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2024 DIGILAW 1917 (GUJ)

Manthan Kamleshkumar Solanki v. State Of Gujarat

2024-10-15

A.S.SUPEHIA, GITA GOPI

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. Admit. Mr. Sahil Trivedi, learned AGP waives service of notice of admission on behalf of respondent No.1 - State and Ms. Vidhi J.Bhatt, learned advocate waives service of notice of admission on behalf of respondent No.2 – Gujarat Public Service Commission. With consent, of the learned advocates appearing for the respective parties, the matters are taken up for final hearing today. 2. The present Letters Patent Appeals filed under Clause 15 of the Letters Patent, 1865 emanates from the common judgment dated 09.10.2024 passed by the learned Single Judge in Special Civil Application No.10684 of 2024 and allied matters, whereby the learned Single Judge has refused to grant the interim relief, as prayed for by the appellants – original petitioners. The learned Single Judge, after hearing the respective parties, has rejected the request of the appellants – original petitioners to permit them in the Mains Examination, which is scheduled to be held on 20.10.2024. 3. Learned senior advocate Ms. Megha Jani for the appellants at the outset, has submitted that similarly situated candidates to the appellants, who had filed the writ petitions being Special Civil Application No.9321 of 2024 and allied matters; the learned Single Judge vide order dated 01.07.2024, has allowed them to appear in the mains written examinations. It is submitted that the present appellants were late by 15 days and the learned Single Judge has rejected the similar interim relief of permitting them to appear in the main examinations on the ground of delay. 4. Learned senior advocate Ms. Megha Jani has also tried to convince us by taking to the various questions and answers for which the appellants are claiming one mark. It is submitted that in case, they are granted one mark to such questions and answers, they would be qualifying for appearing in the main examination. While placing reliance on the order of the Supreme Court dated 13.09.2023, it is urged that the Supreme Court in identical situation has permitted the candidates to appear in the written examinations. It is submitted that the appellants will not claim any equity and thus, the order passed by the learned Single Judge may be quashed and set aside. 5. In response to the aforesaid submissions, learned advocate Ms. It is submitted that the appellants will not claim any equity and thus, the order passed by the learned Single Judge may be quashed and set aside. 5. In response to the aforesaid submissions, learned advocate Ms. Vidhi Bhatt appearing for the respondent – Gujarat Public Service Commission has submitted that in fact, when the earlier order dated 01.07.2024 was passed in Special Civil Application No.10684 of 2024 and allied matters by the learned Single Judge allowing the other writ petitioners to appear in the written examinations, no affidavit-in-reply was filed and she was not having the details from the Gujarat Public Service Commission for pointing out it to the learned Single Judge. It is submitted that in fact, the order was passed on 01.07.2024, since the last date of filling-up the form was on 03.07.2024. In the present case, it is submitted that the appellants cannot be permitted to appear in the main examinations, as the cut-off date is over. On the merits of the matters, she has submitted that the data, which has been given by the G.P.S.C. to her, reveals that the G.P.S.C. has in fact, admitted that there are total 23 answer keys, which have been corrected by the G.P.S.C. and 9 were cancelled, and accordingly prorata marks are given, as per the policy of the G.P.S.C. She has in fact, referred to the statement prepared in the case of each and every appellant and submitted that even after the prorata marks are given to them, they are not qualified in appearing in the main examinations, as they have secured marks lesser than the cut-off marks. 6. In rejoinder, learned advocate Ms. Jani invited our attention to the question Nos.17, 20, 100 and 104, and has submitted that the G.P.S.C. was required to give one mark and not the prorata marks, which would debar the appellants from further appearing in the examination. In support of her submissions, she has placed reliance on the judgment of the Delhi High Court in case of Anjali Goswami and Others Vs. Registrar General, Delhi High Court, 2019 SCC Online Del 6829. Thus, it is submitted that the order passed by the learned Single Judge may be quashed and set aside. 7. We have heard the learned advocates appearing for the respective parties at length. Before passing the present judgment, we have clarified to the learned senior advocate Ms. Registrar General, Delhi High Court, 2019 SCC Online Del 6829. Thus, it is submitted that the order passed by the learned Single Judge may be quashed and set aside. 7. We have heard the learned advocates appearing for the respective parties at length. Before passing the present judgment, we have clarified to the learned senior advocate Ms. Jani appearing for the appellants that if the appellants are inviting reasoned order dealing with all the contentions which are raised, the same may probably have any impact on the pending writ petitions however, on instructions, she has submitted that the appellants are desirous of inviting a reasoned order and hence, we are constrained to deal with the submissions advanced by the learned advocates appearing for the respective parties. 