Friday, 4 May 2012

Supreme court judgement directing to conduct fresh examination if answersheets are destroyed contrary to rules.

                          CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NO. 4128       OF 2012
                 (Arising out of SLP(C) No. 31804 of 2010).

      Poonam Rani @ Poonam                               … Appellant
      State of Haryana and another                                     …

                               J U D G M E N T

1.    Leave granted.

2.    Whether the  Haryana  Staff  Selection  Commission  (for  short,  ‘the
Commission’)  could  destroy  the  answer  sheets/papers  of   the   written
examination in violation of the policy decision taken vide resolution  dated
1.10.1994 and whether the High Court committed an error  by  dismissing  the
writ petition filed by the appellant questioning the selection made  by  the
Commission for recruitment of Lecturers in Hindi (Education Department)  are
the questions which arise for consideration in  this  appeal  filed  against
judgment dated 29.6.2010 of the Division Bench of  the  Punjab  and  Haryana
High Court.

3.     In  response  to  an  advertisement  issued  by  the  Commission   on
20.7.2006, the Appellant, who belongs to Scheduled Caste  (SC)  applied  for
the  post  of  Lecturer  in  Hindi.  At  that  time,  she  was  having   the
qualifications of M.A. (Hindi), M.Phil. (Hindi)  and  Ph.D.  in  Hindi.  She
appeared in written examination conducted  by  the  Commission,  the  result
whereof was declared on 21.6.2008. She  was  interviewed  along  with  other
candidates who had cleared  the  written  examination.  The  result  of  the
selection was notified on 14.10.2008. The appellant’s name  did  not  figure
in the list of the successful candidates.

4.    Immediately after declaration of the result  of  written  examination,
the appellant  submitted  an  application  to  the  Commission  through  her
advocate under the Right to Information Act, 2005  (for  short,  ‘the  Act’)
for supply of the details of the marks  secured  by  the  female  candidates
belonging to Scheduled Caste, who had  qualified  the  written  examination.
She repeated this request vide letter dated 28.7.2008. After three days  the
State Public Information Officer sent communication dated 31.7.2008  to  the
appellant’s advocate informing her that the marks of the  candidates  cannot
be disclosed because final result of the selection was yet to  be  declared.
The appellant filed an appeal before the Information Commissioner,  Haryana,
who advised her to file an appeal before the  1st  Appellate  Authority-cum-
Secretary of the Commission.   Thereupon,  the  appellant  filed  an  appeal
through her advocate, but the same was not decided. She then filed  CWP  No.
18946 of 2008 in the Punjab and Haryana High Court, which  was  disposed  of
by the learned Single Judge on 5.11.2008 and a direction was  given  to  the
Secretary of the Commission to decide the writ petition by  treating  it  to
be a representation and pass a speaking order. Thereafter, the Secretary  of
the Commission passed order dated 5.12.2008  and  rejected  the  appellant’s
representation on the ground that she had secured 117 marks out  of  225  as
against 119 marks secured by the last selected candidate of Scheduled  Caste
female category.

5.    The appellant challenged the rejection of representation  in  CWP  No.
136 of 2009 and prayed that the selection made  by  the  Commission  may  be
quashed and a direction be issued to  the  respondents  to  appoint  her  as
Lecturer in Hindi against one of the  posts  reserved  for  Scheduled  Caste
(Female).  The  learned  Single  Judge  took  cognizance  of  the  statement
contained in the additional affidavit dated 18/23.9.2009 filed on behalf  of
the Commission that answer  sheets  of  the  written  examination  had  been
destroyed and observed that no mandamus can be issued  for  the  appellant’s
appointment because the marks of the written examination  are  available  in
the result sheet and she had not secured marks sufficient for her  inclusion
in  the  select  list  and  no  malafides  had  been  alleged  against   the
functionaries of the Commission.  The  Division  Bench  of  the  High  Court
dismissed the Letters Patent Appeal by reiterating the reasons  assigned  by
the learned Single Judge.

