published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40543
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5318-5319 OF 2013
(@ S.L.P.(C) Nos.26341-26342 of 2011)
|Vikas Pratap Singh and Ors. | Appellants |
Versus
|State of Chhattisgarh and Ors. | Respondents |
WITH
CIVIL APPEAL NO. 5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Appellants
Versus
State of Chhattisgarh and Ors. Respondents
AND
CONTEMPT PETITION NO. 433 OF 2011
IN
CIVIL APPEAL NO.5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Petitioners
Versus
Rahul Bhagat and Ors. Respondents/
Contemnors
O R D E R
Civil Appeal Nos.5318-5319 of 2013 (@ S.L.P. (C) Nos. 26341-26342 of
2011)
with
Civil Appeal No.5320 of 2013 (@S.L.P. (C) No. 26349 of 2011)
H.L. Dattu, J.
1. Leave granted in all the Special Leave Petitions.
2. These batch of appeals are directed against the common judgment and
order passed by the High Court of Chhattisgarh in Writ Petition
Nos. 3087, 3204 and 4229 of 2009, dated 06.09.2011, whereby and
whereunder the High Court has dismissed the Writ Petitions filed by
the appellants herein and confirmed the revised merit list drawn
after the selective re-evaluation of the answer scripts of all the
candidates who had appeared in the Main Examination for the posts
of Subedars, Platoon Commanders and Sub-Inspectors in the
respondent-State of Chhattisgarh.
3. The appellants before us (in SLP (C) Nos. 26341-26342 of 2011 and
26349 of 2011) are the 26 candidates aggrieved by the cancellation
of the first merit list and the redrawal of the second revised
merit list by the Chhattisgarh Professional Examination Board (for
short “respondent-Board”), whereby their appointments to the
aforesaid posts have been cancelled.
4. The facts in a nutshell are as under:
On 18.09.2006, an advertisement inviting applications for
recruitment to 380 posts of Subedars, Platoon Commanders and Sub-
Inspectors in the respondent-State was issued by the Police
Headquarters, Chhattisgarh. For the said purpose, the Preliminary
Examination was conducted on 24.12.2006 and the successful candidates
thereat were called for the Main Examination held in two parts as
Paper I and II on 04.02.2007 and 05.02.2007, respectively. After
conducting physical examination and personal interviews, the final
merit list of candidates was published on 08.04.2008, whereby all the
appellants herein were selected. Based on the said merit list, the
appointment letters were issued to the selected candidates including
the appellants on various dates between 21.08.2008 and 15.09.2008. In
the meanwhile, the Inspector General of Police and the respondent-
Board received complaints in respect of defects/mistakes in several
questions of the Main Examination Papers. The respondent-Board
constituted an Expert Committee to inquire into the complaints. Upon
examination of the two Papers, two sets of defects were noticed: (a)
eight questions in Paper II itself were incorrect and (b) model
answers for evaluation of answer scripts to another eight questions of
Paper II were incorrect. The respondent-Board directed for deletion of
the first set of eight questions in Paper II and preparation of
correct model answers key for objective questions in Papers I and II
and accordingly carried out re-evaluation of the answer scripts of the
candidates. On 27.06.2009 a new revised merit list was published
wherein the names of twenty six appellants did not figure at all and
accordingly, the appointment of the appellants were cancelled by the
respondent-State.
5. At the time of publication of the revised merit list, the
appellants were already undergoing training along with other
candidates who were selected in the first list. The appellants
aggrieved by the cancellation of the aforesaid appointment in the
wake of revised merit list filed several Writ Petitions before the
learned Single Judge inter alia challenging the validity of the
revised merit list on the ground that decision of re-evaluation by
the respondent-Board was arbitrary and irrational and therefore the
said list requires to be quashed.
6. The learned Single Judge while entertaining the Writ Petitions had
issued an interim order directing the respondent-State not to take
any coercive steps against the appellants and further to allow them
to continue their training programme. The learned Single Judge has
observed that a substantial question of public importance has
arisen in the matter and therefore, referred the matter to the
Division Bench with a request to consider and decide the following
question of law of public importance:
“Whether the VYAPM (respondent-Board) 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, cancelling the first
select list?”