8. The established facts from the pleadings, are that the respondent – G.P.S.C. published an advertisement No.47/2023-24 on 24.08.2023, inviting applications for the appointment to the posts of Gujarat Administrative Service (Class-I), Gujarat Civil Services (Class-I & Class-II) and Gujarat Municipal Chief Officer Service (Class-II). The present appellants accordingly, submitted their applications on 07.01.2024. The G.P.S.C. released the provisional answers key on 10.01.2024. Thereafter, objections came to be invited by the G.P.S.C. to the provisional answer keys from 11.01.2024 to 19.01.2024. The G.P.S.C. received total 3048 objections, which were sent to the subject experts and based on such opinion of the experts, the final answer key was published on 13.05.2024. 9. The appellants were unable to satisfy before us that, as to whether they have raised any of the objections for the questions, which are referred to us. Be that as it may. The window for raising of objections was opened from 11.01.2024 to 19.01.2024 and thereafter, a list of eligible candidates for appearing in the main examination was prepared. Total 9951 candidates were declared provisionally qualified in the list dated 03.06.2024, who appeared in the main examination. The appellants were held to be ineligible. The last date for fillingup the mains examination forms of the successful candidates was 03.07.2024. 36 petitioners had assailed the answers of the final answers key by filing Special Civil Application No.9287 of 2024 and other connected matters, in the month of May-June, 2024. The learned Single Judge vide interim order dated 01.07.2024, permitted such 36 petitioners to appear in the mains examination. 10. 36 petitioners had assailed the answers of the final answers key by filing Special Civil Application No.9287 of 2024 and other connected matters, in the month of May-June, 2024. The learned Single Judge vide interim order dated 01.07.2024, permitted such 36 petitioners to appear in the mains examination. 10. Thus, the order was passed Special Civil Application No.9321 of 2024 and allied matters by the learned Single Judge on 01.07.2024 i.e. two days before 03.07.2024, i.e. the last date prescribed for filling-up the forms. Thereafter, the present appellants have filed the captioned writ petitions on 18.07.2024 and 20.07.2024, after almost a period of 15 days, praying for the same reliefs as well as the interim relief. The learned Single Judge was pleased to refuse the same by the impugned order dated 09.10.2024. The learned Single Judge specifically recorded that the writ petitions are filed after a period of two weeks and since the cut-off date is over, the interim relief in their favour was refused. The learned Single Judge in paragraph No.11 of the impugned order dated 09.10.2024, has observed thus: “11. Even on perusal of the chart submitted by the learned counsel for the petitioners with respect to the answers challenged and the chart submitted by the learned counsel for the respondent No.2 with respect to the answers given by the petitioners to the questions whose answers have been challenged, would show that many of the questions have been cancelled and in many of the questions, answers have not been changed. In the present case, some of the petitioners have given correct answers as per the final answer key to the disputed questions and they have been given marks for the same. Therefore, prima facie, the petitioners cannot be said to have set up a prima facie case to permit them to appear in the mains examination at this stage. Further, the learned counsel for the petitioners has submitted that if the challenge to three questions is accepted, it would qualify only some of the petitioners to appear in the mains examination. Therefore, prima facie, the petitioners cannot be said to have set up a prima facie case to permit them to appear in the mains examination at this stage. Further, the learned counsel for the petitioners has submitted that if the challenge to three questions is accepted, it would qualify only some of the petitioners to appear in the mains examination. When all the petitioners herein are praying for the interim relief to appear in the mains examination, the said contention cannot be taken into consideration as granting of interim relief would also give the benefit to those petitioners also who may not be able to qualify to appear in the mains examination even after adjudication of the present writ petitions.” 11. Thus, the learned Single Judge has also undertaken necessary exercise by examining the Chart and the questions and answers and ultimately, it was opined that the appellants did not have any prima facie case, which would enable them to have a similar interim relief. 12. We have perused the earlier order passed by the learned Single Judge, by which 36 candidates were permitted to appear in the mains examination. Perusal of the said order reveals that the respondent – G.P.S.C. was not having the data at the relevant time, which was produced in the subsequent writ petitions. It appears that since the time was short, as the cut-off date was to be crossed after two days; the petitioners of the said petitions were permitted to appear in the examination, and it was ordered that their results shall be kept in a sealed cover. 13. We have given ample opportunities to the learned advocate appearing for the appellants to put-up their case. Learned senior advocate Ms. Megha Jani appearing for the appellants has pointed out 26 questions and the answers key/answers to such questions. It is contended before us that some of the questions in the final answer key are cancelled, whereas in few of the questions in final answer key has been altered. For example, Question No.100 is referred by learned senior advocate Ms. Megha Jani. The same is as under: 4. 100. Consider the following statements regarding Giddha, Ghoomar and Garba. 1. All three are folk dances 2. All three dances are performed by women 3. All the three dances belongs to Rajasthan. Which is the above statements is/are correct? For example, Question No.100 is referred by learned senior advocate Ms. Megha Jani. The same is as under: 4. 100. Consider the following statements regarding Giddha, Ghoomar and Garba. 1. All three are folk dances 2. All three dances are performed by women 3. All the three dances belongs to Rajasthan. Which is the above statements is/are correct? (A) 1 only (B) 1, 2 (C) 1, 3 (D) 2,3 Answer as per PAK: A Answer as per FAK: B Remarks: As per petitioners, the answer provided in the PAK being A was correct as Statement No.2 is incorrect. Explanation: As per the book titled Gujarat published by Gujarat Vishwakosh Trust Prakashan, page 388, it is stated that even men do garba at times so Statement 2 is incorrect and answer A is the correct answer. 14. It was contended that in fact, the final answer key, as suggested by the G.P.S.C. as “B” is incorrect and as per the appellants, the option “A” would be correct one. Thus, the learned advocate for the appellants has endeavored before us to point out such irregularities in the answer key. 15. It is not in dispute that after the objections were received by the G.P.S.C., the G.P.S.C. after consultation with the expert body, has accordingly, acted and prorata marks, are granted to the candidates as per the policy. Even after granting of such prorata marks, it is found by us that none of the appellants have crossed the cut-off marks. The appellants have not assailed the policy decision of the G.P.S.C. in offering the prorata marks in those answer key, which are cancelled by the G.P.S.C. It is settled legal proposition of law that the High Court cannot delve into the policy decision of fixation of marks by the recruiting agency, unless it is found to be wholly arbitrary and illegal. The submissions advanced on behalf the appellants that the answer key of a particular answer should be as per their suggestions does not merit acceptance, since such determination has to be left on the discretion of the Experts Committee, which was already formed and pursuant to its opinion, the decision has been taken by the G.P.S.C. 16. The entire case of the appellants hinges on the earlier order passed by the learned Single Judge permitting the petitioners of Special Civil Application No.9287 of 2024 and other connected matters to fill-up their forms. The entire case of the appellants hinges on the earlier order passed by the learned Single Judge permitting the petitioners of Special Civil Application No.9287 of 2024 and other connected matters to fill-up their forms. It is an undisputed fact that the data of allocation of prorata marks and other relevant details were not available before the learned Single Judge when the order dated 01.07.2024 in Special Civil Application No.9321 of 2024 and allied matters was passed, and when it was placed in subsequent writ petitions, the learned Single Judge has refused to grant the same interim relief. 17. We have also noticed that the last date of filling-up the forms was 03.07.2024 and the writ petitions by the present appellants were filed beyond the said cut-off date of 03.07.2024. In none of the judgments and orders, on which the reliance is placed by the appellants, it is pointed out that the Courts have permitted to fill-up the forms for those candidates, who had approached beyond the cut-off date, and also that they do not fall within the zone of consideration even after allocation of prorata marks. If the appellants, who are unable to secure the minimum cut-off marks and are permitted to fill-up their forms even after the cut-off date, the same would open the flood-gate of litigation, and it will also be discriminatory, as the candidates who were unable to apply before the cut-off date, and have not secured less than cut-off marks would not have any opportunity to apply in the recruitment process, as their forms were not accepted at the relevant time due to crossing of the cut-off date. The grant of interim relief as sought by the appellants is not an empty formality, and such relief can only be granted on establishing a prima facie case. 18. In light of the foregoing observations and analysis, we do not find any infirmity in the order passed by the learned Single Judge refusing to grant interim relief in favour of the appellants. The present Letters Patent Appeals fail. The same are rejected. However, it is clarified that we have examined the matter in context of refusal of interim relief only. 19. All the connected Civil Applications stand disposed of accordingly.