6.    Before this Court, Shri P.D. Verma, Secretary,  the  Commission  filed
affidavit dated 20.1.2011,  the  relevant  portion  of  which  is  extracted

                       “REPLY ON MERITS”

      “2. That no question of law is involved in the present  writ  petition
      which  requires  adjudication  by  this  Hon’ble  Apex  Court.  It  is
      respectfully  submitted  that  the  Respondent-Commission  vide  Advt.
      No.6/2006, Cat. No. 6 advertised 251 posts, out of which 17 posts were
      meant for SC (Female) category and  after  holding  written  test  and
      interview  as  per  published  criteria,   the   Respondent-Commission
      finalized  the  selection  and  declared  the  result  on   14.10.2008
      (Annexure P-11). The petitioner belongs to SC  (Female)  category  and
      she obtained 117 marks  (written  test=94  and  23  in  interview)  as
      against  119  marks  of  last  selected  candidate  in  her  category.
      Therefore, due to lesser marks the petitioner could not make grade  in
      the main selection list. Furthermore, the petitioner has  appeared  in
      the interview and as per well settled law of the Hon’ble Supreme Court
      reported as 2002 (3) RSJ 507 SC Chander Parkash Tiwari Vs.  Shakuntala
      Shukla, and this Hon’ble Court reported as  Devki  Nandan  Sharma  Vs.
      State of Haryana & ors., 2002(I) RSJ 64, if a candidate appears at the
      interview and participate therein then only because the result of  the
      interview  is  not  palatable  to  him,  he  cannot  turn  round   and
      subsequently contend that the process of interview was unfair or there
      was some lacuna in the process. It is further submitted  that  in  CWP
      No. 136 of 2009 the petitioner had  prayed  before  the  Hon’ble  High
      Court to show his answer sheet for the written  examination  held  for
      the said post. It is respectfully submitted that in reply to Para  No.
      3 of the writ petition the deponent has already stated that the result
      of the written examination was declared  on  20.6.2008  and  that  the
      answer  sheet  pertaining  to  said  examination  was   destroyed   on
      25.10.2008 and at that time  no  writ  petition  on  the  subject  was
      pending in the Hon’ble High Court. It is  further  submitted  that  in
      view of the judgments of the Hon’ble Supreme  Court  in  the  case  of
      Maharashtra State Board of Secondary and Higher Education Vs. Paritosh
      Bhupeshkumar Sheth & anr. (AIR 1984 SC 1543) and President,  Board  of
      Secondary Education, Orissa Vs. D.Suvankar (Civil Appeal No.  4926  of
      2006-Judgment dated 14.11.2006), the disclosures of  evaluated  answer
      sheets cannot be made to the petitioner. However, it is submitted that
      the marks of the written examination of the candidates  including  the
      petitioner are kept in the result sheet. Furthermore, while  declaring
      the result of the written examination the unsuccessful candidates  are
      given the liberty to apply within one month for knowing their marks in
      the written examination and thereafter within one month the Commission
      conveys the marks to such candidates. Therefore, the petitioner has no
      legal right to have access to the answer sheet as per well settled law
      of the Hon’ble Apex Court. It is  further  submitted  that  the  final
      result for the post of Lecturer Hindi was declared  on  13.10.2008  by
      the Respondent-Commission and rest of  the  selection  record  (except
      answer sheets) such as Member sheet, Advisor Sheet,  attendance  sheet
      and application forms were destroyed by the Commission on 30.5.2009 in
      view of judgment of the Hon’ble Apex Court in Prit Pal case  AIR  1995
      SC 414 and Commission resolution dated 27.7.1992 read with  resolution
      dated 1.10.1994. The Hon’ble High Court in the  impugned  order  dated
      29.6.2010 in LPA No. 1390 of 2010 has rightly  held  that  before  the
      learned  Single  Judge  it  was  successfully  demonstrated   by   the
      Respondent-Commission that there was no  malafide  in  destroying  the
      answer sheets and the same  has  been  done  as  per  rules/resolution
      passed by the Commission and also in terms of judgments of the Hon’ble
      Supreme Court. Therefore, in the  present  SLP,  no  cause  of  action
      subsists to the petitioner.”

