cited case have filed a Writ Petition Page 5 of 34 HC-NIC Page 5 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT before the High Court seeking relaxation of eligibility conditions, more particularly, prescribed physical standard since appointment was under Jammu and Kashmir Police Rules, 1960 and, thereby, physical standard was prescribed under the advertisement itself relying upon Rule 176 of the Rule. Therefore, when High Court had directed the authorities to consider the case of Petitioners before it for appointment by holding that prescribed physical standard has no nexus with the object sought to be achieved by such Rules, Hon'ble Supreme Court has held that when neither Rule 176 nor conditions prescribed in advertisement are challenged in the Writ Petition and when it was nowhere pleaded that conditions fixed for recruitment were illegal or invalid and when constitutional authority of the Rules was never questioned, the High Court was not justified in scrutinizing the authority of Recruitment Rules in absence of any such challenge. Therefore, when High Court has not specifically declared the prescribed physical standard as ultra vires, it was held that High Court ought not to have given direction for relaxing the physical Page 6 of 34 HC-NIC Page 6 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT standard. For such determination, Hon'ble Supreme Court has also considered the physical conditions prescribed in the advertisement which is in consonance with Rule 176 of the Rules which are statutory in nature. Therefore, when there is specific Rule No.176 prescribing Qualification for direct appointment as Inspectors, SubInspectors or Assistant SubInspectors contending that applications of only such candidates will be considered for selection who confirm to the prescribed physical standard fixed by the Government in such Rule, it becomes clear that direction by the High Court in that case that physical standard has no nexus with the object to be achieved may be beyond the power of the Court to relax the eligibility criteria for particular Post. With due respect, it can be noticed that probably High Court has considered the Post of prosecuting officer for which probably physical standard may not have any nexus with the object to be achieved by such prosecuting officers for performing their duty before the Court if they are law graduates as police prosecutor. However, if State is appointing police prosecutor from Page 7 of 34 HC-NIC Page 7 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT the police force or from the cadre of inspector then probably physical standard may be one of the condition so as to enable such officer to function both as inspector and prosecutor. However, at present, we are not concerned with such aspect but the fact remains that the judgment cited is with reference to the relaxation of eligibility criteria against the rules. Therefore, if there is no such situation in our case, then, this judgment would not be helpful to the Respondents so as to deny the candidates of the Petitioner to compete in selection process for appointment. At the cost of repetition, it is made clear that appointment would always be subject to clearance of appropriate competition test as per required standard and not otherwise and, therefore, allowing the Petitioner to compete in the selection process does not amount to relaxing the eligibility criteria when otherwise Petitioner is eligible for such Post but there was some difficulty at both the ends with such candidature and, more particularly, when at given point of time all Respondents have, by their act allowed such candidature to proceed further in selection process. In that case, Page 8 of 34 HC-NIC Page 8 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT allowing the Petitioner to compete in the selection process, and then withholding his result would certainly result into irregularity, arbitrariness and selectiveness which can be termed as illegality and, therefore, such illegality, arbitrariness, selectiveness and illegality needs to be scrutinized and if it is so proved, then Petitioner is certainly entitled to appropriate directions against the Respondents to disclose his result and to consider his case for appointment if otherwise he is eligible and secured requisite result in competition test in such selection process.
8. In background of above position, if we peruse the factual details, it becomes clear that Petitioner belongs to Socially and Educationally Backward Class category i.e. SEBC. He has passed B.R.S. (Bachelor of Rural Studies) from Bhavnagar University. Therefore, as per the advertisement for recruitment under reference, he is otherwise eligible and qualified for appointment in Class I of Gujarat Administrative Service so also either in Class I or even in Class II of Page 9 of 34 HC-NIC Page 9 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Gujarat Civil Service. Pursuant to such eligibility, Petitioner has appeared in the preliminary test for such Post, bearing seat No.101021226 which was assigned as such by the Respondents by their admission letter dated 18.9.2014, copy of which is produced at Annexure `B.' Such Preliminary Test / Elimination Test in the form of Objective Written Test (OMR & MCQ) was conducted on 12.10.2014 and its result was declared on 20.8.2015. However, such result was revised pursuant to the direction by this Court as per orders passed in Special Civil Application No.14573 of 2015 preferred by other candidates based upon some other issues. Thereby, on 19.3.2016, Respondents have declared fresh result whereby 12116 candidates were declared qualified and eligible for appearing in the main written examination. As per such result, copy of which is produced at Annexure `C', Petitioner was also declared as qualified and eligible for appearing in the main examination since Roll No.101021226 was disclosed in such result on page No.5 which is on page No.33 with the petition. Based upon such result, the Respondents have, by advertisement dated Page 10 of 34 HC-NIC Page 10 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT 17.5.2016, copy of which is produced at Annexure `D,' called upon such successful candidates to submit their application for main written examination. As per such advertisement, the candidates were required to select the medium of examination and to select the optional subject for Paper III out of 28 subjects prescribed and disclosed in advertisement for the purpose.
