Gujarat High Court
Jadav Hiteshbhai Chaturbhai vs State Of Gujarat on 21 August, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/14788/2022 ORDER DATED: 21/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14788 of 2022
========================================================
JADAV HITESHBHAI CHATURBHAI
Versus
STATE OF GUJARAT
========================================================
Appearance:
DELETED for the Petitioner(s) No. 6,8
MR VICKY B MEHTA(5422) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,
38,4,5,7,9
for the Respondent(s) No. 1
MR SAAHIL TRIVEDI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 21/08/2023
ORAL ORDER
1. Heard learned Advocate Mr. Vicky Mehta on behalf of the petitioners and learned Assistant Government Pleader Mr. Saahil Trivedi on behalf of the respondent- State.
2. By way of this petition, the petitioners have sought for following prayers:
" 7(A) Your Lordships may be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to reorganize the Computer Proficiency Test (CPT) with regard to the examination for Senior Clerk Class-III being advertisement No. 185/2019-20 conducted from 21.06.2022 to 23.06.2022 as similarly done by the respondent with regard to the CPT being reorganized on 06.07.2022 which was earlier conducted on 20.06.2022, and (B) Your Lordships may be pleased to issue an order, direction and/or with in the nature of mandamus and/or any other appropriate writ, order or direction, Page 1 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined directing the respondent to change the agency from which the software for taking CPT is being procured by declaring that the software provided by the earlier agency suffered from technical issues and further be pleased to direct the respondent to reorganize the CPT organized from 21.06.2022 to 23.06.2022 in the interest of justice, and;
(C) Your Lordships may be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to give a similar treatment to the petitioners who appeared in CPT for the post of Senior Clerk Class III with regard to the advertisement No. 185/2019-20 as given to the candidates of CPT taken on 20.06.2022 which was reorganized on 06.07.2022, and (D) Pending admission and final disposal of this petition, the Hon'ble Court may be pleased to stay the further process of recruitment with regard to the advertisement for the post of Senior Clerk Class III in respect of the advertisement No. 185/2019-20 and (E) Pending admission and final disposal of this petition, the Hon'ble Court may be pleased to allow the candidates to again appear for CPT with regard to advertisement No. 185/2019-20 and furnish the result in a sealed cover before the Hon'ble Court and;
(F) Any other and such relief as the Hon'ble Court deems fit and proper in the interest of justice together with costs."
3. It appears that the respondent - Gujarat Sub-ordinate Services Selection Board, had issued an advertisement for selection to the post of Senior Clerk Class III in Sachivalaya cadre on 01.08.2019 and whereas as per the scheme of the selection, two separate examinations were contemplated i.e. a test which was styled as a 'written test' with Optical Mark Reading question paper for 200 marks and the second examination for the Computer Proficiency Test (CPT). It appears that as per the scheme, only upon the candidates passing the written examination, would the candidates be entitled to appear in the Computer Proficiency Test(CPT). It appears that the present petitioners, had applied in the said advertisement and whereas the petitioners having cleared the written test, the petitioners were Page 2 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined eligible to appear in the Computer Proficiency Test(CPT). It appears that originally, the Computer Proficiency Test, was to be conducted between 24.02.2022 to 27.02.2022 and whereas it would appear that later on, vide a notice dated 17.02.2022 the date for holding the examination was fixed from 03.03.2022 to 05.03.2022. It would appear that since there were lot of technical glitches which had taken place during the Computer Proficiency Test (CPT) between 03.03.2022 to 05.03.2022, the respondent Board had decided to hold a retest, between 20.06.2022 to 23.06.2022. It would appear that such retest, was across the Board and all the candidates who had appeared in the earlier examination, were eligible to appear in the Computer Proficiency Test(CPT) to be held between the dates as referred to hereinabove. It would appear that in the test taken on the four days, technical glitches were reported on 20.06.2022 and whereas, vide a notice dated 20.06.2022, the respondent Board, had decided to give one more opportunity to candidates who had appeared for the Compute Proficiency Test(CPT) on the 20.06.2022. It appears that the candidates who were appeared on the said date were given a choice, to appear for the Computer Proficiency Test (CPT) on 06.07.2022 in which case, the result of the Computer Proficiency Test held on 20.06.2022, would become final in case of the said candidates. It appears that after the limited retest had been held on 06.07.2022, the results for the Computer Proficiency Test had been declared by the respondent on 09.07.2022. It appears that some of the petitioners had thereafter submitted representations to the respondent herein on 19.07.2022 inter alia pointing out that even in case of the said candidates, there had been technical glitches which had taken place on the day on which the said candidates had appeared for the examination and therefore for candidates who had appeared in the Computer Proficiency Test between 21.06.2022 to 23.06.2022, an optional retest should be held. It Page 3 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined appears that the said representation not being decided and the respondent not deciding to hold any retest for such candidates, the petitioners have preferred the present petition.