7. The Division Bench has delved into merits of the matter at length
and analyzed the arguments advanced by both the parties. The
Division Bench has noticed the pattern of the Main Examination to
include two separate papers: Paper I comprising of both objective
and subjective type questions- 7 and 4 in number in Hindi and
English languages, respectively and Paper II comprising of 150
objective-type questions of General Knowledge. Further that the
Expert Committee constituted by the respondent-Board examined both
Paper I and II and found irregularities only in respect of the
eight incorrect objective questions of Paper II and model answers
to another eight questions in model answers key of Paper II,
pursuant to which the respondent-Board re-evaluated Paper II and
only objective questions of Paper I on basis of fresh model answers
key and in toto only sixteen questions and answers of Paper II were
interfered with upon such re-evaluation. The eight incorrect
questions were deleted and their marks were distributed on the pro-
rata basis in accordance with Clause 14 of the Examination Conduct
Rules (for short “the Rules”) of the respondent-Board and the other
eight questions, answers to which were incorrect in the first model
answers key were re-evaluated on the basis of new model answers key
and marks were awarded accordingly. The Division Bench has observed
that since all the questions so re-evaluated were objective type
carrying fixed marks for only one correct answer, the possibility
of difference in marking scheme or prejudice during re-evaluation
does not arise and therefore has concluded that no irregularity or
illegality could be said to have crept in the manner and method of
re-evaluation carried out by the respondent-Board and that the said
decision of re-evaluation was justified, balanced and harmonious
and has not caused any injustice to the candidates and therefore
cannot be interfered with unless found arbitrary, unreasonable or
malafide which is not the case at hand. In consequence of the
aforesaid conclusion, the Division Bench has thought it fit to
uphold the cancellation of appointments of the appellants qua the
first list and accordingly dismissed the writ petitions.
8. It is the correctness or otherwise of the said judgment and order
passed by the High Court which is before us in these appeals by
special leave.
9. We have heard Shri P.P. Rao and Shri Ravindra Srivastava learned
Senior Counsels appearing for the appellants and Shri Mukul Rohtagi
and Shri P.S. Patwalia learned Senior Counsels appearing for the
respondents and have also carefully perused the documents on
record.
10. Shri Rao would submit that the decision of the respondent-Board to
re-evaluate the answer scripts in the absence of any statutory
provisions for the same and subsequent publication of a revised
merit list cancelling the appointment of the appellants is
arbitrary and has caused prejudice to the appellants. He would
further submit that Clause 14 of the Rules providing for procedure
to be adopted in respect of erroneous objective questions is of a
wider ambit and includes exigencies such as model answers to
examination questions being incorrect and therefore, the respondent-
Board instead of directing re-evaluation of answer scripts ought to
have acted in compliance with the said statutory provision.
11. Per contra, Shri Rohtagi, learned Senior Counsel would submit that
the re-evaluation of answer scripts affected three genre of
objective questions: firstly, the eight questions in Paper II which
were found incorrect; secondly, the eight questions in Paper II
answers to which were found to be incorrect in the model answers
key and thirdly, the questions in Paper I to which no model answers
were provided for prior to the appointment of the Expert Committee.
He would submit that the first set of eight questions was deleted
and marks were awarded on a pro-rata basis in accordance with
Clause 14 of the Rules. The second set of eight questions were re-
evaluated on the basis of corrected model answers key and the third
set of questions in Paper I, all being objective type, were re-
evaluated with the aid of model answers key prepared by the Expert
Committee. He would submit that the decision of the respondent-
Board to re-evaluate the answer scripts has not caused any
prejudice to the appellants-herein but in fact identified and
rectified the irregularities in the earlier evaluation of answer
scripts of the candidates and therefore, such decision cannot be
termed as arbitrary, vindictive and whimsical.
12. In these appeals what falls for our consideration is whether the
decision of the respondent-Board in directing re-evaluation of the
answer scripts has caused any prejudice to the appellants appointed
qua the first merit list, dated 08.04.2008.
13. At the outset, before delving into the merits of the submissions
made by the learned Senior Counsels, the relevant statutory
provisions and the re-evaluation scheme requires to be noticed.
