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Chhattisgarh High Court · body

2011 DIGILAW 307 (CHH)

RAJENDRA SINGH KANWAR v. STATE OF C. G.

2011-09-06

PRASHANT KUMAR MISHRA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon 'ble Shri Sunil Kumar Sinha, J. :- 1. The Police Headquarters, Chhattisgarh, Raipur invited applications on 18th of September, 2006 for filling up 380 posts of Subedars, Sub-Inspectors and Platoon Commanders in the State. Number of posts in various categories, pay-scales, educational qualifications for the above posts, all were published in the said advertisement. The preliminary examination was conducted on 24.12.2006 and the main examination was conducted on 4th of February, 2007. Thereafter physical test and personal interviews were also conducted and a final select list in order of merit was published on 8.4.2008. All the petitioners of W.P.(S)• No. 3087/2009 (15 in number); W.P.(S) No. 3204/2009 (lOin number); W.P.(S) No. 3231/2009 (11 in number) and single petitioner of W.P.(S) No. 4229/2009 i.e. total 37 persons were issued appointment letters on different posts for joining on respective posts in the first lot. After publication of the select list on 8.4.2008, respondent- Chhattisgarh Professional Examination Board (Vyavsaik Pariksha MandaI for short 'VYAPAM') received complaints directly and also through lG Police (Administration) that 9 questions in the second paper of General Knowledge were wrong. The complaints were inquired into and opinion of the team of Subject Experts which comprised of 5 members of the level of Professors headed by Head of the Department of Linguistic of Pandit Ravi Shankar University, Raipur was taken and finding many answers to be wrong in the first model answers of second paper(General Knowledge) fresh model answers in respect of second paper (General Knowledge) and also in respect of first paper (only objective questions) were prepared. Answers of further 8 questions of General Knowledge, which were incorrect in the first model answers were corrected in the second model answer and it was directed that the entire second paper of General Knowledge which was containing only objective type questions should be re-evaluated and it was also directed that in first paper (Hindi & English) only objective type questions should be re-evaluated. In this manner both the papers i.e. objective type questions of first paper and second paper, which was having only objective type questions, were re-evaluated and amended select list (second selected list) was published on 27.6.2009 settingaside the first select list published on 8.4.2008. In this manner both the papers i.e. objective type questions of first paper and second paper, which was having only objective type questions, were re-evaluated and amended select list (second selected list) was published on 27.6.2009 settingaside the first select list published on 8.4.2008. The names of most of the petitioners were not in the second select list dated 27.6.2009 and one of the petitioner went down in order of merit in the second list and instead of selection on the post of A.S.1. he had to go as selected on the post of Platoon Commander. It is at this stage, the above writ petitions were filed challenging the validity of second list on the ground that the decision to take re-evaluated was not proper and the second list dated 27.6.2009 should be quashed and appointments be made on the basis of first selection list dated 8.4.2008. Interim relief(s) were also prayed in respective writ petitions and a learned Single Judge of this Court granted interim relief(s) on 1.7.2009 that no coercive action would be taken by the State against the petitioners who had joined their services and they shall be allowed to continue in their training. It is stated at bar that total 37 petitioners had joined till then and they are still in services on account of protection granted by the learned Single Judge vide interim orders dated 1.7.2009, 7.7.2009, 8.7.2009 & 10.8.2009 in W.P.(S) Nos. 3087/2009, 3204/2009, 3231/2009 & 4229/2009. 2. These matters were cognizable by the Single Bench. When the matters came up for hearing on 27.4.20 10, the learned Single Judge observed that the following substantial question of law of public importance arises in these matters which should be decided by a larger Bench, and in this manner, these matters have been placed before this Bench: "Whether the VYAPAM after publication of the select list and passing' of the appointment orders also on the basis of evaluation of questions, could have done the exercise of re-evaluating the answers after editing and reframing answers, and prepare the second select list for fresh recruitment of the candidates, canceling the first select list ?" 3. Many persons have intervened in the writ petitions. There are five categories of interveners. Many persons have intervened in the writ petitions. There are five categories of interveners. First, 4 interveners in W.P.(S) No. 3087 of2009 whose names appear in the second select list; second, 16 interveners in W.P.(S) No. 3153 of 2009 whose names appear in both the select list; third, 4 interveners in W.P.(S) No. 3153 of 2009 whose names were at the higher position in the first list but have gone down in the second list; fourth, I intervener W.P.(S) No. 4229 of 2009 whose name appears in both list; fifth, I intervener in all the writ petitions and another intervener in W.P.