9. At this stage, since such selection is to be made online on Web Based Application, the Petitioner has opted for answering the question paper in Gujarati medium, but, as it is pleaded and submitted, so far as optional subject is concerned, though, the Petitioner wanted to opt for the subject "Geography" as submitted, because of scrolling over of the list of optional subject in Web Based Application, the subject of "Geology" got clicked instead of subject "Geography" while filling the online application. The Petitioner submitted such application online on 23.5.2016 and submitted its print out to Respondent No.2 on 2.6.2016. Copy of such application is produced at Annexure Page 11 of 34 HC-NIC Page 11 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT `E'. The perusal of Annexure `E' makes it clear that there is categorical disclosure regarding medium of examination as Gujarati with optional subject as Geology instead of Geography. However, Petitioner has agreed to appear in the paper of Geology to avoid any difficulty in the ongoing selection process as per the program of main written examination declared by Respondent No.2 which was scheduled between 10.9.2016 to 18.9.2016 by advertisement dated 7.6.2016 as per Annexure `F.' For appearing in such examination, Respondents have issued another admission letter which is to be printed by the candidate on their own from website, copy of such admission letter with photograph and details of the Petitioner as created and prepared by the Respondent No.2 and generated from Internet by the Petitioner is produced at Annexure `G' which bears signature of Joint Secretary of Respondent No.2. The perusal of such admission letter makes it clear that the Respondents have disclosed and declared that Petitioner has selected optional subject as Geology and medium of examination as Gujarati assigning ticket number as seat number or roll number for Page 12 of 34 HC-NIC Page 12 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT the Petitioner being 101006742. In addition to disclosure regarding optional subject and medium of examination in title of the letter, there is specific disclosure of the same fact in paragraph 5 of such letter which is at page No.46 with the petition wherein there is categorical statement by Respondent No.2 to the Petitioner that "your ticket No.101006742. Your optional subject is Geology and your medium of examination is Gujarati". Therefore, after such disclosure by the Respondents, Petitioner has nothing to bother or has no reason to believe that there is ambiguity or irregularity or something improper in his competition in selection process wherein if he obtains suitable marks / results then he may be entitled to the Post for which he has applied.
10. Thereafter, Petitioner has appeared in the Main Written Examination on 10.9.2016, 12.9.2016 and 18.9.2016. Copy of seating arrangement of the center where the Petitioner appeared vide ticket number as seat No.101006742 is annexed at Annexure `H,' perusal of which confirms that in a same class room No.41, Petitioner's seat Page 13 of 34 HC-NIC Page 13 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT number was assigned in a group of candidates who have selected medium of examination as Gujarati whereas other candidates who have selected their medium of examination as English are having separate group in the same class room. Same was the position for other similarly situated candidates in the same class room when with number of such candidates, medium of answer paper is disclosed in bracket either as (G) for Gujarati and (E) for English. The Annexure further shows that except few candidates who have selected to answer question paper in English, in all other class rooms between 34 to 40 i.e. in all 8 class rooms, all the candidates have selected the medium of examination as Gujarati. The arrangement further confirms that there are eight candidates who have opted to write the examination in English medium whereas there are 14 candidates who have to write the examination in Gujarati medium in a class room where Petitioner's seat number is disclosed in list of those 14 candidates.
