Mahendrasinh Ramsinh Parmar vs State Of Gujarat
2023 Latest Caselaw 5466 Guj

    C/SCA/19174/2022                               CAV JUDGMENT DATED: 13/07/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 19174 of 2022
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 19248 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE MAUNA M. BHATT                         sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2      To be referred to the Reporter or not ?                             No

3      Whether their Lordships wish to see the fair copy                   No
       of the judgment ?

4      Whether this case involves a substantial question                   No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MAHENDRASINH RAMSINH PARMAR Versus STATE OF GUJARAT & 4 other(s) ========================================================== Appearance:

MS ARCHITA M PRAJAPATI(8241) for the Petitioner(s) No. 1 MS NIRALI SARDA, LD. ASSTT. GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3,4,5 ========================================================== CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 13/07/2023

CAV JUDGMENT

1. As both these petitions are filed involving similar issues, with the consent of learned advocates appearing for the respective parties, the same are taken up for hearing together and decided by this common judgement.

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2. Both these petitions are filed challenging the action of the respondents in declaring the petitioners, disqualified and unsuccessful. In both the petitions, the petitioners have been declared disqualified vide order dated 30.07.2022 and they have been declared unsuccessful in the result dated 31.07.2022.

3. The facts, in brief, are as under:

Special Civil Application No.19174 of 2022:

The petitioner was appointed on the post of Police Constable vide order dated 09.04.2003. Thereafter, he was promoted to the post of Head Constable on 01.02.2016. An advertisement dated 15.12.2018 was published inviting applications from the eligible candidates to participate in the examination for the promotion to the post of PSI (Unarmed). The petitioner being eligible filled the application form to participate, in the examination. The said Examination was conducted in three stages i.e. (I) Physical Strength Examination

(ii) Objective Examination and (iii) Subjective Examination. The petitioner cleared Physical as well as Objective examination. He was qualified to appear in the Subjective examination and accordingly Admit Card was issued to him. Subjective Examination was scheduled on 29.05.2022. Therefore, he went

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and appeared in Gujarati language on 29.05.2022 between 11:00 am to 2:00 pm. Next examination for English language was to be conducted between 3:00 pm to 6:00 pm and the petitioner attended the same. It is the case of the petitioner that during that examination, some candidates to whom, the petitioner is not known threw some chit, which fell under the desk of the petitioner and on account of said incident, the petitioner was told that he was copying in the examination. Answer sheet of the petitioner was taken away 45 minutes prior to the scheduled time and was not allowed to write further paper. He was compelled to sign on per-printed paper and the petitioner was not allowed to attempt paper further. Subsequently, respondent authority called for written explanation from the petitioner in relation to breach of Condition No.12 of Instructions by communication dated 04.07.2022. The petitioner had provided Written Explanation under communication dated 06.07.2022. Vide letter dated 25.07.2022, the petitioner was asked to remain present for personal hearing on 30.07.2022. The petitioner remained present and also tendered one more Written Explanation. However, the petitioner received letter dated 30.07.2022 through Post, by which, he was disqualified from the examination on the ground of breach of Condition No.12 of Instructions. Aggrieved by which, the present petition is filed.

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Special Civil Application No.19248 of 2022:

The petitioner was appointed on the post of Police Constable on 01.10.1996. Pursuant to the advertisement dated 15.12.2018, for promotion to the post of PSI, (Unarmed), he applied for the examination. Examination was to be conducted in three stages, wherein the petitioner has cleared Physical Strength Examination as well as Objective examination. He appeared in Subjective examination on 29.05.2022. As he has to remain present in the examination along with Admit Card, he sits in the examination along with Admit Card. During his English language paper, which was conducted on 29.05.2022 between 3:00 pm to 6:00 pm, the petitioner was not permitted to sit for further examination on account of some rough work carried out by him in Admit Card. He was told that there is violation of Condition No.12 of Instructions and therefore, he was disqualified from the said examination. He was compelled to sign the paper and was not allowed to complete his paper. Through communication dated 22.06.2022, written explanation of the petitioner was sought for, in relation to breach of Condition No.12. By communication dated 25.07.2022, he was asked to remain present for hearing on 30.07.2022. The petitioner remained present on 30.07.2022 and also tendered Written Explanation, ignoring which, an order dated 30.07.2022 was passed disqualifying the petitioner from Examination on breach of Condition No.12 of Instructions.