4. Heard learned Advocate Mr. Vicky Mehta on behalf of the petitioners who would assail the decision of the respondent, of not holding retest for the candidates who had appeared for the Computer Proficiency Test between 21.06.2022 to 23.06.2023 inter alia on the ground that technical glitches, were reported even on the said dates and whereas the respondent, had completely erred in giving an additional opportunity to candidates of only one date. Learned Advocate would submit that such a decision is nothing but a discriminatory treatment.
4.1 Learned Advocates would also refer to an annexure to the affidavit- in-reply, more particularly whereby it was decided to hold a retest for candidates who had appeared in Computer Proficiency Test (CPT) on 20.06.2022 and would submit that the respondent, having considered oral representations at the stage of the examination itself, had decided to hold retest for candidates who had appeared in the Computer Proficiency Test (CPT) on 20.06.2022, was obliged to take a retest for all the candidates who had appeared even on the later date more particularly according to learned Advocate technical glitches were also reported on the later dates. Thus assailing the decision of the respondent of not taking a retest, the learned Advocate would request this Court to interfere in the present petition and direct the respondent Board to take a retest for all the candidates who had appeared on the subsequent date i.e between 21-23.06.2022.
5. This petition is vehemently opposed by learned AGP Mr Sahil Page 4 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined Trivedi on behalf of respondent State, who would submit that the petitioners, having waited till the result of the Computer Proficiency Test was declared, having found that they had scored less marks or having found that they had not cleared the examination have not turned back and questioned the validity of the said selection more particularly under the guise of discriminatory treatment and whereas according to learned AGP such a request may not be countenanced by this Court. Learned AGP would submit that the bonafides of the respondent Board, could be judged from the fact that on first occasion, when it had been brought to the notice of the Board that there had been computer glitches in the firs round of examination, from 03.03.2022 to 07.03.2022, the Board had cancelled the entire examination and held a retest between 20.06.2022 to 23.06.2022. Learned AGP would submit that even on 20.06.2022, when it was brought to the notice of the respondent Board that there had been some glitches more particularly from the document as referred to by learned Advocate Mr.Mehta that such glitches had been pointed out to the technical staff at the time of the examination who could not give proper guidance, the respondent Board had decided to hold limited retest for candidates who had appeared on 21.06.2022. Learned AGP would submit that as such, at the relevant point of time, no objection or no aspect of technical glitch, had been brought to the notice of respondent Board by the candidates who had appeared from 20.06.2022 to 23.06.2022. Learned Advocate would submit that even the representation preferred by some of the petitioners, which are annexed herewith, would clearly show that the petitioners, had waited till the result of the examination were declared and only upon the results not being to the satisfaction of the petitioners that the petitioners have not turned around and questioned the examination itself. Learned AGP would submit that such an action on part of respondents may not be countenanced by Page 5 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined this Court. Learned AGP would rely upon decision of the Hon'ble Supreme Court in case of Anupal Singh and others vs. State of Uttar Pradesh reported in (2020) 2 SCC 173 more particularly whereby the Hon'ble Supreme Court, has inter alia stated that where a candidate who has consciously participated in the selection process cannot turn around and challenge the same. Thus submitting learned AGP would request this Court not to interfere in the present petition.
6. Learned Advocate Mr. Mehta in rejoinder would draw the attention of this Court to paragraph no. (e) of the grounds and would submit that as such the candidates who had appeared in the examination from 21.06.2022 to 23.06.2022, had also made oral complaints as regards technical fault in the examination process and whereas the said requests were not considered by the respondent. Learned Advocate would further submit that as such, the respondents, having outsourced the taking of the examination to a third party agency and whereas, it was found that the software being used by the agency, was faulty then the respondents should not have conducted the retest for the very examination through the same agency. Learned Advocate would further submit that as such, the present petitioners, have been discriminated as against candidates who had appeared on 20.06.2022 more particularity, even a candidate who had performed badly on 20.06.2022, had been given an opportunity to appear in the retest on 06.07.2022 whereas the petitioners, have been made worse of more particularly on account of the technical glitches not being considered by the respondent.
7. Head learned Advocates for the respective parties who have not submitted anything further.
Page 6 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined
8. From the submissions of the learned Advocates for the petitioners, while it would be apparent that in the first round, the examinations held between 03.03.2022 to 07.03.2022 the candidates had faced large number of technical glitches and whereas upon representations being made by the candidates, the examinations were totally scrapped and a fresh set of examinations was decided to be taken between 20.06.2022 to the 23.06.2022. It would also appear that in the second round of examinations, since some technical glitches were reported on 20.06.2022, a retest was decided only for candidates who had appeared on the said date and whereas retest was not declared for all the candidates which has aggrieved the present petitioners.
9. As such, in the considered opinion of this Court, it requires to be stated that the petitioners, would be estopped from raising such a contention, more particularly on account of the fact that the petitioners though claimed to have made complaints, with regard to technical glitches, there does not seem to be any material on record, which would support the same more particularly there does not seem to be any material on record which would be show that the petitioners had made any representation or request with regard to the alleged technical glitches, on or around 21.06.2022 to 23.06.2022.