11. However, when Petitioner has received the question paper, copy of which is at Page 14 of 34 HC-NIC Page 14 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Annexure `I,' he found the endorsement on such question paper that medium of question paper is English and please write answers in English language only. However, in admission letter of the Petitioner, it was clearly stated that optional subject is Geology and medium of examination is Gujarati. Thus, there was difference in what was stated in admission letter of the Petitioner and what is stated in the question paper. However, Petitioner has, by following the instructions in admission letter wrote his answer sheet in Gujarati medium. Similar situation was faced by all 14 candidates having seat No.101006737 to 101006750, amongst which ten candidates have abandoned to continue with the examination whereas four candidates including the present Petitioner appeared and answered the paper of Geology in Gujarati medium. Unfortunately, on completion of examination and after coming out of the examination hall, the Petitioner had learnt that his optional paper (III) of Geology answered by him in Gujarati medium would not be examined because the paper of Geology was required to be answered in English medium only.
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12. Therefore, Petitioner immediately addressed a representation on same day evening by Email dated 10.9.2016 and, thereafter, written representations dated 15.9.2016, 22.9.2016, 25.9.2016 and 27.10.2016, copies of which are produced at Annexure J collectively. The Petitioner has also met the Chairman of GPSC namely; Mr.Dinesh Dasa and apprised him of the said genuine problem and requested him to redress the Petitioner's grievance either by holding fresh examination of Geography subject for similarly situated total 14 candidates or by examining and evaluating the paper of Geology which was answered by the Petitioner in Gujarati medium as per appointment letter dated 23.8.2016 issued by Respondent No.2. However, Chairman of GPSC expressed his inability to do anything. Hence, when Respondents have not declared the result of the Petitioner, Petitioner has no option but to prefer this petition seeking reliefs noted hereinabove. The Petitioner has produced copies of representation and his acknowledgment on record.
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13. The Petitioner is also relying upon provisions of Constitution of India referring 8th Schedule under Article 344(1) and 351 of the Constitution of India which consists of [1] Assamese [2] Bengali [3] Bodo [4] Dogri [5] Gujarati [6] Hindi [7] Kannada [8] Kashmiri [9] Konkani [10] Mathilli [11] Malayalam [12] Manipuri [13] Marathi [14] Nepali [15] Odia [16] Punjabi [17] Sanskrit [18] Santhali [19] Sindhi [20] Tamil [21] Telugu and [22] Urdu wherein at Sr. No.5 confirms that Gujarati is one of the language disclosed in such schedule and, therefore, it is confirmed that it is the duty of the Union of India to promote and spread and to develop languages of India specified in such schedule so that it may serve as a medium of expression for the culture in India. The clause (2)(b) of Article 344 confirms that it shall be the duty of the Commission constituted under the Article to make representations to the President as to restrictions on the use of the English language for all or any of the official purposes of the Union. By referring such provision of the Constitution, it is submitted that the basic concept of Page 17 of 34 HC-NIC Page 17 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Constitution is to promote the regional language and as per Article 345 of the Constitution, the legislature of the State is permitted to adopt the use of language in the State subject to provisions of Article 346 and 347, which relates to communication with other State and for provision relating to language spoken by section of population of the State, to be used for all or any of the official work within the State with only provision that the legislature of the State has to recognize it by law. It is undisputed fact that State Government has already confirmed that Gujarati would be official language and administration of State is being done in Gujarati language though for some administrative work, documentation are also either in both the languages or in English only. Therefore, it is submitted that compulsion to write down the question paper in English is unwarranted and against the basic principle of Constitution and more particularly when Respondents have allowed the Petitioner to select the Gujarati language by issuing admission letter and by making his arrangement in a class room where similarly situated candidates have to Page 18 of 34 HC-NIC Page 18 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT appear, the Respondents, thereafter, may not be allowed to withhold the result of the Petitioner and, thereby, making him ineligible in competing the selection process only on the ground that he should have opted the English medium only for the paper of Geology and should have answered the question paper only in English language.
