Dinesh B. Gajera vs Secretary Gujarat Public Service Commission

R.M. Chhaya, J.—By way of this petition under Article 226 of the Constitution of India, the petitioner has, inter-alia, prayed for the following reliefs:-

[A] Your Lordships may be pleased to admit and allow the present petition.

[B] Your Lordships may be pleased to issue a writ of Certiorari or any other appropriate writ, order and/or direction by quashing and setting aside the impugned order passed by the respondent dtd. 30/3/2012 and to quash and set aside the decision of the respondent authority dtd. 23/12/2011 delivered in appeal.

[C] Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, order and/or direction by directing the respondent to treat answer given by the petitioner to the Question No. 84 as true and give 2 mark and considering the fact that the petitioner has got 40 marks and by addition of 2 marks for question No. 84, there would be 42 marks, and since the respondent has called in the interview candidates who has obtained 42 marks, Your Lordships may be pleased to direct the respondent to call the petitioner in the oral interview and conduct the interview in accordance with the rules and regulation of the GPSC respondent.

[D] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to reconsider the representations of the petitioners dtd. 14/10/2011, 5/11/2011, 23/1/2012 and 1/3/2012 and call the petitioner in the oral interview as if the petitioner has obtained 42 marks, subject to final outcome of the present petition and further be pleased to direct the respondent to keep one post vacant for the petitioner subject to final outcome of the present petition.

[E] Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioner in the interest of justice.

The petitioner, pursuant to advertisement No. 27/08-09 issued by the respondent Commission, applied for the post of Gujarat Kaushal Talum Seva, ''Class-II. It is a matter of record that the said advertisement was published by the respondent Commission on 28.1.2009, wherein the last date of application was 27.2.2009.

It is the case of the petitioner that as the petitioner possesses requisite qualification and as the petitioner fulfills required criteria for the post in question, the respondent Commission has accepted the application of the petitioner and invited the petitioner for interview. The record reveals that the petitioner was allotted seat No. 347. The record further reveals that the interviews were held on 15.6.2010 and the respondent Commission declared the final list of successful candidates to be called for personal interview on 5.8.2011, wherein the name of the petitioner did not appear.

From the facts which are narrated as it is in the memo of petition, the petitioner has put forward a case that thereafter, the petitioner made representation to the Chairman of the respondent Commission dated 8.8.2011 requesting him to provide a copy of the entire selection process to know how the petitioner is not eligible and/or why the petitioner did not succeed in the examination.

It is the case of the petitioner that the petitioner had appeared in OMR test conducted by the respondent Commission which was consisting of 100 questions wherein 4 options were given and every candidate was supposed to mark it with blue or black pen and was also required to write the seat number.

The petition further reveals that the petitioner made an application under Right to Information Act, 2005 on 9.9.2011 seeking information in form of copies of the answer sheet and answer key. It is the case of the petitioner that the information so provided by the respondent Commission reveals that the petitioner answered 28 correct answers and for each answer, 2 marks were given. However, as the petitioner answered 24 questions which were wrong, 16 marks came to be deducted and therefore, in the result, the petitioner secured 40 marks. It appears that on receipt of such an information, the petitioner again approached the respondent Commission by way of further application dated 14.10.2011 stating that answer-B of question No. 84 fixed in the answer key is wrong and right answer is A and contended that the petitioner is wrongly declared failed. It appears that the petitioner sent reminders on 5.11.2011, 17.11.2011, 23.1.2012 as well as 1.3.2012. The record further reveals that certain information was provided. However, being aggrieved by the same, the petitioner again approached the appellate forum under Right to Information Act. However, the said appeal came to be rejected by the First Appellate Authority vide order dated 23.12.2011. The record further reveals that by an application dated 17.11.2011, the petitioner raised a controversy as regards controversy of question No. 84 wrongly given in the answer key and ultimately by a reply dated 27.12.2011, the authority declined requisition made by the petitioner. Being aggrieved by the same, the present petition is filed.

