Possible To Give One Time Relaxation For Candidates Who Missed Mains Due To COVID? Supreme Court Asks Centre, UPSC
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Is it possible to give a one-time relaxation for civil service exam candidates who missed the mains exam this year due to COVID-related restrictions, the Supreme Court on Monday asked the Union of India and the Union Public Service Commission.A bench comprising Justices AM Khanwilkar and Abhay S Oka asked Additional Solicitor General Aishwarya Bhati and UPSC's counsel Advocate Naresh Kaushik...
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Is it possible to give a one-time relaxation for civil service exam candidates who missed the mains exam this year due to COVID-related restrictions, the Supreme Court on Monday asked the Union of India and the Union Public Service Commission.
A bench comprising Justices AM Khanwilkar and Abhay S Oka asked Additional Solicitor General Aishwarya Bhati and UPSC's counsel Advocate Naresh Kaushik to also obtain clarity as regards the applicable rules and regulations.
Senior Advocate Gopal Shankaranarayanan and Advocate Prashant Bhushan, appearing for the candidates, told the bench that they are now seeking an opportunity to attend the mains exam next year, as the UPSC has already declared this year's results on March 17. The lawyers informed the bench that for most of the petitioners, this was the last attempt. They missed the Mains exam, despite qualifying the highly competitive preliminary test, either due to the fact that they themselves were infected with COVID or their family members were infected as a result of which they had to observe quarantine.
The petitioners referred to the example of an extra chance being given in the IIT-JEE exam for students who missed it due to COVID. They also argued that last year's judgment in the case Rachna versus Union of India- in which the Supreme Court turned down a plea for extra-attempt- was distinguishable as it pertained to the preliminary examination, which is attempted by over 10 lakh students and the instant case related to the mains exam, which was attempted by around 9000 candidates.
The bench wanted clarity regarding the applicable regulations in order to ascertain if they permitted the relaxation as sought for by the petitioners.
Accordingly, the Court adjourned to Wednesday the pleas seeking relaxation in terms of one additional attempt at the civil services examination by those who could not appear in the Mains on account of COVID.
Courtroom Exchange
Senior Advocate Gopal Sankaranarayanan, for the petitioners: "The UPSC has filed a reply. We have also filed a rejoinder to it. Even though we have approached your lordships in time and then they took time to file reply, they also released the final results. Those results were declared on 17 March 2022 and in fairness we cannot ask you to unscramble the egg and accommodate us. What we will be confining ourselves to is the fact that because we were undone by the regulations of the State- because of the guidelines which have been issued- and in this case, unlike any of the other cases like that Rachana's order which they keep pointed out, there are two differences- one, this is dealing with the mains; those who have cleared the prelims and made it to the mains, so there is substantial number difference in the number of the people. Those who were shortlisted for mains is less than those in the prelims..."
Justice A. M. Khanwilkar: "How many candidates are there who cleared prelims but could not appear in mains because of Covid?"
Advocate Naresh Kaushik, for UPSC: "We can give the number of the persons who downloaded their admit cards and they could not take later because of Covid reasons or whatever reasons"
Justice Khanwilkar: "we want to know who could not take because of Covid, those affected by Covid"
Mr. Kaushik: "I can seek instructions as to how many people wrote to us..."
Advocate Prashant Bhushan, for intervenors: "The number will not be very large, not definitely in the thousands, it will be in the hundreds"
Mr. Sankaranarayanan: "For the mains, 9214 people were called. For the prelims, there were 10,00,000 people"
Justice Khanwilkar: "Out of this 9214, how many appeared in mains?"
Mr. Kaushik: "I will get the complete details, I will have the data available with me"
Justice Khanwilkar: "Matter is listed today, you should have got the details earlier. We were bound to ask this question. Every time we cannot keep adjourning the matter"
Mr. Kaushik: "Almost all must have taken the mains examination. Because an attempt at the prelims is deemed to be an attempt at the examination..."
Mr. Sankaranarayanan: "Even from that small subset, there is an even smaller subset which is those for whom this would have been the last attempt either by virtue of age 32 being the Cut off or with the number of attempts as six attempts is the maximum. Among the petitioners of the three of us, there are two of us for whom it was the last attempt. And the other major distinction from the other order is that in those cases there were people whose family members had got Covid and they said because of isolation rules we cannot leave the home and come to the exam. Here the candidates themselves got it"
Justice Khanwilkar: "There is some caveat here. Those persons whose family members got infected were provided separate accommodation, separate enclosure where they could appear in the examination. That was the arrangement made"
Mr. Sankaranarayanan: "In the UPSC's affidavit, they admit there is no separate arrangement...Your Lordships had then said make separate arrangements for those who have cold, cough, any of those symptoms. Here we are saying, 'please at least have a policy for those who are plagued like this. The court has nudged you 4 times'. For the IIT, both for 2021 and 2022, JEE has given even those who got Covid a second opportunity. It is a little strange that the same government in another wing is saying we cannot make an accommodation. It may not be appropriate for them to say that they cannot make an accomodation because in this very exam they have made accommodation, the first time in 2014 and the second time in 2015. In both cases for a syllabus change which had taken place"
Justice Khanwilkar: "The mains examinations are over, the results have been declared, they will have to conduct separate examination for the petitioners. That is the problem"
Mr. Bhushan: "we are not even asking for that"
Mr. Sankaranarayanan: "that will be adventurous. we are only asking for the opportunity to take it next year because now the guillotine comes down on us"
Justice Khanwilkar: "if you are asking for one more attempt, there is a norm prescribed already under the regulations. What are those norms, let us see in what cases the one more attempt is permissible?"
Mr. Sankaranarayanan: "Regulation IV provides the conditions for eligibility. It says He must have attained the age of 21 and must have not attained the age of 30, provided the upper age limit may be relaxed in respect of such categories of persons as may from time to time be notified. We are encouraging that the central government may notify this category of Covid affected candidates to be that category. The second is Regulation IIIA which is 'attempts at the examination'. It says that unless covered by any of the exceptions, it may from time to time be notified by the central government in this behalf that every candidate appearing for the examination, who is otherwise eligible, shall be permitted four attempts at the examination. The Explanation reads that an attempt at the preliminary examination will be treated as an attempt at the examination. So if I have taken the pre, I will be treated as having made an attempt at the examination. Petitioner 1 is the last attempt. Petitioner 2 is the last attempt because of the age of 30. For the petitioner 3, it is the second last attempt"
Mr. Bhushan: "for the interveners also, it is the last attempt"
Mr. Kaushik: "now they are eligible to obtain six attempts. Now the attempts are increased to 6 for general, unlimited for SC/ST and 7 for OBC"
Mr. Sankaranarayanan: "Petitioner 1 has attempted six times. Both for age as well as the attempts, the relaxations are possible for certain categories. In fact in 2014 and in 2015 they did provide for relaxation for the candidates of 2011 because there was a syllabus change"
Justice Khanwilkar: "how can it be verified that he did not appear for mains examination because he was infected or his family member was affected?"
Mr. Sankaranarayanan: "we have RTPCRs"
Justice Khanwilkar: "somebody has to verify that claim. Is it not? Out of 9214 candidates, we will assume that only 8000 physically appeared. So 1214 cannot claim that they were infected by Covid or a family member was infected by Covid"
Mr. Sankaranarayanan: "your lordships know what it is like with the UPSC. Even after giving in five years of life, they keep taking it year after year. Very few would not have taken the mains..."
Justice Khanwilkar: "Assuming the authority is inclined to or is directed to invoke those provisions, somebody will have to carry out this verification"
Mr. Bhushan: "We had sent an application at that very time that we have Covid and under the rules of disaster management act, I am unable to appear. They had prohibited us from appearing. There was one case where these people were saying we could not prepare because of covis and therefore give us another attempt. Here it is not that. We could not have appeared in the mains examination"
Justice Khanwilkar to ASG Aishwarya Bhati, for the UOI: "This is possible only if you exercise that power under regulation IV. Create one category of those who would have been affected because it being their last attempt and being infected by Covid- themselves or their family member. Is it possible to have one time relaxation?"
ASG: "We had pointed out that on a similar point of Covid relaxation, the matter came up before your lordships- the Rachana case- 2021 5 SCC 638"
Mr. Bhushan: "the first paragraph itself makes it clear that they were saying that because we have not been able to prepare because of Covid, please give us relaxation..."
ASG: "your lordships examined the scheme of the rules"
Justice Khanwilkar: "There is a difference between the regulations"
Mr. Kaushik: "my lords are completely right. These regulations are different"
Justice Khanwilkar: "Yes, this category is absent in these regulations"
Mr. Kaushik: "your lordships are dealing with the basic regulations. Whereas the current rules are under the rules of 2020"
ASG: "your lordships in this judgment considered the entire conspectus..."
Justice Khanwilkar: "but we have been pointed out that this is different so we will not look at it. We will look at these regulations IV"
Mr. Sankaranarayanan: "the regulations are under the all India services act and rules. What is extracted here in this judgment are the 2020 examination rules. These are not regulations, they are subordinate to that. For each years' examination, there are examination rules. The regulations are primordial as compared to these rules"
Justice Khanwilkar: "these are civil services examination rules 2020. Civil services is what? UPSC is concerned about civil services rules only. It will not be the Indian administrative service regulations"
ASG: "There are statutory rules which are framed by the DOPT and in terms of those statutory regulations, exam notices are issued by UPSC in conformity with those. They are both ad idem"
Justice Khanwilkar (to the ASG): "Go to regulation of 1955- it gives a power to authority to relax in respect of such categories of persons. Now where is that relaxation given by the competent authority in these rules? They are not ad idem. Please be sure about what is applicable before you make any statement"
ASG: "Could your lordships consider calling it tomorrow? I will get clear instructions as to the hierarchy of the rules and how it percolates down"
Justice Khanwilkar to Mr. Sankaranarayanan: "The rules are primordial and not the regulations. You said regulations are primordial"
Mr. Sankaranarayanan: "primordial over the examination rules. These are not the examination rules, these are the original rules made under section 3 of the Act"
Justice A. S. Oka: "So there are the 1954 rules, the 1995 regulations and the 2020 examination rules?"
Mr. Sankaranarayanan: "yes. For every year, there are examination rules"
Justice Khanwilkar: "Rules cannot be framed on the basis of regulations. Regulations are framed for functionality purposes. Rules are primordial. Regulations cannot be primordial. Now this three-judge bench judgment was for civil services examination rules of 2020. That does not mean for every year, rules have to be framed..."
The bench then adjourned the matter to Wednesday to allow the ASG and Mr. Kaushik to seek instructions as regards the framework which is applicable.
Mr. Bhushan: "Can we be permitted to circulate the Parliamentary committee report which has recommended the grant of relaxations? It is a general report. Also, can we share the decision of the IIT- Advanced JEE where they have realised this and given one further attempt in view of COVID? We have been certified by government authorised labs as having COVID"
Justice Khanwilkar: "You may give whatever you want"
Case Title: Arjit Shukla and Ors. v. Union of India and Anr.