Rajesh Kumar & Ors. etc. Vs. State of Bihar & Ors. etc., New Delhi
Email(Arising out of SLP (C) Nos.5752-53 of 2008
With
Abhishek Kumar & Ors. v. State of Bihar & Ors., New Delhi
Civil Appeal No. 2517 OF 2013
(Arising out of SLP (C) No.6456 of 2008)
(Arising out of SLP (C) Nos.5752-53 of 2008
With
Abhishek Kumar & Ors. v. State of Bihar & Ors., New Delhi
Civil Appeal No. 2517 OF 2013
(Arising out of SLP (C) No.6456 of 2008)
Selection – Power of High Court to mould relief in writ – Post of Junior Engineer (Civil) – Written examination held – 210 candidates including appellants selected – Evaluation of answer scripts challenged by respondents – Selected candidates not impleaded as party – During pendency of writ, 188 candidates appointed – Single Judge, referred Model Answer Key to two experts and found 41 model answers out of 100 to be wrong, two questions to be wrong while two others as repeated – Entire examination directed to be cancelled as also the appointments – LPA by appellants, partly allowed by Division Bench High Court by not cancelling entire examination and directing fresh examination in Civil Engineering Paper only as 45 questions out of 100 were found defective – Whether cancellation of selection justified when the relief was not even prayed for. Held, yes. There was specific averment by respondents relating to erroneous Model Answer Key which formed basis of evaluation for selection. As the key itself was found defective, it could not have led to right result. Thus the result was vitiated qua every candidate whether impleaded as party or not and the consequent appointment could not have been sustained. High Court, thus rightly moulded the relief prayed for and issued the directions to ensure that no candidate secured undeserved advantage over others.
Selection – Post of Junior Engineer (Civil) – Written examination held – Evaluation of answer scripts challenged by unsuccessful candidates (respondents) – Selected candidates not impleaded as party – During pendency of writ, 188 candidates appointed – Single Judge, referred Model Answer Key to two experts and found 41 model answers out of 100 to be wrong, two questions to be wrong while two others as repeated – Entire examination directed to be cancelled as also the appointments – LPA by appellants, partly allowed by Division Bench High Court by not cancelling entire examination and directing fresh examination in Civil Engineering Paper only as 45 questions out of 100 were found defective – Whether fresh examination and not revaluation should have been ordered. Held, definitely revaluation was a better option in absence of there being allegation of malpractice fraud or corrupt practice. It was a cost effective, energy saving and time saving option.
Ouster from service – Hardship – Erroneous selection – Post of Junior Engineer (Civil) – Written examination – Evaluation of answer scripts – Challenged – Selected candidates not impleaded – During pendency of writ petition, 188 candidates appointed – Model Answer Key found defective by High Court – Entire examination directed to be cancelled as also appointments – Appellants filed LPA there against – Division Bench High Court partly allowed the appeal holding that entire examination need not be cancelled and fresh examination in Civil Engineering Paper only be directed – Those already appointed allowed to continue till publication of fresh result – Meanwhile, during pendency of abovesaid appeal, in pursuance of another advertisement, a selection test held on 29.7.2007 – Result stayed by High Court in appeal before it as same to be declared only after completion of selection in pursuance of first examination – Appeal filed before Apex Court – Stay vacated, with a direction that those qualified be appointed without prejudice to rights of appellants and subject to the outcome of appeals – 392 candidates selected including respondents 6 to 18 – 6 respondents appointed – Rest did not join – Only prayer of respondents that their answer scripts be re-evaluated with correct answer key and appointment earned by them in terms of the 2nd selection be related back to the date when appellants in these appeals were first appointed, and their seniority be determined according to their placement in the merit list – Whether appellants should be ousted if found below cut off line. Held, no. Appellants are not responsible for the error. They have been serving for 7 years now and may have become overage for fresh recruitment. They even lost opportunity to appear in 2007 exams. Their ouster will cause hardship. They shall not be ousted but shall be placed at the bottom of select list on basis of first and second selection. Further directions issued.
Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned. The process of re-evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case. (Para 16)
Firstly, appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter-se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cut off line. (Para 17)
There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list. (Para 18)
2. Bharat Amritlal Kothari v. Dosukhan [JT 2009 (14) SC 102] (Para 12)
1. Leave granted.
2. Application of an erroneous Model Answer Key for evaluation of answer scripts of candidates appearing in a competitive examination is bound to lead to erroneous results and an equally erroneous inter-se merit list of such candidates. That is precisely what appears to have happened in the present appeals which arise out of a common judgment delivered by the High Court of Judicature at Patna whereby the High Court has directed the Bihar Staff Selection Commission to conduct a fresh examination and re-draw the merit list on that basis. For those who have already been appointed on the basis of the earlier examination, a fresh examination has been directed by the High Court before they are finally ousted from the posts held by them. The appellants who happen to be the beneficiaries of the erroneous evaluation of the answer scripts have assailed the order passed by the High Court in these appeals which arise in the following backdrop:
3. By an advertisement dated 14th August 2006, applications were invited by the Bihar State Staff Selection Commission from eligible candidates for appointment against 2268 posts of Junior Engineer (Civil) out of which 1057 posts were in the open merit category. The selection process, it appears, comprised a written objective type examination, held by the Staff Selection Commission who drew up a Select List of 210 successful candidates including 143 appellants in these appeals based on the performance of the candidates in the examination. The evaluation of the answer scripts was, however, assailed by 13 unsuccessful candidates, respondents 6 to 18 in these appeals, in CWJC No.885 of 2007. The writ petitioners did not implead the selected candidates as party respondents ostensibly because the petitioners prayed for a limited relief of a writ of mandamus to the Staff Selection Commission to produce the answer-sheets in the Court and to get the same reevaluated manually by an independent body.
4. While the above writ petition was still pending, 35 candidates were appointed as Junior Engineers in Road Construction Department of the Government of Bihar while 144 others were appointed in Water Resources Department. Nine of the selected candidates were appointed in the Public Health Engineering Department taking the total number of those appointed to 188 out of 210 candidates included in the merit list. Posting orders were also issued to all those appointed. Needless to say that since only 210 candidates had qualified for appointment in terms of the relevant Rules, the selection process left nearly 2080 posts of Junior Engineers unfilled in the State.
5. In the writ petition filed by the aggrieved candidates, a Single Judge of the High Court referred the Model Answer Key to experts. The model answers were examined by two experts, Dr. (Prof.) C.N. Sinha, and Prof. KSP Singh, associated with NIT, Patna, who found several such answers to be wrong. In addition, two questions were also found to be wrong while two others were found to have been repeated. Question No.100 was also found to be defective as the choices in the answer key were printed but only partially.
6. Based on the report of the said two experts, a Single Judge of the High Court held that 41 model answers out of 100 were wrong. It was also held that two questions were wrong while two others were repeated. The Single Judge on that basis held that the entire examination was liable to be cancelled and so also the appointments made on the basis thereof. Certain further and consequential directions were also issued by the Single Judge asking the Commission to identify and proceed against persons responsible for the errors in the question paper and the Model Answer Key.
7. Aggrieved by the order of the Single Judge, the appellants filed LPA No.70 of 2008 before the Division Bench of that High Court. By the order impugned in these appeals, the High Court has partly allowed the appeal holding that model answers in respect of 45 questions out of 100 were wrong. The Division Bench modified the order passed by the learned Single Judge and declared that the entire examination need not be cancelled as there was no allegation of any corrupt motive or malpractice in regard to the other question papers. A fresh examination in Civil Engineering Paper only was, according to the Division Bench, sufficient to rectify the defect and prevent injustice to any candidate. The Division Bench further held that while those appointed on the basis of the impugned selection shall be allowed to continue until publication of the fresh result, anyone of them who failed to make the grade on the basis of the fresh examination shall be given a chance to appear in another examination to be conducted by the Staff Selection Commission. The present appeals assail the correctness of the said judgment and order of the High Court as already noticed earlier.
8. It is noteworthy that while the challenge to the selection process referred to above was still pending before the High Court, a fresh selection process was initiated to fill up the available vacancies in which those eligible appeared for a written test on 29th July 2007. This test was held pursuant to advertisement No.1906 of 2006 issued on 29th November 2006. The result of the examination was, however, stayed by the High Court while disposing of the appeal filed before it with a direction to the effect that the same shall be declared only after selection in pursuance of the first examination was completed. With the filing of the present appeals the restraint order against the declaration of the result pursuant to the second advertisement was vacated by this Court by an order dated 30th August 2011 with a direction that those qualified shall be given appointments without prejudice to the rights of the appellants and subject to the outcome of these appeals.
9. It is common ground that pursuant to the above direction, a list of 392 selected candidates was sent to the State Government by the Staff Selection Commission for issuing appointment orders in their favour. What is significant is that the writ petitioners, respondents 6 to 18 in these appeals were also declared successful in the second selection and included in the list of 392 successful candidates. That six out of the said respondents have been appointed while the remaining have not chosen to join is also admitted. They have apparently found better avenues of employment.
