Gujarat High Court
Patel Naishadkumar Gopal Krushna vs Gujarat Public Service Commission & 117 on 16 August, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/244/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 244 of 2016
In
SPECIAL CIVIL APPLICATION NO. 14573 of 2015
With
CIVIL APPLICATION NO. 2717 of 2016
In
LETTERS PATENT APPEAL NO. 244 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
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 ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
PATEL NAISHADKUMAR GOPAL KRUSHNA....Appellant(s)
Versus
GUJARAT PUBLIC SERVICE COMMISSION & 117....Respondent(s)
==========================================================
Appearance:
SHRI SUDHIR NANAVATI, SENIOR ADVOCATE with SHRI SAURIN MEHTA
Page 1 of 28
HC-NIC Page 1 of 28 Created On Wed Aug 17 02:15:42 IST 2016
C/LPA/244/2016 CAV JUDGMENT
with SHRI SAURABH MEHTA with SHRI DIGANT B KAKKAD, ADVOCATES
for the Appellant.
SHRI MIHIR JOSHI, SENIOR ADVOCATE with SHRI D.G. SHUKLA,
ADVOCATE for Respondent No.1.
SHRI KAMAL B TRIVEDI, ADVOCATE GNERAL with MS. SK VISHEN,
ASSISTANT GOVERNMENT PLEADER For Respondent No.2.
SHRI RAJA RAM BAJPAI, ADVOCATE for the Respondents No. 81 - 82 , 87.
SHRI SHALIN MEHTA, SENIOR ADVOCATE with SHRI S M KIKANI,
ADVOCATE for the Respondent(s) No. 80.
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 3 - 79 , 83 -
86 , 88 - 117
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/08/2016
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Letters Patent Appeal is filed under Clause-15 of the Letters Patent, aggrieved by the common oral order dated 26.02.2016 passed by the learned single Judge in Special Civil Application No. 14573 of 2015 and other Special Civil Applications.
2. At the first instance, this appeal is filed by original respondent no.28 in the Special Civil Application, but subsequently, original respondents no.8, 29, 41 and 43, have filed Civil Application No.5498 of 2016 to transpose themselves as appellants in the appeal, which is allowed vide order dated 28.06.2016, as Page 2 of 28 HC-NIC Page 2 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT such they have also been arrayed as appellants in this appeal.
3. Special Civil Application No.14573 of 2015 was filed by the candidates, who appeared for preliminary examination (Objective Type) conducted by respondent no.1-Gujarat Public Service Commission ('GPSC' for short), for recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II. After having appeared in the preliminary examination, having not found place in the merit list to be qualified for the main examination, they have prayed for the following reliefs in the petition.
"22(a) to admit this petition and to issue notice for final disposal or returnable date;
(b) to quash and set aside the impugned result of the Preliminary Examination (Objective Type) declared by the respondent-GPSC on 20.08.2015 as per Annexure-G pursuant to the advertisement No.9/2014-15 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II;
(c) to quash and set aside the impugned decision of the Respondent-GPSC to cancel 3 questions of Paper-1, 6 Question of Paper-2 and 18 Questions of Paper-3, Total 27 Questions of 40 Marks, and not to assess such cancelled questions, and to award 40 Grace Marks to each candidate of the Preliminary Page 3 of 28 HC-NIC Page 3 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT Examination held pursuant to the advertisement No.9/2014-15 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II;
(d) to direct the Respondent-GPSC to hold afresh the Preliminary Examination (Objective Type) of all the candidates pursuant to the advertisement No.9/2014-15 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II;
(e) to quash and set aside the impugned Advertisement dated 27.8.2015 at Annexure-I and the impugned advertisement dated 4.9.2015 at Annexure-J and to restrain the respondent-GPSC from holding Main Examination of the candidates declared successful in the Impugned Result of Preliminary Examination (Objective Type) as per Annexure-G;
(f) to restrain the respondent-GPSC for taking any actions in furtherance of the impugned result of the Preliminary Examination (Objective Type) declared on 20.8.2015 as per Annexure-G;
(g) to direct that appropriate and strict disciplinary and other actions be taken against the erring person/ employees/ officers of GPSC and others who are responsible for the mistakes in the Question Papers and in the Answer Keys of the Preliminary Examination (Objective Type) held pursuant to the Advertisement No.9/2014-15 dated 10.6.2014;Page 4 of 28
HC-NIC Page 4 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT
(h) to hold and declare and direct that the notification dated 31.12.2013 being the Gujarat Civil Services (Class-I & II), Competitive Examinations (Amendment) Rules, 2013 in so far as and to the extent that, it substitutes the word fifteen with the word six in the Schedule II, Section-I, in Paragraph A under the heading Preliminary Examination, is arbitrary, irrational, illogical, absurd, suffering from vice of non-application of mind, violative of Articles 14 and 16 of the Constitution of India and hence, bad in law, null and void and inoperative in the eye of law;
(i) to direct the respondent GPSC to allow the candidates to the extent of at least 25 times of the notified vacancies, to appear at the Main Examination to be held pursuant to the Advertisement No.9/2014-15 dated 10.6.2014;
(j) Pending admission, hearing and final disposal, to stay the impugned result of the Preliminary Examination (Objective Type) declared by Respondent GPSC on 20.8.2015 as per Annexure:G;
(k) Pending admission, hearing and final disposal, to restrain Respondent-GPSC from holding Main Examination and from taking any actions in furtherance of the impugned result of Preliminary Examination (Objective Type) declared on 20.8.2015 as Annexure-G;
(l) Pending admission, hearing and final disposal, to Page 5 of 28 HC-NIC Page 5 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT direct the GPSC to place on record full particulars about the disciplinary actions and other actions taken against any persons, employees and officers of GPSC and others who are responsible for the mistakes committed in the Question papers and in the Answer Keys of the papers of Preliminary Examination (Objective Type) held pursuant to the Advertisement No.9/2014-15.
(m) to direct the respondent to pay the cost of Rs.15,000/- to each of the petitioners and to grant any other appropriate and just relief/s."
4. One of the reliefs sought by the original petitioners in the petition was seeking direction against GPSC to allow the candidates to the main examination at least 25 times of the notified vacancies pursuant to advertisement No.9/2014-15 dated 10.06.2014. Preliminary examination of Objective Type was conducted on 12.10.2014. About 2,43,000 candidates have appeared in the examination including the writ petitioners. Preliminary examination was only for the purpose of screening and shortlisting of the candidates and the marks secured in such examination were not to be counted for final selection. As per the rules which were in force at the time of notification, GPSC declared that on the basis of result of preliminary examination, the candidates to the extent 6 times of vacancies would be admitted in the main examination. The examination was conducted in the languages of Gujarat and English. Some of the candidates opted for Page 6 of 28 HC-NIC Page 6 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT English Medium, whereas majority of candidates opted for Gujarati Medium. After conducting preliminary examination on 12th October 2014, GPSC has published provisional answer keys of all papers on 21st October, 2014, and invited candidates to submit their objections and suggestions. Large number of objections and suggestions were received from the candidates by GPSC. According to the case of the writ petitioners there were many mistakes in the questions and also in the answer keys. The GPSC declared final answer keys of all the three papers on 23rd March 2015 and the GPSC also made a declaration to the following effect:
"Based on the opinion of the concerned subject experts, it has been decided by Gujarat Public Service Commission to cancel 03 Questions of Paper-1 (MAT-1), 06 Questions of Paper-2 (MAT-2) and 18 Questions of Paper-3 (MAT-3). After the consultation with and as per the opinion of the panel of experts, Gujarat Public Service Commission has decided not to assess such cancelled questions. Opinion of panel of experts has also been sought by Gujarat Public Service Commission regarding effect of this cancellations and based on this opinion it has been decided to award grace marks originally assigned to these cancelled questions to each candidate who appeared in respective papers."
5. In the writ petition it was the case of the writ petitioners that 27 questions of 40 marks were incorrect and to do away Page 7 of 28 HC-NIC Page 7 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT with those questions and with a view to balance it, a policy decision is taken to allot 40 marks to each and every candidate, whether the candidate had answered it correctly, had not answered correctly or had omitted the answer. It was the case of the writ petitioners that errors in the questions and the answer keys have affected the result to a considerable extent and allotment of 40 marks at random to all the candidates would not cure the serious defect. In such circumstances,mainly they prayed for cancellation of preliminary examination with a direction to the GPSC to hold fresh preliminary examination.
6. The learned Single Judge has taken note of one of the prayers in para 22(i), wherein the writ petitioners have prayed to direct the respondent-GPSC to allow the candidates to the extent of at least 25 times of the notified vacancies, to appear in the main examination. Keeping such relief sought by the writ petitioners in mind, a public notice was ordered to be issued inviting objections. On 23rd December 2015, the learned Single Judge has passed order to the following effect:
"Let public notice be issued to all concerned inviting objections, if any, in relation to direction sought for from this Court against the respondent-Gujarat Public Service Commission (GPSC) for allowing the candidates to the extent of 25 times of the notified vacancies for appearing in the main examination, to Page 8 of 28 HC-NIC Page 8 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT be held pursuant to the advertisement dated 10.6.2014, in Special Civil Application No.14573 of 2015 and allied matters. It shall be specified in the public notice that such objections shall be raised on the next date of adjournment i.e. on 11.01.2016.
Such public notice shall be published in all editions of those Gujarati vernacular newspapers across the State of Gujarat in which the advertisement has been published for conducting examination as well as in one English daily The Times of India latest by 31.12.2015.
Let all these matters appear on 11.1.2016. Direct service is permitted today."
7. Pursuant to the public notice published in newspapers, some of the successful candidates including the appellants herein have been impleaded as party-respondents and they have put forward their objections. Before the learned Single Judge, on behalf of the GPSC, it was pleaded that 27 questions were found to be incorrect and one at a later stage, that means, in all 28 questions, but at the same time, to rectify the mistake, the GPSC had alloted 40 marks at random to all the candidates. It was pleaded that to conduct fresh preliminary examination is a mammoth task and prayed the Court not to cancel the examination. The State Government, while supporting the stand of the GPSC also pleaded that if fresh examination is ordered, it may take considerably long period of time and the Government Page 9 of 28 HC-NIC Page 9 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT is very desperate and wants to fill up the posts in question.
8. Having regard to the stand of the GPSC and the Government, the learned Single Judge has proceeded on the footing that to conduct of preliminary examination afresh for such a large number of candidates is a tedious job and thought it better to save the preliminary examination, which is already conducted. Having regard to the relief sought in para 22(i), wherein directions were sought to allow candidates to the extent of 25 times of the notified vacancies to appear at the main examination, it was pleaded by the writ petitioners that by giving such directions, preliminary examination which was already conducted could be saved. In view of the representation by the learned Advocate General appearing for the respondent- State that the Government has decided to allow candidates equivalent to 25 times of the vacancies for the main examination of the candidates, who qualified in the screening test, has disposed of the petition accepting the proposal of the Government and decision of the Government to prepare result of the preliminary examination to the extent of 25 times of the vacancies. The learned Single Judge has specifically observed that such decision has to be taken having regard to the peculiar circumstances of the case and it should not be considered as a precedent in future.
Page 10 of 28 HC-NIC Page 10 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT
9. Aggrieved by such directions issued by the learned Single Judge in order dated 26.02.2016 this Letters Patent Appeal is filed. Heard Shri Sudhir Nanavati, learned senior advocate appearing with Shri Saurin Mehta with Shri Saurabh Mehta with Shri Digant B. Kakkad, learned advocates for the appellants; Shri Mihir Joshi, learned senior counsel with Shri D.G.Shukla, learned counsel for respondent no.1; Shri Kamal B. Trivedi, learned Advocate General with Ms S.K. Vishen, learned Assistant Government Pleader for respondent no.2-State of Gujarat and Shri Shalin Mehta, learned senior counsel with Shri S.M.Kikani, learned counsel for respondent no.80.
10. Mainly in this appeal it is contended by Shri Sudhir Nanavati, learned senior counsel for the appellants that the learned Single Judge has committed error by allowing the candidates to be called for examination 25 times of the number of vacancies to the main examination. It is submitted that there is no policy decision at all and mere statement made by the learned Advocate General cannot be construed as a policy decision of the Government. It is submitted that earlier recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II is governed by rules framed under the proviso to Article 309 of the Constitution of India, titled as Gujarat Civil Services (Class-I & II), Competitive Examinations Rules, 2000. It is submitted that Page 11 of 28 HC-NIC Page 11 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT as per the original rules framed, candidates only 15 times of vacancies were to be called for the main examination from those who were successful in the preliminary examination, but by way of amendment, vide Notification dated 31.12.2013, it was reduced to 6 times. When such is the rule position, there is no reason or justification to call candidates 25 times of the vacancies based on the policy decision. It is contended by the learned senior counsel for the appellants that grace marks having already been awarded for the defective questions/ key answers, there is no reason to alter number of candidates to be called for the main examination contrary to the rules. It is contended by the learned senior counsel for the appellants that in absence of any policy decision, it is not open for the respondent- authorities to change the rules after selection process is initiated. The learned senior counsel for the appellants, in support of his arguments, placed reliance on the following decisions:
(i) Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora and another, reported in (2014) 8 SCC 644,
(ii) Jaipur Development Authority and others Vs. Vijay Kumar Data and another, reported in (2011) 12 SCC 94, and
(iii) State of Madhya Pradesh and others Vs. Mala Banerjee, reported in (2015) 7 SCC 698.
On the other hand the learned Advocate General appearing for Page 12 of 28 HC-NIC Page 12 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT the respondent-State has taken us to the affidavit filed in the Letters Patent Appeal. The said affidavit is filed to explain the justification for enhancing the number of candidates to be called, viz. from 6 times to 25 times of the posts advertised and amendments made to the relevant rules as one-time-measure.
11. The affidavit to the extent relevant for the purpose of disposal of this appeal reads as under:
"2. I respectfully say that I deny in toto all the averments and allegations made and the contentions raised in the captioned appeal save and except what has been specifically admitted by me hereinafter. I further respectfully say that none of the contents of the captioned appeal may be deemed to have been admitted by me merely because the same has not been expressly dealt with hereunder.
3. I respectfully say that the respondents herein, i.e. the original petitioners, had preferred the captioned petition challenging the action of the Gujarat Public Service Commission ('GPSC' for short) i.e, respondent no.1 as well as the State Government, i.e, respondent no.2. I respectfully say that I am making the present affidavit dealing with the averments and allegations pertaining to the State Government i.e respondent no.2 as regards calling of candidates of specified numbers of the post advertised.Page 13 of 28
HC-NIC Page 13 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT
4. Before proceeding further, I respectfully say that I had already filed an affidavit in the captioned petition opposing the entertainment thereof.
However, during the pendency of the said proceeding, it was deliberated amongst the parties before the learned Single Judge about a formula to be arrived at with a view to seeing that the subsequent examination process is not hampered in view of likelihood of the cancellation of the result of the preliminary examination, more particularly in wake of large number of vacancies in the Class-I and Class-II posts. Hence, it was decided by the State Government to amend the rules as a one time measure providing for enhancing the calling of candidates from 6 times to 25 times of the posts advertised, under the following circumstances:
(a) It is respectfully stated that the amendment providing for calling of candidates from 15 times to 6 times of the posts advertised, was effected in the Gujarat Civil Services (Class-I and Class-II) Competitive Examination Rules, 2000, vide Notification No.GS/ 2013/ 25. Bharat/ 1097/ 1406/ K dated 13.12.2013. After the publication of the said Notification, GPSC published an advertisement No.09/ 14-15 dated 10.6.2014, inviting applications from all the concerned for the posts of Class-I and Class-II. It is further respectfully stated that thereafter, the preliminary examination came to be conducted on 12.10.2014, wherein approximately 2,43,500 candidates appeared, including the private respondents and the appellants. During the course of the preliminary examination, it was alleged that Page 14 of 28 HC-NIC Page 14 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT answer key of as many as 27 questions were incorrect and thus, various writ petitions were filed before this Hon'ble Court, challenging the result of the said preliminary examination as well as the above referred amendment Rules of 2013.
(b) As aforesaid, at one point of time during the course of hearing of the writ petitions, it was proposed that it would be in the fitness of things and interest of justice that calling of the candidates is enhanced from 6 times to 25 times so as to cover all the candidates eligible within the coverage of 25 times, whereby, the interest of all the candidates can be taken care of. It was under these circumstances that during the pendency of the petitions, this Hon'ble Court was kind enough to issue notice under Order 8, Rule 11 and all the affected candidates were put to notice to appear and lodge their objections in regard to the aforesaid proposal. For ready reference, a copy of the order dated 23.12.2015 passed in this behalf is annexed hereto and marked as Annexure-I. It was only after hearing all the parties that the order under challenge has been passed. In view of this, it is not legally permissible to the appellant herein to belatedly challenge the said order of learned Single Judge at this stage.
(c) Thus, in the aforesaid background, the State Government, with a view to taking care of the recruitment process and to avoid delay in further process leading to recruitment, took a policy decision to enhance the calling of candidates from 6 Page 15 of 28 HC-NIC Page 15 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT times to 25 times of the post advertised.
