Gujarat High Court
Freeda Ramesh Taral vs State Of Gujarat on 14 March, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8551 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FREEDA RAMESH TARAL
Versus
STATE OF GUJARAT
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Appearance:
MS MEGHA JANI(1028) with MR SANJAY UDHWANI, ADVOCATE for the
Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,3
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 2
MR RASHESH RINDANI, ADVOCATE with MR. JAVED S QURESHI(6999) for the
Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 14/03/2022
ORAL JUDGMENT
1. Heard learned Advocate Ms. Megha Jani with learned Advocate Mr. Sanjay Udhwani for the petitioner, learned AGP Ms. Dharitri Pancholi for the respondent Nos. 1 and 3, learned Advocate Mr. Shivang Shukla for the respondent No.2 and learned Advocate Mr. Rashesh Rindani with learned Advocate Mr. Javed Qureshi for the respondent No.4.
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2. Rule returnable forthwith. Learned Advocates waive service of Rule for the respective respondents.
3. With consent of learned Advocates for the parties, the present petition is taken up for final hearing.
4. By way of this petition, the petitioner has sought for quashing and setting aside of Corrigendum dated 23.01.2020 to the final result for Advertisement No.40/2018-19 for recruitment to the posts of Gujarat Administrative Service, Class-I, Gujarat Civil Services Class-I and Class-II, and Gujarat Municipal Chief Officer, Class-II, issued by the respondent No.2- Gujarat Public Service Commission to the extent that such modified result declares the petitioner unsuccessful with reference to revised cut off for Schdeduled Tribes (female) category. The said prayer is sought for in context of the facts mentioned in the petition which are stated briefly hereinafter.
5. The respondent No.2 - Gujarat Public Service Commission (for short "GPSC") had published the Advertisement No.40/2018-2019 for recruitment to the posts of Gujarat Administrative Service, Class-I, Gujarat Civil Services Class-I and Class-II, and Gujarat Municipal Chief Officer, Class-II (hereinafter to be referred as "the advertisement'). The advertisement listed total of 294 vacancies and whereas 48 vacancies were reserved for Scheduled Tribes candidates, of which in horizontal reservation, 14 vacancies were to be filled in by female candidates of the Scheduled Tribes category. The petitioner as well as the private respondent No.4 herein both are belong to Scheduled Tribes (female) category. The scheme of the selection envisaged two examinations i.e. preliminary examination and main examination, the main examination consisted of two successive stages i.e. written examination and oral interview. The petitioner Page 2 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 and respondent No.4 both being desirous of competing for selection had applied and whereas preliminary examination was conducted on 21.10.2018 and the result for the preliminary examination was declared on 10.12.2018, both the petitioner as well as respondent No.4 have cleared the preliminary examination. Thereafter, the GPSC had conducted the main examination and whereas initially the main (written) examination was conducted in February-March, 2019 and whereas result thereof was declared on 27.05.2019, whereby a list of candidates for oral interview had been published. The GPSC had conducted interview in the month of June-2019 and whereas the GPSC had published the final result on 04.07.2019 in which the petitioner had been shown in the select list at Serial No.293, the said select list consisting of 293 candidates. It appears that certain modifications were made by the GPSC to the result by issuing a Corrigendum within two days from declaration of the result vide Corrigendum dated 06.07.2019.
5.1 It is the case of the petitioner that after her name figured in the select list, respondent No.3 issued a letter dated 04.09.2019 to the candidates including the petitioner who were recommended for the post of Government Labour Officer (Class-II) by the respondent No.1 calling such candidates for document verification. The petitioner who at the relevant point of time was working as a Anganvadi Supervisor, Class-III at Padara, District Vadodara, upon receiving the communication dated 04.09.2019, had submitted resignation to the District Development Officer, who vide communication dated 13.09.2019 had accepted the same, more particularly taking into consideration the communication dated 04.09.2019 by the respondent No.3. It is the case of the petitioner that respondent No.3 had issued order of appointment to 20 candidates of the 28 called for document verification. It would be pertinent to mention that in the list of 28 candidates called for documents verification, the petitioner figured at Serial Page 3 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 No.28 and whereas candidate who had figured at Serial No.27 had been issued order of appointment. Insofar as the petitioner was concerned, it was mentioned that the case of the petitioner for appointment is kept in abeyance. It is the case of the petitioner that in the interregnum the respondent No.2 had issued the final Corrigendum dated 23.01.2020, whereby the petitioner had been declared unsuccessful and whereas vide communication dated 29.02.2020 the respondent No.2 had informed the petitioner of the petitioner being declared as unsuccessful candidate and the respondent No.2 - GPSC withdrawing its letter for recommendation to appoint the present petitioner. The petitioner having submitted representation against her candidature being declared unsuccessful and also requesting the respondent No.2 to permit the petitioner in peculiar circumstances to appear in preliminary examination for later advertisements for filling up of the post of Police Inspector (Un-armed) and having not received any positive response in that regard, has approached this Court.
