Gujarat High Court
Nikhilkumar Jentilal Nimbark vs State Of Gujarat on 5 May, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3714 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 ?
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NIKHILKUMAR JENTILAL NIMBARK
Versus
STATE OF GUJARAT
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Appearance:
for the Petitioner(s) No. 1
MS MEGHA JANI(1028) for the Petitioner(s) No. 1,2,3,4,5,6,7
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 2
MR PUNAM G GADHVI(3724) for the Respondent(s) No. 11,12,13,4,6,8
NOTICE SERVED for the Respondent(s) No. 10,14,5
NOTICE SERVED BY DS for the Respondent(s) No. 3,7,9
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/05/2022
CAV JUDGMENT
1. Rule, returnable forthwith. Ms. Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule for the respondent - State, Mr. Harsheel D. Shukla, learned advocate waives service of notice of Rule for the respondent No.2 as Page 1 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 well as Mr. Punam Gadhvi, learned advocate waives service of notice of Rule for the concerned respondents.
2. With the consent of the learned advocates appearing for the respective parties, the petition was taken up for its final disposal.
3. In this petition, under Article 226 of the Constitution of India, the petitioners have challenged the Corrigendum dated 10.1.2020 issued by the respondent No.2 - Gujarat Public Service Commission (for short, hereinafter referred to as 'the GPSC') declaring revised final results in respect of combined competitive examinations (Main) for Recruitment to the posts of Deputy Section Officer (State Secretariat), Deputy Section Officer (GPSC), Deputy Section Officer (Vidhansabha) and Deputy Section (Mamlatdar) (Revenue Department) Class-III.
4. The facts in brief would indicate that the GPSC published an advertisement for recruitment to Class-III Posts on 15.9.2018. Preliminary examinations were held on 21.2.2019. Main examinations were held on 19.5.2019 and 26.5.2019. In the main examinations, 52 candidates who had applied for Class-III posts had declared successful in the main examinations. The Page 2 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 final results of the main examination were declared on 13.9.2019. The petitioners who were placed at No.333, 411, 216, 322, 352, 324 and 314 respectively. The GPSC informed the petitioners that their names were recommended to the government. This was done on 30.9.2019. The petitioners were called for document verification on 9.10.2019. They were called for caste verification on 7.11.2019. The corrigendum dated 10.1.2020 was issued by rectifying answer key of sub question No.XII of question No.8 of paper book from choice (A) to (B). This resulted in selection of 12 earlier unsuccessful candidates and ouster of 12 candidates including 7 petitioners. Hence, the petition.
5. Ms. Megha Jani, learned counsel appearing for the petitioners would submit that the revision of results is violative of the examination Rules. She would submit that sub Rule (1) of Rule 18 allows candidate who want to have his marks of the main examination recheck to apply to the commission within a period of thirty days from the date of declaration of research. Similarly, a candidate desires to have the mark-sheet has to apply within 15 days from the date of declaration of the results as per sub rule (2). Such instructions were also given in the advertisement at clause 16(4) and 17(1).
Page 3 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 5.1. She would therefore submit that revision of results after four months after declaration is contrary to Rules. No reasons have been given as to on what basis has the revision of results done.
5.2. Ms. Jani would submit that the GPSC has no powers to re- evaluate results once declared. There is no provision under the Rules to re-evaluate results once declared. This is evident from Clause 17(5) and 17(6) of the advertisement. Rectification of answer key is nothing but re-evaluation. She would rely on a decision in the case of Taniya Malik v. The Registrar General of the High Court of Delhi reported in 2018(14) SCC 129.
