Gujarat High Court
Pragneshkumar Mahikarandan Isharani & ... vs Gujarat Public Service Commission & 77 on 26 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14573/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14573 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15123 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15132 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15154 of 2015
With
CIVIL APPLICATION NO. 857 of 2016
In
SPECIAL CIVIL APPLICATION NO. 14573 of 2015
With
CIVIL APPLICATION NO. 720 of 2016
In
SPECIAL CIVIL APPLICATION NO. 14573 of 2015
==========================================================
PRAGNESHKUMAR MAHIKARANDAN ISHARANI & 39....Petitioner(s)
Versus
GUJARAT PUBLIC SERVICE COMMISSION & 77....Respondent(s)
==========================================================
Appearance:
Special Civil Application No. 14573 of 2015 with Special Civil Application
No. 15154 of 2015
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 40
MR MIHIR JOSHI, SR. ADV. with MR DG SHUKLA, ADVOCATE for the
Respondent(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN,
ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 20 , 25 , 28 , 37
MR VIMAL A PUROHIT, ADVOCATE for the Respondent(s) No. 3 - 19 , 21 - 24
, 26 - 27 , 29 - 36 , 38 - 78
Special Civil Application No. 15123 of 2015
MR AS SUPEHIA for Petitioners
MR MIHIR JOSHI, SR. ADV. with MR DG SHUKLA, ADVOCATE for the
Respondent(s) No. 1
Page 1 of 15
HC-NIC Page 1 of 15 Created On Tue Mar 01 01:53:29 IST 2016
C/SCA/14573/2015 ORDER
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN,
ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1
Special Civil Application No. 15132 of 2015
MR SHALIN MEHTA, SR. ADV. with Mr. SM KIKANI for Petitioners
MR MIHIR JOSHI, SR. ADV. with MR DG SHUKLA, ADVOCATE for the
Respondent(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA VISHEN,
ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/02/2016
COMMON ORAL ORDER
1. Since the issues raised in all the captioned writapplications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.14573 of 2015 is treated as the lead matter.
3. The writapplicants before me are the candidates, who appeared in the Preliminary Examination (Objective Type) conducted by the G.P.S.C. and having not found place in the meritlist prepared for the purpose of the main Examination, have prayed for the following reliefs: 22(a) to admit this petition and to issue notice for final disposal or returnable date;
(b) to quash and set aside the impugned result of the Preliminary Examination (Objective Type) declared by the respondentGPSC on 20.08.2015 as per AnnexureG pursuant to the advertisement No.9/201415 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, ClassI and Gujarat Civil Service, ClassI & ClassII;
(c) to quash and set aside the impugned decision of the Page 2 of 15 HC-NIC Page 2 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER RespondentGPSC to cancel 3 questions of Paper1, 6 Question of Paper2 and 18 Questions of Paper3 - Total 27 Questions of 40 Marks, and not to assess such cancelled questions, and to award 40 Grace Marks to each candidate of the Preliminary Examination held pursuant to the advertisement No.9/201415 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, ClassI and Gujarat Civil Service, ClassI & ClassII;
(d) to direct the RespondentGPSC to hold afresh the Preliminary Examination (Objective Type) of all the candidates pursuant to the advertisement No.9/201415 dated 10.6.2014 for recruitment to the posts of Gujarat Administrative Service, ClassI and Gujarat Civil Service, ClassI & ClassII;
(e) to quash and set aside the impugned Advertisement dated 27.8.2015 at AnnexureI and the impugned advertisement dated 4.9.2015 at AnnexureJ and to restrain the respondentGPSC from holding Main Examination of the candidates declared successful in the Impugned Result of Preliminary Examination (Objective Type) as per AnnexureG;
(f) to restrain the respondentGPSC for taking any actions in furtherance of the impugned result of the Preliminary Examination (Objective Type) declared on 20.8.2015 as per AnnexureG;
(g) to direct that appropriate and strict disciplinary and other actions be taken against the erring person/ employees/ officers of GPSC and others who are responsible for the mistakes in the Question Papers and in the Answer Keys of the Preliminary Examination (Objective Type) held pursuant to the Advertisement No.9/201415 dated 10.6.2014;
