Gujarat High Court
Panchal Pranay Dilipbhai & 124 vs Gujarat Public Service Commission & 105 on 21 July, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/657/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 657 of 2003
In SPECIAL CIVIL APPLICATION NO. 310 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PANCHAL PRANAY DILIPBHAI & 124....Appellant(s)
Versus
GUJARAT PUBLIC SERVICE COMMISSION & 105....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Appellant(s) No. 1 - 125
MR AM RAVAL, ADVOCATE for the Respondent(s) No. 2
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1
Page 1 of 17
C/LPA/657/2003 JUDGMENT
RULE SERVED for the Respondent(s) No. 3 - 18
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 21/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of the appeal, the appellants-original petitioners have challenged the oral (common) judgement dated 26.2.2003 passed by learned Single Judge in Special Civil Application No. 310 of 2003 and allied petitions whereby the petitions are partly allowed by issuing the following directions:
"(A) - The petitions of the petitioners who have challenged the result of preliminary examination on the ground of application of scaling formula by the GPSC shall stand allowed only to the extent that they shall be treated as eligible by GPSC for appearing at the main examination.
(B) So far as the petitions of the petitioners who have prayed for declaration of result of main examination as illegal and void and who have challenged the application of formula of scaling at the main examination are concerned they shall stand allowed to the extent that the method and manner of applying the scaling method by GPSC at the main examination in optional subjects is quashed and set aside and as a consequence thereof the declaration of result by the GPSC of main examination shall also stand cancelled.Page 2 of 17
C/LPA/657/2003 JUDGMENT
(C) It is further clarified and ordered that the GPSC shall
not be required to conduct the main examination again but shall consider the matter afresh keeping in view the discussion and the observations of this Court in this judgement and it will be at liberty to declare the result of the main examination on the basis of raw marks or to apply the method of moderation and scaling after consulting the experts and shall declare the result thereafter in either case. In any event, such exercise of declaration of result shall be completed by the GPSC as early as possible, and in any case, before the expiry of a period of four months from the date of receipt of writ of this Court.
(D) The GPSC shall also declare the result of each candidate with marks which may finally be awarded by the GPSC at the main examination and such declaration shall be made in any case prior to holding of interviews for the post in question."
2. Learned counsel for the appellants Mr. K.B. Pujara has contended that the original-petitioners herein were deprived of their legitimate right of being considered in the interview in view of method of scaling adopted by Gujarat Public Service Commission (" the GPSC" for short) which is not permissible under Examination Rules. He further contended that on 19.10.2000 the Government of Gujarat published the Gujarat Civil Services (Class-I & Class II) Competitive Examination Rules, 2000 under proviso to Article 309 of the Constitution of India. Thereafter, on 28.12.2000 the GPSC issued advertisement for combined competitive examination for recruitment to 164 posts of Class-I and Class-II which were Page 3 of 17 C/LPA/657/2003 JUDGMENT later on increased to 243 posts.
2.1 The contention of learned counsel for the original petitioners is that total 70,324 candidates appeared at the preliminary examination held on 26.8.2001 and the result was declared on 1.11.2001 wherein 4,776 candidates, including the petitioners, were declared successful and eligible to appear at the Main Examination.
2.2 Learned counsel Mr. Pujara for the appellants has contended that the Main Examination was held from 22.6.2000 to 2.7.2002 at which 4,086 candidates appeared in which three papers of 200 marks were compulsory and two papers were optional and the result was declared on 18.12.2002 wherein 815 candidates were declared successful for being called at interview test. The petitioners, though eligible and secured requisite marks, were deprived of their right of being considered in the interview on account of wrong method adopted by the GPSC and that is how 134 candidates, though eligible, were deprived of the Main Examination and 117 candidates, though not eligible, were called for the Main Examination. On making enquiry with the GPSC, it was found that the GPSC had applied wrong method of scaling of the marks and the result as prepared on the basis of scaled marks instead of on the basis of actual mars or raw marks given by the Examiners. He further contended that there was no provision for scaling of marks in the Examination Rules. 2.3 Learned advocate Mr. Pujara for the appellants has taken us through the Gujarat Civil Services Rules (Class-I and Class-II), Competitive Examination Rules, 2000, particularly, Rules 17 and 18 on pages 74 and 75 which read as under:
"Rule 17 - The names of the candidates shall be arranged by the Commission in the order of merit Page 4 of 17 C/LPA/657/2003 JUDGMENT on the basis of aggregate marks finally awarded to each candidate in the Main Examination (written) and Interview test and in that order, the Commission shall recommend the qualified candidates for appointment to the extent of number of vacancies to be filled in:
Provided further that where the vacancies reserved for the candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Class, (including Nomadic Tribes and Denotified Tribes) cannot be filled up on the basis of the qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up the deficiency in the reserved posts.