5.2 To complete the narration of the facts, it appears that while the advertisement inter alia mentions that candidates would be entitled and also to seek for re-checking of marks within a stipulated time period, the advertisement also clarifies that re-evaluation would not be done under any circumstances. It further appears that along with the select list, the GPSC had also published a list of unsuccessful candidates and whereas the result sheet indicated that the candidate concerned would be entitled to seek for mark-sheet within 15 days of the result after payment of necessary fees. The last date for application was mentioned as 18.07.2019. The candidates were also permitted to apply for re-checking within 30 days from the date of result upon payment of necessary fees and whereas the last date for applying for re-checking was mentioned as 02.08.2019. The candidates were also entitled to seek for copy of answer book by making online application and paying fees through post office or by making an appropriate application at Page 4 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 the office of the GPSC and whereas the period for making such application was prescribed as between 25.07.2019 to 31.08.2019.
5.3 The respondent No.4 had made an application for receiving copy of answer book on 28.08.2019 i.e. prior to the last date prescribed i.e. 31.08.2019. The answer sheet had been supplied to the respondent No.4 on 05.10.2019 and whereas on 18.10.2019 the respondent No.4 had submitted a representation regarding certain answers not being assessed. According to the respondent No.2-GPSC, since upon scrutiny, it was found that questions answered by the respondent No.4 had not been assessed due to technical error, therefore by 'adopting procedure which was in consonance with the principles of natural justice, and correcting technical error by evaluation', the unassessed questions had been evaluated which resulted in addition of 04 marks to the aggregate of the respondent No.4 which had shifted her position from an unsuccessful candidate to a successful candidate. It is this assessment which has resulted the petitioner being declared unsuccessful after a period of 06 months after the original result had declared the petitioner successful.
6. All the learned Advocates for the respective parties had made various submissions; the principal submissions being noted hereinbelow.
6.1 Learned Advocate Ms. Megha Jani for the petitioner would submit that it is evident from the record that the respondent No.2 had, inspite of there being a specific bar, re-evaluated the answer-sheet of respondent No.4, which according to the learned Advocate, was reassessment which being de-hors the Rules, the consequence thereof, according to learned Advocate Mr. Jani, deserves to be set aside and the position prevailing prior thereto should be brought into existence.
6.2 On the other hand, learned Advocate Mr. Shivang Shukla for the Page 5 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022
respondent No.2-GPSC would contend that the GPSC did not re-evaluate the mark-sheet of respondent No.4, rather since an error had come to the notice of the GPSC, had rectified the said error and such rectification could not be termed as a re-evaluation. Learned Advocate Mr. Shukla, therefore would submit that this Court may not interfere in the present petition.
6.3 As against the same, learned Advocate Mr. Rashesh Rindani for the respondent No.4 would submit that what has been done by the GPSC, could not, by any stretch of imagination be termed as a re-evaluation. Learned Advocate would submit that the respondent No.4 upon applying for answer sheet well within the prescribed time limit and upon receiving the same, it had come to the notice of the respondent No.4 that certain questions were not assessed and a representation was submitted to the respondent No.2 in that regard and the respondent No.2 finding merit in the request made by the respondent No.4 had given marks to unassessed questions. Learned Advocate would submit that such granting of marks to unassessed question could never be termed as reassessment and hence no fault could be found with the action of the respondent No.2-GPSC.
6.4 At this stage, the Court faced with competing claims of the petitioner and the respondent No.4, more particularly since the Court was of the prima facie opinion that there appears to be merit in contentions of both the petitioner and the respondent No.4, had called upon the learned Advocates to suggest a via media whereby the competing claims of both the parties could be accommodated. Such a suggestion though agreed to by the learned Advocates for the petitioner and the respondent No.4, had been vehemently opposed by the learned AGP Ms. Dharitri Pancholi. Learned AGP would submit that since competing claims have been made by the petitioner and respondent No.4, this Court may decide the legality and validity of such claims. Learned AGP Ms. Pancholi would further submit that none of the Page 6 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 parties i.e. petitioner as well as respondent No.4 have acquired any indefeasible right for appointment. Learned AGP would submit that the petitioner as well as respondent No.4, have their names figured in the select list, before the revised result published on 23.01.2020, it was the petitioner's name which was in the select list and after the revised result, name of the respondent No.4 figured in the select list. Learned AGP Ms. Pancholi would submit that law on this issue is well settled inasmuch as successful candidates have got no right of appointment merely because their names figured in the select list. Learned AGP would rely upon the decisions of the Hon'ble Apex Court in case of Commissioner of Police and Another Vs. Umesh Kumar, reported in 2020 (10) SCC 448; State of Haryana Vs. Subash Chander Marwaha and others reported in 1974 (3) SCC 220; Shankarsan Dash vs Union Of India, reported in (1991) 3 SCC 47; All India ST and SC Employees Association Vs. A. Arthur Jeen, reported in 2001(6) SCC 380 and Punjab State Electricity Board Vs. Malkiat Singh, reported in 2005(9) SCC 22.
7. Heard learned Advocates for the respective parties and perused the record.
8. At the outset, this Court deems it appropriate to record the competing claims of the parties and the prima facie assessment of the Court thereupon.
9. The learned Advocate for the petitioner has inter alia contended that the respondent No.2 having considered the representation of the respondent No.4 and granted marks to unassessed questions was doing nothing else but reassessment/re-evaluation of the answer sheet which according to learned Advocate, was not permissible as per the Rules. Learned Advocate would further submit that assuming without admitting Page 7 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 that, grant of additional marks would not fall into category of reassessment, then also the respondent No.2 ought to have taken appropriate steps diligently and expeditiously. Learned Advocate would also submit that while the application according to the respondent No.2, was made by the respondent No.4 for being provided the answer sheet on 28.08.2019, the answer sheet had been provided on 05.10.2019. That the respondent No.4 had submitted her representation on 18.10.2019 and whereas the respondent No.2 published the final Corrigendum to the result on 23.01.2020. Learned Advocate Ms. Jani would submit that such a delay at the hands of the respondent No.2 was unfathomable and incondonable, more particularly since by the time the Corrigendum to the result had been issued, the petitioner had already resigned from service. Learned Advocate would also submit that the petitioner having received intimation for document verification had legitimately expected issuance of actual order of appointment had changed her position to her detriment by resigning from a service which she was already holding. Learned Advocate would further submit that no fault could be attributed to the present petitioner for whatever has happened. The petitioner having changed her position based on legitimate expectation cannot be made to suffer on account of the same. Learned Advocate would therefore submit that on overall consideration, the corrigendum impugned in the present petition deserves to be quashed and set aside and the present petitioner's position as a successful candidate deserves to be restored.
10. On the other hand learned Advocate Mr. Rindani for the respondent No.4 has submitted that whatever has been done by the GPSC could not be termed as a re-evaluation. Learned Advocate would submit that apparently the answer sheet had been applied for by the respondent No.4 within the stipulated time and upon receipt of the answer sheet the respondent No.4 had realized that answers have not been assessed, the same has been Page 8 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 brought to the notice of the GPSC by submitting a representation. The GPSC scrutinized the answer sheet and had agreed with the grievance raised by the respondent No.4 and assessed the unassessed questions. Learned Advocate Mr. Rindani would submit that such an assessment could not be termed as a re-evaluation because re-evaluation envisages a fresh evaluation of something which has already been evaluated hereinbefore. Learned Advocate Mr. Rindani would further submit that if the same were not to be accepted, then the respondent No.4 inspite of having put in efforts to secure enough marks to figure in the select list for no fault of her would not get a chance to be considered for selection. Learned Advocate has emphasised that the error of not evaluating as has been explained by the GPSC in its affidavit, could not be attributed to the respondent No.4. Learned Advocate would further submit that the respondent No.4 after evaluation of unassessed questions having secured more marks than the petitioner, no fault could be found with the action of the GPSC.