(h) to hold and declare and direct that the notification dated 31.12.2013 being the Gujarat Civil Services (ClassI & II), Competitive Examinations (Amendment) Rules, 2013 in so far as and to the extent that, it substitutes the word "fifteen" with the word "six" in the Schedule II, SectionI, in Paragraph "A" under the heading "Preliminary Examination", is arbitrary, irrational, illogical, absurd, suffering from vice of nonapplication of mind, violative of Articles 14 and 16 of the Constitution of India and hence, bad in law, null and void and inoperative in the eye of law;
(i) to direct the respondent GPSC to allow the candidates to the extent of atleast 25 times of the notified vacancies, to appear at the Main Examination to be held pursuant to the Advertisement No.9/201415 dated 10.6.2014;
(j) Pending admission, hearing and final disposal, to stay the Page 3 of 15 HC-NIC Page 3 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER impugned result of the Preliminary Examination (Objective Type) declared by Respondent GPSC on 20.8.2015 as per Annexure:G;
(k) Pending admission, hearing and final disposal, to restrain RespondentGPSC from holding Main Examination and from taking any actions in furtherance of the impugned result of Preliminary Examination (Objective Type) declared on 20.8.2015 as AnnexureG;
(l) Pending admission, hearing and final disposal, to direct the GPSC to place on record full particulars about the disciplinary actions and other actions taken against any persons, employees and officers of GPSC and others who are responsible for the mistakes committed in the Question papers and in the Answer Keys of the papers of Preliminary Examination (Objective Type) held pursuant to the Advertisement No.9/201415.
(m) to direct the respondent to pay the cost of Rs.15,000/ to each of the petitioners and to grant any other appropriate and just relief/s."
4. The facts of this case may be summarized as under: 4.1 The Gujarat Public Service Commission ("The GPSC for short) issued an Advertisement No.09/201415, dated 10.06.2014 inviting applications from the eligible candidates for filling up 351 vacancies of the Gujarat Administrative Service, ClassI and Gujarat Civil Service, ClassI and II. The vacancies were revised from time to time and finally revised to 460.
4.2 It is the case of the writapplicants that they all being eligible and qualified, applied in response to the advertisement. In all about 4,85,000 candidates applied in response to the said advertisement.
4.3 The G.P.S.C. was to hold the Preliminary Examination (Objective Type) of 500 Marks as under: Paper Subject Marks No. Page 4 of 15 HC-NIC Page 4 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER 1 Verbal Skill Gujarati + Verbal Skill English 150 2 Quantitative Skill + Test of Reasoning (Non 150 quantitative) 3 General Studies 200 Total 500 4.4 The Preliminary Examination (Objective Type) was conducted on 12.10.2014. About 2,43,000 candidates appeared at the said Examination including the writapplicants including the objectors, who have been impleaded as the party respondents in the four writ applications captioned above. The Preliminary Examination was only for the purpose of screening and shortlisting and the marks thereof were not to be counted for the final selection. The G.P.S.C. declared that on the basis of the result of the Preliminary Examination, the candidates to the extent of six times of the vacancies notified would be admitted in the Main Examination. The G.P.S.C. asked the candidates to give their choice for the medium of the Examination viz.Gujarati and English. Some of the candidates opted for English medium, whereas, majority of the candidates opted for Gujarati medium. It appears that about 166 candidates were allowed to change their medium at the last minute.
5. The G.P.S.C. published the Provisional Answer Keys of all the three papers dated 21.10.2014 and invited the candidates to submit their objections and suggestions. Large number of objections and suggestions were received from the candidates by the G.P.S.C. as according to the writapplicants, there were many mistakes in the questions and also in the answer keys. The G.P.S.C. declared the final Answer Key of all the three papers on 23.03.2015. The G.P.S.C. also declared that "Based on the opinion of the concerned subject experts, it has been Page 5 of 15 HC-NIC Page 5 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER decided by Gujarat Public Service Commission to cancel 03 Questions of Paper1 (MAT1), 06 Questions of Paper2 (MAT2) and 18 Questions of Paper3 (MAT3). After the consultation with and as per the opinion of the panel of experts, Gujarat Public Service Commission has decided not to assess such cancelled questions. Opinion of panel of experts has also been sought by Gujarat Public Service Commission regarding effect of this cancellations and based on this opinion it has been decided to award grace marks originally assigned to these cancelled questions to each candidate who appeared in respective papers."
6. It is the case of the writapplicants that 27 Questions of 40 marks were incorrect and the G.P.S.C. decided to do away with those questions. With a view to balance, or rather dilute the effect of the errors in those questions, it took a Policy decision to allot 40 marks to each and every candidate, who appeared in the Preliminary Test. Therefore, 40 marks to each candidate were allotted irrespective of the fact whether the candidate had answered it correctly; had not answered it correctly or had omitted the answer.
7. It may not be out of place to state at this stage that the G.P.S.C. by an advertisement dated 10.06.2014, had made itself very clear that the candidates to the extent of six times of the vacancies notified would be admitted in the Main Examination. It would also be not out of place to state at this stage that none of the candidates had raised any objection in that regard.
8. The writapplicants, came before this Court substantially with an argument that the errors in the questions and the answer keys have affected the result to a considerable extent and allotment of 40 marks at random to all the candidates would not cure the serious defect. In such circumstances, they prayed that the entire Preliminary Examination be cancelled and the G.P.S.C. be directed to conduct a fresh Preliminary Page 6 of 15 HC-NIC Page 6 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER Examination.
9. I take note of the fact that one of the reliefs prayed for by the writ applicants in terms of Para22(i) is to direct the respondentG.P.S.C. to allow the candidates to the extent of atleast 25 times of the notified vacancies, to appear in the Main Examination.
10. Keeping the said relief in mind, this Court thought fit to order that a public notice be issued to all concerned inviting objections, if any, in relation to the direction sought for from this Court against the G.P.S.C. for allowing the candidates to the extent of 25 times of the notified vacancies to appear in the main Examination. Accordingly, this Court passed the following order dated 23.12.2015.
"Let public notice be issued to all concerned inviting objections, if any, in relation to direction sought for from this Court against the respondentGujarat Public Service Commission (GPSC) for allowing the candidates to the extent of 25 times of the notified vacancies for appearing in the main examination, to be held pursuant to the advertisement dated 10.6.2014, in Special Civil Application No.14573 of 2015 and allied matters. It shall be specified in the public notice that such objections shall be raised on the next date of adjournment i.e. on 11.01.2016.
Such public notice shall be published in all editions of those Gujarati vernacular newspapers across the State of Gujarat in which the advertisement has been published for conducting examination as well as in one English daily The Times of India latest by 31.12.2015.
Let all these matters appear on 11.1.2016.
Direct service is permitted today."
11. Pursuant to the directions issued by this Court in the order referred to above, a public notice was issued in the newspapers and that is how, some of the successful candidates thought fit to implead themselves as party respondents and have put forward their objections.
Page 7 of 15HC-NIC Page 7 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER Some of the respondents, who have been impleaded were pursuant to the Civil Applications filed by them independently i.e. much prior to the issue of public notice.
12. Mr. Trivedi, the learned Advocate General appearing for the State Government placed reliance on a decision of the Supreme Court in the case of 'Ranjan Kumar Vs. State of Bihar' reported in 2014 (6) Scale 579, more particularly, the observations made by the Supreme Court in Paragraphs13, 14, 15 and 16 as under:
13. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in Om Prakash Shukla v. Akhilesh Kumar Shukla and others[13], in the said case a threeJudge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court.
14. In this context, we may quote a passage from Madan Lal v. State of J & K[14] with profit: "It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
15. In Chandra Prakash Tiwari and others v. Shakuntala Shukla and others[15], the Court observed as follows: Page 8 of 15 HC-NIC Page 8 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER "34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process."
