Gujarat High Court
Gujarat State Road Transport ... vs Sisodiya Balbhadrasinh Dineshsinh & 23 on 13 October, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1748/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1748 of 2017
In SPECIAL CIVIL APPLICATION NO. 15824 of 2017
With
CIVIL APPLICATION NO. 13293 of 2017
In
LETTERS PATENT APPEAL NO. 1748 of 2017
With
LETTERS PATENT APPEAL NO. 1749 of 2017
In
SPECIAL CIVIL APPLICATION NO. 16230 of 2017
TO
LETTERS PATENT APPEAL NO. 1751 of 2017
In
SPECIAL CIVIL APPLICATION NO. 15837 of 2017
With
CIVIL APPLICATION NO. 13294 of 2017
In
LETTERS PATENT APPEAL NO. 1749 of 2017
TO
CIVIL APPLICATION NO. 13296 of 2017
In
LETTERS PATENT APPEAL NO. 1751 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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C/LPA/1748/2017 JUDGMENT
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GUJARAT STATE ROAD TRANSPORT CORPORATION....Appellant(s)
Versus
SISODIYA BALBHADRASINH DINESHSINH & 23....Respondent(s)
==========================================================
Appearance:
LPA NO.1748/2017 WITH CA 13293/2017
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH,
ADVOCATE for the Appellant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR DM DEVNANI,
AGP for the Respondent(s) No. 1
MR KRUNAL D PANDYA, ADVOCATE for the Respondent(s) No. 2
-24
LPA NO.1749/2017 WITH CA 13294/2017
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH,
ADVOCATE for the Appellant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR DM DEVNANI,
AGP for the Respondent(s) No. 1
MS MAMTA VYAS, ADVOCATE for the Respondent(s) No. 3 -5
LPA NO.1750/2017 WITH CA 13295/2017
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH,
ADVOCATE for the Appellant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR DM DEVNANI,
AGP for the Respondent(s) No. 1
MR KRUNAL D PANDYA, ADVOCATE for the Respondent(s) No. 2
-6
LPA NO.1751/2017 WITH CA 13296/2017
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH,
ADVOCATE for the Appellant(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR DM DEVNANI,
AGP for the Respondent(s) No. 1
MS MAMTA VYAS, ADVOCATE for the Respondent(s) No. 3 -5
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 13/10/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Rule returnable forthwith. Learned Advocate General waives service of notice of Rule for the respondent No.1 - State, learned advocate Ms. Mamta Vyas appearing for the respondent No. 3 to Page 2 of 26 HC-NIC Page 2 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT 5 in Letters Patent Appeal Nos. 1749 of 2017 and 1751 of 2017 waives service of notice of Rule and learned advocate Mr. Krunal Pandya appearing for the respondent Nos. 2 to 24 in Letters Patent Appeal No.1748 of 2017 and for respondent Nos. 2 to 6 in Letters Patent Appeal No.1750 of 2017 waives service of notice of Rule.
2. All these appeals are filed by the appellant
- original respondent No.2 under Clause 15 of the Letters Patent against common order dated 26.09.2017 passed by the learned Single Judge in Special Civil Application No.15824 of 2017 and allied matters, whereby the learned Single Judge has admitted the petitions and granted interim relief in favour of the original petitioners and thereby the proceedings for appointment of conductors in Gujarat State Road Transport Corporation (GSRTC) has been stayed. The GSRTC is restrained from issuing appointment orders pursuant to the examination held on 05.08.2017 and 06.08.2017.
3. The question involved in all these appeals is similar and as the learned Single Judge has passed common order in the captioned petitions, all these appeals are heard together and being disposed of by this common judgment at the admission stage with the consent of learned Page 3 of 26 HC-NIC Page 3 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT advocates appearing for the parties.
4. Brief facts as recorded in Special Civil Application No.15824 of 2017 are as under:
4.1. It is the case of the original petitioners that the advertisement was given by the respondent No.2 - GSRTC for filling up 1503 post of conductors in GSRTC. Online applications were invited during the period between 04.02.2017 to 05.03.2017. As per the said advertisement, the competitive examination of 100 marks by OMR system was to be conducted. It is stated that total 22600 candidates were called for the examination on the basis of their merit marks. The competitive examinations were held on
05.08.2017 and 06.08.2017 in three different slots. It is stated that when the examination was conducted by GSRTC and when the results were published, large number of illegalities and irregularities were noticed by the petitioners. Some of such irregularities are pointed out by the petitioners in the memo of the petition.
