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Writ of mandamus to grant grace marks

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 19125 of 2017
With
CIVIL APPLICATION (FOR CLARIFICATION OF ORDER) NO. 1 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 19125 of 2017
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 19125 of 2017

BHAVIN JITENDRABHAI CHOLERA

Versus

STATE OF GUJARAT 1 other(s)

Appearance:
MR DIGANT B KAKKAD(6523) for the Petitioner(s) No. 1
MR KANVA ANTANI, AGP (99) for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 29/06/2021
ORAL ORDER

1. Heard learned advocate Mr. Digant Kakkad for the petitioner, learned Assistant Government Pleader Mr. Kanva Antani for respondent No.1-State and learned advocate Mr. Premal Joshi for respondent No.2 through video conference.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“A. Your Lordships be pleased to issue writ of mandamus, directing Gujarat Public Service Commission to take into consideration the objections as raised by the petitioner and thereafter grant grace marks for the 12 questions against which wrong answers have been mentioned in the 1 question papers and to further grant 2 marks more in question No. 14(B);

B. Your Lordships be pleased to issue a writ of mandamus commanding Gujarat Public Service Commission to recalculate the marks and thereafter place the petitioner at the appropriate number in the select list subject to fulfillment of other eligibility criteria;

C. Your Lordships be pleased to issue a writ of mandamus commanding Gujarat Public Service Commission to place on record the correct answers to the 12 questions for which objections had been raised by the petitioner;

D. Your Lordships be pleased to issue a writ of mandamus commanding Gujarat Public Service Commission to declare the correct answer for the 3 questions for which the answers had been changed subsequently when the final answer key came to be published.

E. Pending admission and final hearing of the present petition, Your Lordships be pleased to direct Gujarat Public Service Commission to place on record answers to the 12 questions with supporting documents for which objections had been raised;

F. Pending admission and final hearing of the present petitioner Your Lordships be pleased to direct Gujarat Public Service Commission to consider the candidature of the petitioner by taking into consideration that petitioner had been allotted grace marks for the 12 questions and plus 2 marks more for question no. 14(B).

G. Your Lordships, be pleased to grant any other relief which deems proper in the interest of justice.”

3. Brief facts of the case are that the petitioner has filled online application form pursuant to the advertisement issued by the Gujarat Public Service Commission [for short ‘GPSC’] for the post of Gujarat Administrative Service, Class-I and Gujarat Civil Service, Class-I and Class-II. The petitioner appeared in the examination conducted on 12.10.2014 and results of preliminary examination was published on 19.03.2016 wherein, the petitioner was declared successful. The petitioner also thereafter, applied for main written examination on 27.05.2016. Pursuant to the declaration of the result of the main examination on 10.04.2017, the petitioner was called for an interview on 17.05.2017. On 28.07.2017, GPSC declared the list of successful and unsuccessful candidates wherein, the name of the petitioner appeared in the list of unsuccessful candidates. The petitioner has therefore, filed this petition with the aforesaid prayers:

4. This Court [Coram: Hon’ble Mr. Justice S.G.Shah]passed the following order dated 12.10.2017:

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“NOTICE, returnable on 22.12.2017. Learned AGP waives service of notice for the respondent State.

One post is to be kept vacant in each cadre except for the post of Dy.S.P.

To be tagged with Special Civil Application No.16761 of 2017. Direct service is permitted upon rest of the respondent/s.”

5. On inquiry being made with the advocate of the petitioner Shri Kakkad it was pointed out that Special Civil Application No. 16761 of 2017 was dismissed by order dated 19.06.2018 by this Court [Coram: Hon’ble Mr. Justice N.V.Anjaria] wherein similar prayers were made by unsuccessful candidates. However, learned advocate Mr. Kakkad submitted that so far as the petitioner is concerned, the case of the petitioner stands on slightly different footings as the petitioner is agitating for grant of 2 marks in question No. 14B of paper of Gujarati because according to the petitioner, though the petitioner has given the correct answer similar to other candidates he has been given only two marks whereas the other candidates have been given four marks and if the petitioner secure two more marks, he would be eligible for selection as the marks obtained by the petitioner is 545 whereas the cut off marks for selected candidate is 547.

6. Learned advocate for the petitioner referred to page 149 Annexure H to submit that the answers given by the petitioner is similar to that of the other applicants and in spite of such fact, the petitioner is given only two marks. For this submission, reliance was placed on para 2.14 of the petition which reads as under:

“2.14 The petitioner submits, that in Question No. 14(B) of paper of Gujarati, an another applicant of examination has written a similar answer to that written by petitioner. Yet, the  petitioner is given two marks in said question and other applicant is given 4 marks out of total 4 marks. Thus, the petitioner is also entitled to similar four marks in the said question. The copy of comparison of two answers one given by petitioner and another by applicant is annexed hereto and marked a Annexure-H.”