Accordingly, the Gujarat Civil Services (Class-I and II) Competitive Examination Amendment Rules, 2013 came to be further amended as a one time measure.
5. As is discernible from the aforesaid, the State Government is very much keen and in need of filling up the posts for the smooth administration and any further delay in the recruitment process will jeopardize the administrative work of the Government. I respectfully say that with a view to seeing that the recruitment process is completed expeditiously, the aforesaid decision was taken for calling 25 times the candidates of the posts advertised. Thus, it is very much clear that the decision was taken in the public interest and thus, the same has a nexus with the object sought to be achieved viz. to avoid the delay in the recruitment process and further enabling the GPSC to make available the selected candidates at the earliest. It is pertinent to mention that the advertisement pertains to Class-I and Class-II officers and as many as 460 posts are lying vacant."
12. It is contended by the learned Advocate General appearing for the respondent-State that having regard to the situation which has arisen there were only two options open before the learned Single Judge; either to cancel the examination in which about more than 2,43,000 candidates have appeared or to save the examination by permitting more Page 16 of 28 HC-NIC Page 16 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT number of candidates for final examination.
13. When it was the plea of the original petitioners in the writ petition to allow the candidates to the extent of at least 25 times of the notified vacancies, to appear at the Main Examination, the same was looked into by the Government and in larger interest, such decision was taken. Consequently, relevant rules were amended to permit 25 times of the candidates, who qualified in the preliminary examination as one-time-measure to meet with such an eventuality. It is further submitted that large number of posts are vacant and to save the precious time and huge exchequer of the Government, conscious decision was taken by amending rules as one-time-measure as explained in the affidavit by way of additional affidavit filed in the LPA. The learned Advocate General submitted that as much as eligibility criteria of qualified candidates for selection is not changed, no prejudice is caused to the appellants to challenge the order of the learned Single Judge. The learned Advocate General, in support of his arguments, placed reliance on the following judgments:
(i) Tej Prakash Pathak and others Vs. Rajasthan High Court and others, reported in (2013) 4 SCC 540,
(ii) Yogesh Yadav Vs. Union of India and others, reported in (2013) 14 SCC 623, Page 17 of 28 HC-NIC Page 17 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT
(iii) K. Nagraj and others Vs. State of Andhra Pradesh and another, reported in A.I.R. 1985 SC 551, and
(iv) Census Commissioner and others Vs. R. Krishnamurthy, reported in (2015) 2 SCC 796.
14. Shri Mihir Joshi, learned senior counsel appearing for the Gujarat Public Service Commission submits that absolutely there are no grounds to interfere with the order of the learned Single Judge, as much as there were two options before the learned Single Judge; either to cancel the examination or to save the examination by permitting more number of candidates for final examination. It is submitted that having regard to the peculiar facts of the case, such decision was to be taken as a remedial measure and there are no grounds to assail validity of the order passed by the learned Single Judge. It is submitted that no candidate has indefeasible right for selection to the posts notified and right is only to consider his case, as such no prejudice is suffered by the appellants herein, to challenge the order passed by the learned Single Judge. It is submitted that by virtue of the decision taken by the GPSC and the Government, more number of students are permitted to appear in the examination.
15. Recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II are Page 18 of 28 HC-NIC Page 18 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT covered by the rules framed under the proviso to Article 309 of the Constitution of India, which are titled as Gujarat Civil Services (Class-I & II), Competitive Examinations Rules, 2000. It is true that originally, as per the said Rules, candidates equivalent to 15 times of the number of vacancies were to be called for the main examination, but subsequently, in the year 2013, by way of amendment, the word 'fifteen' was amended to 'six'. The learned senior counsel appearing for the appellants brought to the notice of this Court that a petition was filed by way of Writ Petition (PIL) No.289 of 2014, wherein advertisement dated 10.06.2014 was the subject matter of challenge and one of the contentions in the writ petition was amendments made by virtue of notification dated 31.12.2013 amending the rules as illegal. In the said writ petition the State Government has taken the stand that final examination may not be too large and to get the best candidates selected, such amendments were made. In view of the above, the said Writ Petition (PIL) was dismissed by the Division Bench of this Court. It is true that as per the original rules which were in force on the date of notification, the rule permitted candidates only 6 times of the vacancies for the purpose of final examination, but after advertisement was issued, preliminary examination was conducted, after publication of provisional answer keys, several objections came to be filed disputing the correctness of the questions or key answers prepared by the GPSC. In that view of Page 19 of 28 HC-NIC Page 19 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT the matter the GPSC itself has taken decision to award 40 marks in random to all the candidates, but at the same time further questions arose for consideration when the same is the question by way of Special Civil application before the learned Single Judge, such award of marks by itself will not cure the defect and it was their case that by virtue of such defective questions and key answers, several candidates have lost opportunity, but otherwise, who were to be qualified for the main examination. Having regard to one of the prayers made in the petition, wherein directions were sought to direct the GPSC to permit the candidates for the main examination equivalent to 25 times number of vacancies, such issue was considered by the learned Single Judge having regard to the peculiar situation arisen. It is also to be noted at this point of time that it was the plea of the GPSC that to conduct fresh preliminary examination is a mammoth task as much as more than 2,43,000 candidates have appeared in the examination. Having regard to such a situation, decision was taken to call for candidates 25 times of the vacancies for the main examination. While it is true that there is no policy decision on paper as projected in the order, but there is notification dated 10.03.2016 issued by the Government by adding proviso to para 'A' under the heading "Preliminary Examination". The Notification reads as under:
"Notification Page 20 of 28 HC-NIC Page 20 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT General Administration Department Sachivalaya, Gandhinagar.
Dated 10th March 2016.
No.GS-2016-15- BRT-102015-1079-K:- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Gujarat hereby makes the following rules further to amend the Gujarat Civil Services (Class-I and Class-II) Competitive Examination Rules, 2000, namely:-
1. These rules may be called the Gujarat Civil Services (Class-I and Class-II) Competitive Examination (Amendment) Rules, 2016.
2. In the Gujarat Civil Services (Class-I and Class-II) Competitive Examination Rules, 2000 in SCHEDULE-II, in SECTION-I, to para A under the heading "Preliminary Examination", the following proviso shall be inserted, namely:-
"Provided that the number of candidates to be allowed to appear in the Main Examination shall be about twenty five times the total number of vacancies advertised by the Gujarat Public Service Commission in the advertisement No.09/ 2014-15".
By order and in the name of the Governor of Gujarat.
Sd/-
(Devi Pandya) Joint Secretary to Government"
16. By virtue of the above said notification, the Gujarat Civil Page 21 of 28 HC-NIC Page 21 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT Services (Class-I and Class-II) Competitive Examination Rules, 2000 stood amended permitting the respondent- authorities to call for candidates 25 times of total number of vacancies, which is restricted only to the advertisement No.9 of 2014-15 dated 10.06.2014.
17. In the judgment relied on by the learned senior counsel for the appellants in the matter of Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora and another, reported in (2014) 8 SCC 644, the Hon'ble Supreme Court has held that change in the norms of recruitment process during the pendency of selection process is not permissible. In the aforesaid case, when there was decision for grant of additional 10 marks of weightage to apprentices after selection process was commenced, such decision was said to be not in conformity with the law. In the aforesaid judgment the Hon'ble Supreme Court held that as no preference was given to trained apprentices and many eligible candidates in that criteria may not have applied, and if such a course is permitted it would lead to infraction of Article 14. But at the same time it is to be noticed that in the judgment of Tej Prakash Pathak and others Vs. Rajasthan High Court and others, reported in (2013) 4 SCC 540 (supra), a distinction was drawn in cases where change of rules insofar as the prescription of eligibility criteria to that of procedure for selection, as it was Page 22 of 28 HC-NIC Page 22 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT held that when change sought is to impose more rigorous scrutiny for selection. The matter was referred to Larger Bench of the Hon'ble Supreme Court. In absence of any change in the eligibility criteria for selection, we are of the view that the judgment relied on by the learned senior counsel for the appellants would not render any assistance to support their case.