14. Following details with reference to Examination Notice No.09/2015CSP dated 23.5.2015 by UPSC is relevant to confirm that Gujarati cannot be ignored in such Recruitment process:
The advertisement being Examination Notice No.09/2015CSP dated 23.5.2015 is also produced on record at Annexure `L', wherein, Scheme and Subjects for the Preliminary and Main Examinations has been explained in Section II which starts from page No.62 and in such part of the notice, clause (ii) on page No.63 provides a list of optional subjects for main examination which includes Geography at Sr. No.x and Geology at Sr. No.xi. The last subject in the list at Sr.No.xxvi is regarding Page 19 of 34 HC-NIC Page 19 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Literature of any one of the following languages:
[1] Assamese [2] Bengali [3] Bodo [4] Dogri [5] Gujarati [6] Hindi [7] Kannada [8] Kashmiri [9] Konkani [10] Mathilli [11] Malayalam [12] Manipuri [13] Marathi [14] Nepali [15] Odia [16] Punjabi [17] Sanskrit [18] Santhali [19] Sindhi [20] Tamil [21] Telugu and [22] Urdu including English language.
Therefore, one thing is certain that for optional subject, a person may be having a selection of his own language and in that case, Respondent No.2 GPSC should have made arrangement to scrutinize and examine such paper in any of such language. There is reason to say so because the note (iii) amongst the notes immediately after such list of subjects makes it clear that "Candidates will have the option to answer all the question papers, except the Qualifying language papers Paper - A, Paper
- B, in any of the languages included in the Eighth Schedule of the Constitution of India or in English". This note now makes Page 20 of 34 HC-NIC Page 20 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT it clear that candidate can select any of the subject as listed in the same clause and can answer question paper in any of the language which is listed in 8th schedule of the constitution which certainly includes Gujarati as one of the language and, therefore, if at any point of time, it is disclosed by the Respondent No.2 that answer to the paper of Geology should be written in English only, it amounts to selectiveness and arbitrariness. It is surprising to note that though UPSC is permitting to answer the question paper in any language from Schedule 8 of Constitution, the GPSC wants that particular paper should be answered in English only. It seems that GPSC does not have facility to verify the answer sheets in Gujarati or they are promoting / supporting the examiner who is comfortable in English only. Therefore, it cannot be said that this Court cannot entertain the Writ Petition and that allowing the Petitioner to answer the question paper of Geology of Gujarati would result into relaxation of recruitment Rules in any manner whatsoever and thereby decision relied by the Respondent in the case of Page 21 of 34 HC-NIC Page 21 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Ajay Dogra (Supra) would not be relevant at all.
The note below Section I in same section in the advertisement by UPSC also provides that in particular language which script is to be used, wherein for Manipuri language, Bengali script and for so many other languages Devnagari script is disclosed whereas for many languages, script by same language is described which confirms that for Gujarati language, Gujarati script is to be used. Therefore, when advertisement published by UPSC is taking care of all such facts, there is no reason to make a specific restriction that question paper of Geology is to be answered only in English by GPSC. It seems that probably GPSC could not find out or they have reservation to select the examiner of such question paper who does not know Gujarati or who is comfortable in English only. However, when Constitution of India is confirming that Gujarati should be one of the language, the disclosure of Respondents to answer the paper of Geology in English language only can certainly be considered and treated as arbitrariness and, thereby, irregularity Page 22 of 34 HC-NIC Page 22 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT which results into illegality.
15. Petitioner has produced on record the list of candidates who are declared as successful in competition examination for recruitment under reference. Such Notification dated 13.5.2010 confirms that Petitioner has cleared such examination since his name is shown at Sr.No.236.
However, Respondent No.2 has revised such final selection list and published new selection list dated 26.4.2011 excluding the name of the Petitioner.
16. Because of several other irregularities by Respondent No.2, the Petitioner and several other successful candidates have preferred one Special Civil Application No.6057 of 2011. However, it seems that there are several other petitions which were heard together and decided by the coordinate Bench of this Court by its judgment and order 21.4.2017 wherein so far as select list dated 26.4.2017 is concerned, the coordinate Bench has held as under: "41. So far other petitions are concerned, the following Page 23 of 34 HC-NIC Page 23 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT directions are issued.