5.3. She would further submit that the merit list dated 13.9.2019 included 52 candidates who had succeeded in the examinations in another advertisement for recruitment to higher Class I and Class II posts. This result was declared two months before the present result. That result was declared on 4.7.2019. An affidavit of one such successful candidate was relied upon by Ms. Jani to submit that she had withdrawn her candidature and seven other candidates had made Page 4 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 representations for withdrawal from the present selection. If this 52 selected candidates were not included in the merit list dated 13.9.2019, such candidates would have not occupied the present merit list and would have given benefit to the present petitioners and other candidates. Ms. Jani would submit that no reliance can be placed on sub rule (4) of Rule 14. 5.4. Ms. Jani would further submit that the petitioners were under legitimate impression that they had been selected for the advertised posts. Accordingly, several examinations that took place in the interim period, the petitioners did not appear. Therefore, loosing their chance.
5.5. Ms. Jani would further submit that the names of the petitioners were forwarded by the GPSC to the GAD on 9.10.2019. She would rely on Rule 19 of the Rules to submit that once the results were forwarded by the Commission, and document verification and caste verification was communicated, reading Rule 19 with Rule 20 would indicate that no change can be made in the names of candidates forwarded by GPSC to the government. She would rely on past practice of the GPSC where GPSC had notified names of persons who were withdrawing their candidature from Page 5 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 appointment and, therefore, she would submit that the petitioners could then get chance of being selected.
6. Mr. Harsheel Shukla, learned counsel appeared for the GPSC and made the following submissions:
6.1 He would submit that the GPSC had declared results on 13.9.2019. On receiving applications for rechecking it was observed that sub question No.XII of question No.8 of paper book pertaining to English Grammer, the applied answer key was erroneous which was required to be rectified. As a result of this, marks in paper book were revised in as many as 1835 cases. He would further submit that it was therefore necessary to prepare a corrigendum on 10.1.2020 to the result dated 13.9.2019.
6.2. He would further submit that with regard to withdrawal of candidature by 52 successful candidates is concerned, there is no provision regarding withdrawal of candidature either under the Recruitment Rules or under the Advertisement. Posts which remain vacant were carried forward in the next recruitment process. On 16.8.2019, advertisement was issued for 154 posts of Dy.S.O. of which Page 6 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 results were declared.
6.3. The petitioners have no vested for appointment merely because of their inclusion in the select list. He would rely on a decision of the Hon'ble Supreme Court in the case of Commissioner of Police v. Umesh Kumar reported in 2020(10) SCC 448.
7. Ms. Jani in rejoinder thereto would submit that the decision in the case of Umesh Kumar (Supra) would not be applicable inasmuch as, the results therein was declared on 17.7.2015. The results were challenged in two months and the entire process of recruitment was put in abeyance, whereas it was not the case in the present. In that decision, there was no time frame for rechecking as in the present case.
8. Considering the submissions made by the learned advocates for the parties, what emerges from the perusal of the corrigendum dated 10.1.2020 is that in the evaluation process, it was found that the answer key was erroneous which was required to be rectified. From the affidavit in reply filed by the GPSC what is evident is that this was done as a result of complaints made on an erroneous interpretation of the answer key to the Grammer Page 7 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 Paper.
9. The submission of learned counsel Ms. Jani that once the window period for obtaining mark-sheets or re-assessment is over, the results cannot be revised is misconceived. Reading Rule 18 of the Rules would indicate that an individual cannot apply for rechecking of his marks beyond a period of thirty days or have his mark-sheet after fifteen days. In the case on hand, what was found is that consequent upon receiving applications for rechecking of marks it was found that an error had been in the answer key. As many as 1835 cases had their marks revised.
The window period applies for making an application and not for the consequence of revising the results. It is not the case where the petitioners that the application for rechecking pursuant to which the marks were rectified and the corrigendum was published were beyond the window period. No positive assertion is placed on record by the petitioners to submit as to show that the applications for rechecking were beyond time. Merely because the consequential revision is published after four months, therefore cannot make the entire exercise bad.
10. As far as, the assertion of Ms. Jani that the 52 candidates who had been selected in the advertisement for higher posts should Page 8 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 have been treated as candidates withdrawn from the present merit list on the basis of the past practice of the Commission is misconceived. Merely because the Commission had been following the practice of removing such candidates already selected to the posts of their choice would not make the present merit list bad. The commission cannot be faulted in absence of a Rule to suggest that it was mandatory for it to notify on the website withdrawal of the candidatures of the 52 candidates who were selected for Class I posts.