(S) No. 3087 of 2009 whose names were there in the first list but their names are not in the second list. 4. Learned counsel for the petitioners have argued that there was no justification with the VYAPAM to take decision for re-evaluation in the prevailing facts and circumstances, therefore, the decisions for re-evaluation was arbitrary and irrational. They also argued that there is no provision in the Rules, under which examinations were taken, for re-evaluation, therefore, the decision of reevaluation "was without jurisdiction. They also argued that in case of cancellation of the first select list 37 writ petitioners would be removed from service even without giving them opportunity of hearing which is against the principles of natural justice. 5. On the other hand, learned counsel appearing on behalf of VYAPAM argued about various reasons on which the re-evaluation was directed and the manner in which the marks were re allocated in re-evaluation showing various provisions of Examination Conduct Rules which we shall discuss later on. He argued about justification of re-evaluation in the prevailing scenario which according to him was necessary to reach to a correct result and to select genuine and deserving candidates and to take out the undeserving candidates who were wrongly placed in the first select list and to whom marks were wrongly allocated. To show the bonafides he also demonstrated by record as to how the reevaluation was completed. 6. The counsel for the interveners, whose names appear in the second select list. have raised objections relating to maintainability of the writ petitions in their present forms and have prayed for dismissal of the writ petitions for want of necessary parties. To show the bonafides he also demonstrated by record as to how the reevaluation was completed. 6. The counsel for the interveners, whose names appear in the second select list. have raised objections relating to maintainability of the writ petitions in their present forms and have prayed for dismissal of the writ petitions for want of necessary parties. According to them all the candidates of the second select list were necessary parties because the petitioners have prayed for setting aside the second select list which relief if granted shall go against those persons' whose names are there in the second select list. 7. We have heard learned counsel for the parties at length and have also perused the records of the writ petitions. 8. We have gone through the Rules which finds place in Brochure of the Examining Body (VYAPAM). Admittedly, there are no provisions for reevaluation of the answer books. This factual position has not been disputed by learned counsel for the VY APAM also. He has argued that when the complaints were received relating to formulation of wrong questions as also preparation of wrong model answers relating to 9 questions, and after the inquiry the complaints were found to be correct, decision was taken for re-evaluation of only objective type questions. How it happened is clear from their counter affidavit/additional affidavit. We find that there were 2 papers in the written examination. First paper i.e. Paper-I comprising of Hindi English and second paper i.e. Paper-II of General Knowledge only. In first paper, there were 7 questions in PART 'A' - Hindi; and there were 4 questions in PART 'B'- English. Out of total 11 questions of Paper-I many questions were objective questions and there were subjective questions also. in Paper-II i.e. General Knowledge, there were 150 questions and all the questions were objective. After receiving the complaints about incorrect questions and after holding an inquiry in relation thereto VYAPAM found that in all 8 questions i.e. serial no. 5, 59, 74, 78, 87, 100 ,119 & 120 of Set-A and the same questions at different serial numbers in other Sets-B, C, 0 were incorrect and all these questions i.e. 8 objective type questions of General Knowledge were deleted. In the same Paper-II of General Knowledge, options of 8 answers i.e. serial no. 5, 59, 74, 78, 87, 100 ,119 & 120 of Set-A and the same questions at different serial numbers in other Sets-B, C, 0 were incorrect and all these questions i.e. 8 objective type questions of General Knowledge were deleted. In the same Paper-II of General Knowledge, options of 8 answers i.e. serial no. 11,41, 66, 70, 76, 89, 94 & 105 of Set-A and the same answers in different serial numbers in other Sets-B, C, 0 in the model answer sheets were incorrect. These options were revised by the Committee of Subject Experts and only these 8 questions were re-evaluated with the revised model answers. No other question was re-evaluated in Paper-II of General Knowledge. Therefore only] 6 questions and answers in total of Paper-II General Knowledge were interfered in the above manner during the re-evaluation. 9. These options were revised by the Committee of Subject Experts and only these 8 questions were re-evaluated with the revised model answers. No other question was re-evaluated in Paper-II of General Knowledge. Therefore only] 6 questions and answers in total of Paper-II General Knowledge were interfered in the above manner during the re-evaluation. 9. Rule 14 of The Examination Conduct Rules, on which there is no dispute, reads as under: ^^14- oLrqfu”B =qfV iw.kZ iz’u] mldk fujLrhdj.k ,oa cnys esa fn;k x;k vad & ijh{kk mijkar NRrhlx<+ O;kolkf;d ijh{kk eaMy] }kjk fo”k; fo’ks”kKksa ls izR;sd iz’u dk ijh{k.k djk;k tkrk gSA fo”k; fo’ks”kKksa }kjk iznku dks =qfViw.kZ ik, tkus ij fujLr dj fn;k tkrk gSA fuEufyf[kr dkj.kksa ls iz’u fujLr fd, tk ldrs gS %& ¼1½ iz’u dh lajpuk xyr gks] ¼2½ mRrj ds :i esa fn;s x;s fodYiksa esa ,d ls vf/kd fodYi lgh gks] ¼3½ dksbZ Hkh fodYi lgh u gks] ¼4½ fdlh iz’u ds fgUnh vkSj vaxzsth :ikarj esa varj gks ftl dkj.k nksuksa ds fHkUu&fHkUu vFkZ fudyrs gks vkSj ,d lgh mRrj vHkkf”kr u gksrk gks] ¼5½ dksbZ vU; eqnz.k =qfV gqbZ gks ftlls lgh mRrj izkIr u gks ;k ,d ls vf/kd fodYi lgh gksA fo”k; fo’ks”kK lfefr }kjk dh xbZ vuq’kalk vuqlkj ,sls fujLr fd, x, iz’uksa ds fy;s lHkh Nk=ksa dks ml iz’u i= esa muds }kjk vftZr vadksa ds vuqikr esa NRrhlx<+ O;kolkf;d ijh{kk eaMy vad iznku djrk gSA Hkys gh mlus fujLr fd, x, iz’uksa dks gy fd;k x;k gks ;k ughaA ftu iz’u i=ksa esa iz’u fujLr fd, x, gS] mu iz’u i=ksa ds fy;s ewY;kadu i)fr fuEukuqlkj gksxhA ;fn fdlh iz’u i= esa 100 iz’uksa esa ls nks iz’u fujLr fd, tkrs gS vkSj ewY;kadu ds ckn vH;kFkhZ 98 iz’uksa esa 81 vad izkIr djrk gS rks mlds] izkIr vadksa dh x.kuk bl izdkj gksxh % (81 x 100)/100-2 = 82.65 ftlds vk/kkj ij esfjV fu/kkZfjr gksxhA** 10. A perusal of the aforesaid Rule would show that if a question is declared to be wrong question for the reasons mentioned in the Rule, marks in that question shall be awarded on pro rata basis. In cases on hand after the complaints when the matter was sent before the Experts Committee it recommended for cancellation of 8 questions of Paper-II Set-A i.e. question nos. In cases on hand after the complaints when the matter was sent before the Experts Committee it recommended for cancellation of 8 questions of Paper-II Set-A i.e. question nos. 5,59,74,78,87,100,119 & 120 and on this basis, these questions were cancelled and deleted and marks on pro rata basis as per Rule 14 (supra) were awarded to all the candidates. So far as remaining 8 questions referred to above are concerned, they were re-evaluated on the basis of correct model answers prepared by the Experts and proper marks were allocated for the correct answers of these questions to all the candidates. Apart from the above, only objective questions of Paper-I were re-evaluated and none of the subjective questions were re-evaluated and proper marks were allocated to the correct answers of objective questions of Paper-I, which only were re-evaluated 011 the basis of fresh model answers. The contention of learned counsel for the petitioners were that entire questions were re-evaluated and a difference is bound to come in re-evaluation of subjective questions. After going through the question papers, model answer sheets and recommendation of the Experts Committee, we do not find the above contention to be factually correct. We have randomly seen the answer sheets also in presence of learned counsel for both the parties during the course of hearing and found that subjective questions were not examined while taking the exercise of re-evaluation. Had there been a re- evaluation of the subjective answers, the difference in awarding the marks was bound to come as different examiners may give different marks while evaluating the subjective questions. But, if the objective questions only are re-evaluated, there is no chance of awarding different marks as only 1 answer to each of those questions would be correct, and for that fixed mark has to be awarded. It is thus clear that there is no illegality or irregularity in the manner and method of re-evaluation and allocation of marks to the answers to objective questions as per fresh model answers prepared by the Examining Body (VYAPAM). 11. Now we shall examine the validity and necessity of the exercise of re-evaluation. and whether the VYAPAM could have done the said exercise; on which the above substantial question of law has been framed by the learned Single Judge. 12. In Om Kumar and Others Vs. 11. Now we shall examine the validity and necessity of the exercise of re-evaluation. and whether the VYAPAM could have done the said exercise; on which the above substantial question of law has been framed by the learned Single Judge. 12. In Om Kumar and Others Vs. Union of India 1, while deliberating on the proportionality the Supreme Court said that by "proportionality", it is meant that the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve", The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court to decide. That is what is meant by proportionality. 13. In Union of India and Others Vs. Rajesh P U, Puthuvalnikathu and Another, there was a re-evaluation and then the entire select list was cancelled. The Supreme Court held that when the impact of irregularities which crept into evaluation on merits could be identified specifically and was found, on a reconsideration of the entire records, to have resulted in about 31 specific number of candidates being selected undeservedly to the detriment of similar such number of candidates, there was no justification to cancel the entire selection. It was held that there seems to be no serious grievance of any malpractices as such in the process of the written examination - either by the candidates or by those who actually conducted them. The Special Committee had extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment, there was no infirmity whatsoever in the selection of the other successful candidates. The Special Committee had extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment, there was no infirmity whatsoever in the selection of the other successful candidates. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasive nature, which could b~ really said to have undermined the very process itself in its e!1tirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for anyone or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections is nothing but total disregard of relevancies, giving a complete goby to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what at stake, thereby virtually rendering such decision to be irrational. 14. In Chairman, All India Railway Recruitment Board and Another Vs. K. Shyam Kumar and Others3, the Supreme Court, referring to the Wednesbury principle and doctrine of proportionality, held that "Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere." It further held that "Proportionality enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker." 15. It is on these principles, correctness of the decision of the Examining I Body (VY APAM) to get re-evaluation of the objective questions of entire answer-sheets has to be judged. In case on hand, when the VYAPAM received I complaints relating to formulation of the wrong questions and it also got discovered that answers of 8 objective type questions were not correct in the I first model answers, views of the Expert Committee was taken. The Expert. Committee recommended for cancellation/deletion of 8 wrong questions. This is within the purview of Rule 14 contained in the Examination Conduct Rules. About the remaining 8 questions which were evaluated on the basis of wrong model answers (wrong option against each objective type question),' the VYAPAM decided to get correct model answers of these questions and to get them re-evaluated in all answer-sheets and to allocate appropriate marks for the correct answers given by the candidates, and at the same time, looking to anomalies coming in various other objective questions, it further decided to get fresh model answers of other objective type questions also and to get them re-evaluated on the basis of those model answers with a view to come to a correct result. In Rajesh P. U, Puthuvalnikathu2 (supra) it was emphasized that when the irregularities in the evaluation could be identified specifically and after removing the identified irregularities if undeservedly select candidates can be identified and the results could be correct and in their place deserving candidates can be included in the select list, there was no illegality in such action, and in absence of other allegations of malpractice etc., the mistake corrected in the re-evaluation should be upheld and there was no necessity of cancellation of the entire examination. In the present case also identified irregularities were corrected by re-evaluation. For 8 wrong questions marks were allocated to the candidates on pro rota basis, and other 8 question whose model answers were not correct and the remaining objective type questions, all were re-evaluated on the basis of correct model answers and on such re-evaluation a second select list of the deserving candidates only was prepared and published and very few number of undeserving candidates, including the petitioners, were not included in the second select list. In the prevailing facts and circumstances, the VYAPAM had three options. One, to accept the wrong result and net to disturb the first select list; two, to cancel the entire select list being based on wrong evaluation of the answer-sheets; and three, to find out the mistake and correct it in re-evaluation. The very purpose of formation of an independent examining body like VYAPAM is to get correct results of the competitive examinations in a fair and proper manner with the help of Experts of the subject. The VYAPAM, to get a correct result, in the above facts and circumstances of the case when the mistakes were identified and they could be corrected by an exercise of re-evaluation, out of the above three possible decisions, too' the decision of re-evaluation and to get correct results. We are of the view that on applying the doctrine of proportionality, the above decision of VYAPAM to get re-evaluation of only 8 objective questions which were evaluation on the basis of wrong model answers and to re-evaluate the objective questions of Paper-l and to allot the marks of 8 wrong questions on pro rata basis was fully justified and was a balanced and harmonious decision. By the said course• adopted by the VYAPAM a very few number of undeserving candidates have been excluded from the select list and equal number of deserving candidates have been put in the second list. The decision taken by the VYAPAM was more concerned with the aims and intention of VYAPAM and by the said decision it has achieved more or less the correct balance or equilibrium causing no harm to anyone as the persons who have not correctly solved the answers cannot be kept above persons who have correctly solved the answers. Had there been a re-evaluation of the subjective answers it would have made difference and would have caused injustice. But, re-evaluating the objective answers only with the help of correct model answers would not have caused injustice to anyone and would have certainly helped to prepare a correct select list. 16. Mr. Koshy has also argued that the Rules do not permit re-evaluation of the answer-sheets, therefore, the action was without jurisdiction. The above argument cannot be accepted. There can be two kinds of re-evaluation. One, re-evaluation of an individual answer-sheet on the request of an examinee; two, the re-evaluation of entire answer-sheet as has been done in the present case. For the first kind of re-evaluation there may be a requirement of Rule, but for the second kind of re-evaluation, the Rules as such would not be required. In Sahiti and Others Vs. Chancellor, Dr. N. T.R. University of Health Sciences and Others4, the Supreme Court held that "Re-evaluation of answer scripts in the absence of specific provision is perfectly legal and permissible. In such cases, what the court should' consider is whether the decision of the educational authority is arbitrary, unreasonable, mala fide and whether the decision contravenes any statutory or binding rule or ordinance and in doing so, the Court should show due regard to the opinion expressed by the authority." The Supreme Court further observed that "There may be several instances wherein reevaluation of the answer scripts may be required to be ordered and the Court need not make an exhaustive catalogue of the same. However, if the authorities are of the opinion that re-evaluation of the answer scripts is necessary then the Court would be slow to substitute its own views for that of those who are expert in academic matters." It was a case in which there were no specific provisions relating to re-evaluation in the Rules, but the re-evaluation was directed. In the present cases also, even if there was no provision for reevaluation of the answer scripts, on the above principles, VYAPAM was fully empowered to take such a decision and unless the decision is held arbitrary, unreasonable or malafide, which we do not find, that cannot be interfered by a Court. 17. Mr. Koshy has also argued about the principles of natural justice that every appointed candidate should have been heard. We do not find force in the above argument. In M.C. Mehta Vs. Union of India and Others5, the Supreme Court held that if on the admitted or indisputable factual position, only one conclusion is possible and pennissible, the court need not issue a writ merely because there has been a violation of the principles of natural justice. In State of Manipur and Others Vs. Y Token Singh and Other6, it was held that when the respondents were not entitled to hold the posts on account of the order of their appointments being non-est for want of jurisdiction to the authority who issued the appointment order and the above facts were admitted, in a case of this nature the principles of natural justice were not required to be complied with, particularly, when the same would result in futility. 18. In cases on hand, appointment letters were issued to 37 writ petitioners on the basis of wrong merit list prepared. Therefore, no legal right existed in favour of those petitioners. In a petition challenging cancellation of appointments, as observed in Y Token Singh6 (supra), it is for the petitioners to establish existence of a legal right in their favour and a corresponding legal duty to continue to be employed. An appointment letter issued on the wrong selection list which was later on cancelled does not confer any legal right as the same would be non-est. Moreover, factual position in these cases are also indisputable, therefore, the principles of natural justice were not required to be complied with. 19. An appointment letter issued on the wrong selection list which was later on cancelled does not confer any legal right as the same would be non-est. Moreover, factual position in these cases are also indisputable, therefore, the principles of natural justice were not required to be complied with. 19. The respondents/interveners have also argued regarding maintainability of the writ petitions on the ground that the petitioners have prayed for quashing of second select list dated 27.6.2009, but the persons in the second select list have not been made party-respondents. 20. In K.H Siraj Vs. High Court of Kerala and Others?, the Supreme Court held vide Para-75, we quote:"75. The writ petitions have also to fall on the ground of absence of necessary parties in the party array. Though the appellant-petitioners contend that they are only challenging the list to a limited extent, acceptance of their contention will result in a total rearrangement of the select list. The candidates will be displaced from their present ranks, besides some of them may also be out of the select list of 70. It was, therefore, imperative that all the candidates in the select list should have been impleaded as parties to the writ petitions as otherwise they will be affected without being heard. Publication in the newspaper does not cure this defect. There are only a specified definite number of candidates who had to be impleaded, namely, 70. It is not as if there are a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules. That rule can be applied only when very large number of candidates are involved and it may not be able to pinpoint those candidates with details. In our view, the writ' petitions have to fail for non-joinder of necessary parties also." Almost a similar situation arises in these matters and in view of the above enunciation of the Supreme Court, the writ petitions have to fail for non-joinder of necessary parties also. 21. For the foregoing reasons, the writ petitions are dismissed. Consequently, I interim order(s) granted in different matters automatically stand vacated. 22. There shall be no order(s) as to cost(s). Petitions Dismissed.