16. In Union of India & Ors. v. S. Vinod Kumar & Ors.[16], the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same."
13. The writapplications were heard at length. As noted above, the principal argument on behalf of the writapplicants was that having regard to the serious errors which occurred in framing of the questions and the answer keys, the examination should be conducted afresh.
14. On the other hand, Mr. Mihir Joshi, the learned Senior counsel appearing for the G.P.S.C. submitted that it is true that 27 Questions were found to be incorrect, and one at a later stage that means, in all 28 Questions. But at the same time to rectify the mistake, the G.P.S.C. thought fit to allot 40 marks at random to all the candidates.
15. Mr. Joshi, all throughout his submissions very vociferously made an endevour to convince the Court that considering the mammoth task of conducting such Examination, the Court may not order to cancel the Examination and ask the G.P.S.C. to go for afresh Preliminary Examination.
16. The State Government while supporting the stance of the G.P.S.C. submitted that if the fresh Examination is ordered, that may take a considerable long period of time and the Government very desperately Page 9 of 15 HC-NIC Page 9 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER wants to fill up the posts.
17. Having regard to the rival submissions which were canvassed on both the sides, this Court primafacie was of the opinion that the Preliminary Examination should be saved, rather than asking the Commission to go for a fresh Preliminary Examination.
18. In the course of hearing of the matters, Mr. K.B. Pujara, the learned counsel; Mr. Shalin Mehta, the learned senior counsel and Mr. A.S. Supehia, the learned counsel appearing for the respective writ applicants submitted that probably, if the Court considers the relief prayed for in terms of Para22(i), then probably, the situation could be saved and the Commission may not be asked to go for a fresh Preliminary Examination. The idea is obvious. Today at the rate of 6 times of the notified vacancies about 3000 candidates have been declared eligible in the Preliminary Examination, whereas at the rate of 25 times, it would be on an average about 12,000 candidates.
19. So far as such a Policy decision is concerned, the Court should not ordinarily interfere. To make myself clear whether the candidates to the extent of 6 times of the vacancies notified are to be admitted in the Main Examination or 15 times or 20 times or 25 times, would be purely within the realm of the Policy decision of the State Government. Of course, there is a challenge to such a decision, but I am not going into that issue as the petitions can be disposed of otherwise.
20. Mr. Trivedi, the learned Advocate General appearing for the State prayed for some time yesterday to think over in this regard and also, to consult the Government before making any statement in that regard. Today, when the matter is taken up for further hearing, Mr. Trivedi, the Page 10 of 15 HC-NIC Page 10 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER learned Advocate General appearing for the State Government makes a statement that the Government has decided as a matter of Policy that the candidates to the extent of 25 times of the vacancies notified should be admitted in the Main Examination with respect to the Screening Test conducted on 12.10.2014 pursuant to the Advertisement No.09/2014 15, dated 10.06.2014 for the combined competitive Examination for recruitment to the post in the cadre of Gujarat Administrative Service, ClassI and Gujarat Civil Service, ClassI and II for 351 posts (revised to 460 posts).
21. The learned counsel appearing for the writapplicants submitted that if such is the decision taken by the State Government, they would welcome the same and would not insist for cancellation of the entire Preliminary Examination.
22. Mr. Trivedi, the learned Advocate General further pointed out that the necessary formalities in that regard would be completed at the earliest and the needful would be done in the matter. He further pointed out that the decision taken by the Government shall be communicated to the G.P.S.C. and the G.P.S.C. in turn will act accordingly for the purpose of preparing the fresh list of the candidates to be admitted in the Main Examination on the basis of the calculation to the extent of 25 times. After the list is finalized, the G.P.S.C. would declare the date of the Main Examination.
23. At this stage, Mr. Shukla, the learned counsel appearing for the G.P.S.C. clarified that since it came to their notice that one more question was wrong, instead of 40 marks, they would now allot 41 marks at random to all the candidates. He further submitted that the result would be revised accordingly.
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24. Let me make myself very clear that the decision of the Government to prepare the result of the Preliminary Examination to the extent of 25 times of the vacancies notified has been taken in the peculiar circumstances of the case and it should not be construed as a precedent in the future. This is the reason why this Court has not gone into the other prayers.