11. Reliance also placed on the decision of Taniya Malik (Supra) by Ms. Jani is out of context. The decision talks about permission of reevaluation in absence of any Rule.
12. Ms. Jani also cannot rely upon the communication dated 9.10.2019 and 7.11.2019 to submit that by virtue of these clarifications and recommendations to the government, the petitioners had, in their favour, a right which had accrued to them.
13. As rightly pointed out Mr. Shukla, learned counsel for the respondent No.2 by relying on the decision in the case of Umesh Kumar (Supra) that merely because of the petitioners Page 9 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 name being recommended, no vested right for appointment had accrued to them. Paragraph Nos.17 to 22 of the decision read as under:
"17. This judgment has adverted to the course which the recruitment process followed since the publication of an advertisement for selection to the 2013 batch of Constables (Executive) - Male in Delhi Police. The narration of facts demonstrates that a result notifying a list of provisionally selected candidates was initially declared on 13 July 2015 but it was soon found that an error had crept in due to the failure to allocate a bonus mark to every candidate whose height was in excess of 178 centimeters. The allotment of bonus marks was provided in Standing Order No. 212 of 2011, which necessitated a revision of the results. In the revised result, which was declared on 17 July 2015, certain candidates from the original list were ousted while new candidates came in. Both the respondents were part of the list of successful candidates. Yet, there can be no dispute about the factual position that the recruitment process was yet to be concluded. For one thing, the process of verification of character and antecedents and the ascertaining of medical fitness was yet to be carried out. But apart from this, a set of OAs came to be instituted by unsuccessful candidates before the Tribunal highlighting grievances in regard to the manner in which the answer key had been prepared. The authorities agreed before the Tribunal to appoint an Expert Committee. Following the submission of the report of the Expert Committee, the results were revised on 22 February 2016.
18. After a decision was taken by the Competent Authority for revising the result, as many as 123 candidates who had been selected earlier were ousted and 129 new candidates came into the selected list. This process of revising the results was carried out when the recruitment process was yet to be completed for the candidates selected in the result declared on 17 July 2015. This process of the revision of the result was then unsuccessfully challenged in the first batch of OAs before the Tribunal, and subsequently the writ petitions under Article 226 before the High Court were also Page 10 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 dismissed as not pressed. The flip-flops which took place were undoubtedly because of the failure of the authorities to notice initially the norm of allotting 1 bonus mark based on height and due to the failure to prepare a proper answer key. Such irregularities have become a bane of the public recruitment process at various levels resulting in litigation across the country before the Tribunals, the High Courts and ultimately this Court as well. Much of the litigation and delay in carrying out public recruitment would be obviated if those entrusted with the duty to do so carry it out with a sense of diligence and responsibility.
19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh, this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:
"4. ... the High Court committed an error in proceeding on the basis that the respondent had got a vested right for (2005) 9 SCC 22 appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India reported in [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 :
(1991) 17 ATC 95] which reads: (SCC pp. 50-
51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant Page 11 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899]."
(Emphasis Supplied)"
20. In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment.
21. In regard to respondent Umesh Kumar, it is also Page 12 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do.
22. In Rajesh Kumar (Supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held:
"15. The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "model answer key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "model answer key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "model answer key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in 'A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to 'A' series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue Page 13 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022 C/SCA/3714/2020 CAV JUDGMENT DATED: 05/05/2022 directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key."
In Rajesh Kumar (Supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance."
14. In view of above, the petition lacks merit and deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs. Rule is discharged.
[BIREN VAISHNAV, J.] FURTHER ORDER
15. The interim relief granted earlier shall continue till 6.6.2022, as requested by learned advocate for the petitioner.
[BIREN VAISHNAV, J.] VATSAL S. KOTECHA Page 14 of 14 Downloaded on : Thu May 05 21:05:19 IST 2022