Divyang J Shah vs State Of Gujarat
2021 Latest Caselaw 12176 Guj

     C/SCA/16703/2017                                      ORDER DATED: 24/08/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16703 of 2017

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                              DIVYANG J SHAH
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 24/08/2021

                                  ORAL ORDER

1. The present petition is filed by the petitioner - party-in- person with the following relief(s):

"(A) To admit and allow the present petition.

(B) To issue a writ of mandamus or any other writ order or direction, directing the respondents to CORRECT the ANSWER KEYS.

(C) To issue a writ of mandamus or any other writ order or direction, directing the respondents to put on record the OMR sheets of the petitioner.

(D) To issue a writ of mandamus or any other writ order or direction, directing the respondents to put on record the Result of the present recruitment with the marks of all the candidates who show up into the interview with the marks of the petitioner.

(E) Pending admission and final disposal of the present petition, that the respondent no.2 to not to proceed to interviews or stay the further recruitment process for the disputed post of Motor Vehicle Inspector class-II or further be pleased to direct the respondents to include the present petitioner in the final list of successful candidate for the post of Motor Vehicle Inspector class-II or in the alternative direct the respondent no.2 to keep one post vacant for the recruitment of Motor Vehicle Inspector class-II.

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(F) This Hon'ble Court may kindly be pleased to grant any other and further relief as the nature and circumstances of the present case may required in the interest of justice."

2. The petitioner - party-in-person is representing his case and he has submitted that he has already filed written submissions and the same may be considered.

3. It is submitted by the party-in-person that there are at- least 25 questions involved in the written examination of which incorrect answer keys are provided by the Gujarat Public Service Commission (GPSC). It is submitted by him that pursuant to the advertisement, the petitioner applied for participating in the recruitment process. The case of the petitioner is that the final answer keys, which have been declared by the respondent no.2, are not valid and proper and the same are required to be corrected and the fresh final answer keys are required to be published. It is submitted by him that an application raising objections with regard to the final answer keys, was submitted within the prescribed time limit. It is submitted by him that as per the text books published by the concerned University as well as settled proposition of various text books, the answer keys provided by the GPSC in these 25 questions are incorrect. It is submitted by him that if the answer keys are corrected, he is entitled for the appointment on the post in question. It is submitted by him that five members committee may be formed to decide the answer keys. He has further referred to pages of the petition from 267 to 328 for placing reliance for the correct answer keys, which relate to the automotive subject including

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engineer, in support of his submissions. Further reliance has been placed on Pages-367 to 373, whereby the answers of similar questions and answers are referred in the previous recruitment. Thus, he has submitted that the present writ petition may be allowed and the respondents may be directed to correct the answer keys. He has further submitted that he has already corroborated his submissions by providing proper evidence. However, the respondent-authorities, while filing an affidavit, have not corroborated the evidence, and hence, the affidavit is required to be rejected. He has further submitted that the suggestions, which are put by him, while answering answer keys, are not considered by the GPSC and no policy has been produced by the GPSC justifying their action of finalizing the answer keys. He has submitted that it is always open for the High Court to examine the questions of law and one of the questions pertains to the interpretation of law. Reliance is also placed on the following various judgments:

(I) Ram Narain Vs. State of U.P. reported in 1973(2) SCC 86;

(II) Kanpur University and others Vs. Samir Gupta and others reported in AIR 1983 SC 1230;

(III) Union of India and others Vs. R. Reddappa and another reported in AIR 1993 SCW 2986;

(IV) Abhijit Sen and others Vs. State of U.P. and others reported in AIR 1984 SC 1402;

(V) Guru Nanak Dev University Vs. Saumil Garg reported in 2005 (13) SCC 749;

(VI) Manish Ujwal and others Vs. Maharishi Dayananad Saraswati University and others reported in 2006 AIR SCW 4703;

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(VII) Sanjay Singh and another Vs. U.P. Public Service Com., Allahabad and another reported in AIR 2007 SC 950;

(VIII) Karnataka Power Corporation Limited and another Vs. A.T. Chandrashekhar reported in AIR 2007 SC 2480;

(IX) Pundlik Jalam Patil (deceased by Lrs.) Vs. Exe.

Egn. Jalgaon Medium Project and another reported in AIR 2008 SC (Supp) 1025;

(X) S.S. Balu and another Vs. State of Kerala and others reported in AIR 2009 SC 1994;

(XI) Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack De Sequeria reported in AIR 2012 SC 1727;

(XII) Kamlesh Kumar Sharma and others Vs. State of Rajasthan and another reported in (2013) 4 CDR 1775;

(XIII) Ran Vijay Singh Vs. State of U.P. reported in AIR 2018 SC 52;

(XIV) U.P.P.S.C., through its Chairman Vs. Rahul Singh reported in AIR 2018 SC 2861;

(XV) State of Tamil Nadu Vs. Elephant G. Rajendran reported in AIR 2019 SC 236;

(XVI) Richal Vs. Rajasthan Public Service Commission reported in 2018 (8) SCC 81;

(XVII) P. Chidambaram Vs. Directorate of Enforcement reported in AIR 2020 SC 1699;.

(XVIII) Rajesh Kumar and others Vs. State of Bihar and others reported in 2013(4) SCC 690;

(XIX) Sandhya Naranbhai Maru Vs. Secretary, Gujarat Panchayat and four others (in Special Civil Application No.14870 of 2015 with Special Civil Application No. 14877 of 2015 with Special Civil Application No.16815 of 2015);

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3.1 The Court has also considered the written submissions made by the party-in-person dated 08.03.2021, 23.03.2021, 28.06.2021, 15.07.2021 and 29.07.2021. In the written submissions, the party-in-person has placed reliance on the various judgments as well as the supporting material on record with regard to the answer keys.

3.2 I may with caution reproduced one paragraph of the written submission dated 15.07.2021, it is stated by the party-in-person that "before the Hon'ble Mr. Justice G. R. Udhwani while arguing I was able to demonstrated the key answer finalized by the Respondent as incorrect, hence Hon'ble Court gave some instructions orally but till date they are not complied with. Therefore the petitioner has made an application under the RTI act for the ZOOM app recording of the same but till date the recording is also not provided."

3.3 Further reliance is also placed on the order dated 01.03.2021 passed by the Coordinate Bench of this Court (Coram: Sangeeta K. Vishen, J.). It is submitted that despite the aforesaid order, the respondents have not provided or supplied any policy on which the answer keys are finalized. Thus, it is submitted that all the answer keys referred hereinabove are incorrect as per the reference on which the reliance is placed by him and it is, thus, submitted that the action of the respondent-authorities is required to be set aside. He has submitted that expert is not an expert in the

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automobile engineering and as such suggestions from the expert could not be considered.

4. In response to the aforesaid submissions, Mr.D.G. Shukla, learned advocate for respondent no.2, has placed reliance on the affidavit filed by the GPSC. It is submitted by him that the expert in the field is consulted by the GPSC and after the objections were invited from the candidates till 27.10.2016 including the present petitioner, three objections were accepted by the expert, and accordingly, answer keys were revised in compliance with the suggestions made and 22 objections were not accepted by the expert. It is further submitted that the respondent-Commission published the final answer keys on the advertisement on 07.02.2017 while the present writ petition has been filed on 06.09.2017 and was circulated after more than seven months after final answer keys are produced. It is submitted by him that all the results are declared and the recruitment process is also over. However, one post of SC category is kept vacant. He has placed reliance upon the statement produced in the affidavit at Annexure-RI and has submitted that there is discrepancy in the submissions advanced by the petitioner to the effect that the petitioner had marked the answers in OMR-sheet suggesting particular answers. However, in his suggestions and objections, he has referred to two answers. He has submitted that such objection was not considered as the petitioner's answers and objections are found to be different. He has also placed reliance on the recent judgments of the Supreme Court in the case of Vikesh Kumar Gupta and

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another Vs. State of Rajasthan and others reported in (2021) 2 SCC 309.

5. I have heard the party-in-person at length and Mr.D.G. Shukla, learned advocate for respondent no.2.

6. The Court has also perused various judgments along with the documents which he has produced. Before this Court deals the merits of the matter, it would be apposite to refer to the order passed by the Coordinate Bench (Coram: Sangeeta K. Vishen, J.) on 01.03.2021, whereby the respondent- Commission was asked to place on record the opinion of expert in the sealed cover. It appears from the order dated 29.06.2021 passed by the Coordinate Bench of this Court (Coram: Bhargav D. Karia, J.) that such sealed cover was submitted and the office was directed to keep in the safe custody. It is a case of the petitioner that there are 25 questions to which the answer keys suggested by the Commission are incorrect and invalid. The petitioner had filed an application for appointment to the post of Inspector of Motor Vehicle Transport and the commission declared the result of the competitive examine for the said post on 05.10.2017 and the result was published. Such requirement process was held in April-2015 pursuant to the Advd.No.02/2015-16 for filling up 100 posts of Inspector of Motor Vehicle (Class-II). The petitioner had applied in the SC category for the said post and the cut-off marks for SC category was derived at 155.05. The petitioner secured 144.59 marks i.e. below the cut-off marks and therefore, he was not

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included in the list of eligible candidates. The provisional answer keys of such test was published on 17.10.2016 and the objections were also invited from the candidates till 27.10.2016. The petitioner along with other candidates raised an objection to the question papers, and accordingly, the petitioner suggested 25 objections within the prescribed time limit. Such objections, which were conceded by the respondent Committee, were sent to the expert to confirm and correct answers and total 150 suggestions in 300 questions were submitted in Paper-1 (Automobile Engineering) and Paper-2. On receipt of the opinion from the expert in the subject, the final answer keys were published on 07.02.2017 and accordingly, the questions papers were assessed. It is not in dispute that out of 25 objections raised by the petitioner, the experts have considered three objections and accordingly, the answers were revised and 22 objections were not accepted by the experts and provisional answer keys were sustained in all 31 cases. Thus, it is a case of the Commission that after obtaining the opinion from the expert, three answer keys were altered and modified and accordingly, marks were revised and list was published. It is also not in dispute that the present petition was filed on 06.09.2017 after a delay of approximately seven months after publication of final answer keys on 07.02.2017 and accordingly, the recruitment process is now over and finalized. However, one post was kept vacant pursuant to the interim order passed by this Court in SC category. The party-in-person has placed reliance on various judgments as referred hereinabove as well as different reference books in support of his submissions and he has

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submitted that 25 answer keys are required to be corrected. It is further the case of the party in person that there is a difference of opinion in the experts also as different answer keys are provided for the same answers as per the experts. The 25 questions, for which the present petitioner has raised objections, are referred hereinbelow:

"Q-1. Rectilinear motion of piston is converted into rotary by;

Q-2. Pitch point on a cam is;

Q-4. Transmission of power from the engine to the rear axle of an automobile is by means of;

Q-24. A vehicle is sagging at the rear, which of the following procedures would properly correct this condition;

Q-27. Which of the following is the preferred method for tirerotation on a front-wheel-drive vehicle ?

Q-28. What is the maximum Radial run-out allowed for a tire:

Q-38. What is the typical type of fluid used in hydraulic clutch;

Q-39. A five speed manual transmission is very difficult to shift into 3rd and 4th gear only. Which of the following could be the cause ?

Q-40. A defective U-joint can cause a clicking sound. When is the sound most noticeable ?

Q-53. When the clutch pedal is depressed, the release bearing pushes the pressure plate fingers or levers inward. This causes the pressure plate to move away from

Q-55. 'Heel' and 'toe wear' in tyres is caused by;

Q-70. The adjustment for backlash in a differential is provided between

Q-76. What method is used to guard against water entering a four four-wheel-drive differential ?

Q-77. Loud noises are heard from the transfer case of four wheel-drive vehicle while in four-wheel drive only. Which of the following is most likely the cause ?

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Q-81. A front-wheel-drive a vehicle pulls towards the right when accelerating and yet does not pull while cruising at a steady speed. What I'd the most likely cause ?

Q-89. Hottest part of the engine is;

Q-97. To shift into a gear, the first movement of the gear shift lever;

Q-113. Two engines of same cubic capacity and RPM, one 4S and other 2S;

Q-115. Which of your vehicle's lights do you have on if you are Driving in fog ?

Q-120. The following type (s) of Oil pump(s) is (are) used on Engine Lubrication system.

Q-129. Free pedal play in car clutches of about;

Q-168. The diameter of the very large bores can be measured accurately by;

Q-187. When testing the specific. Gravity of a lead-acid battery electrolyte, what I'd the generally accepted full charge reading ?"

7. The aforementioned questions would suggest that the same pertain to technical papers of automobile engineering and are very complex in nature for this Court to examine them. The sealed cover, which was called upon by this Court, was opened by this Court and the report of the expert opinion was perused by this Court and the same is also forwarded to the party-in-person. While referring to the expert's opinion, he has submitted that for Question Nos.39, 53, 115, 120, 168 and 187, the expert has incorrectly opined and suggestions raised by the petitioner for answer keys are incorrectly considered on the basis of websites which are not permissible.

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8. Thus, he has submitted that the entire process which is adopted by the GPSC is not permissible under the law and the correct answer keys which are referred by him in the reference books with regard to the questions of automotive technology, are, in fact, are correct and accordingly, the answer keys are required to be modified.

9. As observed hereinabove, the party in person has placed reliance on various judgments. This Court has perused the same. Some of the judgments are absolute irrelevant to the issue raised in the writ petition. The petitioner is seeking correction of answer keys of 25 questions according to him they are incorrect. The expert has also given his opinion to such answer keys. The petitioner has placed reliance on various reference books. The expert has also placed reliance on various reference books and independent material. The questions referred to herein above indicate that the same are complex and pertain to automobile engineering. In the opinion of this Court, since the issue is covered by the recent decision of Hon'ble Three Judges Bench of Apex Court, the judgments which are referred by the petitioner are not dealt with. I may with profit refer to the observations made by the Hon'ble Supreme Court in the case of Vikesh Kumar Gupta (supra), wherein the Hon'ble Supreme Court has observed in Paragraph Nos.15, 16, 17 and 18 as under:

"15. Examining the scope of judicial review with regards to re-

evaluation of answer sheets, this Court in Ran Vijay Singh v. State of U.P. held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows:

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"31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.

32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."

16. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the expert committee in its judgment dated 12-03-2019. Reliance was placed by the appellants on Richal v.

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Rajasthan Public Service Commission . In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.

17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.

18. The submission made by the respondents that the appellants are not entitled to any relief as there is inordinate delay in approaching the Court is not necessary to be adjudicated upon in view of the findings in the preceding paragraphs."

10. The Supreme Court has specifically cautioned that "courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible." Thus, it is not open for this Court to assess the complex questions and its answers and arrive at correct answers. In the present case, the petitioner has approached after a delay of seven months. Final answer keys were published on 07.02.2017 and thereafter, the petitioner sent email on 12.02.2017 to the GPSC with application for suggesting answer keys which were replied by the GPSC on 13.02.2017 and thereafter, on 05.07.2017, interview list was published. The petitioner could not have approached this Court in the month of February-2017 when final answer keys

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were declared and when email was replied by the GPSC. However, the present writ petition has been filed on 06.09.2017 i.e. after a delay of approximately seven months. Thus, this Court cannot exercise its desecration under Article 226 of the Constitution of India at this stage as the same will have an cascading effect on the entire recruitment process.

11. In view of the aforesaid facts and law enunciated by the Apex Court, the writ petition fails and the same is rejected. Notice is discharged.

12. The documents in the sealed cover are ordered to be taken on record.

(A. S. SUPEHIA, J) rakesh/