14. It is not in dispute nor it can be disputed that for the purposes
of re-evaluation, the eight questions found incorrect were deleted
and their marks were rightly allotted on a pro-rata basis in
accordance with Clause 14 of the Rules which reads as under:
“Clause 14. Wrong (Defective) objective type question, its
cancellation and marks to be allotted in lieu of it.
After the exams, the Chhattisgarh Professional Examination Board
(VYAPAM) gets each question examined by the subject expert.
If, upon examination by the subject experts, the questions are
found defective/ wrong, it is rejected. Questions may be
rejected on the following reasons:
i) if the structure of the question is wrong;
ii) out of the options given as answers, if more than one
options are correct.
iii) If no option is correct.
iv) If there is difference in Hindi and English translation of
any question because of which different meaning is drawn
from both and one correct answer could not be ascertained.
v) If any other printing mistake is there because of which
correct answer is not ascertainable or more than one
option is correct.
On such rejection of question upon the recommendation of Subject
Expert Committee, on such questions the marks would be awarded
by the Chhattisgarh Professional Examination Board (VYAPAM) to
the candidates in proportion to their marks obtained in the
particular question paper. Whether the rejected question has
been or not been attempted. The question papers in which the
questions have been rejected, their evaluation procedure would
be as follows, if in any question papers out of 100 questions
two questions are rejected and after evaluation candidate
secures 81 marks out of 98 questions then in such case
calculation of marks would be done as (81*100)/100-2= 82.65. On
which basis merit would be determined. ”
The other eight questions whose answers were found incorrect in the
earlier model answers key were re-evaluated on the basis of revised
model answers key. In Paper I, only the objective type questions were
re-evaluated with the aid of model answers key prepared and provided
to the examiners for the first time after the inquiry by the
respondent-Board.
15. The submission made by Shri Rao in respect of Clause 14 being an
inclusive provision and thus providing ample room for inclusion of
similar irregularities that may occur in conduct of competitive
examinations fails to convince us. Clause 14 contemplates and
enlists five specific instances wherein the question in the
examination paper itself is wrong and thus could not possibly be
evaluated to have any correct answer. It is in such circumstances
that it provides for deletion of such incorrect questions and the
consequent pro-rata distribution of the marks allocated to them.
The said Rule is clear and only provides for the procedure in case
of discrepancies in questions only. It does not leave any room for
inclusion of the exigency such as errors in answers/model answers
and therefore, the respondent-Board has rightly re-evaluated only
eight incorrect questions as per Clause 14.
16. In respect of the respondent-Board’s propriety in taking the
decision of re-evaluation of answer scripts, we are of the
considered view that the respondent-Board is an independent body
entrusted with the duty of proper conduct of competitive
examinations to reach accurate results in fair and proper manner
with the help of Experts and is empowered to decide upon re-
evaluation of answer sheets in the absence of any specific
provision in that regard, if any irregularity at any stage of
evaluation process is found. (See: Chairman, J & K State Board of
Education v. Feyaz Ahmed Malik and others, (2000) 3 SCC
59 and Sahiti and Ors. v. The Chancellor, Dr. N.T.R. University of
Health Sciences and Ors., (2009) 1 SCC 599). It is settled law that
if the irregularities in evaluation could be noticed and corrected
specifically and undeserving select candidates be identified and in
their place deserving candidates be included in select list, then
no illegality would be said to have crept in the process of re-
evaluation. The respondent-Board thus identified the irregularities
which had crept in the evaluation procedure and corrected the same
by employing the method of re-evaluation in respect of the eight
questions answers to which were incorrect and by deletion of the
eight incorrect questions and allotment of their marks on pro-rata
basis. The said decision cannot be characterized as arbitrary.
Undue prejudice indeed would have been caused had there been re-
evaluation of subjective answers, which is not the case herein.
17. In view of the aforesaid, we are of the considered opinion that in
the facts and circumstances of the case the decision of re-
evaluation by the respondent-Board was a valid decision which could
not be said to have caused any prejudice, whatsoever, either to the
appellants or to the candidates selected in the revised merit list
and therefore, we do not find any infirmity in the judgment and
order passed by the High Court to the aforesaid extent.
18. It is brought to our notice that in view of the interim orders
passed by the learned Single Judge the appellants have now
completed their training and have been in service for more than
three years. Therefore the only question which survives for our
consideration and decision is whether after having undergone
training and assumed charge at their place of posting the 26
appellants be ousted from service on the basis of cancellation of
their appointment qua the revised merit list.
19. Shri Rao would submit that the case of these appellants requires
sympathetic consideration by this Court, since the appointment of
appellants on the basis of a properly conducted competitive
examination cannot be said to have been affected by any malpractice
or other extraneous consideration or misrepresentation on their
part. The ouster of 26 appellants from service after having
successfully undergone training and serving the respondent-State
for more than three years now would cause undue hardship to them
and ruin their lives and careers. He would further submit that an
irretrievable loss in terms of life and livelihood would be caused
to eight appellants amongst them who have now become over aged and
have also lost the opportunity to appear in the subsequent
examinations. He would place reliance upon the decision of this
Court in Rajesh Kumar and Ors. v. State of Bihar and Ors., 2013(3)
SCALE 393 wherein this Court has directed the respondent-State to
re-evaluate the answer scripts on the basis of correct model
answers key and sympathetically considered the case of such
candidates who, after having being appointed in terms of erroneous
evaluation and having served the State for considerable length of
time, would not find place in the fresh merit list drawn after re-
evaluation and directed the respondent-State against ousting of
such candidates and further that they be placed at the bottom of
the fresh merit list.
20. The pristine maxim of fraus et jus nunquam cohabitant (fraud and
justice never dwell together) has never lost its temper over the
centuries and it continues to dwell in spirit and body of service
law jurisprudence. It is settled law that no legal right in respect
of appointment to a said post vests in a candidate who has obtained
the employment by fraud, mischief, misrepresentation or malafide.
(See: District Collector & Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram and another v. M. Tripura
Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu v. Jagannath
and others, (1994) 1 SCC 1 and Union of India and others v. M.
Bhaskaran, 1995 Suppl. (4) SCC 100). It is also settled law that a
person appointed erroneously on a post must not reap the benefits
of wrongful appointment jeopardizing the interests of the
meritorious and worthy candidates. However, in cases where a
wrongful or irregular appointment is made without any mistake on
the part of the appointee and upon discovery of such error or
irregularity the appointee is terminated, this Court has taken a
sympathetic view in the light of various factors including bonafide
of the candidate in such appointment and length of service of the
candidate after such appointment (See: Vinodan T. and Ors. v.
University of Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v.
Neeraj Awasthi and Ors. (2006) 1 SCC 667).
21. In Girjesh Shrivastava and Ors. v. State of M.P. and Ors., (2010)
10 SCC 707, the High Court had invalidated the rule prescribing
selection procedure which awarded grace marks of 25 per cent and
age relaxation to the candidates with three years’ long non-formal
teaching experiences as a consequence of which several candidates
appointed as teachers at the formal education institutions under
the said rule stood ousted. This Court while concurring with the
observations made by the High Court kept in view that upon
rectification of irregularities in appointment after a considerable
length of time an order for cancellation of appointment would
severely affect economic security of a number of candidates and
observed as follows:
“28. …Most of them were earlier teaching in Non-formal education
centers, from where they had resigned to apply in response to
the advertisement. They had left their previous employment in
view of the fact that for their three year long teaching
experiences, the interview process in the present selection was
awarding them grace marks of 25 per cent. It had also given them
a relaxation of 8 years with respect to their age. Now, if they
lose their jobs as a result of High Court's order, they would be
effectively unemployed as they cannot even revert to their
earlier jobs in the Non-formal education centers, which have
been abolished since then. This would severely affect the
economic security of many families. Most of them are between the
age group of 35-45 years, and the prospects for them of finding
another job are rather dim. Some of them were in fact awaiting
their salary rise at the time of quashing of their appointment
by the High Court.”
Therefore, mindful of the aforesaid circumstances this Court directed
non-ouster of the candidates appointed under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra Singh, (2008) 2 SCC
750 this Court considered the age of the employee who was
erroneously promoted and the duration of his service on the
promoted post and the factor of retiring from service on attaining
the age of superannuation and observed as follows:
“31. The last prayer on behalf of respondent, however, needs to
be sympathetically considered. The respondent is holding the
post of Senior Accountant (Functional) since last seventeen
years. He is on the verge of retirement, so much so, that only
few days have remained. He will be reaching at the age of
superannuation by the end of this month i.e. December 31, 2007.