10. When the matter came up before us on 2nd July 2012, it was argued on behalf of the writ petitioners respondents 6 to 18 by Mr. Gaurav Agrawal that they have no objection to the continuance in office of the appellants in these appeals subject to the condition that the answer scripts of the writ petitioners are reevaluated with the help of a correct answer key and if they are found to have made the grade, the benefit of appointment earned by them in terms of the 2nd selection process related back to the date when the appellants in these appeals were first appointed, and their seniority determined according to their placement in the merit list. It was in that background that we directed an affidavit to be filed by the Government of Bihar whether it was agreeable to the re-evaluation of the answer scripts of respondents 6 to 18 on the basis of a correct key and their placement in the merit list depending upon the inter-se merit of the candidates. The Staff Selection Commission was also similarly directed to respond to the proposal made by the writ petitioners respondents 6 to 18 and file an affidavit.
11. An affidavit has, pursuant to the above directions, been filed by the Commission as also by the Chief Secretary of the Government of Bihar in which the Staff Selection Commission as also the Government appear to be opposing the prayer made by the writ petitioners for re-evaluation of their answer scripts for the purpose of re-casting of the merit list which will eventually be the basis for their inter-se seniority also. The affidavits primarily do so on the premise that any re-evaluation limited to the answer scripts of respondents 6 to 18, writ petitioners before the High Court would lead to multiplicity of legal proceedings as similar requests for re-evaluation are bound to be made by other candidates who may also have been similarly prejudiced on account of the use of erroneous Model Answer Key.
12. We have in the above backdrop heard learned counsel for the parties at some length who have taken us through the impugned orders and other material placed on record. Appearing for the appellants, Mr. P.P. Rao, learned senior counsel, argued that the High Court had committed an error in quashing the entire selection process even when the petitioners had not made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was not even prayed for by the writ petitioners could not be granted by the Court whatever may have been the compulsion of equity, justice and good conscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan [JT 2009 (14) SC 102 : (2010) 1 SCC 234] and State of Orissa & Anr. v. Mamata Mohanty [JT 2011 (2) SC 164 : (2011) 3 SCC 436]. There is, in our view, no merit in that contention. The reasons are not far to seek. It is true that the writ petitioners had not impleaded the selected candidates as party respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners could not be granted to them simply because there was no prayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the Model Answer Key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the Model Answer Key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the Model Answer Key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.
13. The decisions of this Court in Bharat Amritlal Kothari v. Dosukhan (supra) and State of Orissa & anr. v. Mamata Mohanty (supra), relied upon by Mr. Rao are clearly distinguishable. The power of the Court to mould the relief, according to the demands of the situation, was never the subject matter of dispute in those cases. That power is well-recognised and is available to a writ Court to do complete justice between the parties. The first limb of the argument advanced by Mr. Rao fails and is accordingly rejected.
14. Mr. Rao next argued that even if the result of the first selection process was vitiated by the use of erroneous Model Answer Key the Court had the option of either directing reevaluation of the answer scripts on the basis of a correct key or a fresh examination. Out of the two options the former was, according to Mr. Rao, better and ought to have served the purpose by not only saving considerable time but money and effort also. He urged that the Court could have removed the traces of any injustice or distortions in the selection process by directing re-evaluation of the answer scripts which would not only present the true picture of the merit of the candidates concerned but
prevent any further litigation or prejudice to candidates on account of long lapse of time.
15. Appearing for respondents 6 to 18 Mr. Agrawal submitted that he had no objection to the order of the High Court being modified so as to replace a fresh examination by revaluation of the answer scripts on the basis of a correct key. Counsel for the Staff Selection Commission also submitted, on instructions, that the answer scripts had been preserved and could be subjected to a fresh evaluation. Learned counsel for the parties were further agreeable to the key as proposed by Dr. (Prof.) C.N. Sinha and Prof. KSP Singh of NIT, Patna forming the basis of any such reevaluation by a suitable modification and deletion of question Nos.6 and 46 which were found to be absurd and question No.34 and 63 which were repeated as Nos.74 and 93. They further agreed to the deletion of question No.100 the answer to which was not correctly printed.
16. The submissions made by Mr. Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned. The process of re-evaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case.
17. That brings us to the submission by Mr. Rao that while reevaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners-respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the cut off mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter-se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cut off line.
18. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.
19. In the result, we allow these appeals, set aside the order passed by the High Court and direct that –
(1) answer scripts of candidates appearing in A series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.
(2) Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.
(3) In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits.
(4) Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement No.1906 of 2006.
(5) Needful shall be done by the respondents State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them.
20. Parties are directed to bear their own costs.
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