41.1 Though the impugned merit list dated 26.04.2011 prepared and published by the Gujarat Public Service Commission is unsustainable on facts and in law, instead of setting aside the said merit list, (for the reasons noted in the body of the judgment, more particularly in para : 35.1 and 35.3), and consequently setting aside all the appointments of about three hundred candidates and their further promotions in the respective hierarchy, it is directed that, the Posts, which have remained unfilled because of nonjoining of the candidates appointed by the Government vide appointment orders, claimed to have been issued on 06.05.2011, based on the impugned select list dated 26.04.2011, shall be offered to the next meritorious candidates in the recruitment in question (Advertisement Page 24 of 34 HC-NIC Page 24 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT No.87/200607). It is further directed that, while giving such appointments, the ceiling of the notified vacancies (total 317 vacancies) shall also be kept in view by the Authorities.
41.2 While giving such appointments, the ratio laid down by this Court in the case of D.G. Dalal (supra), as confirmed by the Supreme Court of India shall also be kept in view.
41.3 The appointments of these candidates shall be treated to be notional from 06.05.2011 and they shall be entitled to all consequential benefits, except arrears of pay. (vide the decision of the Supreme Court of India in the case of State of Jammu and Kashmir Vs. Sat Pal reported in (2013) 11 SCC 737).
For this purpose, the State Authorities may even take guidance from the procedure which Page 25 of 34 HC-NIC Page 25 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT it had undertaken while giving effect to the directions of this Court, in the case of D.G.Dalal (supra), which culminated into office orders passed by the General Administration Department of the Government of Gujarat on 04.08.2008 and consequential orders, the copies of which are made available to this Court by the State.
41.4 The above exercise shall be completed within a period of three months from the date of receipt of this order."
17. Since there is no reference of Special Civil Application No.6057 of 2011 in above referred paragraph, it is made clear that the reference to other petitions confirm the petition No.6057 of 2011 in said group cases. It seems that pending such petition, Petitioner has preferred present petition with separate reliefs.
18. Therefore, now, when Petitioner has prayed to direct the Respondent/s to consider his Page 26 of 34 HC-NIC Page 26 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT case while disclosing his result or to allow him to appear in the examination to compete other candidates, considering the time gap, instead of allowing the Petitioner to appear a fresh in examination of Geology, it would be appropriate to direct the Respondents to scrutinize the paper of Geology of the Petitioner and to declare it result so as to verify that whether he is eligible for appointment or not, because, even after succeeding in his previous petition being Special Civil Application No.6057 of 2011 for the issues raised in this petition, his candidature was not considered by the Respondent/s for the issues raised in this petition.
19. As against above facts and circumstances, the Respondents are relying upon the Notification dated 3.3.2014 by the State Government whereby the Gujarat Civil Services (Class I and II), Competitive Examination Rules, 2000 were framed. In such Rules, Rule No.6(4) provides that the answers to questions on paper of Geology, Agriculture, Civil Engineering, Electrical Engineering, Mechanical Engineering Medical Science, Animal Husbandry and Veterinary Page 27 of 34 HC-NIC Page 27 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT Science shall be given in English. It is submitted by the Petitioner that even if such Rule is in force, the action of the Respondent/s in allowing the Petitioner to select the medium for question of Geology as Gujarati and issuance of admission letter to examination disclosing the optional subject as Geology and medium of examination as Gujarati would preclude them from debarring the Petitioner to abide the selection list while withholding his result only on such ground. If we peruse the original rule which provides for medium of examination, it reads as under: "6 [1] Subject to sub rules (2), (3) and (4), the medium of the examination shall be Gujarati;
[2] The answers to the question paper of General English shall be given in English language and in optional papers relating to other languages, shall be given in the respective languages;
Page 28 of 34HC-NIC Page 28 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT [3] The answers to questions on optional paper relating to Sanskrit Literature may be given in Sanskrit or in Gujarati;
[4] The answers to questions on the paper of Geology, Agriculture, Civil Engineering, Electrical Engineering, Mechanical Engineering Medical Science, Animal Husbandry and Veterinary Science, Management and Public Administration may be given in either Gujarati or English."
Therefore, it becomes clear that for all such subjects, initially, answer in Gujarati was permissible and, therefore, such Rule cannot be modified by Notification dated 3.3.2014.