7.    During the pendency of the  special  leave  petition,  an  application
dated  14.3.2012 was filed on  behalf  of  the  Commission  for  placing  on
record additional facts and xerox copy of OMR Sheet  marked  Annexure  R-A/1
to show that the appellant had secured 94 marks in the written  examination.
Paragraph 12 of the application, which is supported by an affidavit of  Shri
P.D. Verma, reads as under:

      “12. That at the cost of repetition, it is  humbly  stated  here  that
      there was no mala-fide on part of the respondents  in  destroying  the
      answer sheets etc. of the written  test.  As  per  Resolution  of  the
      Commission dated 27.7.1992 the answer sheets  record  (except  written
      examination, result, award list, key book) will be destroyed after six
      months of the declaration of  the  written  test  result  and  as  per
      Resolution dated 1.10.1994 the answer paper i.e. Answer sheets (except
      written examination, result, award list, key book) will  be  destroyed
      after 3  months  from  the  date  of  declaration  of  the  result  of
      selection. It appears and rightly so that  there  was  some  bona-fide
      mistake on part of the concerned officer/staff of  the  respondent  in
      interpreting  the  Resolutions  of  the  Commission  with  respect  to
      destroying the records of the written test and result etc., especially
      after the amendment of 1.10.1994.”

                                        (Underlining is ours)

8.    The arguments in the case were heard on 13.4.2012 and the  matter  was
adjourned with a direction that on the next date of hearing,  the  Secretary
of the Commission shall appear along with the relevant records and the  file
containing the  resolutions  passed  by  the  Commission  on  the  issue  of
destruction of the  records  of  the  examinations.  On  the  next  date  of
hearing, i.e., 20.4.2012, Shri  P.D.  Verma,  Secretary  of  the  Commission
appeared and produced the file in which  various  decisions  were  taken  to
destroy the records of  different  examinations  including  the  examination
held in 2008 for recruitment of Lecturers in Hindi.

9.     Shri V. K. Jhanji, learned senior counsel for  the  appellant  argued
that the decision taken by the Commission to destroy the  answer  sheets  of
the written examination is ex-facie contrary to Resolutions dated  27.7.1992
and 1.10.1994 and, this by itself, is sufficient to draw an  inference  that
the concerned functionaries  of  the  Commission  had  acted  with  ulterior
motive to  deprive  meritorious  candidates  like  the  appellant  of  their
legitimate right to be  appointed  against  the  advertised  posts.  Learned
senior counsel pointed out that immediately after declaration of the  result
of written examination, the appellant had made a request for supply  of  the
details  of  the  marks  secured  by  the  female  candidates  belonging  to
Scheduled Caste category but the Commission  stubbornly  refused  to  accept
her request and the relevant records  were  destroyed  within  few  days  of
declaration of the result of selection which comprised of written  test  and
interview. Shri Jhanji  emphasised  that  the  exercise  undertaken  by  the
functionaries  of  the  Commission  to  destroy  the  relevant  records  was
intended to frustrate any possibility of judicial  scrutiny  of  the  answer
scripts.  Learned senior counsel submitted that if the  answer  scripts  has
been preserved, the appellant could have demonstrated that the same had  not
been properly evaluated or that the marks had not been  properly  calculated
or transposed in the result sheet but she was deprived of  this  opportunity
on account of wholly arbitrary and illegal action taken by  the  officers  /
officials of the Commission to destroy the answer sheets / papers.   Learned
senior counsel relied upon the judgment of this Court in  Pritpal  Singh  v.
State of Haryana (1994) 5 SCC 695 and argued that the High  Court  committed
grave error by refusing to entertain the appellant’s prayer for issue  of  a
mandamus to appoint her only on the ground that  the  relevant  records  had
been destroyed by the Commission.