25. At this stage, I would like to say something as it is very important. Be it Commission like the Gujarat Public Service Commission or a University or a College or any other Educational Institution, due care should be taken to prepare the key answers, and also correct questions. The framing of the questions should also be such that the answers should be beyond any pale of doubt. If there is any doubt as regards the answer or if the authority is not sure of the answer or if there are two or more answers or if the question is capable of two or more answers, then such questions should be avoided as far as possible with a view to see that it does not create any confusion in the mind of the candidates. First and paramount reason being the welfare of the candidate or a student as a wrong key answer can result in the merit being made a casualty. I would like to remind one and all of the Supreme Court decision in the case of 'Manish Ujwal Vs. Maharishi Dayanand Saraswati University' reported in 2005 (13) SCC 744 as under: "10. The High has committed a serious illegality in coming to the conclusion that "it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect". As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in Page 12 of 15 HC-NIC Page 12 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case."
26. In the course of long drawn hearing of these matters, it was very fairly pointed out by Mr. Joshi, the learned senior counsel appearing for the G.P.S.C. that there is one grey area of which the Commission should be very careful.
27. Mr. Mehta, pointed out that after the moderator frames the questionpaper, the same is sent to the Printing Press. I was given to explain that the Printing Press after printing the questionpapers would directly distribute them to all the examination centers across the State.
28. Mr. Joshi submitted that from now onwards, the G.P.S.C. would ensure that the papers after being printed at the printing press will be once again rechecked by the moderator with a view to check that there is no mistake committed therein by the printing Press.
29. I am sure that if little more pain is taken by the concerned Page 13 of 15 HC-NIC Page 13 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER moderator to once again go through the entire question paper after the same is being printed, it will help the Commission in conducting the Exams in future smoothly and without any problems. This will be in the interest of the one and all and more particularly, the candidates who appear in the Examination. Since the Commission on its own has identified the grey area and has decided to rectify the same or take care of the same, I am not issuing any directions in that regard.
30. In Manish Ujwal (Supra) the Supreme Court has gone to the extent of saying that appropriate action, including the disciplinary action against those responsible for wrong and demonstrably erroneous key answers, should also be taken.
31. I should make a mention of the fact that there are 12 candidates, who came before this Court with their respective objections pursuant to the Public Notice which was issued by this Court. Mr. Moti Ramani, the learned counsel represents those 12 candidates.
Mr. Moti Ramani, the learned counsel has some reservations so far as the arrangement which has been arrived at and approved by the Court is concerned. He insisted that the entire Preliminary Examination should be cancelled and conducted afresh.
32. Let me take a note of the fact that these 12 candidates are also not successful candidates. They could not find place in the list prepared by the G.P.S.C. at the rate of 6 times of the notified vacancies. I do not find any substance in the objections raised by these 12 candidates. I repeat that conducting fresh Examination for the G.P.S.C. will be a mammoth task. It will affect the public exchequer and it would take a considerable long period of time. In no manner they are likely to be prejudiced. In Page 14 of 15 HC-NIC Page 14 of 15 Created On Tue Mar 01 01:53:29 IST 2016 C/SCA/14573/2015 ORDER such circumstances, the objections are overruled.
33. Mr. Shukla, the learned counsel appearing for the G.P.S.C. at this stage clarified that the only objection raised by these 12 candidates is the decision of the State Government to prepare the list of 25 times of the notified vacancies instead of 6 times.
I have made myself clear that it is a Policy decision of the State Government and the Court should not interfere with the same.
34. With the above, all these writapplications are disposed of. The parties are directed to act accordingly. Direct service is permitted.
ORDER IN CIVIL APPLICATIONS: In view of the order passed in the main writapplications, the Civil application do not survive. The same is disposed of accordingly.
(J.B.PARDIWALA, J.) aruna Page 15 of 15 HC-NIC Page 15 of 15 Created On Tue Mar 01 01:53:29 IST 2016