10. From the documents annexed with the petition, more particularly, certain documents which appear to be the tweet of Mr. A.K. Rakesh who was the Additional Chief Secretary (Personal), General Administration Department, Government of Gujarat and the Chairman of the respondent Board, it would appear that during the first round of examination between 03.03.2022 to 07.03.2022, while technical glitches had been reported, the Page 7 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined respondent had received representations and whereas considering the same, the respondent had scrapped the entire examination and held retest. In the second round as as noted hereinabove, the technical glitches according to the respondent were reported on 20.06.2022 and whereas while in the present petition, it is the case of the petitioner that they had made representation at the relevant point of time, there is no material to substantiate the same. As such, it would appear that after the retest had been held on 06.07.2022, the respondent had declared the results on 09.07.2022 and whereas the representations of some of the present petitioners on record clearly reflect that the same are after the 09.07.2022 more particularly on the 19/20.07.2022. From the said sequence, it would clearly appear that the petitioners, had waited for the result of the examination to be declared and upon the results not being in their favour, the petitioners are now turning around and questioning the validity of the examination in the considered opinion of this Court, the law laid down by the Hon'ble Supreme Court in case of Anupal Singh (supra), relied upon, by the learned AGP, would be applicable in the instant case also more particularly since in the said decision, the Hon'ble Supreme Court had inter alia discussed about the issue of estoppel, acquiescence and waiver. It would appear that in the instant case, the present petitioners having not objected to some alleged technical glitches around 21.06.2022 to 23.06.2022 when the examination had been held, and having waited till the result of the examination had been declared, would in the considered opinion of this Court, be estopped from turning around and questioning the decision not to take retest for exams held on all the days more particularly the petitioners not having complained about the alleged technical glitches at the relevant point of time could be treated to have acquiesced to the said position. At this stage, this Court seeks to refer and reproduce paragraph no. 55 to 59 of the judgement in Page 8 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined case of Anupal Sing (Supra) for benefit:
"55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12.10.2014 and the selection. On behalf of the appellants, it was contended that after the revised notification dated 12.10.2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised notification dated 12.10.2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal and Others v. State of J&K and Others , it was held as under:-
"9. ..... The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
57. In K.H. Siraj v. High Court of Kerala and Others, it was held as under:-
"73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper........".
58. In Union of India and Others v. S. Vinodh Kumar and Others, it was held as under:-
"19. In Chandra Prakash Tiwari v. Shakuntala Shukla, it was further observed:-
"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."Page 9 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023
NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined
59. Same principle was reiterated in Sadananda Halo and Others v.Momtaz Ali Sheikh and Others wherein, it was held as under:-
"59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar ...... The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla, where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise........"
10.1 From the law laid down by the Hon'ble Supreme Court, more particularly relatable to the facts of the present case, it would appear that the petitioners having not complained about the technical glitches till the results were declared, would not be seen to turn around and question the non- holding of retest.
11. It requires to be further mentioned here that the petitioners are not raising any ground of malafide sheer. It would not appear that the petitioners would be submitting that on 20.06.2022, there were any influential candidates who had appeared in the examination and for giving such candidates an additional benefit, at the examinations were directed to be reheld on the 06.07.2022. As it is from the record, it clearly appears that upon representations being received as regards technical glitches, the respondent Board had acted very promptly and decided to hold a retest and whereas if or upon the issue of technical glitches being brought to their notice as regards the examination held between 21.06.2022 to 23.06.2022, there was no reason for the respondent not to have considered the same appropriately more particularity if indeed technical glitches had occurred .
12. Again it would also be appropriate to mention herein that even as Page 10 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023 NEUTRAL CITATION C/SCA/14788/2022 ORDER DATED: 21/08/2023 undefined regards the examination conducted on the first date i.e. 20.06.2022, upon the aspect of technical glitches being brought to the notice of the respondent, the respondent had decided to hold a limited examination for the candidates who had appeared on the said date. Considering the same, it would appear to this Court that the respondent had acted very promptly and upon the fact of technical glitches being brought to their notice twice, the respondent had on the first occasion scrapped the entire examination and on the second occasion, had taken a limited retest. There is no reason for this Court not to accept the contention that infact if there had been indeed technical glitches which had occurred between 21.06.2022 to 23.06.2022, and the same being brought to the notice of the respondent, the respondent would not have taken any action thereupon. The fact of there being no representations, around a said dates, would clearly point out to the fact that as such, no technical glitches had occurred on the said date and whereas it would appear that the present petition, is preferred by petitioners who are not satisfied with the results and want one more attempt to appear in the examination.
13. Considering the same, in the thoughtful opinion of this Court, the present being meritless, is hereby rejected.
(NIKHIL S. KARIEL,J) NIRU Page 11 of 11 Downloaded on : Sun Sep 17 01:55:44 IST 2023