State Of Gujarat vs Jayrajsinh Bhratsinh Chauhan on 28 January, 2020

[Cites 2, Cited by 2]

Gujarat High Court

State Of Gujarat vs Jayrajsinh Bhratsinh Chauhan on 28 January, 2020

Equivalent citations: AIRONLINE 2020 GUJ 261

Author: Vikram Nath

Bench: Vikram Nath, A.J. Shastri

        C/LPA/114/2020                             ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 114 of 2020
                                In
         R/SPECIAL CIVIL APPLICATION NO. 16640 of 2017
                              With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                In
           R/LETTERS PATENT APPEAL NO. 114 of 2020
=========================================================
                        STATE OF GUJARAT
                              Versus
                 JAYRAJSINH BHRATSINH CHAUHAN
=========================================================
Appearance:
MR JK SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2
MR MAHARSHI PATEL, ADVOCATE for HL PATEL ADVOCATES(2034)
for the Respondent(s) No. 1
=========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
                      and
       HONOURABLE MR.JUSTICE A.J. SHASTRI

Date : 28/01/2020

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH) We have heard Shri J. K. Shah, learned Assistant Government Pleader for the State - appellants and Shri Maharshi Patel, learned counsel for H.L. Patel Advocates for respondent no. 1.

This Letters Patent Appeal has been preferred assailing correctness of the judgment and order dated 28.06.2019 passed Page 1 of 4 Downloaded on : Thu Jan 30 20:53:37 IST 2020 C/LPA/114/2020 ORDER by the learned Single Judge in Special Civil Application No. 16640 of 2017, whereby, the writ petition filed by the respondent was allowed. The impugned order passed by the Deputy Secretary (Examination) Gujarat Subordinate Services Selection Board, Gandhinagar dated 14.12.2016 cancelling the candidature of the respondent was set aside and as a result of this, he was declared to be treated as successful candidate for the post of NonSecretariat Clerk and Secretariat Assistant Clerk.

The pure question raised by Shri Shah, learned Assistant Government Pleader for the State - appellants is as to whether a candidate who failed to sign the OMR sheet in the preliminary examination despite mandatory instructions of signing the OMR sheet, the candidature of such candidate can be saved or deserves to be rejected. The Gujarat Subordinate Selection Board has rejected the candidature, whereas the learned Single Judge, vide judgment under challenge has set aside the decision of the Gujarat Subordinate Selection Board.

Shri Shah, learned Assistant Government Pleader has placed reliance upon two recent decisions of the Supreme Court. First is dated 28.08.2019 passed in Civil Appeal No. 6669 of Page 2 of 4 Downloaded on : Thu Jan 30 20:53:37 IST 2020 C/LPA/114/2020 ORDER 2019, in the case of State of Tamil Nadu & Ors., v. G. Hemalathaa & Anr. Before the Supreme Court also, in the said case, similar issue was involved whether the candidate who had not complied or violated the mandatory conditions while giving her examination, could or could not be saved. The High Court had decided in favour of the candidate holding the mistake to be bona fide and unintentional. The Supreme Court after considering the relevant case law, did not approve the judgment of the High Court holding that any order in favour of such candidate who has violated the mandatory instructions would be laying down bad law. The Supreme Court accordingly allowed the appeal of the State of Tamil Nadu and set aside the judgment of the High Court.

In another decision of the Supreme Court dated 11.09.2019 passed in Civil Appeal No. 7158 of 2019, in the case of J & K Board of Professional Entrance Examination & Ors., v. Pankaj Sharma & Anr., the appeal was also allowed, setting aside the judgment of the Jammu and Kashmir High Court, wherein again while filling the OMR answer sheet, mandatory instructions had not been followed and mistake had been committed.

Page 3 of 4 Downloaded on : Thu Jan 30 20:53:37 IST 2020 C/LPA/114/2020 ORDER

In view of the above settled view of the Supreme Court, we find that the judgment of the learned Single Judge cannot be sustained.

Accordingly, the appeal is allowed. The judgment and order of the learned Single Judge impugned in the present appeal is set aside and the Special Civil Application stands dismissed.

Consequently, the connected civil application for stay also stands disposed of.

(VIKRAM NATH, CJ) (A.J. SHASTRI, J) /phalguni/ Page 4 of 4 Downloaded on : Thu Jan 30 20:53:37 IST 2020

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