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11. On the other hand it is contended by Ms.Manisha L. Shah, learned Government Pleader for the respondents that the posts of Revenue Talati are created so as to entrust exclusive job of computerization of revenue records and to look after revenue collection, etc. inasmuch as earlier Talati-cum-Mantris were mainly attending the duties of Panchayat Department, though examinations were being conducted by Gujarat Revenue Subordinate Board. But when request was made to the Board it has expressed its inability on the ground that several recruitments were on hand and they cannot complete selection process within HC-NIC Page 17 of 35 Created On Wed Jun 29 02:26:10 IST 2016 short time. As such, for the first time, decision was taken to conduct such test by the Revenue Department. It is submitted that though full care was taken when several complaints have poured in and the Recruitment Committee, after deliberating the subject at length, has decided to cancel the recruitment process. It is contended by the learned Government Pleader that initially when the first complaint was received on 15.02.2014, when the Police had informed that the examination paper was not leaked and no such paper was found in the tuition class, as such the respondents have proceeded to conduct examination on 16.02.2014. It is further submitted that even when written statement was filed in Regular Civil Suit No.83 of 2014 before the learned Senior Civil Judge, Bhavnagar, the respondents have not thought of cancellation of recruitment process, but subsequently in view of the complaints, which were streamed in and also from the information received from the University as well as from the Forensic Science Laboratory as it was noticed that large number of OMR Sheets contained identification marks by indicating 'b' or otherwise, Recruitment Committee deliberated on the issue and had taken conscious decision to cancel the recruitment process. It is contended that as large number of posts are notified had selection process proceeded with there would have been possibility of more number of cases coming to Court questioning the selection with regard to allegations made in various representations. It is further contended that having regard to nature of allegations and material HC-NIC Page 18 of 35 Created On Wed Jun 29 02:26:10 IST 2016 placed on record it cannot be said that decision taken by the recruitment committee is either arbitrary or illegal so as to invalidate the decision as contended in this petition filed under Article 226 of the Constitution of India. It is finally submitted by the learned Government Pleader that in an examination like this it is not possible to weed out candidates, who indulge in malpractices. As such there was only option left with the respondents to cancel the recruitment process.

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16. With regard to second issue, namely, whether having regard to nature of complaints, candidature of the candidates who indulged in malpractice be segregated from the process of examination and selection shall be confined to rest of the candidates only also cannot be accepted. It is also clear that more than 13,000 sheets bear some sort of marks, particularly, 284 candidates have made specific mark 'b' on the top right side of the OMR sheet. So far as such sheets are concerned the Committee has decided to cancel candidature of such candidates, but there is material to show that about 13,000 answer sheets contained some mark or the other for its identification. In that view of the matter and having regard to nature of complaints we are of the view that this is not one such case where recruitment process can be continued by segregating candidates, who have indulged in malpractice. The learned counsel for the appellants placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another (supra), wherein the Hon'ble Supreme Court has held that wherever it is possible to weed out beneficiaries of irregularities or illegalities there is no justification to deny appointment to others, who are selected candidates, whose selection was not vitiated in any manner. In the case of Inderpreet Singh Kahlon and others Vs. State of Punjab and others (supra), the Hon'ble Supreme Court has not approved HC-NIC Page 25 of 35 Created On Wed Jun 29 02:26:10 IST 2016 cancellation of entire selection process after appointees putting a few years of service. In the said judgment distinction is made where such appointments were made and where no appointments were made after completion of selection process. In the case of Joginder Pal and others Vs. State of Punjab and others (supra), the Hon'ble Supreme Court has held that once it was accepted that some of the candidates were untainted and they enter service by virtue of merit and not because of any extraneous consideration, candidature of such candidates can be segregated from the tainted candidates. In the said case the Hon'ble Supreme Court has disapproved cancellation of entire selection process. In the case of Bharat Singh and others Vs. State of Haryana and others (supra), the Hon'ble Supreme Court has held that when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. In absence of pleadings to prove such facts, such pleas cannot be examined. With reference to the aforesaid judgments relied on by the counsel for the petitioners, we are of the view that the ratio decided in the said judgment would not render any assistance to support the case of the petitioners. In this case it is to be noticed that though selection lists were drawn, but no appointments were made. Those who are appointed pursuant to selection list will stand on a different footing than that of the HC-NIC Page 26 of 35 Created On Wed Jun 29 02:26:10 IST 2016 persons whose names merely figure in the selection list. It is well settled law. As rightly contended by the learned Government Pleader and it is very well settled, mere inclusion in selection list will not confer any right of appointment. In that view of the matter whether having regard to the fact situation it is possible to segregate, tainted and untainted candidates is the factual aspect which is to be considered with reference to the facts of each case. In the case on hand, in absence of any appointment and if the material placed before this Court is looked into, coupled with the averments made in the affidavit in reply filed on behalf of the respondents, we are of the considered view that this is not a case where tainted persons can be segregated and appointments are to be made to large number of posts of Revenue Talati. Investigation made reveals that some irregularities were committed. The same is evident from the OMR Sheets itself, where some sort of identification marks are made. It is not possible to segregate such candidates, as large number of answer sheets have such identification marks. It appears that in a matter of this nature we are of the considered view that it is not possible to segregate tainted and untainted candidates for the purpose of proceeding with the recruitment process. It is true that in a case of this nature some innocent candidates, who aspire to enter into jobs will suffer, but the respondents were constrained to take such a harsh decision having regard to the material placed on record and the complaints made. Thus, we are of the view that the judgments relied on by the HC-NIC Page 27 of 35 Created On Wed Jun 29 02:26:10 IST 2016 learned counsel for the petitioners would not render any assistance to the petitioners. On the other hand in the case of Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others (supra), where there is allegation of leakage of question paper, large scale impersonation of candidates, mass copying, etc. in written test, and the view taken by the High Court that recruitment process confining investigation to 62 candidates against whom there were serious allegations of impersonation, is held erroneous and unsustainable. The judgment of the High Court was set aside by the Hon'ble Supreme Court by applying the test of Wednesbury unreasonableness. The Hon'ble Supreme Court has held as under: