Gujarat High Court
Bhavik Himatbhai Thakkar vs State Of Gujarat on 14 June, 2023
C/SCA/9596/2023 ORDER DATED: 14/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9596 of 2023
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BHAVIK HIMATBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR HITESH N ACHARYA(2302) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 14/06/2023
ORAL ORDER
1. This petition under Article 226 of Constitution of India is filed with the following prayers.
A) This Hon'ble Court be pleased to issue a
Writ of Mandamus or a Writ in the
nature of Mandamus or any other
appropriate Writ, direction or order
directing the respondent authorities to revise the Final Answer key and further be pleased direct to prepare revise merit list and according to that, the interview to conducted on the basis of merit list in the interest of justice.
B) During the admission and pendency and
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C/SCA/9596/2023 ORDER DATED: 14/06/2023
final disposal of this petition, this
Hon'ble Court be pleased to stay the
interview which is to be held on
12.06.2023 to 16.06.2023 and further
be pleased direct the respondent
authorities to note make any
appointment in respect of
advertisement.
C) Directing the respondent authorities to
reconsider the case of the petitioner as per the representation dated 26.05.2023 made by the petitioner.
D) Be pleased to pass such other and further orders as may be deem just and proper in the facts and circumstances of the case.
2. The case of the petitioner in brief is as under: -
(i) The petitioner pursuant to advertisement issued by Gujarat Public Service Commission (GPSC) dated 10.11.2020, applied for the post of Assistant Professor, Hindi in Government Arts, Science and Commerce College, GES, Class-
II. It is case of the petitioner that as he was fulfilling the eligibility criteria, was invited by call letter dated 02.09.2021, to remain present on 12.09.2021, for the preliminary/objective test. Pursuant to the preliminary/objective examination held on 12.09.2021, provisional answer key was published on Page 2 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 13.09.2021. Against the provisional answer key objections were to be lodged and therefore the petitioner raised his objections for correction of provisional answer key in relation to answers No. 136, 176, 178, 273 and 277 (in all 5 answers). The proof/evidence in support of his answers was also attached along with the objections. Considering the objections received, the respondent GPSC corrected 4 answers out of 5 answers in the final answer key published. Thus, out of 5 answers of provisional answer key, the respondent GPSC made corrections of 4 answers in the final answer key. It is case of the petitioner that the answer of question No. 178 is required to be revised and to be corrected accordingly. The GPSC did not do the same and therefore, the final answer key published on 15.12.2021 is erroneous.
(ii) Subsequently, the respondent GPSC published provisional list of eligible candidates and called them for scrutiny of their documents. The said provisional list was published on 06.06.2022. In the list dated 06.06.2022, the petitioner's name was figured and therefore by call letter dated 08.06.2023, the petitioner was called upon to submit/upload relevant certificates/documents on or before 22.06.2022 in PDF format. The petitioner uploaded all the relevant certificates/documents and online receipt in this regard was also issued by GPSC. Thereafter, on 19.05.2023, a list of eligible candidates was published for the purpose of interview and in that list dated 19.05.2023, out of 94 candidates 72 candidates were called for interview wherein the name of the petitioner did not figure.
(iii) It is the case of the petitioner that from the interview Page 3 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 program published on 24.05.2023, he came to know that the interviews are to be held on 12.06.2023 to 16.06.2023 and therefore, present petition is filed.
(iv) Considering the schedule of interview program, urgent notice was issued by this Court on 09.06.2023. Thereafter, on 12.06.2023 at the request of learned advocate Mr. Joshi for GPSC time was granted to file reply.
3. Heard learned advocate Mr. Hitesh Acharya for the petitioner and learned advocate Mr. Chaitanya Joshi for the respondent Nos. 2 and 3.
4. Pursuant to the notice, learned advocate Mr. Chaitanya Joshi appeared on behalf of respondent - GPSC and tendered his reply. The same is taken on record.