11. Having regard to the submissions made by learned Advocates for the petitioner and the respondent No.4 an indisputable conclusion coming-forth is that both the respondent No.4 initially and later the petitioner have been placed in unenviable position not on account of any fault or mistake on their part.
That for approximately around 06 months the petitioner had found her name figuring in the select list and whereas the petitioner had also been called for document verification which as per the communication for document verification itself was a precursor to the order for appointment. It is also evident that but for the intervening circumstance whereby the petitioner had been declared unsuccessful in the examination, the petitioner would have been issued order of appointment, since the candidate in the list of 28 candidates who were called for document verification just above the Page 9 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 petitioner, being issued an order of appointment and whereas the petitioner was the last person in the said list. It is also indisputable that it is only after receiving the communication with regard to document verification dated 04.09.2019 which informed the total of 28 successful candidates including the petitioner to appear for document verification and which communication also clearly mentions that the name of the petitioner had been recommended for appointment by the General Administrative Department, that the petitioner had submitted her resignation from her job in which she was working. Thus, as far as the petitioner was concerned, it was not a case of the petitioner that name of the petitioner was merely appearing in the select list, rather there were steps taken further thereto, based upon which further steps, more particularly since such further steps held out a clear statement with regard to impending appointment that the petitioner legitimately expecting appointment to the selected post had changed her position by resigning from the permanent job which the petitioner was occupying as a Anganwadi Supervisor, which later turned to her detriment.
On the other hand insofar as the respondent No.4 was concerned, it clearly appears that but for the error committed by the respondent No.2 - GPSC, the respondent No.4 would have found her name figuring in the select list and would have got all consequential benefits arising from such placement in the select list, as conferred upon other candidates whose names were found in the select list. It is also revealed that the respondent No.4 had a better claim for being declared successful since admittedly the respondent No.4 as per the Corrigendum whereby revised/final result had been published had obtained more marks in the selection process as compared to the petitioner.
It thus appears that both the petitioner as well as the respondent Page 10 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 No.4, had legitimate claim for appointment having regard to the circumstances referred to hereinabove.
12. Now coming to the submissions made by learned AGP Ms. Pancholi with regard to view expressed by the Court as regards providing appointment to both the petitioner and the respondent No.4, learned AGP Ms. Pancholi has at the first instance pitched her case relying upon the well settled proposition of law that mere inclusion of a candidate in the select list would not confer indefeasible right upon a candidate to claim for appointment. Learned AGP has relied upon the decision of the Constitutional Bench of Hon'ble Apex Court in case of Shankarsan Dash (supra), which decision has been relied upon in later decisions of the Hon'ble Apex Court. Having regard to the same, the observations of the Hon'ble Apex Court in the said decision are reproduced hereinbelow for benefit.
"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 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. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.Page 11 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022
C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022
8. In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate.
Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to Page 12 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant."
13. Having regard to the observations of the Hon'ble Apex Court and before dealing with the same, it would be apposite to note that the present case is not one where either of the candidates i.e. the petitioner or the respondent No.4 is seeking appointment merely on the basis of inclusion of their names in the select list. As observed hereinabove in case of the petitioner, after the name of the petitioner figured in the select list, further steps had been taken by the Government which included the communication for document verification which communication held a promise impending appointment subject to verification of document. It also appears that all other candidates who had shown inclination for appointment, had been issued orders of appointment. As regards the respondent No.4, admittedly though the same was revealed after a substantial period, yet the respondent No.4 had a better right to claim her placement in the select list vis-a-vis the petitioner had also a claim for conferment of all benefits flowing therefrom.
14. In view of the backdrop provided hereinabove, it can be safely concluded that both the candidates i.e. petitioner and the respondent No.4 were seeking appointment not by merely basing their claims upon their names figuring in the select list, rather there were circumstances beyond the same upon which the candidates are basing their claims. The Hon'ble Apex Court in the above referred judgment while holding that a successful Page 13 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 candidate does not acquire an indefeasible right to be appointed had also clarified the said proposition by further holding that the said proposition would not mean that the State has a right to act in arbitrary manner and a decision not to fill up vacancies has to be taken for appropriate reasons and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit. The Hon'ble Apex Court has further held that while it was open for the Government not to fill up all the vacancies for valid reason but selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates.