4.2. It is alleged that when the GSRTC has committed various illegalities and irregularities in conducting the examination as well as in declaring the results, the petitioners have approached before this Court by way of filing different petitions and in one of the petitions Page 4 of 26 HC-NIC Page 4 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT being Special Civil Application No.15824 of 2017, the petitioners have prayed for the following relief/s:
"(A) To admit this petition.
(B) To allow this petition by issuing a writ of mandamus or any other appropriate writ, order or direction directing the respondent No.1 - GSRTC to quashed and set aside merit list wide dated 22.08.2017 at annexure-C and prepare the fresh merit list after considering the names of the petitioners.
(C) Pending admission, final hearing and disposal of this petition, to stay the further proceeding of document verification and till the final outcome the petition not to appoint candidates whose names are forwarded for documents verification by the respondent No.1 (D) To award the cost of this petition.
(E) To grant such other and further relief/s which may deem fit to the Hon'ble Court in the interest of justice."
4.3. The learned Single Judge by an impugned common order admitted the petitions and granted interim relief in favour of the petitioners and thereby further proceeding of appointment of conductors by GSRTC is stayed and GSRTC is restrained from issuing appointment orders pursuant to the examinations held on 05.08.2017 and 06.08.2017. Being aggrieved and dissatisfied Page 5 of 26 HC-NIC Page 5 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT with the interim relief granted by the learned Single Judge in favour of the original petitioners, the original respondent No.2 - GSRTC has preferred the present appeals.
5. Heard learned Senior Advocate Mr. Shalin Mehta assisted by learned advocate Mr. Hemang Shah for the appellant - original respondent No.2, learned advocate Ms. Mamta Vyas appearing for the respondent No. 3 to 5 in Letters Patent Appeal Nos. 1749 of 2017 and 1751 of 2017, learned advocate Mr. Krunal Pandya appearing for the respondent Nos. 2 to 24 in Letters Patent Appeal No.1748 of 2017 and for respondent Nos. 2 to 6 in Letters Patent Appeal No.1750 of 2017 and learned Advocate General Mr. Kamal Trivedi assisted by learned AGP Mr. DM Devnani for respondent No.1 - State.
6. Learned Senior Counsel Mr. Shalin Mehta at the outset submitted that on 04.02.2017, GSRTC issued an advertisement for filling up 1503 posts of conductor, out of which 138 posts are reserved for ex-serviceman. In pursuant to the said advertisement, GSRTC received various applications, out of which 22600 were called for competitive examinations. On 24.07.2017, notification was issued by GSRTC informing the candidates that OMR examinations will be Page 6 of 26 HC-NIC Page 6 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT conducted on 05.08.2017 and 06.08.2017 in three different slots. Accordingly, on 03.08.2017, notice was also issued informing the candidates that OMR examinations will be conducted on the aforesaid two dates in three different sessions for which question papers would be prepared from a Common Question Bank on the basis of random selection. It is further pointed out that on 05.08.2017 and 06.08.2017, OMR examinations were held and OMR sheets were uploaded on the website on 06.08.2017 during night hours so that every candidate could see the OMR sheet. Thereafter, on 17.08.2017, result of OMR examination was declared. At this stage, it is further submitted that GSRTC has received five applications in reference to the result declared on 17.08.2017 and therefore it was immediately forwarded to the examination agency. The examination agency was requested to carry out the re-checking of the entire result of each and every candidate who appeared in such examination. The said agency carried out the re-checking process and revised the result which was submitted on 21.08.2017. On 21.08.2017, when revised document verification and result list was submitted by the agency, around 9:00 p.m., two files were uploaded out of which one file contains the result and other contains the names of candidates called for document verification. However, it was found in Page 7 of 26 HC-NIC Page 7 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT the document verification list that there was some mistake and therefore names of failed/absent candidates, who had found place in document verification list, were removed. Thus, no candidate who had been declared as failed or who was absent and whose name was shown in the list declared on 21.08.2017, had been called for document verification. Thereafter, from 29.08.2017 to 04.09.2017, document verification was to be conducted. However, the same was not carried out because of filing of the petitions before the learned Single Judge.