7. On a query being put to learned advocate for the petitioner as to from which source or material Annexure H page 149 is placed on record, learned advocate for the petitioner submitted that there is nothing on record to show that the petitioner applied for rechecking by paying requisite fees but it was submitted that such answers of other candidates in comparison of the petitioner was obtained by the petitioner with the help of social media. Such approach of the petitioner is not maintainable while considering the case of the petitioner under Article 226 of the Constitution of India as the petitioner has failed to give any basis for producing Annexure H on record. Therefore, the petitioner is not entitled to get the benefit of Annexure-H in the present petition.

8. As far as the other prayers of the petitioner are concerned, same are similar to prayers made in Special Civil Application No. 16761 of 2017 which is dismissed by this Court by as under:

“5. The factual position undisputedly emerges is that the petitioner participated in the selection  process. The final answer keys were published on 09.04.2017 as stated above about which the petitioner was aware. At that stage, he did not question the correctness of the answers contained in the final keys. Interviews were held subsequent to the publishing of the answer keys, in which also the petitioner appeared. It was only when he failed to succeed in the interview and did not find place in the final selection list, that he filed the present petition raising the grievance about the correctness of the answers.

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5.1 It is well settled proposition of law that once a candidate takes part in the process of selection, takes a chance but upon failing to be selected challenges selection process, he is estopped from subsequently questioning his nonselection. Taking part in the selection process would disentitle him from raising a challenge against the selection. (See G. Sarana vs. University of Lucknow [(1976) 3 SCC 585], Nanak Lal vs. Prem Chand Singhvi [AIR 1957 SC 425], Prakash Shukla vs. Akhilesh Kumar Shukla [[1986 Supp SCC 285], Manish Kumar Shahi vs. State of Bihar [(2010 12 SCC 576], Amlan Jyoti Borooah vs. State of Assam [(2009) 3 SCC 227], Ramesh Chandra Shah vs. Anil Joshi [(2013) 11 SCC 309], Madras Institute of Development Studies vs. K. Sivasubramaniyan [(2016) 1 SCC 454], D. Saroj Kumari vs. R. Helen Thilakom [2017 (11) SCALE 366]).

5.2. In D. Saroj Kumari (supra), it was observe that, “Thus, from the aforesaid latest decision rendered by the Hon’ble Supreme Court, it can be said that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Thus,  we are of the view that the petitioners once participated in the OMR examinations without any objection having been failed to secure the minimum qualifying marks/failed to come within the zone of consideration, the petitioners are estopped from contending that GSRTC cannot conduct OMR examination in three different slots.” (Para 21) 5.3 In the present case, the aforesaid principle squarely applies inasmuch as the petitioner participated in the process, was aware about the final key answers given, did not question the correctness of the same, further participated in the interview and only upon not succeeding to be selected, sought to raise his grievance about the answers.

5.4 Furthermore, the kind and nature of controversy raised by the petitioner which is in the realm of education pertaining to the correctness of the key answers, this Court exercising Writ powers would have a very limited role to play. The scope of judicial review is extremely limited.

5.5 In Ran Vijay Singh and others vs. State of Uttar Pradesh and others [(2018) 2 SCC 357], the Supreme Court observed that the Court should not reevaluate or scrutinize the answersheet and anysuch matters which are in the realm of expertize by the educationists. The cases would be rear and exceptional where only the Court would be inclined to interpose.

5.6 The proposition of law in Ran Vijay Singh (supra) and others was quoted with approval in UPPSC, Through its Chairman and another vs. Rahul Singh and another, being Civil Appeal No.5838 of 2018, decided on 14.06.2018, in which the issue pertained to the challenge to the key answersonly, when the Court observed, “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 they key answer 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, through Vice Chancellor and others vs. Samir Gupta and others [(1983) 4 SCC 309], 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 questions.” (para 12) “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.” (para 13)  “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.

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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 opinion of the experts.” (para 14)

6. Even on merits, following stand of the respondent evinced from paragraph 11 weakened the case of the petitioner further dissuading the Court to render the petition liable to be dismissed.

“…. the petitioner has raised objection against answer key of 26 question in paper4. Out of this 26 question, 11 question have been identified wherein answer given by the petitioner is found different from the objection raised. In these questions petitioner has objected that either all options are correct or all options are incorrect but the petitioner has already attempted these questions by encoding any of the available options for answer. It is asserted if the petitioner had found all the options as incorrect then he should have selected option “E” which stands for “question not attempted”. It is further asserted if the petitioner found all the options as correct then he should have selected option “E” or should have chosen the most appropriate/the closest answer among them.

Further, it is to state that though the petitioner, in Paper4, Series “D”, has  attempted questions No.132 and 134 correctly as per final answer key, he has prayed for grace marks inappropriately. It is pertinent to note that the petitioner has suppressed the material facts….”

7. For the aforesaid reasons and discussion, no relief could be granted to the petitioner. The petition fails and the same is hereby dismissed. Notice is discharged. Interim order stands vacated.

9. In view of the above judgement and order, case of the petitioner is also not considered for the same reasons and discussion and no relief can be granted to the petitioner. The petition accordingly fails and the same is hereby dismissed. Notice is discharged. Interim order stands vacated forthwith.

10. In view of dismissal of the Special Civil Application, Civil Applications, if any pending, are also dismissed.

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