15. Thus, as laid down by the Hon'ble Apex Court while placement in the select list would not entitle a candidate to claim appointment as a right, but at the same time the said proposition is qualified with the requirement upon the State to act fairly and bona fidely. The State could not restrict appointment to a few of selected candidates and whereas while appointing, the State was bound to respect the comparative merit of the candidates and furthermore if the State wanted to restrict appointment notwithstanding the number of vacancies and availability of qualified candidates, then the State was required to take a decision which would reflect conscious application of mind with appropriate bona fide reasons.
16. In the instant case the said situation has not arisen at all. The State being inclined to issue appointment orders to all selected candidates is reflected in communication dated 04.09.2019 whereby 28 candidates had been called for documents verification. The said list of 28 candidates consisting of the petitioner who admittedly was the last candidate in the select list. Thus, the State had not acted arbitrarily till that stage, since the State clearly wanted to appoint all persons figuring in the select list. Thus, in view of what has been noted hereinabove, while prima facie one can not Page 14 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 find fault with the contention raised on behalf of the State that a candidate merely by the fact of her name appearing in the select list can not claim for appointment, but at the same time the facts of the present case are not as simple and straightforward. Again it is not the case of either of the candidates that they were prejudiced by any act on the part of the State.
17. At this stage this Court proposes to refer to decision of the Hon'ble Apex Court in case of Umesh Kumar (supra) relied upon by the learned AGP Ms. Pancholi. According to learned AGP Ms. Pancholi, in the above referred decision, the Hon'ble Apex Court in a similar situation had taken a different view. Respondents before the Hon'ble Apex Court were two candidates who were selected and due for appointment, but pursuant to intervention by the Central Administrative Tribunal, the entire result was revised which had resulted in 123 candidates including the candidates (respondents) before the Hon'ble Apex Court being ousted. The Hon'ble Apex Court inter alia coming to a conclusion that the candidates did not have vested right for appointment had set aside decision by the Delhi High Court directing to appoint the candidates. In the considered opinion of this Court, the facts before the Hon'ble Apex Court and before this Court are not similar. That unlike in the case before the Hon'ble Apex Court, before this Court, at the time when the revised result by way of the corrigendum impugned in the present petition had not been released, the State through the General Administrative Department had already recommended to the respondent No.3-Department to give appointment to the present petitioner. That in communication dated 04.09.2019 calling the petitioner and other candidates for document verification an implied promise of grant of appointment had been held out by the respondent No.3. The petitioner relying upon such promise had changed her position by resigning from service in which the petitioner was employed. That the revised result did not result in lowering of the marks of the petitioner, rather the marks given to Page 15 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 the respondent No.4 had been increased. On the other hand, before the Hon'ble Apex Court upon revision of result, the marks of the candidates before the Hon'ble Apex Court had been revised/down graded. That the candidates before the Hon'ble Apex Court who were not the next eligible candidates as the present petitioner in the instant case, rather as many as 228/265 candidates were ranked above the two candidates who were respondents before the Hon'ble Apex Court. As against the same, from the revised merit list, it clearly appears that the petitioner is next available female candidate in the Scheduled Tribes category, more particularly in view of the fact as mentioned hereinabove that the revised result did not lead to lowering of marks of the petitioner. Under such circumstances, in the considered opinion of this Court, the facts of the case before the Hon'ble Apex Court and the facts of the present case being totally different, the findings of the Hon'ble Apex Court in the said case would not be applicable in the instant case.
18. Since this Court has not countenanced the submission made on behalf of the State that both the candidates cannot be appointed, rather only one of the candidates deserve to be appointed and furthermore this Court has also come to a conclusion that both the petitioner and the respondent No.4 at different point of time had acquired a right of claim for appointment, therefore at this stage the question would be whether it would be competent for this Court to issue a mandamus to the State directing the State to give appointment to both the petitioner and the respondent No.4.
19. With regard to the above, it would be apposite to state that by now it is well settled position of law that a High Court while exercising jurisdiction under Article 226 of the Constitution of India, is along with being a Court of Law, is also a Court of Equity. This Court is empowered to pass such orders that would advance the course of justice and would do complete and Page 16 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 substantial justice to all parties concerned.
