Poonam Rani @ Poonam
Vs. State of Haryana and another
[Civil Appeal No.
4128 of 2012 arising out of SLP(C) No. 31804 of 2010]
J U D G M E N T
G.S. SINGHVI, J.
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 dated1.10.1994 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 on20.7.2006, 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 where of 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 below: “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/1to 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 27.7.1992and 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 interview.”
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 AppealNos.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.
Furthermore 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 with in 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.
...……….....……..….………………….…J.
[G.S. SINGHVI]
...………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New
Delhi,
May
1, 2012.
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