18. In the judgment in the case of Jaipur Development Authority and others Vs. Vijay Kumar Data and another, reported in (2011) 12 SCC 94 (supra), the Hon'ble Supreme Court has held that executive actions of Government of India and the State Governments are required to be taken and executed in the name of President or Governor of the State concerned. It appears that decision is pressed into service only to support the plea that though policy decision was taken by the Government to call for candidates equivalent to 25 times of the vacancies from those who are qualified in the preliminary examination, but there is no such written policy for the same, but as much as there is notification dated 10.03.2016, by which decision of the Government is culminated into amendment of the rules on the subject by adding proviso which empowers the respondent- authorities to call for candidates equivalent to 25 times of total number of vacancies. So far as advertisement No.9 of 2014-15 dated 10.06.2014 is concerned such policy also Page 23 of 28 HC-NIC Page 23 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT would not render any assistance in support of the case of the appellants. However, the judgment relied on by the learned senior counsel for the appellants in the case of State of Madhya Pradesh and others Vs. Mala Banerjee, reported in (2015) 7 SCC 698, in which the Hon'ble Supreme Court has held that no policy decision can be taken contrary to law, also would not render any assistance in support of the case of the appellants, as much as rules framed under the proviso to Article 309 of the Constitution of India were already amended and amendment is not the subject matter of challenge. As such the said judgment also would not render any assistance to the appellants.
19. On the other hand, in the case of Yogesh Yadav Vs. Union of India and others, reported in (2013) 14 SCC 623 (supra), when benchmark was fixed, after selection process was commenced, the Hon'ble Supreme Court has held that such benchmark is permissible in law and it would amount to changing rules of the game mid-way. In para 13 of the said judgment the Hon'ble Supreme Court has held as under:
"13. The Instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and Page 24 of 28 HC-NIC Page 24 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case."
20. Further, the learned Advocate General, in support of his arguments, has placed reliance on the judgment in the case of Page 25 of 28 HC-NIC Page 25 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT Nagraj and others Vs. State of Andhra Pradesh and another, reported in A.I.R. 1985 SC 551 (supra), in which the Hon'ble Supreme Court has held that every decision has to be examined on its own merits in order to determine whether action taken is arbitrary or unreasonable. Further reliance is also placed by the learned Advocate General on a decision in the case of Census Commissioner and others Vs. R. Krishnamurthy, reported in (2015) 2 SCC 796 (supra), in support of his argument that when conscious decision was taken to meet with the peculiar situation that has arisen in larger interest by way of policy which has resulted into amendment of rules, as such the same is not open to strict scrutiny by this Court, as much as no rights of the appellants are infringed. In para 33 of the said judgment the Hon'ble Supreme Court has observed as under:
"33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether particular public policy is wise and acceptable or whether a better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion."Page 26 of 28
HC-NIC Page 26 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT
21. While it is true that by way of amendments made to the rules governing recruitment to the posts of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I & Class-II, the word 'fifteen' was substituted by the word 'six' confining number of candidates to be called for to only 6 times of number of vacancies, having regard to the peculiar situation which has arisen, the learned Single Judge has accepted the proposal of the Government to call for candidates 25 times of number of vacancies. It is true that 40 marks was awarded at random to the candidates, but specific plea of the petitioners is that even such marks would also not cure the defect, by such mistakes in the Question Papers and in the Answer Keys of the Preliminary Examination they were deprived of their due for participation in the main examination. Keeping the larger public interest and to save the preliminary examination in which more than 2,43,000 candidates have appeared, such direction came to be issued by the learned Single Judge. As much as by virtue of the decision taken by the Government, which has resulted in amendment of rule by adding proviso by way of notification dated 10.03.2016, which empowers the authorities to call for candidates 25 times of the total number of vacancies, but at the same time no prejudice is caused to the appellants by calling such more number of candidates so as to accept their case to interfere with the order passed by the learned Single Judge. As it is stated that such proviso was added confining its application Page 27 of 28 HC-NIC Page 27 of 28 Created On Wed Aug 17 02:15:42 IST 2016 C/LPA/244/2016 CAV JUDGMENT only to Advertisement no.9 of 2014-15 dated 10.06.2014 and having regard to the reasons stated by the learned Single Judge and the judgment relied on by the learned Advocate General appearing for the respondent-State, we are of the view that no case is made out in this Letters Patent Appeal to interfere with the order of the learned Single Judge. The appeal deserves to be rejected. Accordingly, the Letters Patent Appeal is dismissed. Notice is discharged. No order as to cost.
22. Consequently, no order on the Civil Application. The Civil Application stands dismissed. Notice is discharged.
(R. SUBHASH REDDY, CJ.) (VIPUL M. PANCHOLI, J.) karim Page 28 of 28 HC-NIC Page 28 of 28 Created On Wed Aug 17 02:15:42 IST 2016