Gujarat High Court
Parth Manishkumar Patel vs State Of Gujarat on 16 June, 2023
C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7813 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd\-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PARTH MANISHKUMAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No.
1,10,11,12,13,14,15,2,3,4,5,6,7,8,9
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2
MS NIRALI G SARDA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/06/2023
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of Page 1 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 India is filed with the following prayers: -
"(A) Direct the GPSC to give additional marks to the petitioners for having answered correctly the Question No. 81 of Paper No. 1 and Question No. 160 of Paper No. 2, as the case may be and consequently direct the GPSC to revise the final result considering the fact that the petitioners have correctly answered the above referred question and thereby direct the respondent authorities to consider the case of the petitioner for appointment on the post of Assistant Conservator of Forest, Class-II pursuant to the advertisement at Annexure-A to this petition, or in the alternative.
(B) Quash and set aside the final answer key to Question No. 81 of Paper No. 1 and Question No. 160 of Paper No. 2 and direct the GPSC to publish the revised provisional result with the corrected answer key, and (C) Pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the GPSC to permit the Page 2 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 petitioners to participate in the main examination as well as oral interview for appointment to the post of Assistant Conservator of Forest, Class-II pursuant to the advertisement at Annexure-A to this petition, and (D) Pending admission and final disposal of this petition the Honourable Court may be pleased to direct the respondent authorities to consider the case of the petitioners for awarding additional marks to the petitioners for having attempted the question/s correctly, and (E) Award the cost of this petition, and (F) Grant any other relief or pass any other order which the Honourable Court may consider just and proper."
2. The case of the petitioners in brief is as follows:
(i) The respondent No. 2 - Gujarat Service Public Commission (for short 'GPSC') issued advertisement No. 12 of 2022-23, inviting applications for appointment to the post of Assistant Conservator of Forest, Class-II. As per the Page 3 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 advertisement, in all 38 vacancies are sought to be filed for the said post. The petitioners as were eligible for appointment to the post in question, applied and filled online form.
Pursuant to their applications, the petitioners were called for appearing in preliminary examination scheduled on 30.10.2022. The preliminary examination consists of two papers (i) General Studies-1 and (ii) General Studies-2, which consists of 200 objective type questions, to be answered in OMR sheet. All the petitioners participated in the preliminary examinations and performed well. It is their case that after the preliminary examination the GPSC published provisional answer key on 01.11.2022, inviting objections/suggestions from the candidates. The same objections were to be given on or before 08.11.2022.
(ii) It is the case of the petitioners that as there was discrepancy in relation to the provisional answer key published by GPSC for question Nos. 81 and 160, they raised their objections. It is case of the petitioners that for question No. 81, the correct answer as per provisional answer key is 'C', whereas according to the petitioners the correct answer is 'A'. In other words, as per petitioners the correct answer for question No. 81 is 'A' instead of 'C'. Similar is the situation in relation to question No. 160. It is the case of the petitioners that provisional answer key published in relation to question No. 160 ought to have been 'A' instead of 'C'. In the Page 4 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 objections raised, they have provided supportive material to show that the answer referred by them is correct.
(iii) As the objections raised by the petitioners have not been considered and correction to that effect is not made in the final answer key as referred by the petitioners', present petition is filed seeking the prayers referred herein above.
3. This Court under order dated 29.04.2023, had issued Notice. Since, the candidates who have cleared the preliminary examination are only permitted to appear in the main examination scheduled on 19.06.2023, the matter upon mentioning was taken up for hearing on 16.06.2023.
4. Heard learned advocate Mr. Vaibhav Vyas for the petitioners and learned Assistant Government Pleader Ms. Nirali Sarda for the respondent No. 1 - State and learned advocate Mr. Chaitanya Joshi for the respondent No. 2 - GPSC.
5. Learned advocate Mr. Vaibhav Vyas for the petitioners submitted that due to the incorrect publication of final answer key, the petitioners could not find their place in the list prepared for the candidates to appear in the main examination. Referring to the statement of marks of all the petitioners at Annexure-K (Pg. No. 76), he submitted that if the two answers, which according to the petitioners are correct, are Page 5 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 considered, then the petitioners have fair chance of their getting the marks above the cut off marks declared by GPSC and therefore the respondent No. 2 may be directed to declare the answers given in relation to question No. 81 and 160 as correct and further permit the petitioners to participate in the main examination scheduled on 19.06.2023. Mr. Vyas submitted that the schedule of the main examination has been revised and now the exams are to be held on 21.06.2023 and 23.06.2023.
(i) Referring to the material in relation to question No. 81 - "Which is the longest and shortest river of Gujarat?", he submitted that option No. 'A', opted by the petitioners is correct which is evident from the material submitted along with the objections. The material relied upon by the petitioners in support of their answer is the publication of University Granth Nirman Board which is an acknowledged textbook and is widely read by candidates appearing for competitive examination. The said textbook refers that the longest river in Gujarat is Sabarmati and not Narmada. The portion of that text book reads as under:
"+LHF lJEFUDF\ Nl1F6 U]HZFTGL TF5L VG[ GD"NF GNLVM TYF T[DGL p5GNLVMGM ;DFJ[X YFI K[P GD"NF Page 6 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 VG[ TF5L U]HZFTGL DM8L GNLVM K[P V[DF\ sGD"NF ;F{YL DM8L GNL K[f K¿L;U-GF lA,F;5]Z lH<,FGF lJ\wI 5J"TDF/FGF VDZS\8SGF 0]\UZDF\YL 1150 DL8ZGL p\RF.V[YL GLS/TL Z[JF VG[ ;FT5]0F 5J"TDF/FGF D{S, 5J"TDF\YL GLS/TL GD"NF sDF\0,Ff GHLS D/[ K[P GD"NFGL S], ,\AF. 1280 lSDL K[P VDZS\ 8SDF\YL GLS/L4 ;FT5]0F VG[ lJ\wI 5J"TDF/FGL JrR[ JCLG[4 CF\O[`JZ 5F; [ U]HZFTDF\ 5|J[X[ K[P GD"NF DwI5|N[X4 DCFZFQ8= VG[ U]HZFT V[D +6 ZFHIMDF\YL 5;FZ YFI K[P T[YL T[ +6[I ZFHIMGL ;lCIFZL GNL K[P VF GNL U]HZFTDF\ VFXZ[ 150 lSDLGL ,\aFF.G]\ JCG1F[+ WZFJ[ K[P GD"NFDF\ ;]Z5F6[`JZ 5F;[ DMB0L 3F8 GFD[ VM/BFTM ;]Z5F6GM WMW VFJ[,M K[P"
(ii) Further, in the recruitment process of Assistant Engineer (Civil) Class-II, the GPSC, being the same recruiting agency in the final answer key, has taken Sabarmati as the longest river of Gujarat. Therefore, the answer of the GPSC given in the final key against the question No. 81 is patently and demonstrably incorrect and required reconsideration.
(iii) In relation to question No. 160 - " The RED DATA BOOK published by International Union of Conservation of Nature and Natural Resources contains the list of? " he submitted that in this the option answered by petitioners 'A' is correct and Page 7 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 not 'B' as referred in the final answer key by GPSC. In support of their answer the petitioners have relied upon following documents.
NCERT Standard 8th Book wherein it is referred as under:
79. The "Red Data Books" published by the International Union for Conservation of Nature and Natural Resources (IUCN) contains list of
1. Endemic plant and animal species present in the biodiversity hotspots.
2. Threatened plant and animal species.
3. Protected sites for conservation of nature and natural resources in various countries.
Final Answer Key of UPSC in Civil Service Examination, wherein the correct answer is stated to be Threatened plant and animal species Documents from the website of IUCN clearly stated that IUCN's Red List contains list of Threatened plant animal and fungus species.
Thus, here also the final answer key published by GPSC is patently and demonstrably incorrect and therefore the Page 8 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 respondents may be directed to grant marks for the said question so that all the petitioners have a fair chance of participation in the main examination.
(iv) Learned advocate Mr. Vaibhav Vyas in support of his submissions, relied upon the following decisions: -
Judgment and order dated 19.02.2016 passed in Special Civil Application No. 14870 of 2015.
Kanpur University V/s Samir Gupta and others reported in (1983) 4 SCC 309.
Uttar Pradesh Public Service Commission V/s Rahul Singh and another reported in (2018) 7 SCC 254 5.1 Thus, Mr. Vyas submitted that the final answer key published by GPSC in relation to question Nos. 81 and 160 is patently incorrect. He contended that the petitioners may be permitted to appear in the main examination scheduled on 19.06.2023. He submitted that grave injustice would caused to the petitioners, if they are not permitted to appear in the main examination since they all are preparing for the competitive examination since many years. Further, the balance of convenience is also in their favour and therefore without going into the merits of question No. 81 and 160, at this stage, the petitioners be permitted to participate in the examination Page 9 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 scheduled to be held on as 19.06.2023.
6. Pursuant to notice issued, learned advocate Mr. Chaitanya Joshi appeared on behalf of GPSC and filed reply. He submitted that the objections raised by the petitioners have been duly considered. The final answer key was published after thorough scrutiny, including answer key Nos. 81 and 160.
Relying upon the affidavit, learned advocate submitted that the objections received were sent to experts for evaluation/scrutiny for the correctness or otherwise of the answers. Accordingly, the final answer key was published based on the opinion of the sound opinion of experts.
7. Responding to the contention of the petitioners that they have fair chance of securing cut off marks to appear in the main examination, he submitted that assuming without admitting that the answers given by the petitioners are correct and the petitioners would be awarded grace marks, then such exercise is to be done for all the candidates who appeared in the examination and that would alter the entire result. Therefore, the proposition canvased that they have a fair chance to participate in the main examination is baseless.
8. In support of his submissions, he relied upon the following decisions:
Page 10 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 Bharwani Jitendrabhai K. V/s State of Gujarat - Decided on 04.09.2015 in Special Civil Application No. 6044 of 2014 [Para 34 and 35] Himachal Pradesh Public Service Commission V/s. Mukesh Thakur reported in (2010) 6 SCC 759 [Para 19 and 20] Kanpur University V/s Samir Gupta reported in AIR 1983 SC 1230 [Para 16] Uttar Pradesh Public Service Commission V/s Rahul Singh and Anr reported in (2018) 7 SCC 254 [Para 12] Dilsukhbhai Govindbhai Rathod V/s. State of Gujarat reported in (2020) 1 GLH 53 [Para 14]
9. Further, upon direction of this Court, learned advocate Mr. Joshi for GPSC has placed on record the decision taken by the expert body against objections of the petitioners.
10. Considered the submissions and perused the documents taken into consideration by the expert committee for their opinion on the objections from the candidates. In relation to question No. 81 "Which is the longest and shortest river of Gujarat", the committee has considered the details provided on the website of Sardar Sarovar Narmada Nigam Limited wherein it is referred as under:-
Page 11 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 "Narmada is the longest river in Gujarat. It rises from the Amarkantak Plateau in Anuppur district of Madhya Pradesh. It forms a very traditional boundary between North and South India by flowing westwards over a length of approx. 1312 km. It drains through the Gulf of Khambhat into the great Arabian Sea.
Remarks - The Narmada, the largest west flowing river of the Peninsula rises near Amarkantak range of mountains in Madhya Pradesh. It is the fifth largest river in the country and the largest on in Gujarat."
11. In relation to question No. 160 "The RED DATA BOOK published by International Union of Conservation of Nature and Natural Resources contains the list of?", the expert committee for their opinion has relied upon website of International Union of Conservation of Nature Resources (IUCN) wherein it has been referred as under:-
"The 'Red Data Books' published by the International Union of Conservation of Nature and Natural Resources (IUCN) contains list of Endemic plant and animal species present in the biodiversity hotspots.Page 12 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023
C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 Remarks - "The IUCN Red List Categories and Criteria are intended to be an easily and widely understood system for classyfying species at high risk of global extinction. It divides species into nine categories: Not Evaluated, Data Deficient, Least Concern, Near Threatened, Vulnerable, Endangered, Critically Endangered, Extinct in the Wild and Extinct.""
12. Thus, from the material produced by the GPSC it is noticed that there is supportive material to substantiate that the final answer key published by the GPSC is correct.
13. Assuming at this stage that even the answer provided by the petitioners are also supported by some material, the same would admittedly would amount to one of two possible views. In such circumstances, the decision taken by the expert committee as per settled legal position is to be accepted.
14. In the decision of Hon'ble Supreme Court in the case of Kanpur University V/s Samir Gupta reported in (1983) 4 SCC 309 it is held that-
"16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer Page 13 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 unless, on the face of it, it is wrong. We agree that the key-answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged text- books, which are commonly read by students in U.P. Those text-books leave no room for doubt that the answer given by the students is correct and the key answer is incorrect."
15. Further, in the case of Uttar Pradesh Public Service Commission V/s Rahul Singh and Anr reported in (2018) 7 SCC 254, the Hon'ble Supreme Court has held as under:-
"12. 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 the key answer is wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the Page 14 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 correctness of the key answers. In Kanpur University case (supra), 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.
13. 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 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.
14. 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 Page 15 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 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."
16. Further, the coordinate bench of this court in the decision dated 17.08.2022 in Special Civil Application No. 11978 of 2022 has held as under: -
"42. In case of Priteshkumar Jasubhai Barevadia (supra) considering the decision in case of Ranvijaysingh (supra) the Court held that when there are conflicting views, judges are not expected to act as experts in the fields and overstep.
43. In case of High Court of Tripura through The Registrar General v. Tirtha Sarathi Mukherjee and others reported in (2019) 16 SCC 663, the Supreme Court referred to the case law and reiterated that a question cannot be re-valuated by any inferential process of reasoning or by a process of rationalization.
44. If the contentions of the petitioners are to be accepted, especially, in considering the correctness of Questions 19 and 26, the Court will have to undertake an inferential process Page 16 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 or reasoning. It has been demonstrated that the most plausible unit of measuring distances is kilometers and miles which has been considered by experts after receiving objections. As far as the question of election to the President and the Vice President, as is stipulated in the advertisement itself, what the candidate was expected to know is the basic feature of the constitution and discern the difference between the election of the President and the Vice President. For all other questions too, if an exercise as contemplated by the petitioners is to be undertaken, the Court would fall into an exercise of undertaking an inferential process of reasoning, which it cannot.
45. For the aforesaid reasons all the petitions are dismissed."
17. Therefore, in view of the opinion of the expert committee, the contention of the petitioner that the final answer key published by the GPSC is patently and demonstrably incorrect is not acceptable.
17.1. In the decision relied upon by the petitioners, in the case of Rajeshkumar and Ors V/s State of Bihar reported in 2013 4 SCC 690, it is observed that there are however exception to this Rule and in exceptional circumstances the Court has interfered to grant relief to the meritorious candidates, whose Page 17 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023 C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023 merit has been ignored due to improper setting of papers of incorrect answer declared in the answer key. In the present case, it cannot be stated that the answer key published by the GPSC is patently and demonstrably incorrect. Further in the decision relied upon of this Court in Special Civil Application No. 14870 of 2015 and allied matters, the Court has interfered and directed the respondents to look into the answer key given by writ applicants with the further direction to rectify the mistakes at the earliest. The above directions were with the finding that the answers published in the final answer key were demonstrably incorrect, which is not the case here.
18. Applying the same principle, if the contentions of the petitioners are to be accepted, it would amount to undertaking an inferential process or reasoning. From the material taken into consideration by the expert committee of respondent No. 2, it is evident that they have published the final answer key supported by material on the subject. Assuming that two views are possible, then also the view taken by the expert body is required to be considered. Therefore, taking into consideration the facts involved in the present petition and the decisions referred herein above, this Court deems it appropriate not to entertain the petition and therefore the same is dismissed.
Page 18 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023C/SCA/7813/2023 JUDGMENT DATED: 16/06/2023
19. Notice is discharged. Interim relief, if any, shall stand vacated. sd\-
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 19 of 19 Downloaded on : Tue Jun 20 20:36:48 IST 2023