Rule 18 - The candidate, who is qualified for the interview test but fails to attend the interview test shall not be eligible for selection."
2.4 In view of Rules 17 and 18, learned counsel for the appellant has contended that scaling is not permitted and the action of the GPSC is contrary to statutory Rules framed by the Government.
2.5 Learned advocate Mr. Pujara for the appellants submitted that learned Single Judge has, while issuing directions, permitted the GPSC to consult the expert and rectify their action which has been done. He has strongly relied on the decision of the Hon'ble Apex Court in the case of SANJAY SINGH AND ANOTHER VS. U.P. PUBLIC SERVICE COMMISSION, ALLAHABAD & ANOTHER reported in (2007) 3 SCC 720, particularly, paragraph Nos. 18 and 49 which read as under:
Page 5 of 17C/LPA/657/2003 JUDGMENT "para 18 - The manner in which the list of candidates as per merit should be prepared is provided both in the Judicial Service Rules and the PSC Procedure Rules. As the field is occupied by Role 20(3) and Note (i) of Appendix II of the Judicial Service Rules, they will prevail over the general provision in Rule 51 of the PSC Procedure Rules.
Para 49 - Learned counsel for the Commission contended that scaling has been accepted as a standard method of evaluation in the following decisions and therefore it should be approved:
(i) Kamlesh Haribhai Goradia Vs. Union of India (1987) 1 Guj. L.R. 157 upheld by this Court by order dated 11.3.1987 in SLP (C) No. 14000 of 1986
(ii) Mahesh Kumar Khandelwal Vs. State of Rajasthan (1994) 1 Raj. L.R. 533 upheld by this Court by order dated 22.1.1996 in SLPs (C) Nos.15682-84 of 1994
(iii) K. Channegowda Vs. Karnataka Public Service Commission (2005) 12 SCC 688 All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of scaling, where a comparative assessment is to be made of candidates having option to take different subjects.
The question is whether scaling, in particular, linear Page 6 of 17 C/LPA/657/2003 JUDGMENT standard scaling system as adopted by the Commission, is a suitable process to eliminate "examiner variability" when different examiners assess the answer-scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of "scaling" used by the Commission."
2.6 He has further relied on paragraph Nos. 25, 26 and 45 of the said judgment which read as under:
"para 25 - Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. In the Judicial Service Examination, the candidates were required to take the examination in respect of all the five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. Para 26 - The Union Public Service Commission ("UPSC"
for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in Civil Service Preliminary Examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer-scripts are evaluated by computerised scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and Page 7 of 17 C/LPA/657/2003 JUDGMENT scaling is not resorted. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/conventional type question papers in regard to same subject; and that scaling should be resorted to only where a common merit list has to be prepared in regard to candidates who have taken examination in different subjects, in pursuance of an option given to them. Para 45 - The position regarding use of scaling method/system is that (i) only certain situations warrant adoption of scaling techniques, (ii) there are number of methods of statistical scaling, some simple and some complex, and each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions, (iii) scaling will be useful and effective only if the distribution of marks in the batch of answer-scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer-scripts sent to every other examiner, (iv) in the linear standard method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability,
(v) any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process and (vi) scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve Page 8 of 17 C/LPA/657/2003 JUDGMENT examiner variability arising from the `hawk-dove' effect(strict/liberal valuation)".
He has further relied on paragraph No. 53 of the said judgement which reads as under:
"para 53 - However, insofar as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case:
(a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP (C) No. 165 of 2005 belonging to the category "BC" have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in WP (C) No. 165 of 2005 are less than the marks of the selected candidates).
(b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. [For example, we find that petitioner Archna Rani, one of the petitioners in WP Page 9 of 17 C/LPA/657/2003 JUDGMENT (C) No. 467 of 2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates (347, 337, 336, 383 and 335) under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment.] This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31.8.2005."
2.7 Learned advocate Mr. Pujara for the appellant has contended that in view of the directions issued at paragraph No. 53 of the said judgement, the present petition deserves to be allowed.
2.8 While referring to issue No. (ii) in the judgement, the Hon'ble Supreme Court has discussed the said issue in paragraph Nos. 11 to 21, more particularly, the distinction which has been sought to be made regarding `marks finally awarded' or `marks obtained'. Learned advocate for the appellant has submitted that the distinction in the said paragraph No. 21 is uncalled for and contended that in answer to question No. (ii) which has been framed by the Hon'ble Supreme Court, the directions at paragraph No. 53 of the said judgement clearly prohibit that scaling is not permissible and contrary to the relevant Rules. In that view of the matter, he contended that directions are required to be issued in terms of paragraph No. 53 of the said judgement.
2.9 Learned advocate for the appellants has also relied on the judgement of the Hon'ble Apex Court in the case of RAJKUMAR & OTHERS VS. SHAKTI RAJ & OTHERS etc. reported in AIR 1997 SC 2110, particularly, paragraph No. 16 which Page 10 of 17 C/LPA/657/2003 JUDGMENT reads as under:
"Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter, the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal."
2.10 In light of the above judgement, learned advocate for the appellants has contended that where the selection is based on illegality, it can be challenged by the petitioners and therefore, the petition deserves to be allowed. He has further relied on the decision of the Hon'ble Apex Court in the case of MALIK MAZHAR SULTAN AND ANOTHER VS. U.P. PUBLIC SERVICE COMMISSION & OTHERS reported in (2006) 9 SCC 507, more particularly, paragraph No. 21 at page No. 512 which reads as under:
"The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1.7.2001 and 1.7.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of Page 11 of 17 C/LPA/657/2003 JUDGMENT age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
2.11 Reliance is also placed on the decision of the Hon'ble Apex Court in the case of RAMESH KUMAR VS. HIGH COURT OF DELHI AND ANOTHER reported in (2010) 3 SCC 104, paragraph No. 18 which is reproduced hereinbelow:
"The Supreme Court in All India Judges' Assn. (3) case (2002) 4 SCC 247 has accepted Justice Shetty Commission's Report that there should be no requirement of securing minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer appointment to candidates who had secured requisite marks in aggregate in written examination as well as in interview, ignoring requirement of securing minimum marks in interview. In pursuance of those directions, Delhi High Court offered appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle."
2.12 Reliance is also placed on the decision in the case of BEG RAJ SINGH VS. STATE OF U.P. AND OTHERS reported in Page 12 of 17 C/LPA/657/2003 JUDGMENT (2003) 1 SCC 726 and the decision of the Hon'ble Apex Court in the case of STATE OF ASSAM VS. RIPA SARMA reported in (2013) 3 SCC 63, regarding the observations made by the subsequent Bench, particularly paragraph Nos. 6 and 7 which read as under:
"Constitution of India - Art. 141 - Per incuriam judgement - Reiterated, judgement rendered in ignorance of earlier judgements of Benches of co- equal strength, would render the same per incuriam - such judgement cannot be elevated to the status of precedent."
2.13 Learned counsel for the appellants has relied on the Division Bench decision of the RAJASTHAN HIGH COURT in the case of SARITA NOUSHAD VS. R.P.S.C. & OTHERS and allied matters rendered on 27.10.2009 wherein identical directions were issued in D.B. CIVIL WRIT PETITION No. 3942 of 2007 and other matters.
2.14. In view of above, learned counsel for the appellants has contended that the petition deserves to be allowed. Lastly, he has further submitted that the appellants case may be considered in the next recruitment and some observation in that regard may be made.
3. Learned advocate Mr. Premal Joshi appearing for the respondent has contended that in view of the observations made by the Hon'ble Apex Court in the case of SANJAY SINGH AND ANOTHER (supra), at paragraph No. 26, scaling is applied only in case of optional subjects. He relied on paragraph No. 24 of the said judgement. In that view of the matter, he contended that GPSC has followed the decision of learned Single Judge and has rectified the mistakes. He further contended that in view of the aforesaid decision of the Hon'ble Page 13 of 17 C/LPA/657/2003 JUDGMENT Supreme Court, scaling is permissible in the case of optional subjects. He further submitted that object of applying scaling was to bring all the candidates opting optional subjects to a common score. The scaling has been applied uniformly in all the optional subjects without any deviation. He has relied on the decision of the Hon'ble Apex Court in the case of PRASHANT RAMESH CHHAKKARWAR VS. UNION PUBLIC SERVICE COMMISSION AND OTHERS reported in (2013) 12 SCC 489, particularly, paragraph No. 13 which reads as under:
"We have considered the respective arguments and scanned the voluminous papers produced by the petitioners. In our view, the High Court did not commit any error by non-suiting the petitioners on the ground of non-impleadment of the selected candidates as parties to the original applications and the writ petitions. If the methodology of moderation adopted by the Commission is faulted, the entire selection will have to be quashed and that is not possible without giving opportunity of hearing to those who have been selected and appointed in different cadres."
3.1 In that view of the matter, learned advocate for the respondent has submitted that the appeal is required to be dismissed.
4. We have heard learned advocate Mr. Pujara appearing for the appellants and learned advocate Mr. Joshi appearing for the respondent at great length. We have considered the judgements cited by both the sides. The first contention so far as learned Single Judge has committed error in issuing directions is concerned, in view of the observations made by the Hon'ble Supreme Court in paragraph No. 26 of the Page 14 of 17 C/LPA/657/2003 JUDGMENT judgement in the case of SANJAY SINGH AND ANOTHER (supra), we are of the considered opinion that learned Single Judge has not committed any error in issuing the directions. Even in the said judgement the issue as sought to be raised by learned advocate for the appellant regarding scaling of marks is contrary to the relevant Rules has been discussed by the Apex Court in paragraph Nos. 11 to 21 and the Apex Court has observed that scaling is not permissible nonetheless in view of the observations made at paragraph No. 53 of the said judgement, we are of the opinion that in case of optional subject, more particularly when analogy is applied as per paragraph No. 24 of the said judgement, we are of the considered opinion that learned Single Judge has taken correction decision and rightly issued the directions. We, therefore, see no reason to interfere with the judgement of learned Single Judge.
4.1 Learned advocate Mr. Pujara for the appellants has placed heavy reliance on the decision of the Hon'ble Apex Court in the case of SANJAY SING AND ANOTHER (supra) to contend that the Hon'ble Supreme Court has not approved the method of scaling in awarding marks. Reliance on the judgement of SANJAY SING's case (supra) is misplaced in the facts of the present case. We have to bear in mind that the Hon'ble Supreme Court was considering the question of adoption of method of scaling in competitive examination in which all subjects to be taken by the candidates were compulsory subjects. Therefore, the Hon'ble Supreme Court has not approved adoption of method of scaling in awarding marks. In this very judgement, the Hon'ble Supreme Court has held that method of scaling for awarding marks is proper method if marks are to be awarded in optional subjects.
Page 15 of 17C/LPA/657/2003 JUDGMENT Therefore, the Hon'ble Apex Court has not disapproved the scaling method in both compulsory and optional subjects. In the facts on hand, the undisputed fact is that the respondents had adopted method of scaling in awarding marks in optional subjects alone. This method was not adopted so far as compulsory subjects were concerned. Therefore, the judgement in SANJAY SING's case has no relevance and application in the present case.
4.2 The appellants having participated in the examination are not entitled to challenge the same in view of the decision of the Hon'ble Apex Court in the case of OM PRAKASH SHUKLA VS. AKHILESH KUMAR SHUKLA & OTHERS reported in 1986 (Supp) SCC 285. Consistent view is taken by the Apex Court in the case of DHANANJAY MALIK AND OTHERS VS. STATE OF UTTARANCHAL AND OTHERS reported in (2008) 4 SCC 171 and RANJAN KUMAR VS. STATE OF BIHAR & ORS. reported in 2014 AIR SCW 2968, particularly, paragraph No. 14 which reads as under:
"para 14 - In this context, we may quote a passage from Madan Lal V. State of J & K (1995) 3 SCC 486) 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 (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the Page 16 of 17 C/LPA/657/2003 JUDGMENT 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."
4.3 In view of above decisions of the Apex Court, we are, therefore, of the opinion that having participated in the examination, it will not be appropriate for the appellants to challenge the same.
4.4 The appellants have not impleaded all the successful candidates who have been selected and appointed in the petition as necessary parties. Therefore, in view of the decision in the case of RANJAN KUMAR (supra) it will not be appropriate for this Court to entertain the appeal. 4.5 So far as the point that the appellants' case may be considered in the next recruitment is concerned, in our view, if such direction is given it amounts to creating of new posts. Majority of the petitioners would have now become age barred.
5. In view of above, we are of the opinion that learned Single Judge has not committed any error in partly allowing the petition and no interference is warranted with the same. The appeal is devoid of any merit and the same deserves to be dismissed. Accordingly, the appeal stands dismissed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) (pkn) Page 17 of 17