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Allahabad High Court · body

2014 DIGILAW 3317 (ALL)

RAJESH SINGH v. STATE OF U. P.

2014-11-10

D.Y.CHANDRACHUD, P.K.S.BAGHEL

body2014
JUDGMENT By the Court.—A writ petition (Writ-A No. 17329 of 2012, Om Prakash Yadav v. State of U.P. and another) under Article 226 of the Constitution was filed by the third respondent. The Uttar Pradesh Secondary Education Services Selection Board (the Board) had advertised vacancies for appointment on the posts of Trained Graduate Teachers in the subject of Art, on 15 January 2009. 361 vacancies were advertised, of which 100 were reserved for Other Backward Classes (OBC) category and 143 for Scheduled Caste candidates. The rest of the posts were to be filled up through general category candidates. The third respondent applied under the OBC category and appeared at the written examination, which was held by the Board on 20 September 2009. The third respondent stated that he was declared successful at the written examination and appeared at an interview after being called by the Board. The grievance of the third respondent pertained to the written examination for the subject of Art which consisted of 125 questions. According to the third respondent, 106 questions were answered correctly by him. Since the total marks assigned for 125 questions were 425, the third respondent averred that each question carried 3.4 marks and he would be entitled to 360.40 marks. The third respondent was informed that cut off marks in the final selection for OBC category was 399.20 marks. The third respondent obtained 343.40 marks in the written examination and 48 marks in the interview thus, securing a total of 391.40 marks. The third respondent failed to make the cut off by a difference of 7.80 marks and was not selected in the OBC category. According to the third respondent, it was found that his answers to 101 questions were found to be correct whereas, his understanding was that his answers of 106 questions were absolutely correct. The case of the third respondent was that on that basis he would have been entitled to 360.40 marks and if 48 marks secured in the interview were added, he would be entitled to 408.40 marks, which was above the cut off. 2. In paragraph 17 of the writ petition there was a general allegation of certain irregularities which had taken place in the Commission resulting in litigation pending before this Court, where it was found that either wrong questions had been framed or marks had been wrongly awarded. 2. In paragraph 17 of the writ petition there was a general allegation of certain irregularities which had taken place in the Commission resulting in litigation pending before this Court, where it was found that either wrong questions had been framed or marks had been wrongly awarded. In paragraph 20 of the writ petition it is averred that Question No. 49 was wrongly framed and hence, it was urged that the total marks should be allotted on the basis of 124 questions and not 125 questions. 3. On this basis, the reliefs which the third respondent sought in the writ petition were in the following terms: (i) A declaration that the result in the subject of Art was incorrect and that a consequential direction be issued to the Board to make a proper assessment of the answer books on the basis of the correct answers; (ii) A direction for evaluation of all the marks for the questions and for declaration of a fresh result on the basis of evaluation; and, (iii) A direction for issuance of a consequential order holding that the third respondent was successful in the Art subject of the written examination. 4. From the record it appears that a batch of petitions came up for hearing before the learned Single Judge consisting of a total of seven writ petitions. It is common ground between the learned counsel that these writ petitions pertained to written examinations held in different subjects for appointment as (i) Lecturer in History; (ii) Lecturer in Civics; (iii) L.T. Grade Teacher for Hindi; (iv) L.T. Grade Teacher for Sanskrit; and (v) L.T. Grade Teacher for Arts. The writ petition which was filed by the third respondent (Writ-A No. 17329 of 2012) pertained to the subject of Art as did two other writ petitions, namely, Writ-A Nos. 17331 of 2012, Sanjay Kumar Dubey v. State of U.P. and another and 17332 of 2012, Sanjeev Kumar Singh v. State of U.P. and another. 5. Initially, on 12 April 2012 a learned Single Judge noted that the third respondent herein had furnished a bank draft in the amount of Rs. 10,000/- drawn in the name of the Secretary of the Board which was handed over for encashment. A direction was issued to the Board to produce the key-answers and the answer sheet of the third respondent on 25 April 2012. 10,000/- drawn in the name of the Secretary of the Board which was handed over for encashment. A direction was issued to the Board to produce the key-answers and the answer sheet of the third respondent on 25 April 2012. On 25 May 2012 an order was passed by the learned Single Judge specifically in Writ-A No. 16139 of 2012 (Anil Kumar Mishra v. State of U.P.), which pertained to the subject of History. The learned Single Judge directed that it was appropriate for the Board to obtain opinion of a subject expert, namely, of a Professor in the subject at the University of Allahabad in respect of the questions and the key-answers provided. From the record it appears that on the basis thereof, a reference was made by the Board to a subject expert. Thereafter, the entire batch of writ petitions was placed before the learned Single Judge who delivered a common judgment on 24 August 2012. 6. A reading of the impugned judgment and order of the learned Single Judge would indicate that the learned Single Judge has examined the facts only pertaining to Writ-A No. 16139 of 2012, which dealt with the subject of History. The entire discussion in the impugned order pertained to Question No. 81, which dealt with the meaning of ‘judicial activism’. On the basis of this discussion alone, the learned Single Judge directed the Board to take into account the report submitted by the subject expert, as was submitted in all the matters, and to take further follow up action within two months from the date of receipt of a certified copy of the order. Ex facie, it is evident that save and except for the facts pertaining to the subject of History, the learned Single Judge has not considered the individual facts relating to the writ petitions involved and to the grievances which were raised in those petitions. There has been no consideration at all of the grievances of the third respondent in regard to the written examination which was held in the subject of Art. In this view of the matter, we are of the view that the ultimate direction which was issued by the learned Single Judge to the Board to take follow up action on the basis of the report submitted by the subject expert cannot be sustained. The appellants before the Court are candidates who were found to be successful on the basis of the result which was declared. Admittedly, they were not impleaded as parties to the proceedings. They have been appointed in service of recognised aided institutions in December 2010 and it is not in dispute that they have since been confirmed in service. Since there was a batch of petitions before the learned Single Judge, it appears that on the basis of the discussion contained in the impugned judgment which pertained entirely to the subject of History, a general direction was issued so as to govern all the petitions included in the batch including the petition of the third respondent. 7. Learned counsel for the third respondent-petitioner heavily relied upon a judgment of the Supreme Court in the case of Rajesh Kumar and others v. State of Bihar and others, (2013) 4 SCC 690 . In the said case, the Bihar State Staff Selection Commission had issued an advertisement for appointment of Junior Engineers (Civil) against 2268 posts. The selection process comprised a written objective type examination. The selection was challenged by the unsuccessful candidates on the ground that the “model answer key” for evaluation of answer scripts had several erroneous answers. During the pendency of the writ petition, the selected candidates were appointed. The learned Single Judge of the High Court referred the “model answer key” to two experts associated with NIT Patna. The experts found several answers to be wrong. The learned Single Judge examined the report of the said two experts in detail and held that 41 model answers out of 100 were wrong. In the judgment in the said case, the Supreme Court saved the appointments of the candidates who had already been selected. The said case has a distinguishing feature. The High Court had considered the objections to the model answers and had examined the report of the expert. In the present case, the report of the expert in the subject of Art was not examined by the learned Single Judge at all and on the basis of the said report, the Board has revised the list of successful candidates after two and half years. In the meantime, the selected candidates were appointed and they have been confirmed. 8. In the present case, the report of the expert in the subject of Art was not examined by the learned Single Judge at all and on the basis of the said report, the Board has revised the list of successful candidates after two and half years. In the meantime, the selected candidates were appointed and they have been confirmed. 8. In this view of the matter, we are of the view that the ends of justice would require that the learned Single Judge should re-examine the grievance of the third respondent which has not been examined. The judgment of the learned Single Judge while disposing of the petition, has virtually displaced the appellants, who would now be confronted with an impending termination from service. For these reasons and with the clarification that since the learned Single Judge has not considered the grievance of the third respondent or the case of the appellants in the writ petition, we are not expressing any opinion on the merits of the issues raised in the writ petition, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 24 August 2012, insofar as Writ-A No. 17329 of 2012 is concerned. Writ-A No. 17329 of 2012 is, accordingly, restored to the file of the learned Single Judge. The appellants would be at liberty to apply for impleadment before the learned Single Judge. The learned Single Judge is requested to take up the writ petition for expeditious disposal so that the controversy can be resolved one way or the other. The special appeal is, accordingly, disposed of. There shall be no order as to costs. —————