It is also well settled that this Court while exercising jurisdiction under Article 226 is empowered to mould the relief considering the facts of the case in question and appropriate relief which may be beyond the scope of the prayers sought for can also be granted by this Court.
20. At this stage, this Court deems it appropriate to refer to the decision of the Hon'ble Apex Court in case of Ramesh Chandra Sankla and others Vs. Vikram Cement and others , reported in (2008) 14 SCC 58. Para 98 of the said decision is quoted hereinbelow for benefit.
"98. From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana, (1980) 1 SCR 1170, Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience."
21. This Court further seeks to refer to and rely upon the decision of the Hon'ble Apex Court in case of Ritesh Tivari Vs. State of Uttar Pradesh, reported in (2010) 10 SCC 677. Para 20 of the said decision is quoted hereinbelow for benefit.
"20. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued Page 17 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Champalal Binani Vs. The Commissioner of Income Tax, West Bengal & Ors., AIR 1970 SC 645; Chimajirao Kanhojirao Shrike & Anr. v. Oriental Fire and General Insurance Co. Ltd., AIR 2000 SC 2532; LIC of India v. Smt. Asha Goel & Anr., AIR 2001 SC 549; The State Financial Corporation & Anr. v. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834; Chandra Singh v. State of Rajasthan & Anr., AIR 2003 SC 2889; and Punjab Roadways, Moga through its General Manager v. Punja Sahib Bus and Transport Co. & Ors, (2010) 5 SCC 235)."
22. Relying upon the aforequoted decisions of the Hon'ble Apex Court, in the considered opinion of this Court, this is a fit case where a writ directing the State to issue orders of appointment to both the petitioner and the respondent No.4 is required to be passed. Such a writ is to be issued to ensure that a substantial injustice which could be caused is not occasioned. Such an order, in the considered opinion of this Court, is necessary and required to be passed in exercise of the equitable jurisdiction available to this Court so as to ensure that a balance is brought about to the competing interest and equities.
23. In coming to the above conclusion, this Court has considered the following aspects namely :
Page 18 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022
(1) The fact that none of the parties could be faulted with for the
turn of events.
(2) The petitioner finding her name figuring in the select list and
also being held out an implied promise of appointment, more particularly relying upon the recommendation of the General Administrative Department of the State Government to recommend the case of the petitioner for appointment. Based upon such an implied promise the petitioner having resigned from service where she was permanently employed.
(3) The petitioner loosing out a chance to appear in later selections conducted by the respondent No. 2 - GPSC on account of being under a reasonable impression of being selected.
(4) All candidates of the selection except the petitioner and the respondent No.4 having been given appropriate appointment.
(5) This is relying upon the fact that the petitioner was the last candidate of the select list at Serial No. 293 and whereas candidate at Serial No. 292 also having been appointed.
(6) Insofar as the respondent No.4 is concerned, since upon revision of result the respondent No.4 having acquired more marks than the petitioner, the respondent No.4 being entitled to all benefits arising from placement in the select list replacing the petitioner herein.
24. This Court has also considered the fact that both the petitioner as well as the respondent No.4 have made competing claims. Both claims being equally valid, upholding the claim of one party would result in injustice being meted out to the other. Consideration of fair play and equity demand that a balance has to be found between the competing claims so as Page 19 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 to prevent a miscarriage of justice which might occur in case claim of one of the candidates is uphold and the other rejected.
25. At this stage, this Court also deems it appropriate to refer to the observations of the Hon'ble Apex Court in case of Rajesh Kumar and others Vs. State of Bihar and others, reported in (2013) 4 SCC 690, more particularly Paragraphs 18 and 19 thereof which are reproduced hereinbelow for benefit.
"18. That brings us to the submission by Mr. Rao that while re- evaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners-respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the 'cut off' mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re- evaluation can determine the inter-se position of the writ petitioners and the appellants in these appeals, the result of Page 20 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 such re-evaluation may not lead to their ouster from service, if they fell below the cut off line.
19. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re- evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list."
26. This Court also seeks to rely upon the decision of the Hon'ble Apex Court in case of Vikas Pratap Singh and others Vs. State of Chhattisgarh and others, reported in (2013) 14 SCC 494. Paragraphs 21 to 28 of the said decision being relevant, the same are reproduced hereinbelow for benefit.
"21. In Girjesh Shrivastava and Ors. v. State of M.P. and Ors., (2010) 10 SCC 707, the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years' long non-formal teaching experiences as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted.
