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2018 DIGILAW 1317 (GAU)

Abdul Hakim v. State of Assam

2018-09-06

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. YS Mannan, the learned counsel for the writ petitioner and Mr. N Goswami, the learned State counsel for all the respondents. 2. Brief facts of the case may be noticed at the outset. 3. An advertisement was published by the Director, Food, Civil Supplies & Consumer Affairs Department (respondent No.3) on 20.08.2008, inviting eligible candidates for filling up 145 numbers of posts through direct recruitment in the cadre of Sub-Inspectors of Food, Civil Supplies & Consumer Affairs. The petitioner responded to the same and he was called for a written test which was held on 28.12.2008. Having cleared the written test, he was called for an interview on 31.08.2009. Be it stated herein that as per scheme of the selection, 150 marks was allotted for the written test while 50 marks was allotted for the interview and thus, the total marks was 200 marks. 4. After the selection process was over, the result was published by the respondent authorities in a local daily on 21.06.2012. As per the declared results, as many as 130 candidates were selected for the posts in question. As for the petitioner, his name did not figure amongst those who were selected. Being highly dissatisfied, he sought for information from the respondent No.2 by submitting an application under the Right to Information Act, 2005 (RTI Act) on 25.05.2012. However, respondent No. 3 vide communication dated 07.06.2012 informed the petitioner that as the matter was sub-judiced before the High Court, no information as was sought for could be given. Thereafter, against another RTI Application submitted by the petitioner, he was provided with his answer scripts and the petitioner on examining the same, found that as many as 11(eleven) questions which he correctly answered had been marked as wrong answers and therefore, no marks were allotted to him for the 11(eleven) answers which otherwise carried (half) marks each. With such discovery, the petitioner submitted an application to the Principal Secretary to the Government of Assam, Food, Civil Supplies & Consumer Affairs Department on 12.01.2015, requesting for a review of answer scripts. 5. Despite his application, the respondents did not take any action and therefore, the petitioner submitted another application through RTI requesting for the marks given to him in the written examination as well as in the viva-voce. 5. Despite his application, the respondents did not take any action and therefore, the petitioner submitted another application through RTI requesting for the marks given to him in the written examination as well as in the viva-voce. Accordingly, vide communication dated 24.05.2016, he was informed about his marks which was 111 marks in the written examination and 11 marks in the viva voce. Thus, the petitioner scored total 122 marks in all. In the meantime, the petitioner again submitted a representation before the respondent No.3 for re-examination/re-scrutinization of his answer scripts by an independent expert examiner as he came to learn that this Court on 16.05.2016 in WP(C) No.2220 of 2016 had directed the answer scripts of the petitioner therein to be examined by an independent expert examiner. That upon such examination, it was found that the answers given were correct and they were erroneously marked as wrong answers. The writ petition was thus allowed with consequential benefits. Likewise, in the present case, the petitioner contends that he is similarly placed and therefore a similar direction may be given to the respondents. 6. Appearing for the petitioner, Mr. YS Mannan, the learned counsel submits that as per the information given to the petitioner through the application made by him under the RTI, the petitioner scored a total 122 marks and the last candidate who was selected from the general category obtained 126.5 marks. Therefore, eleven answers which were marked as incorrect answers if properly examined and evaluated, the petitioner will surely get more marks than the last selected candidate. He submits that similar was the case in WP (C) No. 2220 of 2016 where it was found that the petitioner who belonged to an OBC category, upon re-evaluation of the answers by an independent examiner, was found to have scored more marks than the last selected OBC category candidate. Consequently, this Court directed his appointment and restoration of his seniority as per merit. Mr. YS Mannan, the learned counsel therefore submits that the petitioner's case being covered case, a similar direction may be issued by this Court. In support of his submissions, the learned counsel has relied upon the following decision of the Apex Court:- (i) Vikash Pratap Singh & Ors vs- State of Chhattisgarh, (2013) 14 SCC 494 (ii) Rajesh Kumar and Others. vs- State of Bihar, (2013) 4 SCC 690 7. Appearing for the State respondents, Mr. In support of his submissions, the learned counsel has relied upon the following decision of the Apex Court:- (i) Vikash Pratap Singh & Ors vs- State of Chhattisgarh, (2013) 14 SCC 494 (ii) Rajesh Kumar and Others. vs- State of Bihar, (2013) 4 SCC 690 7. Appearing for the State respondents, Mr. N Goswami, learned State counsel by referring to the affidavit-in-opposition filed by the respondent No. 3 on 31.05.2017 submits that the writ petition has only been belatedly filed by the petitioner. He submits that the selection to the posts in question was initiated by an Advertisement which was issued as far back as on 20.08.2008. Thereafter, upon inspecting the selection process, the respondents have published the results of the selection on 21.06.2012. However, as for the petitioner, he approached this Court by filing the writ petition only on 25.01.2017. He submits that the writ petition therefore suffers from delay and laches and should not be entertained at this belated stage. He further submits that the petitioner upon realizing that this Court in a case of similar nature gave relief to the petitioner concerned, he too has approached this Court but only belatedly. He submits that the petitioner was aware of the pendency of the said writ petition but he did not take any steps and he remained a fence sitter. But after seeing the relief granted to a similarly situated person who was vigilant with his right, he has approached this Court belatedly and therefore, the writ petition should be rejected. 8. Mr. N Goswami, learned State counsel also submits that this Court in WP (C) No.1268 of 2010 which was decided along with a number of cases had specifically directed that the respondent authorities should not exercise or re-evaluate the answer scripts of the candidates. He submits that the said writ petition was also with regard to the same selection process. Therefore, the prayer of the petitioner may not be accepted and that the writ petition should be dismissed. With regard to the delay and laches, the learned State counsel relies upon the decision of the Apex Court rendered in the case of State of Orissa vs- Lochan Nayak, (2003) 10 SCC 678 . 9. Responding to the averments made by the learned State Counsel, Mr. With regard to the delay and laches, the learned State counsel relies upon the decision of the Apex Court rendered in the case of State of Orissa vs- Lochan Nayak, (2003) 10 SCC 678 . 9. Responding to the averments made by the learned State Counsel, Mr. YS Mannan learned counsel submits that there is no delay in approaching this Court and that the petitioner is not responsible for any laches inasmuch as the petitioner approached the respondent authorities concerned for specific informations as far back as in the year 2012 by filing an application under the RTI. However, the respondent authorities declined to give the petitioner any information in view of the pendency of a writ petition or writ petitions filed by aggrieved persons in connection with the selection process. He therefore, submits that the case of the writ petitioner cannot be rejected on the ground of delay and laches. In so far as decision of this Court rendered in WP (C) No. 1268 of 2010 along with other similar cases as submitted by the learned State counsel is concerned, he submits that the issues involved are not similar and the case of the present petitioner is clearly distinguishable. He submits that the cases referred to by the learned counsel pertains to grievances by candidates who alleged that there were over-writing in the answer scripts and corrections were made with correcting fluid which led to the controversy. In the present case, the grievance of the petitioner is that correct answers were marked and therefore, the same requires a re-evaluation by an independent Expert as was directed in WP (C) No.2220 of 2016. Since the State respondents maintain that the answer key to the questions have been mis-placed, the learned counsel submits that a similar order is warranted in the present case. 10. I have heard the learned counsels for the rival parties and I have perused the materials available on record. 11. Since the State respondents maintain that the answer key to the questions have been mis-placed, the learned counsel submits that a similar order is warranted in the present case. 10. I have heard the learned counsels for the rival parties and I have perused the materials available on record. 11. Question to be decided is as to whether a direction for re-evaluation of the 11 answers, which according to the petitioner are correct are to be directed to be examined by an independent Examiner in terms of the order of this Court passed on 16.05.2016 in WP (C) No. 2220 of 2016 and thereafter on such evaluation, a similar benefit can be extended to the petitioner in line with the final order dated 22.06.2016 passed in the same writ petition. In order to consider the possibility of passing the said similar order, it may be noticed that out of 145 posts of Sub-Inspector of Food, Civil Supplies & Consumer Affairs Department, as many as 130 numbers of posts apparently have been filled up pursuant to the declaration of result on 21.06.2012. The writ petitioner in his writ petition has contended that there are as many as 15 vacancies in the posts which however was denied in the affidavit-in-opposition, contending that there are only 13 posts as of now. On 13.08.2008, learned State counsel was asked to obtain instructions as to whether there were vacancies in the post of Sub-Inspector of Food, Civil Supplies & Consumer Affairs Department as of now and to which Mr. N Goswami today had submitted that there are vacancies. It may be seen that the petitioner upon making an assessment of the answer scripts that was furnished to him by the respondent authorities came to find out that as many as eleven answers which he had answered correctly were marked as wrong answers. Accordingly, by submitting an application on 12.01.2015, he approached the respondent authorities for review of his answer scripts in view of such finding. However, his application was not considered and in the process he was also given the total marks obtained by him in the written examination as well as in the viva-voce test. The direction passed by this Court on 16.05.2015 as well as on 22.06.2016 in WP (C) No.2220 of 2016 only appears to cover the case of the petitioner. However, his application was not considered and in the process he was also given the total marks obtained by him in the written examination as well as in the viva-voce test. The direction passed by this Court on 16.05.2015 as well as on 22.06.2016 in WP (C) No.2220 of 2016 only appears to cover the case of the petitioner. However, considering the fact that the learned State counsel has raised the issue of delay and laches, let us see whether the delay in approaching this Court would dis-entitle the petitioner a similar relief. As may be noticed, the application of the petitioner to the respondents seeking information was submitted as far back as on 25.05.2012 and against which a communication was made to him on 07.06.2012 refusing to supply any information in view of the fact that the subject matter was sub-judiced before this Court. Thereafter, the petitioner also submitted an application on 12.01.2015 seeking review of his answer scripts after he was given a copy of his answer scripts and he having found that as many as eleven answers were incorrectly marked as wrong answers. It is also noticed that on 30.05.2016, an application for re-scrutinizing or reexamination of the answer scripts was submitted by the petitioner to the respondent No.3, which also remained unconsidered. The case of Lochan Nayak referred to by the learned State counsel invited the attention of the Apex Court with regard to the inordinate delay in insufficiency of explanation of the delay. In the present case, as may be noticed, the writ petition cannot be said to have suffered from inordinate delay or the petitioner is responsible for laches, inasmuch, as several applications have been submitted by him to the respondent authorities, which in my considered opinion would again for sufficient cause have approached this Court by this writ petition only on 25.01.2017. Therefore, the facts in the case referred to are in fact not similar to the present case at hand. 12. In the case of Vikash Prakash Singh & Ors, an Advertisement inviting applications for the recruitment to 380 posts of Subedars, Platoon Commandars and Sub-Inspectors was issued by the police Headquarters at Chattisgarh. The scheme of selection comprised of Preliminary and Main examination followed by physical examination and personal interview. Upon completion of the entire exercise, a final merit list was published. The scheme of selection comprised of Preliminary and Main examination followed by physical examination and personal interview. Upon completion of the entire exercise, a final merit list was published. However, complaints were received in respect of the defects/ mistakes in several questions of the main examination papers. Following such complaints, an expert Committee to enquiry into the complaints was constituted. Upon examination, it was found that there were two defects. Firstly, eight questions in Paper-II itself were incorrect and secondly, the model answer scripts for evaluation of answer scripts of another eight questions of Paper-II were incorrect. Upon identifying irregularities, the same was corrected by employing the method of re-evaluation. Such decision and process undertaken according to the Apex Court would not be termed as arbitrary or having caused any prejudiced to the parties in dispute or to the candidates selection in the revised merit list. Consequently, the Judgment of the High Court was upheld by the Apex Court. 13. In the case of Rajesh Kumar and Others. which was in respect of selection to the post of Junior Engineer (Civil) by the Bihar State Staff Selection Committee, the Apex Court while setting aside the Judgment of the High Court held that in the given 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. 14. In the instant case as may be already noticed, the answer keys for the selection process could not be traced out by the respondents and for that reason, this Court directed that the answer scripts be examined by an independent expert examiner in the WP (C) No. 2220 of 2016. Therefore, the grievance of the present petitioner apparently is only covered by the Judgment of this Court in WP (C) No. 2220 of 2016. 15. Therefore, the grievance of the present petitioner apparently is only covered by the Judgment of this Court in WP (C) No. 2220 of 2016. 15. Upon coming to a finding that the case of the petitioner is squarely covered by the decision of this Court rendered in WP(C) No.2220 of 2016 and that there was no inordinate delay on the part of the petitioner in approaching this Court , the respondents are directed to place the answer booklet of the petitioner for scrutinization with reference to the eleven answers which according to the petitioner are correct answers, as was submitted by him on 12.01.2015 (Annexure-F) to be scrutinized by an the independent expert Examiner to be appointed by them. Such examination should be carried out within a period of 4(four) weeks from the date of receipt of a certified copy of this order. On receiving the outcome of such examination, if it is found that the 11(eleven) answers given by the petitioner are correct or the petitioner has scored more than the last appointed candidate, who had admittedly scored 126.5 marks from the general category, the respondents shall appoint the petitioner to the post in question without delay and at any rate, within a period of 6(six) weeks from receiving the result and the seniority position of the petitioner would be assigned as per his merit position in the selection. 16. With the above observations and directions, the writ petition stands allowed.