10.   Shri Kamal Mohan Gupta, learned counsel for the  Commission  supported
the impugned order and argued that in  the  absence  of  any  allegation  of
malice in fact, the Court cannot make a detailed probe into  the  assessment
of the answer scripts or calculation of marks and  issue  mandamus  for  the
appellant’s appointment.

 11.  We have considered the respective submissions and are  satisfied  that
the learned Single Judge and the Division Bench of the High Court  committed
serious error by non-suiting the appellant.  In Pritpal Singh  v.  State  of
Haryana (supra), this Court considered the question  whether  the  selection
made by the Commission which was  then  known  as  the  Haryana  Subordinate
Services Selection Board for the appointment of 40 Assistant  Sub-Inspectors
of Police was vitiated due to manipulations  and  fraud.   The  Court  noted
that in garb of implementing the resolution passed by the  Board  to  create
space, the answer   papers of the written examinations were  destroyed  even
before the result of the selection was declared and proceeded to observe:

      “The answer papers having been destroyed,  it  becomes  impossible  to
      ascertain what marks each candidate had  secured  from  the  examiners
      upon the answer papers themselves.  Ordinarily,  the  examiners  would
      have themselves tabulated the marks given by them against  the  serial
      numbers or names of  the  candidates  whose  answer  papers  they  had
      examined. No such tabulation has been produced  by  the  Board.  There
      were four written papers. The Board would, in any event, have  had  to
      tabulate the marks obtained by each candidate  in  each  of  the  four
      papers and aggregate the same for the purposes of  ascertaining  which
      of the candidates had obtained the qualifying marks or more.  No  such
      tabulation has been produced by the Board. The resolution of the Board
      authorising payment to the examiners shows that there were 13 of them.
      There were four written papers. In each subject, therefore, there were
      more than one examiner and the answer papers of  the  candidates  were
      distributed amongst them. Ordinarily, there would be a  moderation  of
      the marks given by two or more examiners in the same subject so as  to
      ensure that one had not been too strict  and  other  too  lenient.  No
      papers in this behalf have been produced by the Board.

      From the record produced by the  Board  it  appears  that  very  large
      sheets  of  paper  with  the  names  of  the  candidates   and   their
      qualifications, etc., typed thereon were placed before the members  of
      the Board who interviewed them. Upon these sheets of paper  there  are
      large blanks, in that no notation has been made with  regard  to  many
      candidates one after the other in  serial  order.  Such  notations  as
      there are in pencil and they do not always indicate how the candidates
      had fared. Along with these very large sheets  of  paper  there  is  a
      small strip of paper relating to the  only  candidate  who,  for  some
      reason, was interviewed on 3-9-1989. This strip  of  paper  shows  the
      final assessment of the  candidate  at  the  interview.  There  is  no
      corresponding tabulation produced in respect  of  the  candidates  who
      appeared on the earlier dates of interviews. In other words, there  is
      no tabulation of the final marks awarded to these  candidates  at  the

12.   The Court further held that the selection made by the  Board  was  not
objective and fair and deserves to be quashed.  While doing  so,  the  Court
gave the following direction:

      “The Board is directed to preserve the answer papers of the candidates
      and the tabulations of marks made by the examiners for at least  three
      months after the declaration of the  results  of  the  selection.  All
      records of the Board itself  pertaining  to  the  selection  shall  be
      maintained in files or registers chronologically and these shall  also
      be preserved for the aforesaid period.”

13.   In view of the direction contained  in  the  aforesaid  judgment,  the
Board passed Resolution dated 1.10.1994, the relevant portions of which  are
extracted below:

      “In view of the Hon'ble High Court order passed on 10-9-90  in  C.W.P.
       No. 7748 of 1990 Suresh Kumar Taneja v/s State of  Haryana  &  others
       the Board laid down the policy (vide the resolution dated  27-7-1992)
       to be adopted in future for destroying the old record.