5. Learned advocate for the petitioner Mr. Hitesh Acharya submitted that pursuant to the objections raised by him out of 5 answers, 4 answers have been corrected and final answer key has been accordingly modified. However, as there is no response given in relation to answer key for question No. 178. As the same was not corrected, it has caused prejudice to the present petitioner and therefore, the present petitioner may be permitted to appear/participate in the interview, scheduled to be held between 12.06.2023 to 16.06.2023. As per the submissions of the petitioner, the answer key No. 'C' is correct in relation to question No. 178 whereas in the provisional answer key as well as revised answer key, answer key No. 'B' is correct. He submitted that the material in support of the Page 4 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 same has been produced justifying his answer as the correct answer. He therefore submitted that the respondent - GPSC may be directed to reconsider his answer to question No. 178 and he may be permitted to appear/participate in the interview scheduled between 12.06.2023 to 16.06.2023.
(i) He heavily relied upon the material produced in the petition to substantiate that in relation to question No. 178, the answer key No. 'C' is correct and therefore as final answer key published by the GPSC is erroneous.
6. On the other hand, learned advocate Mr. Chaitanya Joshi appearing on behalf of respondent - GPSC relied upon the averment made in the affidavit-in-reply. Referring to the affidavit-in-reply, he submitted that pursuant to the provisional answer key published, the respondent Commission received objections from 14 candidates with regard to 27 questions. Accordingly, all the objections were forwarded to experts for their opinion and the same were scrutinized by a committee of experts and after thorough scrutiny, the objections were considered and final decision has been taken accordingly and publication of final answer key dated 15.12.2021 was revised, wherein 6 questions were canceled and 16 answers were revised.
(i) In relation to the main contention of the petitioner for question No. 178, he submitted that the expert committee after scrutiny and after going thoroughly into the objections raised, published the final answer key dated 19.05.2023. There is no irregularity in following the procedure and the same is Page 5 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 based on the sound opinion of the experts. He has submitted that even assuming without admitting that the commission considers option B of question No. 178 and grants grace marks, then also the said exercise is required to be carried out for all the candidates who have appeared in the examination which would completely alter the cut off marks and therefore re-evaluation of one answer is not going to make any substantial difference in the result of the petitioner.
(ii) In support of his submission, he relied upon the following decisions:-
Bharwani Jitendrabhai K. V/s. State of Gujarat passed vide order dated 04.09.2015 in Special Civil Application No. 6044 of 2014 Himachal Pradesh Public Service Commission V/s Mukesh Thakur reported in 2010 6 SCC 759 Kanpur University V/s Samir Gupta reported in AIR 1983 SC 1230 Uttar Pradesh Public Service Commission, through its Chairman & Anr V/s Rahul Singh and Anr. reported in 2018 7 SCC 254 Dilsukhbhai Govindbhai Rathod V/s State of Gujarat reported in 2020 1 GLH 53
7. Considered the submissions. From the averments made it is noticed that the petitioner is seeking relief to appear/participate in the examination on the ground of re- evaluation of question No. 178. It is nowhere contended by the petitioner that he has scored such marks that by adding the Page 6 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 grace marks of question No. 178, he would meet with the cut off marks as prescribed by the respondent-GPSC. Therefore, in the opinion of this Court, it would be very difficult at this stage, to accept the contention of the petitioner that adding of grace marks for question No. 178, he would be eligible to compete with the other candidates who have successfully cleared the examination with the cut off marks to participate in the interview. The petitioner has nowhere contended that he has scored marks nearer to the cut off marks having prima-facie case for grant of relief as prayed for.
8. Further in the decision Hon'ble Apex Court in the case of Uttar Pradesh Public Service Commission, through its Chairman & Anr V/s Rahul Singh and Anr. reported in (2018) 7 SCC 254, it is 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 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 Page 7 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 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 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 Page 8 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023 C/SCA/9596/2023 ORDER DATED: 14/06/2023 opinion of the experts."
9. In view of above, this Court does not find any reasons to interfere with the recruitment process by GPSC, at this stage. Therefore, the petition is rejected. No order as to costs.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 9 of 9 Downloaded on : Tue Jun 20 20:33:00 IST 2023