7. In the aforesaid background, learned Senior Advocate Mr. Mehta assailed the impugned order passed by the learned Single Judge mainly on the ground that learned Single Judge has not properly considered the fact that notification dated 24.07.2017 was issued by GSRTC to the effect that OMR examinations will be conducted on 05.08.2017 and 06.08.2017 in three different slots, in spite of that the petitioners did not take any objection and they have participated in the said examination and after participating in the examination process which was held in three different slots and after having failed in the said examination, they have challenged the said examination which is not permissible. In support of the said contention, learned Senior Advocate Page 8 of 26 HC-NIC Page 8 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of D. Sarojakumari v. R. Helen Thilakom & Ors., reported in 2017 (11) Scale 366, wherein the Hon'ble Supreme Court has held 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 election. It is therefore contended that only on this ground, the learned Single Judge ought to have dismissed the petitions.
8. Learned Senior Advocate Mr. Mehta thereafter submitted that the petitioners have filed the captioned petitions alleging certain illegalities/irregularities committed by the GSRTC while declaring the result of the aforesaid examinations. In fact, the GSRTC has not committed any illegality/irregularity as alleged by the petitioners. In fact, the learned Single Judge has failed to appreciate the fact that the candidates who are having applications No. 13500, 24697, 25881, 38208, 38852, 58285, 82129 and 94470 had been declared failed when the result was declared on 17.08.2017. However, when some applications were received by GSRTC in reference to re-checking, the entire task was handed over to the concerned agency for re-verification on 21.08.2017. The said agency revised the result as Page 9 of 26 HC-NIC Page 9 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT well as the document verification list which was uploaded on the website. When the bona fide mistakes have come to the notice of GSRTC, GSRTC itself has rectified the said bona fide mistakes committed in document verification list. Thus, it cannot be said to be an illegality or irregularity.
9. Learned Senior Advocate Mr. Mehta would thereafter contend that with reference to publication/printing of the name as well as roll number of the candidate on the OMR sheet is concerned, learned Single Judge has come to the conclusion that the defence raised by the GSRTC is not tenable because the printing of name is capable of giving rise to manipulation. However, the learned Single Judge has failed to consider the fact that nothing was shown by the petitioners that because of printing of name and roll number on OMR sheet any malpractice is committed during the selection process. At this stage, it is submitted that immediately upon completion of the written examinations; the OMR sheets had been scanned and uploaded on the internet where the candidates could see the same. Thus, there is no scope of manipulating any marks or to favour any candidate so as to select him after having been declared as failed.
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10. Learned Senior Advocate Mr. Mehta submits
that the learned Single Judge has referred the letter dated 01.08.2017 addressed by one of the Directors of GSRTC wherein he has stated that OMR examinations shall be conducted in one slot and not in three slots as suggested. However, the GSRTC has specifically stated in the affidavit- in-reply that an opinion of one Director cannot bind the Corporation and the decision making power is that of the Board. However, the said aspect is not properly dealt with by the learned Single Judge.
11. Learned Senior Advocate Mr. Mehta thereafter would contend that the original petitioners raised the contention that the persons who had secured less marks had been called for document verification. However, GSRTC has stated in the affidavit and clarified that the persons called for document verification were in fact ex- servicemen to whom benefit of relaxation had to be granted. The said aspect is also not properly considered by the learned Single Judge, as submitted by learned Senior Advocate Mr. Mehta.
12. It is further submitted that so far as usage of blue colour ballpoint pen and black colour ballpoint pen is concerned, the GSRTC has specifically explained in the affidavit-in-reply Page 11 of 26 HC-NIC Page 11 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT that since the optical mark reading process works on the basis of contrast, obviously the darker and distinct the mark the better it will be detected. Blue and black colours are more contrast than red and green colours. The instructions do not prescribe that if blue colour ballpoint pen is used then OMR sheet would not be checked. Thus, the grievance of the petitioners with regard to usage of blue colour ballpoint pen, is also misconceived. However, the learned Single Judge has failed to consider the said aspect.
13. It is further contended that three grace marks were granted to the candidates who appeared in a particular slot as three incorrect questions were asked in the said slot. So far as two other slots are concerned, there was no mistake in the question papers. Thus, it is submitted that when there was a mistake on the part of the GSRTC, three grace marks were given to the concerned candidates of such slot and not to the others.