      In view of the orders passed by the Hon'ble  Supreme  Court  of  India
       dated 27-7-1994 in SLP No.7798-807/92(Civil Appeal No.5027-36 of 1994
       Prit Pal Singh & other v/s State of Haryana) the  Board  resolves  to
       modify part (ii) of the resolution dated 27-7-1992 to the extent that
       the answer papers i.e., Answer  Sheets(  except  Written  Examination
       result, Award List, Key Book) will be destroyed  after  three  months
       from the date of declaration of the result of the selection”

14.   At this stage, it will be useful to notice the contents  of  statement
dated 12.1.2007 filed by the Ist Appellate  Authority-cum-Secretary  of  the
Commission before the Chief  Information  Commissioner,  Haryana  in  Appeal
Nos.1118 & 1119/2006 titled Satish  Kumar  v.  Secretary/Public  Information
Officer, Haryana Staff Commission, Panchkula. The same reads as under:
      “That the present appeal came up for hearing before Hon'ble Commission
      on 10-1-2007 and Hon'ble Commission directed  the  Secretary,  Haryana
      Staff Selection Commission to apprise the commission  with  regard  to
      destruction of the record relating to  examination  conducted  by  the
      Haryana Staff Selection Commission.

      In this connection it is respectfully submitted that in view of the
      order passed by the Hon'ble Supreme Court of India dated 27-7-
      1994 in S.LP No 7798-807/92 (Civil Appeal No.5027-36 of  94  Prit  Pal
      Singh & others  Vs  State  of  Haryana  and  in  accordance  with  the
      resolution dated 27-2-1992 read with resolution  dated  1-10-1994  the
      answer papers i.e., Answer sheet (Except written  examination  Result,
      Award Lists, Key Book) are destroyed after three months from the  date
      of declaration of the result of  selection  (copy  of  the  resolution
      dated 1-10-1994  is  enclosed)  .  This  practice  is  being  followed
      regularly and uniformly, it is however  submitted  that  in  case  the
      court  case  is  pending  relating  to  the  particular   examination,
      challenging the validity of the examination, in that event the  Answer
      sheets are kept preserved by the commission till the final decision of
      the writ petition.   Further  more  there  is  no  provision  for  re-
      evaluation of OMR sheet in the examination conducted  by  the  Haryana
      staff selection Commission.

      Pursuant to the above resolution of the commission and in view of  the
      fact that no court  case  challenging  the  validity  of  the  present
      examinations were pending,  the  Haryana  Staff  Selection  Commission
      decided to destroy the OMR sheets of the present and other examination
      after three months  from  the  date  of  declaration  of  results  and
      accordingly same were destroyed on 30-10-2006.”

15.   The record produced by learned counsel for the Commission  shows  that
on 17.10.2008 (the figure 10 has been interpolated) a note was submitted  by
the staff for destruction of the records of the  written  examinations  held
for various Group ‘B’ and Group ‘C’ posts including the post of Lecturer  in
Hindi (Education Department). The Secretary and other functionaries  of  the
Commission accorded their approval on 24.10.2008. The prefatory  portion  of
noting dated 17.10.2008 is extracted below:

      “Subject: - Destruction of Record pertaining to various categories  of
      Group “B” and Group “C” posts.


           It is submitted that record of various categories  of  posts  of
      Group “B” and Group “C” where the result of  Written  Examination  has
      been declared more than three months ago and some other categories  of
      Group “B” and Group “C” where only interviews were conducted  and  the
      result of such categories has been declared more than six months  ago,
      has occupied a large space in  record  rooms  of  Confidential  Branch
      which is required to be destroyed so as  to  make  space  for  keeping
      record pertaining to other categories of posts  where  interviews  are
      being conducted by the Commission. The detail of such record which  is
      to be destroyed is given as under:”

However, the member sheet/advisor  sheet/attendance  sheet  and  application
forms of the examination  held  in  2008  were  destroyed  pursuant  to  the
decision taken sometime in February, 2010.

16.   The affidavit filed by the Secretary of  the  Commission  before  this
Court clearly shows that within few days of declaration  of  the  result  of
the selection, the officers of the Commission destroyed  the  answer  sheets
of the written examination held in June, 2008.  This  was  done  in  blatant
violation of Resolution dated  1.10.1994,  in  terms  of  which  the  answer
sheets could be destroyed after three months from the  date  of  declaration
of the result of the selection. The statement contained in paragraph  12  of
application dated 14.3.2012 filed on behalf of the Commission is  reflective
of the casualness with which the officers of  the  Commission  have  treated
the issue of destruction of the most  important  record,  i.e.,  the  answer
sheets  of  the  candidates  which  constituted  foundation  of  the   final
selection.  The explanation given by the Secretary for  not  preserving  the
answer sheets for three months is frivolous and wholly unacceptable  because
it is neither the pleaded case of the Commission nor the  counsel  appearing
on its  behalf  argued  that  the  concerned  officers  were  not  aware  of
Resolution dated 1.10.1994.  Therefore, the action of the  officers  of  the
Commission to destroy the record cannot but be termed  as  wholly  arbitrary
and unjustified. The sole object of this exercise appears to  be  to  ensure
that in the event of challenge to the result of  the  selection,  the  Court
may not be able to scrutinize the record for  the  purpose  of  finding  out
whether the selection was fair and objective  or  the  candidates  had  been
subjected to invidious discrimination.

17.   The learned Single Judge and the Division Bench of the High Court  did
not pay serious attention  to  the  blatant  violation  of  the  resolutions
passed by the Commission on the issue of destruction of the  record  of  the
selection and erroneously assumed that in  the  absence  of  allegations  of
malafides against the particular officials /  officers  of  the  Commission,
the Court was not required to go  into  the  legality  of  their  action  to
destroy the answer sheets within few days of declaration of  the  result  of
the selection.

18.   The OMR sheets produced for the first time before  this  Court  cannot
be  relied  upon  for  recording  a  finding  that  the  assessment  of  the
candidates’ performance in  the  written  examination  was  transparent  and
fair. If the  functionaries  of  the  Commission  were  confident  that  the
selection was not vitiated by any illegality, favouritism or  nepotism  then
they should not have destroyed the answer sheets  within  few  days  of  the
declaration of the result of the selection.

19.   The question which remains to be considered is as to what  relief,  if
any, can be given to the appellant. Since the record of selection  has  been
destroyed, it is not possible for this Court  to  consider  and  decide  the
appellant’s plea that the assessment  of  her  performance  in  the  written
examination was vitiated due to arbitrariness and lack  of  objectivity.  In
this scenario, the only possible course could be to  direct  the  Commission
to conduct fresh written test and interview. However, it will  not  be  fair
to  confine  the  fresh  selection  to  the  appellant  alone.   The   other
unsuccessful candidates, who could not  approach  the  High  Court  or  this
Court on account of ignorance or financial constraints  cannot  be  deprived
of their legitimate right to be again considered along  with  the  appellant
and any direction by the Court to consider the case of the  appellant  alone
would result in the violation of the doctrine of equality.

20.   In the result, the appeal is allowed  and  the  impugned  judgment  as
also the order passed by  the  learned  Single  Judge  are  set  aside.  The
Commission is  directed  to  hold  fresh  written  test  and  interview  for
considering  the  candidature  of  the  appellant  and  other   unsuccessful
candidates after giving them due intimation about the date, time  and  place
of the examination and interview.  This exercise should be completed  within
a period of four months from the date of receipt/production of  this  order.
The candidates who are selected on the  basis  of  the  exercise  undertaken
pursuant to this direction shall become entitled  to  be  appointed  against
the vacancies which may be available on the  date  of  finalisation  of  the
selection.  The parties are left to bear their own costs.

                                     [G.S. SINGHVI]

                                     [SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
May 1, 2012.

No comments:

Post a Comment