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Under order dated 30.07.2022, the petitioner was declared Unsuccessful in the List. Aggrieved by which, the present petition is filed.

4. Heard learned advocate Ms. Archita Prajapati for the petitioners. She made following submissions:

4.1 In relation to the petitioner in Special Civil Application No.19174 of 2022, she submitted that the action taken by the respondents in declaring the petitioner unsuccessful vide order dated 30.07.2022 is illegal and arbitrary. In the order dated 30.07.2022, the respondents have relied upon Condition No.12 of Instructions wherein, it is stated that in case of copying or committing misconduct or irregularity or indiscipline, the candidate shall be declared as unsuccessful. She submitted that though no act of copying was committed by the petitioner or no indiscipline act was done by the petitioner, he has been penalized. The decision was taken without giving an opportunity of hearing. Even CCTV footage has not been checked before passing order dated 30.07.2022. The only opportunity given was Show Cause Notice dated 04.07.2022, whereby the explanation from the petitioner was called for breach of Condition No.12 of Instructions. The petitioner has provided explanation in detail, however, the same was not considered, which has caused prejudice to the petitioner. The

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petitioner was asked to remain present on 30.07.2022 and was asked to provide Written explanation. On 30.07.2022, the petitioner remained present at the office of respondent No.1 and he had provided Written Explanation explaining that he was not carrying any copying material. Someone from the class room had tried to throw a chit outside the classroom through the window and as the petitioner was sitting near the window, the said chit fell on the desk of the petitioner. At the relevant time, the Supervisor, who was outside the class saw the chit in the hands of the petitioner and presumed that the petitioner was copying. No copying or misconduct has been done by the petitioner and therefore, the impugned order is erroneous.

4.2 Respondent No.1 published result of the Examination on 31.07.2022 wherein the petitioner has been declared unsuccessful and only the marks of the Objective Examination was shown in the said Result. Though the petitioner had attempted the Gujarati and English language papers, result of Written Examinations were not declared and the petitioner was declared as unsuccessful. The paper of English language was taken 45 minutes before time and therefore, action of the respondents declaring the petitioner as unsuccessful is erroneous.

4.3 She submitted that there was total 540 vacancy, out of

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540, 401 candidates were declared successful and 154 candidates were declared unsuccessful. If the petitioner is found successful, he has fair chance of appointment, which is deprived by illegal action on the part of the respondents. Further, after issuance of Circular for the recruitment on the post of PSI (Unarmed) in November,2018, the Examination were concluded after about 3 1/2 years. If his candidature is not considered by only applying Condition No.12, which is erroneous and grave prejudice will be caused to him. He was fully prepared for passing the examination to get promotion. The respondents failed to consider circumstantial evidence and most importantly, they have not done any inquiry before arriving at any conclusion or not seen any copy is done and straightway declared the petitioner unsuccessful, which is illegal.

4.4 In case of other petitioner in Special Civil Application No.19248 of 2022, she submitted that case of this petitioner is also similar to the petitioner in Special Civil Application No.19174 of 2022. In the present case, the petitioner wrote few quotes on the back side of his Admit Card with a view to attempt it later. Despite no copying was done and no answer was written on the Admit Card, only rough work was done by the petitioner, the respondents declared him unsuccessful vide order dated 30.07.2022. She submitted that in case of this

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petitioner, the petitioner has been declared unsuccessful only by invoking Condition No.12 of Instructions, without any investigation, without seeing any CCTV footage as also, and the petitioner was told that rough work in the Admit Card entails application of Condition No.12. She reiterated other grounds raised in the petition.

4.5 She relied upon following decisions of this Court:

(i) Hemal Ishwarbhai Patel Vs. Veer Narmad South Gujarat University and Ors. in Special Civil Application No.19456 of 2016;

(ii) Siddharth Mohanlal Sharma Vs. South Gujarat University decided on 23.10.1981;

(iii) Dharaben Dhansukhbhai Joshi Vs. Gujarat Gaun Seva Pasandgi Mandal through Secretary in Special Civil Application No.6480 of 2022;

(iv) Mukesh Devdanbhai Lokhil & Ors Vs. Secretary & Ors. in Special Civil Application No.1486 of 2018 and allied matters;

(v) Mahamunkar Sampatbhai Sitaram Vs. Secretary in

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Civil Application No.1 of 2021 in Letters Patent Appeal No.5 of 2020 in Special Civil Application No.4944 of 2018;

5. On other hands, learned Assistant Government Pleader Ms.Nirali Sarda for the respondents relied upon affidavit-in- reply and submitted that action taken by the respondents is inconsonance with the Extant Rules. Relying upon Recruitment Rules for the post of Police Sub-Inspector (Unarmed), she submitted that Special Competitive Examination is required to be conducted in accordance with the Gujarat Police Sub Inspector Special Competitive Examination Rules, 2004. The said Rules of 2004 were amended by the Gujarat Police Sub Inspector Special Competitive Examination (Amendment) Rules, 2014. Referring to Rule 12, she submitted that as per the said Rules, ordinarily candidate shall be considered for appointment, however, he cannot confer any right of appointment. The present petitioners are claiming right of appointments as per Extant Rules and therefore, these petitions cannot be entertained.

5.1 She submitted that for the purpose of promotion as Police Sub-Inspector (Unarmed), Special Competitive Examination is required to be conducted under the Extant Rules. Pursuant to which, the board has conducted the Physical test, Objective

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test and Written test. The petitioners, if by any reason, failed in test, they cannot claim any right over the appointments.

5.2 Before passing the impugned orders, the petitioners were provided opportunity of hearing and their explanations were considered in detail. Thereafter, the orders dated 30.07.2022 and 31.07.2022 were passed, after following principles of natural justice and therefore, these petitions do not require any interference of this Court.

5.3 In relation to merits, she submitted that eventually, there were two essays written on the chit, which was found from the petitioner in Special Civil Application No.19174 of 2022, which is in the form of unauthorized material or copying material and the same was found from the custody of the petitioner, there is no illegality in applying Condition No.12 of the Instructions.

5.4 In relation to explanation of the petitioner in Special Civil Application No.19248 of 2022, she submitted that the petitioner is appearing in Special Competitive Examination conducted for the post of Police Sub-Inspector (unarmed) and therefore, he is quite aware about the fact that nothing is to be written on the Admit Card, however, some rough work was found on the Admit Card and therefore, he was declared as

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unsuccessful and there is no illegality found.

Both these petitioners appearing in Special Competitive Examination for the post in question, are expected to meet with the best of ethics in which, both the petitioners have failed and therefore, there is no illegality in the orders disqualifying them. The orders were passed applying Condition No.12 of Instructions declaring the petitioners unsuccessful. Before that, the petitioners were put to show cause and explanations were called for and affidavits filed by the petitioners were taken into consideration. There is nothing on record, which supports the case of the respondents that the material was not found from the petitioners. She submitted that when the petitioners appeared for the examination for the post like PSI, they are required to maintain high standard of discipline. The same is lacking here and therefore, the present petitions may not be entertained.

5.5 She relied upon decision of Hon'ble Apex Court in the case of The State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr. in Civil Appeal No.6669 of 2019.

6. Considered the submissions of learned Advocates for respective parties. It is noticed that the respondents have failed to consider circumstantial evidence and most importantly, they have not done any inquiry before arriving at the conclusion. In

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the affidavit it is case of the respondents that the invigilator of the class had seen the petitioners coping or with the chit as the case may be, however, no inquiry was done at that stage. Instruction No.12 reads that if the candidate is found doing copy, committing any malpractice/misconduct then in furtherance of declaring such candidate disqualified, disciplinary action like prohibiting or participating in future exams can be taken. Despite explanation of the petitioners in both the cases, no inquiry was conducted, to verify the correctness of the allegations. Strait application of instruction No.12, in my opinion is not appropriate and arbitrary. Most importantly the order dated 30.07.2022, in both the cases does not give any reason except reproduction of Instruction No.12

6.1. In that context let's first take a decision relied upon by

learned Advocate for the petitioner, in the case of Hemal Ishwarbhai Patel (Supra). It would be apt to reproduce Paras 5.4, 6.5 & 7, which read as under:

"5.4 The Division Bench in Siddharth Ashvinbhai Parekh (supra), held thus,

"If the respondent-University was of the opinion that by doing rough work on page 23, the petitioner has disclosed his identity then the respondent-University ought to have conducted a detailed inquiry with regard to the said allegation

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and after inquiry if the said fact is proved against the petitioner, then he could have been punished. However, in the present case, no such inquiry was held and on the basis of presumption and assumption the impugned order is passed by the respondent-University which is not permissible in the eye of law. In the facts of the present case, we are of the opinion that it is a case of no evidence against the petitioner and therefore the respondent- University ought not to have passed the impugned order." (Para 19)

5.4.1 The Court noticed,

"From the record, it is further clear that in the impugned order dated 08.03.2016 the respondent University has stated that the alleged misconduct against the petitioner is proved and therefore the order of penalty is passed against him. However, it is not at all stated how the alleged misconduct is proved against the petitioner. There is no discussion or reference with regard to the same and therefore the said order is a non-speaking order. At this stage, it is to be noted that the respondent- University has not supplied the copy of the report of the Disciplinary Committee to the petitioner. However, the said report was submitted along with the affidavit filed before the learned Single Judge.

Thus, the petitioner was also deprived of putting his defence and thereby also the respondent-University has violated the principles of natural justice." (Para

20)

5.4.2 The Division Bench set aside the decision of the learned Single Judge in the writ petition by stating,

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"Thus, in a given facts, it was observed by the Hon'ble Supreme Court that it is a systematic case of fraud committed by the concerned respondent. The facts of the present case are different and in the present case the respondent-University has on the basis of the assumption and presumption believed that the petitioner has done the rough work on page 23 with a view to disclose his identity to the examiners." (Para 25)

5.4.3 And finally holding,

"Thus, keeping in mind the aforesaid decision rendered by the Hon'ble Supreme Court, we are of the opinion that the learned Single Judge has committed an error while not appreciating the fact that the present is a case of no evidence against the petitioner and the respondent University has passed the impugned order on the basis of the presumption and assumption. Learned Single Judge has also not properly considered the fact that impugned order is a non-speaking order in which it is merely stated that the misconduct against the petitioner is proved but in which manner the said misconduct is proved is not at all discussed. The Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) specifically held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the present case, it is clear that no reason is given in the impugned order passed by the respondent- University that in which manner the allegation levelled against the petitioner has been proved. The respondent-University cannot explain the reason by filing an affidavit annexing the report of the

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Disciplinary Committee. The learned Single Judge has also failed to consider the fact that the petitioner was not supplied with the copy of the report of the Disciplinary Committee." (Para 27)

6.5 When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it would be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh (supra) was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the

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decision in Siddharth Ashvinbhai Parekh (supra).

7. For the aforesaid reasons and consideration, the petitioner deserves to succeed. Accordingly, impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner within three days from today."

7. In another decision relied upon by the petitioners, of this Court in the case of Dharaben Dhansukhbhai Joshi (Supra), in Para- 10 has held as under:

"10. In the facts and circumstances of this case, the rigour of the rule was applied without compassion and application of mind. Reasonableness tempered with mercy was expected of authorities rather than mathematical application of rules.

For all these reasons, the impugned order dated 25.11.2021 is quashed and set aside. The petitioner shall be held eligible to appear in all the examinations that are held hereinafter by the Gujarat Subordinate Services Selection Board. Since the order impugned is quashed and set aside, needless to say that the petitioner shall be

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permitted to appear in the examinations notified on 24.04.2022 pursuant to the advertisement no. 150/2018-2019 and a call letter be issued to appear. The petition is allowed, accordingly. Rule made absolute. Direct service, today is permitted."

8. Applying above principles, in this case also the strait application of instruction no 12 was made, without inquiries to justify the action of the respondents. Even no reasons were given for declaring the petitioners unsuccessful, after their written explanations. In view of the above facts, in my opinion the action taken by the respondent is harsh, because it concerns the carrier of the petitioners.

9. In view of above the respondents are directed to declare the results of both the petitioners. After the results if the petitioners are found successful, their cases may be considered for grant of promotion, if they found otherwise eligible and also posts are not yet filled up, for which, examination was conducted. With the above observations, both these petitions are partly allowed. No order as to costs.

sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL.