Gujarat High Court
Ashishkumar Ashwinkumar Darji vs State Of Gujarat on 19 June, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/16762/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16762 of 2017
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ASHISHKUMAR ASHWINKUMAR DARJI
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH(5399) for the
PETITIONER(s) No. 1
MR UTKARSH SHARMA, ASST.GOVERNMENT PLEADER for RESPONDENT No.1
MR PREMAL R JOSHI(1327) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 19/06/2018
ORAL ORDER
Heard learned Senior Advocate Mr.Shalin Mehta with learned advocate Mr.Hemang Shah for the petitioner, learned Assistant Government Pleader Mr.Utkarsh Sharma for respondent No.1State and learned advocate Mr.Premal Joshi for respondent No.2 Gujarat Public Service Commission.
2. The petitioner who possessed graduation applied for the post of Gujarat Administrative Services ClassI and Gujarat Civil Services ClassI and ClassII pursuant to advertisement dated 10.06.2014 issued by respondent No.2 - Gujarat Public Service Commission (GPSC) wherein 351 vacancies were proposed to be filled in for ClassI and 292 vacancies for ClassII posts.
Page 1 of 11 C/SCA/16762/2017 ORDER3. What was sought to be challenged in the present petition filed under Article 226 of the Constitution, was the action on the part of respondent No.2GPSC in incorporating wrong answers to 39 questions in two question papers.
3.1 The petitioner made the following prayers, "(i) set aside the result published on 28.07.2017 by Gujarat Public Service Commission insofar as the name of the petitioner has been included in the list of unsuccessful candidates;
(ii) directing Gujarat Public Service Commission to take into consideration the objections as raised by the petitioner and thereafter grant grace marks for the 39 questions against which wrong answers have been mentioned in the 2 question papers;
(iii)commanding Gujarat Public Service Commission to recalculate the marks and thereafter place the petitioner at the appropriate number in the select list subject to fulfillment of other eligibility criteria;
(iv) commanding Gujarat Public Service Commission to place on record the correct answers to the 39 questions for which objections had been raised by the petitioner;
(v) set aside the action of Gujarat Public Service Commission by which the correct answer for 3 questions came to be changed to wrong answers when the final answer key was published;
(vi) commanding Gujarat Public Service Commission to declare the correct answer for the 3 questions for which the answers had been changed subsequently when the final answer key came to be published;"
Page 2 of 11 C/SCA/16762/2017 ORDER3.2 Pursuant to advertisement dated 10.06.2014, the petitioner had applied and participated in the process of selection. The result of the preliminary written examination was declared on 19.03.2016. The petitioner was declared successful in that.
Thereafter, he appeared in the main written examination which was held on 23.08.2016, which consisted inter alia papers IV and V comprising of various questions in which, according to the case of the petitioner answers of 26 and 13 questions, respectively, totaling 39, were incorrect.
3.3 Final answer key was given to the candidates by respondent No.2GPSC on 09.04.2017. The interviews were held on 10.04.2017. The petitioner participated and appeared in the interview. The results were published on 28.07.2017. In the final selection list, the name of the petitioner figured in the list of successful candidates.
3.4. Thereafter, the petitioner filed the present petition with the prayers as aforementioned contending inter alia that the answer keys contained wrong answers whereas he had applied the questions Page 3 of 11 C/SCA/16762/2017 ORDER giving the correct answers. The petitioner's case was that he would be entitled to get grace marks for 39 questions and could have been pushed up in the merit to be able to be selected.
4. The petition was contested by respondent No.2 -
GPSC by filing affidavitinreply in which among other contentions, in paragraph 5 of the affidavit, following was submitted :
"..... the petitioner is estopped from making any grievance with regard to final answer key which was published on 09.04.2017 because after publication of final answer key on 09.04.2017, petitioner appeared in the interview held on 25.04.2017 and appeared in the interview held on 25.04.2017 and declared as unsuccessful candidate on 28.07.2017. The petition is barred by principle of estopple since the petitioner participated in the interview after publication of final answer key without challenging the same at the relevant point of time. Even after appearing in VivaVoce and till the declaration of final result i.e. 28.07.2017, the petitioner remained silent for the reasons best know to him. The present petition is filed at belated stage when the petitioner has been declared as unsuccessful candidate after interview."
4.1 It is further contended as under by respondent No.2 in paragraph 9 :
Page 4 of 11 C/SCA/16762/2017 ORDER".... the petitioner had participated in the process of interview and did not challenge it till the results were declared. There was a gap of almost four months between 09.04.2017 i.e. date of publication of final answer key and 28.07.2017 i.e. the date on which the final result was declared. However, the petitioner did not challenge it at that time. Even after declaration of the final result i.e. 28.07.2017 further delay of about one and half month has occurred. Thus, it appears that only when the petitioner found himself to be unsuccessful, he challenged the final answer key dated 09.04.2017..."
5. The factual position undisputedly emerges is that the petitioner participated in the selection process. The final answer keys were published on 09.04.2017 as stated above about which the petitioner was aware. At that stage, he did not question the correctness of the answers contained in the final keys. Interviews were held subsequent to the publishing of the answer keys, in which also the petitioner appeared. It was only when he failed to succeed in the interview and did not find place in the final selection list, that he filed the present petition raising the grievance about the correctness of the answers.
Page 5 of 11 C/SCA/16762/2017 ORDER5.1 It is well settled proposition of law that once a candidate takes part in the process of selection, takes a chance but upon failing to be selected challenges selection process, he is estopped from subsequently questioning his nonselection. Taking part in the selection process would disentitle him from raising a challenge against the selection. (See G. Sarana vs. University of Lucknow [(1976) 3 SCC 585], Nanak Lal vs. Prem Chand Singhvi [AIR 1957 SC 425], Prakash Shukla vs. Akhilesh Kumar Shukla [[1986 Supp SCC 285], Manish Kumar Shahi vs. State of Bihar [(2010 12 SCC 576], Amlan Jyoti Borooah vs. State of Assam [(2009) 3 SCC 227], Ramesh Chandra Shah vs. Anil Joshi [(2013) 11 SCC 309], Madras Institute of Development Studies vs. K. Sivasubramaniyan [(2016) 1 SCC 454], D. Saroj Kumari vs. R. Helen Thilakom [2017 (11) SCALE 366]).
5.2. In D. Saroj Kumari (supra), it was observe that, "Thus, from the aforesaid latest decision rendered by the Hon'ble Supreme Court, it can be said that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Thus, we are of the view that the petitioners once participated in the OMR examinations without any objection having been failed to secure the Page 6 of 11 C/SCA/16762/2017 ORDER minimum qualifying marks/failed to come within the zone of consideration, the petitioners are estopped from contending that GSRTC cannot conduct OMR examination in three different slots." (Para 21) 5.3 In the present case, the aforesaid principle squarely applies inasmuch as the petitioner participated in the process, was aware about the final key answers given, did not question the correctness of the same, further participated in the interview and after got selected, sought to raise his grievance about the answers.
5.4 Furthermore, the kind and nature of controversy raised by the petitioner which is in the realm of education pertaining to the correctness of the key answers, this Court exercising Writ powers would have a very limited role to play. The scope of judicial review is extremely limited.
5.5 In Ran Vijay Singh and others vs. State of Uttar Pradesh and others [(2018) 2 SCC 357], the Supreme Court observed that the Court should not reevaluate or scrutinize the answersheet and any such matters which are in the realm of expertize by Page 7 of 11 C/SCA/16762/2017 ORDER the educationists. The cases would be rear and exceptional where only the Court would be inclined to interpose.
5.6 The proposition of law in Ran Vijay Singh (supra) and others was quoted with approval in UPPSC, Through its Chairman and another vs. Rahul Singh and another, being Civil Appeal No.5838 of 2018, decided on 14.06.2018, in which the issue pertained to the challenge to the key answers only, when the Court observed, "The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that they key answer wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University, through Vice Chancellor and others vs. Samir Gupta and others [(1983) 4 SCC 309], the Court recommended a system of - (1) moderation; (2) avoiding ambiguity in the questions; (3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions." (para 12) "As far as the present case is concerned even before publishing the first list of key answers the Commission had got the key answers moderated by two expert committees. Thereafter, objections were invited and a 26 member committee was constituted to Page 8 of 11 C/SCA/16762/2017 ORDER verify the objections and after this exercise the Committee recommended that 5 questions be deleted and in 2 questions, key answers be changed. It can be presumed that these committees consisted of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct." (para 13) "In the present case we find that all the 3 questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts." (para 14) 5.7 It is true that the petitioner in the present case succeeded in the selection process. Still however, the aforesaid principle of estopple against subsequent challenge would undisputedly apply. The crux is the conduct of participation in the process.
By raising subsequent challenge to the correctness of answer keys, the petitioner claimed that he could have come up higher amongst the selected candidates, Page 9 of 11 C/SCA/16762/2017 ORDER the petitioner is not permitted to turn around ....
participation to seek such a challenge.
6. Even on merits, following stand of the respondent evinced from paragraph 11 weakened the case of the petitioner further dissuading the Court to render the petition liable to be dismissed.
".... the petitioner has raised objection against answer key of 26 question in paper
4. Out of this 26 question, 11 question have been identified wherein answer given by the petitioner is found apparently different from the objection raised. In these questions petitioner has objected that either all options are correct or all options are incorrect but the petitioner has already attempted these questions by encoding any of the available options for answer. It is asserted if the petitioner had found all the options as incorrect then he should have selected option "E" which stands for "question not attempted". It is further asserted if the petitioner found all the options as correct then he should have selected option "E" or should have chosen the most appropriate/the closest answer among them. Further, it is to state that though the petitioner, in Paper4, Series "D", has attempted questions No.132 and 134 correctly as per final answer key, he has prayed for grace marks inappropriately. It is pertinent to note that the petitioner has suppressed the material facts...."
7. For the aforesaid reasons and discussion, no relief could be granted to the petitioner. The Page 10 of 11 C/SCA/16762/2017 ORDER petition fails and the same is hereby dismissed.
Notice is discharged. Interim order stands vacated.
(N.V.ANJARIA, J) Gaurav+ Page 11 of 11