14. Learned Senior Advocate Mr. Mehta further submits that candidates viz. Amitkumar Kanjibhai Prajapati and Amitkumar Maheshkumar Shrimali are concerned, GSRTC has specifically stated in para 9 of the affidavit-in-reply that concerned invigilator has committed mistake in distributing Page 12 of 26 HC-NIC Page 12 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT the OMR sheets and therefore the mistake committed was rectified. Thus, it is contended by learned Senior Advocate that some bona fide mistakes committed during the course of examination process and selection process were rectified and thereby no prejudice is caused to the original petitioners. In fact, the petitioners are nowhere within the zone of consideration within the cutoff percentage as was declared on 22.08.2017 and therefore learned Single Judge has committed an error while granting interim relief in favour of the petitioners. It is therefore requested that the impugned order passed by the learned Single Judge be set aside.
15. On the other hand, learned advocate Ms. Mamta Vyas appearing for the original petitioners mainly contended that one of the Directors of GSRTC himself has recommended for examination only in one slot and therefore respondent GSRTC is not justified in conducting examination in three different slots. It is contended that for one cadre there cannot be different question papers for evaluating the merit of the candidate and it would amount to violation of Articles 14, 16 and 309 of the Constitution of India. The entire examination cannot be conducted differently for one cadre. Thus, it would not Page 13 of 26 HC-NIC Page 13 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT only cause prejudice to the candidate but also would amount to violation of constitutional right of equality. It is further submitted that one of the petitioners raised the objection with regard to conducting examinations in three different slots. The said objection was prepared on 30.07.2017. However, because of heavy rain, the said objection could not be dispatched before 04.08.2017. The objection was dispatched on 04.08.2017, which is received by GSRTC on 08.08.2017. Thus, it is not correct on the part of the GSRTC to contend that nobody has raised the objection.
16. Learned advocate Ms. Vyas further submits that GSRTC has granted three grace marks to a particular set of candidates, whereas three grace marks were not granted to other set of candidates and thereby GSRTC has discriminated the candidates and therefore the learned Single Judge has rightly granted interim relief in favour of the petitioners.
16. From the averments made in the petition, learned advocate Ms. Vyas has contended that during the course of examination and selection process large number of irregularities and illegalities are committed by the GSRTC which have been discussed by the learned Single Judge Page 14 of 26 HC-NIC Page 14 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT in the impugned order and therefore learned Single Judge is justified in granting interim relief in favour of the petitioners. It is, therefore, urged that the appeals filed by the GSRTC be dismissed.
17. Learned advocate Mr. Krunal Pandya appearing for some of the original petitioners supported the reasonings recorded by the learned Single Judge and referred the irregularities and illegalities committed by the GSRTC while conducting the examination as well as during the selection process. It is submitted that when the learned Single Judge has discussed each irregularity and illegality committed by the GSRTC in detail in the impugned judgment, no interference is required in the appeals filed by the GSRTC. He, therefore, urged that appeals be dismissed.
18. Learned Advocate General Mr. Kamal Trivedi appearing for the respondent No.1 - State submitted that number of posts of conductor are vacant and therefore selection process undertaken by the GSRTC be permitted to be proceeded further by suitably modifying the order passed by the learned Single Judge. Learned Advocate General has submitted from the documents tendered during the course of hearing that disclosure of name and Page 15 of 26 HC-NIC Page 15 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT roll number is permitted in certain examinations conducted by the Bank of Baroda as well as by other organization. It is, therefore, contended that the appellant - GSRTC be permitted to fill up the posts in question.
19. Having heard the learned counsel appearing for the parties and having gone through the material produced on record, it emerges that on 04.02.2017, GSRTC issued an advertisement for filling up 1503 posts of conductor, out of which, certain posts are reserved for ex-serviceman. Thereafter on 24.07.2017, notification came to be issued by GSRTC wherein it was specifically stated that OMR examinations will be conducted on 05.08.2017 and 06.08.2017 in three different slots. The result of OMR examination was declared on 17.08.2017. It is required to be noted that except one petitioner none of the other petitioners raised any objection with regard to conducting OMR examination in three different slots. Even one petitioner raised objection which was dispatched only on 04.08.2017 which was received by the GSRTC on 08.08.2017 i.e. after the OMR examination was over. Thus, without raising any objections, all the petitioners have participated in the OMR examinations conducted by the GSRTC through the concerned agency. It is also reflected from the record that the Page 16 of 26 HC-NIC Page 16 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT petitioners are nowhere within the zone of consideration of the cut off percentage as declared on 22.08.2017 by the GSRTC, the details of which are given by the GSRTC in the memo of appeal. Thus, when the petitioners do not come within the zone of consideration for selection, they challenged the action of the GSRTC of conducting OMR examinations in three different slots.
20. At this stage, we would like to refer to the decision rendered by the Hon'ble Supreme Court in the case of D. Sarojakumari (supra), wherein the Hon'ble Supreme Court has observed and held in para 4 and 11 as under:
"4. The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled 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.
xxx xxx xxx
11. As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct Page 17 of 26 HC-NIC Page 17 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised."
21. 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 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.
22. Petitioners have mainly pointed out the following irregularities/illegalities during the selection process and raised contentions that:-
a) 7 (seven) candidates as per the details given in para 4(C) and (D) of memo of Special Civil Page 18 of 26 HC-NIC Page 18 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT Application No.15824/2017 have been called for document verification;
b) marks of one Amitkumar Kanjibhai Prajapati and Dipikaben Ashokbhai Patel have been increased;
c) name as well as roll number are mentioned on OMR sheet;
d) three grace marks are given to a particular
set of candidates and not to all the
candidates who appeared in OMR examinations;
e) though instruction is given to use black colour ball pen, some of the candidates have used blue colour ball pen; and
f) opinion of one of the Directors is with regard to conducting the examination in only one slot and not in different slots.
23. So far as the first alleged irregularity/illegality is concerned, it is the specific case of the appellant GSRTC that said 7 candidates are ex-servicemen and therfore as per the cut off merit list (39.59%) said candidates are entitled and eligible for securing appointments subject to fulfillment of document verification. Certain posts are reserved for ex- servicemen and therefore the GSRTC has called for such candidates for document verification.
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24. So far as the case of Amitkumar Kanjibhai Prajapati and Dipikaben Ashokbhai Patel is concerned, the GSRTC has specifically stated in the affidavit-in-reply as under:
"In reference to Amitkumar Kanjibhai Prajapati (application no.125267), I state that the said candidate had to be given question of "D" series as is evident from the attendance sheet and question paper. The invigilator distributed the OMR sheet and the question paper first and thereafter while taking the signature on the attendance sheet as well as putting his/her signature on the OMR sheet and question paper, the invigilator had informed the candidate about the same and therefore requested such candidate to mark answers as per the question paper given to him/her. In the case of Amitkumar Kanjibhai Prajapati, he had been given question paper of of 'B' series. Due to the mistake committed by the invigilator, the candidate cannot be penalised. After ascertaining the same and with the availability of supporting evidence to show that there was no fault on the part of the candidate, his OMR sheet came to be assessed as the OMR sheet for "D series"
question paper instead of "B series"
question paper........
In reference to Dipika Ashok Patel, she had been allotted roll No.116174907. During the exam, another candidate -
Dipika Shamal Solanki having roll no.116174917 had committed an error while darkening the boxes. She had darkened the digit "O" instead of "1" and which resulted into duplication of roll numbers. The same was verified by the Exam agency and which confirmed that the question Page 20 of 26 HC-NIC Page 20 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT paper series had interchanged at the time of evaluation process in view of the wrong digit in the roll number being darkened. Thereafter the correct marks of the candidates were re-allocated whereby Dipika Ashok Patel was allotted 40.25 marks while Dipika Shamal Solanki was allotted 20 marks. Moreover, Dipika Shamal Solanki has not challenged the action of GSRTC wherein she had been declared as "Fail"....."
24.1 .It is also revealed from the record that similarly in approximately 21 other cases wherein such bona fide mistakes have been committed, the same were scrutinized thoroughly by specially constituted committee and thereafter marks were revised. Thus, the said aspect is sufficiently explained by the GSRTC in reply.
25. Another contention of the petitioners is that by disclosing the name and roll number in the OMR sheets, there are chances of manipulation and possibilities of malpractice. However, the petitioners have failed to point out any instance of malpractice or manipulation committed by GSRTC or its officer with a view to favour any of the candidates. Thus, the said contention is also misconceived. From the record it is revealed that immediately upon completion of the written examination, OMR sheets have been scanned and uploaded in internet where the candidates could see the same. There are few instances cited by Page 21 of 26 HC-NIC Page 21 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT the learned advocate appearing for the appellant as well as learned Advocate General with regard to different examinations conducted by different organizations wherein roll number and/or name of the candidates are printed.
26. The contention with regard to grant of three grace marks to a set of candidates only is discriminatory, is also misconceived. It is not in dispute that in one slot out of three slots, there were mistakes committed in three questions in OMR sheet and therefore decision was taken by GSRTC to grant grace marks to all the candidates of the said slot as there was mistake on the part of the GSRTC. However, the remaining two slots are concerned, no such mistake was committed in the question papers and therefore no grace marks can be granted to the candidates who appeared in those two remaining slots. Thus, it cannot be said that there is discrimination on the part of the GSRTC in granting grace marks to a particular set of candidates.
27. Another contention of the original petitioners is that in the instructions given by the GSRTC, only black colour ball pen is to be used in OMR sheet. However, some of the candidates have used blue colour ball pen, in spite of that result of such candidates are Page 22 of 26 HC-NIC Page 22 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT declared. With regard to the said contention it is specifically explained by the GSRTC in para 7 of the affidavit-in-reply filed in Special Civil Application No.16221 of 2017 as under:
"Usage of Blue colour ball pen instead of black colour ball-pen.
"When it comes to using pen, candidates have a choice of colours: Blue/Black/Green and Red are the commonly available colours. Even sketch pens or markers may be used. But what colour of pen should be used?
Since the Optical mark reading process works on the basis of contrast, thus obviously the darker and distinct the mark the better it will be detected. Blue and black colors are more contrast than red or green colors. Red color and green colors have their own significance in the academic world. In general the red color is meant to be used by the examiner or teachers to check the sheets or write any comments. Green color is generally meant for the superior, exam supervisor or the principal.
But more because of the technical reason that blue and black colors are able to create more contrast on a sheet of white paper so they are used. Technically, when a red color mark is scanned and converted to absolute black and white for reading it converts to gray instead of black. Thus the intensity of mark obtained is not perfect, to be detected and which would result in slow scanning and checking of the answers.
The instructions do not prescribe that if blue colour ball pen is used then the OMR sheet would not be checked."Page 23 of 26
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28. At this stage, it is required to be noted that in the instructions, it is nowhere stated that if blue ball pen is used, the said candidate would be disqualified or his OMR sheet would not be checked. Thus, it cannot be said that there is irregularity or illegality committed by the respondent GSRTC, as alleged by the original petitioners.
29. The last contention of the learned advocate appearing for the petitioners is that one of the Directors of GSRTC has opined that OMR examinations would be conducted in one slot only. However, it is specifically contended by the GSRTC that the said opinion is given by one of the Directors of GSRTC, which is not binding to the Corporation. The decision making power is with the Board which consists of number of Directors. Hence, the opinion rendered by one of the Directors, may be his personal opinion, but ultimate decision is to be taken by the Board. Thus, we are of the view that merely because one of the Directors has given his personal opinion, such opinion cannot bind the rest of the Directors/Board of GSRTC.
30. Thus, in view of the aforesaid discussion and in the facts and circumstances of the present case, we are of the view that GSRTC has not committed any illegality/irregularity, as alleged Page 24 of 26 HC-NIC Page 24 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT by the petitioners. Some of the bona fide mistakes which were committed during the course of examination or during the selection process have been rectified which cannot be termed as illegality/irregularity, as alleged by the petitioners. Thus, the interim order passed by the learned Single Judge is required to be interfered with. Accordingly, the same is set aside.
31. In view of the aforesaid discussion, the appeals are allowed. The impugned common order dated 26.09.2017 passed by the learned Single Judge in Special Civil Application Nos. 15824 of 2017 and allied matters is set aside. The appellant GSRTC is permitted to proceed further for appointment of the selected candidates for the post of conductor. However, while giving appointment to the concerned selected candidates, the appellant GSRTC shall mention that such appointment is subject to the outcome of Special Civil Application Nos. 15824 of 2017 and allied matters. It is open for the learned advocates appearing for the parties to request the learned Single Judge for early date of hearing of the captioned petitions. It is clarified that the observations made by us in the present order are tentative observations for deciding the present appeals which are filed against an interim order passed by the learned Single Judge and therefore the learned Single Judge is requested to decide Page 25 of 26 HC-NIC Page 25 of 26 Created On Sat Oct 14 02:22:59 IST 2017 C/LPA/1748/2017 JUDGMENT the petitions on its own merit. Rule is made absolute. Consequently, civil applications also stand disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 26 of 26 HC-NIC Page 26 of 26 Created On Sat Oct 14 02:22:59 IST 2017