'Reasonableness Tempered With Mercy': Gujarat HC Removes Ban On Woman From Appearing In Any Competitive Exam For 3 Yrs For Alleged Unfair Means

The facts of the case were that the Petitioner while appearing for the competitive examination for the post of Senior Clerk, Class-III, through oversight, carried her mobile phone into the hall. A mitigating factor that the Court observed was that the Petitioner's mother was a cancer patient undergoing treatment at a hospital. It was noted that the Petitioner had taken the exam with her phone and 15 minutes before the examination could be completed, the phone rang and drew the attention of the authorities. The explanation of the Petitioner that her mother was unwell and needed attention did sit well with the authorities. Accordingly, the phone was confiscated. The Petitioner averred that she had committed a lapse but had not committed any unfair means that warranted such punishment.

The Petitioner while relying on a decision of the Delhi High Court averred that carrying of the mobile phone in itself could be an inadvertent act and which could not be held to be unfair which would debar the candidate for three years.

Per contra, the Respondent insisted that the rules stipulated clearly that the candidate could not carry the mobile phone. The OMR sheet also stated the same. Attention was also drawn to the minutes of the meeting held by the Board in the light of the paper leak controversy wherein this rule was affirmed and the punishment was the debarring of candidate for 3 years. Reference was also made to Umeshchandra Shukla vs. Union of India where it was held that hard cases make bad law. Even though it was unfortunate that the candidate was debarred, no mercy could be shown since the rules were clear.

The Bench, after careful perusal of the arguments, opined that the argument of the Petitioner that she was under tremendous pressure due to the ailment of her mother and therefore, committed the lapse, carried weight. No "emboldened attempt" was made on her part to put the phone on the silent mode. Just because her phone rang, the authorities confiscated her device and branded her with unfair means. Justice Vaishnav remarked:

"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."

Accordingly, the Bench quashed the impugned order and held that the candidate would be entitled to appear in all examinations held by the Gujarat Subordinate Services Selection Board.

Case Title: DHARABEN DHANSUKHBHAI JOSHI Versus GUJARAT GAUN SEVA PASANDGI MANDAL THROUGH SECRETARY

Case No.: C/SCA/6480/2022

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