This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a number of candidates and observed as follows:
Page 21 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 "28. ...Most of them were earlier teaching in Non-
formal education centers, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25 per cent. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of High Court's order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the Non-formal education centers, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court." Therefore, mindful of the aforesaid circumstances this Court directed non-ouster of the candidates appointed under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra Singh, (2008) 2 SCC 750 this Court considered the age of the employee who was erroneously promoted and the duration of his service on the promoted post and the factor of retiring from service on attaining the age of superannuation and observed as follows:
"31. The last prayer on behalf of respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so, that only few days have remained. He will be reaching at the age of superannuation by the end of this month i.e. December 31, 2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. upto December 31, 2007. At the same time, we hold that since the Page 22 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 action of the Authorities was in accordance with Statutory Rules, an order passed by the Deputy Accountant-General canceling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all throughout.
32. For the foregoing reasons, the appeal is partly allowed. Though the respondent is allowed to continue on the post of Senior Accountant (Functional) till he reaches the age of retirement i.e. December 31, 2007 and salary paid to him in that capacity will not be recovered, his retiral benefits will be fixed not as Senior Accountant (Functional) but as Accountant. In the facts and circumstances of case, there shall be no order as to costs."
23. This Court in Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors., 1994 Supp (2) SCC 591 although recorded a finding that appointments given under the `wait list' were not in accordance with law but refused to set aside such appointments in view of length of service (five years and more).
24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2 SCR 18, even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed:
"We have extended equitable considerations to such selected candidates who have worked on the posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768) Page 23 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022
25. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.
26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent- State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.
27. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.
28. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment."
27. This Court finds that in the above referred decisions, the Hon'ble Apex Court, had balanced competing interest, more particularly on account of the peculiar circumstances in each case and also the most relevant consideration that in none of the case proposed ouster of any candidate was on the basis of any fault on the part of the candidate. In the above referred cases, the Hon'ble Supreme Court had permitted continuance of appointment given to candidates who had subsequently been declared ineligible for appointment. As noted hereinabove, the foremost Page 24 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 consideration which weighed with the Hon'ble Apex Court was the fact that the candidate concerned had not committed any deception and the appointment or subsequent ineligibility could not in any manner be attributable to the candidate. This Court having elaborately noted hereinabove the peculiar circumstances of the present case and also having noted hereinabove the fact of neither of the candidates being responsible for the present position which if not remedied would ultimately adversely effect the career prospects of either candidate who might not be directed to be appointed.
28. Having regard to the discussion, reasoning and finding as hereinabove, in the peculiar facts of the case, the following directions are passed :
(A) The respondent No.1 and the respondent No.3 shall ensure appropriate orders of appointment being passed in favour of the present petitioner as well as respondent No.4 to the post of Government Labour Officer (Class -II) in furtherance of the Advertisement No. 40/2018-19 as well as the result of the said exam declared on 04.07.2019, revised vide Corrigendum dated 23.01.2020.
(B) It is clarified that in case vacancies on the said posts are not available with the respondent No.3, then the respondent No.1 shall accommodate the petitioner or the respondent No.4, as the case may be, on any other equivalent post advertised vide Advertisement No. 40/2018-19 and not yet filled in.
(C) The petitioner and the respondent No.4 shall be entitled to seniority and other benefits including benefit of increment in salary etc. at par with candidate at Serial No.292 of the select list dated Page 25 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022 C/SCA/8551/2020 JUDGMENT DATED: 14/03/2022 04.07.2019, who had been appointed as Government Labour Officer (Class-II) vide order dated 18.02.2020.
(D) It is clarified that while the petitioner and the respondent No.4 shall be entitled to draw salary at the same rate as drawn by the candidate at Serial No.292 as referred to hereinabove, but no arrears shall be paid to the petitioner and the respondent No.4 and whereas the arrears shall be treated as notional.
(E) The respondent Nos. 1 to 3 shall ensure compliance of the above directions within a period of eight weeks from the date of receipt of this order.
29. Rule is made absolute in terms of the aforesaid directions. The present petition stands disposed of accordingly.
(NIKHIL S. KARIEL,J) BDSONGARA Page 26 of 26 Downloaded on : Wed Mar 16 23:50:56 IST 2022