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2014 DIGILAW 1040 (JHR)

Matilda Toppo v. State of Jharkhand

2014-10-15

APARESH KUMAR SINGH

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Order Heard counsel for the parties. 2. Earlier on 17.5.2013, a detailed order was passed recording the submission of the learned counsel for the parties. As would appear from perusal of the said order, the respondent-department had chosen to hold examination for regular and backlog vacancies on 2.6.2013. The petitioners were aggrieved as in relation to the backlog and regular vacancies two different examination held on 18.12.2011 and 25.4.2012 for appointment to the post of Lady Supervisor through the channel of limited examination of departmental candidates have been annulled by the order impugned in the present writ applications being dated 9.2.2013. After hearing the counsel for the parties, this Court on the said occasion had restrained the respondents from holding a fresh examination scheduled to be held on 2.6.2013. The matter was adjourned, thereafter so that the issue may be finally adjudicated. 3. The respondent-State have filed supplementary counter affidavit on 29.8.2013. Mr. A. Allam, learned Sr. S.C.II, appearing on behalf of the State submitted that apart from the findings rendered by the Committee constituted by the Department as contained in Annexure-17 to W.P.S. No. 1316 of 2013 dated 16.5.2012, the Commissioner, North Chotanagpur Division who was also part of the said Committee had through letter dated 16.7.2012 requested the department to give approval of cancellation of examination held on 18.12.2011 and 25.4.2012. Learned counsel for the respondent-State has referred to the reasons culled out from the aforesaid letter at para 15 and 16 of the instant supplementary counter affidavit, which are being quoted herein below:- “Para 15:-That it is further required to mention that in the question -cum-answer sheet of both the papers there was lack of proper instruction to the examinees like:- (i) There was no instruction not to write the name of candidates in the answer sheet except first page of the answer sheet (ii) There was no instruction that examinee should tick mark in the only correct box of the answer and if examinee put marks like cross marks/any marks in other box then examinee will get zero marks even examinee put tick marks in the box of correct answer (iii) There was no instruction that there was no option to change the answer (iv) There was no instruction that examinee should not write any identification marks in any part of the answer sheet (v) There was no place for signature of Invigilator in the answer sheet Aforesaid grounds No.(i) to (iv) is sufficient to cancel answer sheet of any examinee but due to the reason that no instructions given in this regard in the answer sheet, now it is not justified to cancel answer sheet of any examinee. Para 16:-That due to aforesaid lack of proper instruction for examinee several examinee wrote her name in the inner page of the answer sheet, several examinee change the answer by cutting previous answer, several examinee put cross mark in one box and tick mark in other box. None of the answer sheet contains signature of Invigilator on the date of examination. Therefore there is a doubt about the fairness of the examination but it is also not possible to give allegation any particular examinee due to lack of proper instruction in the answer sheet”. 4. Respondents have also annexed the copies of the answer sheet of the examination held on 25.4.2012 to the said affidavit. Upon perusal of the additional ground shown in para 15 and 16 of the instant affidavit and the copy of the answer sheet are enclosed as Annexure-A, it is evident that the answer sheet itself contained instruction on the first page that examinees had to mark their answer by ticking the correct box against such question. Upon perusal of the additional ground shown in para 15 and 16 of the instant affidavit and the copy of the answer sheet are enclosed as Annexure-A, it is evident that the answer sheet itself contained instruction on the first page that examinees had to mark their answer by ticking the correct box against such question. One of the ground shown at page 15 that no instruction were issued to the examinees to tick the mark in only the correct box of the answer sheet, therefore does not seem to be made out. The other ground as indicated therein is that the examinees were not instructed to write the name of the candidates in the answer sheet except on the first page or to write any identification mark in any part of the answer sheet or not to change the option of any answer. The examinations were held for objective type questions and it is obvious that candidates who chose to undertake such examination were expected to record only one correct answer against each question and not to mark more than one answer to any question, which itself would render the particular answer unworthy of being evaluated. The other two grounds of not putting any identification mark on the answer sheet or putting signature on the other pages of the answer sheet are also attributable to the fault of individual candidates. But the stand taken by the respondents in the supplementary counter affidavit does not disclose that the examination was vitiated on account of malpractice. The letter of the Commissioner, Chottanagpur Division dated 16.7.2012 also shows that because of such error in the answer sheet found, it may give rise to a suspicion. The Committee constituted by the State Government, which examined the issue was comprised of the Commissioner, South Chotanagpur Division and included the Deputy Commissioner of Hazaribag, Chatra, Koderma and Ramgarh and the Deputy Director, Welfare. It is the case of the petitioners that the said Committee duly constituted by the State Government had only detected one wrong answer to one question each in two examinations, and had suggested to delete the marks of the said wrong answer by evaluating the result afresh and preparing a fresh merit list. It is the case of the petitioners that the said Committee duly constituted by the State Government had only detected one wrong answer to one question each in two examinations, and had suggested to delete the marks of the said wrong answer by evaluating the result afresh and preparing a fresh merit list. Reference has been made to the specific directions issued by the Director, Social Welfare dated 31.5.2012, Annexure-15 addressed to the Commissioner, South Chotanagpur Division in view of his earlier letter no. 154 dated 16.5.2012. Petitioner have also referred to the notings of the Minister, Department of Social Welfare, obtained under R.T.I, which are dated 13.12.2012 enclosed as Annexure-21 to the rejoinder to the counter affidavit. 5. In the wake of aforesaid facts, it is submitted on behalf of the petitioners that when no malpractice has been shown to have been found in the conduct of the examinations, the entire examinations should not be cancelled. It is submitted that such a approach would be unreasonable and in such circumstance, the Doctrine of Proportionality should be applied to save the examination process, though there has been no malpractice in the examinations. Answer can be evaluated afresh after excluding the two incorrect answer and excluding such answer sheet where it has been found that candidates have recorded some identification marks or signature on the answer sheet in other pages as well or that they have marked more than one answer against one question or they have crossed some answers contrary to the instruction. 6. Learned counsel for the petitioner has relied upon judgments rendered in the case of Jitendra Kumar & others Vrs. State of Haryana & another reported in 2008(2)SCC 161 and in the case of Rajesh Kumar & others Vrs. State of Bihar and others reported in 2013(4)SCC 690 in support of their aforesaid submissions. 7. In view of the aforesaid submissions made and the law laid down on the subject by the Hon'ble Supreme Court applying the Doctrine of Proportionality in such cases, before taking a final decision in the matter, the respondent-State are allowed one more indulgence to come out with their concrete suggestion after reconsidering the whole issue in that light. 8. Accordingly, on the request of learned Sr. S.C.II, the matter is adjourned for 4 weeks. Let the case appear in the week commencing 24th November, 2014. 9. 8. Accordingly, on the request of learned Sr. S.C.II, the matter is adjourned for 4 weeks. Let the case appear in the week commencing 24th November, 2014. 9. Let a copy of this order be handed over to the learned counsel for the State.