The petitioner has mainly contended that the petitioner was/is having requisite qualification and was/is fulfilling requisite criteria and has, therefore, applied for the said post and the petitioner also appeared in the OMR test. It is contended that answer to question No. 84 given in the answer key as fixed by the respondent is wrong. However, the respondent is not right in not correcting their mistake and declare the petitioner "pass" and should call the petitioner for interview. It is contended that the petitioner has also produced relevant documents and expert opinion to prove the answer given in the answer key to question No. 84 is wrong. Still however, the respondent Commission is not ready and willing to correct its mistake and such an action is not only illegal and arbitrary but high-handed and in violation of principles of natural justice. Relying upon this, the petitioner has contended that as such the petitioner should be given 42 marks instead of 40 marks and required to be declared "pass".

In response to the notice issued by this Court, the respondent Commission has filed a detailed reply. The respondent Commission has raised preliminary objection to the effect that the petitioner had earlier filed a writ petition before this Court being Special Civil Application No. 122 60 of 2011, wherein non-inclusion of name of the petitioner in the result dated 5.8.2011 was challenged. It is pointed out that this fact is suppressed by the petitioner and it is also pointed out that the said writ petition was dismissed by this Court (Coram: Anant S. Dave, J.) vide order dated 27.9.2011. It is, therefore, contended that the petitioner has suppressed the material fact and has not come with clean hands. It is also further contended that the present petition is barred by res judicata. It is also contended that the petitioner has not joined all candidates-who have been recommended for selection and therefore, the petition is barred by non-joinder of parties who are likely to be adversely affected and it is also further contended that the petition raises a highly disputed question of facts which cannot be decided on affidavit and therefore, it is contended that the petition is not maintainable and deserves to be rejected.

The respondent Commission has, in its affidavit, set out the procedure which was followed by the respondent Commission. It is also further pointed out that the petitioner is not possessing the qualifying marks i.e. passing standard. The respondent Commission has brought on record the fact that for the general category candidates, under which the present petition belongs to, the last candidate who is classified has obtained 42 marks, whereas the petitioner has secured only 40 marks. It is also pointed out that oral interviews have already been conducted between 2.9.2011 to 17.9.2011 and the respondent Commission has already recommended selected I candidates for appointment to the State Government. The respondent Commission has also contended in the reply that the opinions of expert and paper-setter were obtained and they have opined that the plea of the petitioner is not correct and therefore, the applications which were filed under Right to Information Act have been replied and the petitioner is not entitled to get two more marks as contended by the petitioner.

The petitioner has filed its rejoinder and has denied the contentions raised in the affidavit in reply. The petitioner, in order to defend himself from the allegation levelled by the respondent Commission that the petition suffers from suppression of material facts, has contended in the rejoinder that the information was obtained after the petition was disposed of and there is no malafide intention in not disclosing the fact but it was under a bonafide mistake. It is contended that even otherwise, the petitioner has not obtained any benefit for the same. The petitioner has as such reiterated the contentions raised in the petition and has denied the contentions raised by the respondent Commission in its affidavit.

Heard Mr. A.M. Parekh, learned advocate for the petitioner and Mr. Deepak Shukla, learned advocate for the respondent Commission. Mr. Parekh has reiterated the contentions which are raised in the petition and Mr. Shukla has reiterated the stand taken by the respondent Commission in its affidavit. Mr. Shukla relies upon the judgment of the Hon''ble Apex Court in the case of Ramadhar Shrivas Vs. Bhagwandas, No other or further submissions made by the learned advocates appearing for the respective parties.

At the outset, it may be stated that this Court, in order to examine the allegations made in the affidavit in reply as regards suppression of material facts, thought it fit to call for the records and proceedings and perused the earlier writ petition preferred by the petitioner being Special Civil Application No. 12260 of 2011. On perusal of the same, it appears that the petitioner and another petitioner namely Babulal Muljibhai Patel filed the aforesaid petition and have inter-alia prayed for the following reliefs:-

A) Declaring the action of the Respondent-Commission in excluding the names of the petitioners from the result dt. 5.8.2011 as illegal and arbitrary and further directing the Respondent to declare the petitioners successful and call them in the oral interview as per the result dt. 15.6.2010.

B) During the pendency and final disposal of this petition, the respondent may be directed to call the petitioners for oral interview.

C) To grant such and further relief as may be deemed fit and proper.

It is contended in Paras 5 and 6 of the earlier petition that the present petitioner was held not to be eligible for appearing in the oral interviews which were going to be held from 3.9.2011. In Para 6, the petitioner has also referred to the letter dated 8.8.2011 which is also made part of this petition. It may further be noted that the respondent Commission filed a similar affidavit, wherein also it is disclosed that the passing standard fixed for general category candidates was 42 marks and the present petitioner has obtained 40 marks and therefore, he is not eligible. The procedure which was followed for the selection has also been disclosed by the respondent Commission. It is also further brought to the notice of the Court in the earlier petition that the personal interviews were fixed on 2.9.2011 to 17.9.2011 and by a judgment and order dated 27.9.2011, this Court (Coram: Anant S. Dave, J.) dismissed the petition and has observed thus:-

Heard learned advocates for the parties and perused the record of the case. From the reply filed on behalf of the respondent-GPSC, it is clear that the petitioners secured only 40 and 39 marks respectively, which is less than the qualifying norms fixed by the respondent-GPSC. Besides, Deputy Secretary, GPSC, has explained the procedure of selection undertaken in rational-manner to rule out any arbitrariness or unreasonableness in the selecting the candidates.

5.1 The petitioner belong to General Category. The petitioners had appeared at the preliminary test conducted by the respondent-GPSC on 25.04.2010. The respondent-GPSC had displayed the numbers of candidates whose applications were taken up for scrutiny and 410 candidates were to be taken up for scrutiny as per the office orders dated 15.10.2009 and 11.11.2009. Further, as per the said office orders, the first list of 410 candidates was displayed on the Notice Board on 15.06.2010 whose applications were to be taken up for scrutiny. The respondent-GPSC as per the office order dated 14.10.1986 decided the norms for calling the candidates for personal interview on the basis of elimination test [preliminary test]. As per the said office order, if there is vacancy of 1 post, 6 candidates are to be called for personal interview; for 2 vacancies, 8 candidates are to be called for personal interview; for 3 posts, 10 candidates are to be called for personal interview; and for 4 or more posts, three times the candidates for each post are to be called for personal interview. The said office order also prescribes different norms for more vacancies also and as per the said office order the respondent-GPSC published the final result for the post in question on 05.08.2011 and 191 candidates have been declared eligible for the personal interview.

5.2 The petitioners and several other candidates have not been called for personal interview as they were not possessing the qualifying marks [passing standard]/not fulfilling the requirement prescribed in the advertisement. The petitioners could not secure the qualifying marks [passing standard], and therefore, they have not been rightly called for the personal interview which was fixed from 02.09.2011 to 17.09.2011.

5.3 In the above circumstances, the action of the respondent-GPSC in excluding the names of the petitioners cannot be said to be in any manner unreasonable, arbitrary or discriminatory and in violation of Article 14 or 16 of the Constitution of India. Further, the decision of the GPSC to include 58 candidates in the list of successful candidates was due to lack of availability of eligible candidates who have fulfilled such passing standards and therefore the decision of the GPSC to include 58 candidates who were initially not in the list of successful candidates is not in any manner illegal.

In the matter of selection procedure undertaken by the autonomous body like GPSC and such recruitment is by way of public advertisement prescribing necessary academic and experience, qualifications and in consonance with recruitment rules for the purpose, unless such procedure is found contrary to relevant statutory rules, the Court exercising powers under Article 226 of the Constitution of India will not interfere with such lawful action.

Upon overall consideration, this Court is satisfied that the procedure undertaken by the GPSC and in absence of any arbitrariness or unreasonableness in excluding the names of the petitioners from the list of successful candidates, considering them ineligible for interview cannot be said to be contrary to law. The petition fails and is accordingly DISMISSED. Notice is discharged. No costs.

In view of the aforesaid, therefore, it is crystal clear that the petitioner has purposefully suppressed the material facts from this Court and it cannot be said that it was a bonafide mistake and not malafide. As such the Hon''ble Apex Court in the case of Ramadhar Shrivas (supra) has observed thus:-

In Pawan Kumar Gupta Vs. Rochiram Nagdeo, a suit filed by the plaintiff against the defendant was dismissed by the Court but the Court negatived the contention of the defendant that the plaintiff was not the real owner of the suit property. The Court recorded a finding that the plaintiff was the absolute owner. In a subsequent suit by the plaintiff against the defendant, this Court held that an issue as to the title of the property was "directly and substantially" in issue between the parties in a former suit and decided in favour of the plaintiff. Such finding, ruled this Court, would operate as res judicata in a subsequent suit against the defendant.

The Court observed: (SCC p.249, para 16)

The rule of res judicata incorporated in Section 11 of the CPC (CPC) prohibits the court from trying an issue which ''has been directly and substantially in issue in a former suit between the same parties'', and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed.

In our opinion, the learned counsel for the appellant is also right in submitting that the rule of constructive res judicata applies to the present case. The expression "matter in issue" u/s 11 of the Code of Civil Procedure, 1908 connotes the matter directly and substantially in issue actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits. A matter is constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit. Explanation IV to Section 11 of the Code by a deeming provision lays down that any matter which "might and ought" to have been made a ground of defence or attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue in such suit.

In view of the foregoing, "therefore, the petition as such is barred by the constructive res judicata and deserves to be dismissed only on the ground of suppression of material facts. It is not believable that the petitioner was not aware about his filing the earlier petition as the record of Special Civil Application No. 12260 of 2011 discloses that the affidavit on behalf of both the petitioners was made by the present petitioner. It appears that instead of challenging the earlier order dated 27.9.2011, the petitioner resorted to application under the Right to Information Act and without disclosing the fact about the earlier petition, has filed the present petition. The other limb of argument which is raised in the present petition that the answer key is wrongly fixed as far as question No. 84 is concerned, the respondent Commission has contended that the expert and the paper-setter have also opined that the submissions made by the petitioner cannot be accepted. It is evident from the reply dated 30.3.2012 given by the Joint Secretary of the respondent Commission to the petitioner at Annexure-J to the petition that the application which was made by the petitioner as regards the answer key for question No. 84 was sent to the paper-setter and the paper-setter has opined that the plea of the petitioner cannot be acceptable. As observed above, the respondent Commission has also brought to the notice of this Court by filing the earlier writ petition that the oral interviews were to be held between 2.9.2011 to 17.9.2011 and the present petition is filed on 4.2.2013 after the selection is over and selected candidates have been recommended by the respondent Commission. The totality of facts, therefore, leads to the conclusion that the petitioner is guilty of suppression of material facts, as regards earlier round of litigation. This Court has examined the whole process of selection which was carried out by the respondent Commission and has approved the same as per the observations made in Paras 5 to 7 of the earlier order. In addition to this, the answer to question No. 84 which is questioned by the petitioner is not only referred by the respondent Commission to an expert and paper-setter but has also verified the same and only on such a ground, it cannot be said that the petitioner would be entitled to two more marks so as to achieve the qualifying marks. This Court cannot resort to judicial review of the same and has to leave to the experts in the field. The petitioner has no right to claim that only his answer is correct. For the foregoing reasons, since this petition is meritless, it fails and is hereby dismissed. Notice discharged. No order as to costs.