20. Whereas, Respondents have by filing their affidavit in reply contended that as per Recruitment Rules and one of the condition of advertisement, it was made clear that answer to the question paper of Geology etc. are to be given in English only.
Page 29 of 34HC-NIC Page 29 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT However, they have no option but to admit that the Petitioner opted for Gujarati medium contending that it does not mean that Petitioner was permitted to answer the question paper in Gujarati language. But Respondents fail to realize that when Petitioner has opted for Gujarati language neither, their software nor their Recruitment process / proceedings had ever refused to accept such medium but on the contrary, they have issued an admission letter to examination hall in favour of the Petitioner with disclosure that he has selected Geology as optional subject and medium of examination as Gujarati, they have made the arrangement of seating confirming such disclosure and allowed the Petitioner to appear in the examination by their own disclosure to that effect and, therefore, now they could not say that they would withhold the result of the Petitioner.
21. At this stage, it cannot be ignored that use of technology requires proper software and facility to the candidates. As pleaded and submitted before the Court when selection of subject is by the method of Page 30 of 34 HC-NIC Page 30 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT scrolling of subject in dropped down menu of a select box on website then, there must be an assurance by the software that what is selected is accepted by the system and not the adjoining selection which is quite common in such technology. The best practice for such selection would be by allowing selection by providing check box against each selection. In the present case, selection of subject of question paper was not having facility with lock to select the compulsory option, say medium of language as English only in case of subjects wherein it is compulsory and thereby non offering optional choice to be selected as any other language like Gujarati. In absence of such proper software, if there is bonafide or technical error in selection and if such selection is allowed to be continued by allowing the Petitioner to appear in the examination with such selection, it would be inappropriate for the Respondent to withhold the result thereafter. An attempt was made to show that Respondents have allowed several candidates to change their option so far as medium of examination is concerned by producing a list of such Page 31 of 34 HC-NIC Page 31 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT candidates. Therefore, it becomes clear that otherwise Respondents are flexible in their procedural part but for some or other reasons, they do not want to consider the issue raised in this petition that if the system has not properly selected the subject of Geography and when they allowed the Petitioner to appear in the subject of Geology and to allow the Petitioner to appear in examination with Gujarati as medium of examination, it would be inappropriate for them to withhold the result of the Petitioner thereafter. So far as lacuna in technical process of examination is concerned, it is admitted by the Respondent in Paragraph 14 by their reply that admission letter has been derived from the data filing application form by the candidate/s on the computer software. However, Respondents should have been careful since admission letter are having signature of the officers of the Respondents and, therefore, there is reason to believe that Respondents have not bothered to verify their data before issuance of admission letter. Therefore, it becomes clear that there is no system of data audit which is must in such type of Page 32 of 34 HC-NIC Page 32 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT exercise.
22. In view of above facts and circumstances and discussion, it would be appropriate for the Respondents to declare the result of the Petitioner and to offer him a job if otherwise he is so entitled subject to the directions in judgment dated 21.4.2017 in Special Civil Application No.6057 of 2011 and if at all he had secured his place in merit list after such result.
23. Therefore, the petition is partly allowed to the aforesaid extent whereby Respondents are directed to declare the result of the Petitioner and to confirm his serial number in merit list. If petitioner is within the zone of successful candidates as required to be appointed as per Rules and pursuant to direction in judgment dated 21.4.2017 in Special Civil Application No.6057 of 2011, then, he shall be appointed.
24. In view of disposal of main matter, connected Civil Application does not survive and hence the same stands disposed of accordingly.
Direct Service is permitted.
(S.G. SHAH, J.) FURTHER ORDER IN CIVIL APPLICATION NO.5471 OF 2017 Learned advocate Mr.Premal R. Joshi for the respondent No.2 is requesting to stay the operation of this judgment and order. However, considering the facts and circumstances and reasons assigned in the judgment and order, such request is rejected.
Page 33 of 34HC-NIC Page 33 of 34 Created On Fri Jun 09 00:16:32 IST 2017 C/SCA/19454/2016 CAV JUDGMENT (S.G. SHAH, J.) *** Kotecha Page 34 of 34 HC-NIC Page 34 of 34 Created On Fri Jun 09 00:16:32 IST 2017