In our view, therefore, it would not be appropriate now to
revert the respondent to the post of Accountant for very short
period. We, therefore, direct the appellants to continue the
respondent as Senior Accountant (Functional) till he reaches the
age of superannuation i.e. upto December 31, 2007. At the same
time, we hold that since the action of the Authorities was in
accordance with Statutory Rules, an order passed by the Deputy
Accountant-General canceling promotion of the respondent and
reverting him to his substantive post of Accountant was legal
and valid and the respondent could not have been promoted as
Senior Accountant, he would be deemed to have retired as
Accountant and not as Senior Accountant (Functional) and his
pensionary and retiral benefits would be fixed accordingly by
treating him as Accountant all through out.
32. For the foregoing reasons, the appeal is partly allowed.
Though the respondent is allowed to continue on the post of
Senior Accountant (Functional) till he reaches the age of
retirement i.e. December 31, 2007 and salary paid to him in that
capacity will not be recovered, his retiral benefits will be
fixed not as Senior Accountant (Functional) but as Accountant.
In the facts and circumstances of case, there shall be no order
as to costs.”
23. This Court in Gujarat State Deputy Executive Engineers' Association
v. State of Gujarat and Ors., 1994 Supp (2) SCC 591 although
recorded a finding that appointments given under the `wait list'
were not in accordance with law but refused to set aside such
appointments in view of length of service (five years and more).
24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2
SCR 18, even though the appointments were held to be improper, this
Court did not disturb the appointments on the ground that the
incumbents had worked for several years and had gained experience
and observed:
"We have extended equitable considerations to such selected
candidates who have worked on the posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II
LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal
and Ors., (2009) 1 SCC 768)
25. Admittedly, in the instant case the error committed by the
respondent-Board in the matter of evaluation of the answer scripts
could not be attributed to the appellants as they have neither been
found to have committed any fraud or misrepresentation in being
appointed qua the first merit list nor has the preparation of the
erroneous model answer key or the specious result contributed to
them. Had the contrary been the case, it would have justified their
ouster upon re-evaluation and deprived them of any sympathy from
this Court irrespective of their length of service.
26. In our considered view, the appellants have successfully undergone
training and are efficiently serving the respondent-State for more
than three years and undoubtedly their termination would not only
impinge upon the economic security of the appellants and their
dependants but also adversely affect their careers. This would be
highly unjust and grossly unfair to the appellants who are innocent
appointees of an erroneous evaluation of the answer scripts.
However, their continuation in service should neither give any
unfair advantage to the appellants nor cause undue prejudice to the
candidates selected qua the revised merit list.
27. Accordingly, we direct the respondent-State to appoint the
appellants in the revised merit list placing them at the bottom of
the said list. The candidates who have crossed the minimum
statutory age for appointment shall be accommodated with suitable
age relaxation.
28. We clarify that their appointment shall for all intents and purpose
be fresh appointment which would not entitle the appellants to any
back wages, seniority or any other benefit based on their earlier
appointment.
29. The order passed by the High Court shall stand modified to the
above extent. Appeals disposed of.
30. There shall be no order as to costs.
Contempt Petition No. 433 of 2011 in Civil Appeal No.5320 of 2013 (@
S.L.P. (C) No. 26349 of 2011)
In view of the orders passed in Special Leave Petition (C)
Nos. 26341-26342 of 2011 and Special Leave Petition (C) No. 26349 of
2011, nothing survives in this Contempt Petition for our consideration
and decision. The Contempt Petition is accordingly dismissed as
having become infructuous.
Ordered accordingly.
....................J.
[H.L. DATTU]
....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI;
JULY 09, 2013.
-----------------------
28
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5318-5319 OF 2013
(@ S.L.P.(C) Nos.26341-26342 of 2011)
|Vikas Pratap Singh and Ors. | Appellants |
Versus
|State of Chhattisgarh and Ors. | Respondents |
WITH
CIVIL APPEAL NO. 5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Appellants
Versus
State of Chhattisgarh and Ors. Respondents
AND
CONTEMPT PETITION NO. 433 OF 2011
IN
CIVIL APPEAL NO.5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Petitioners
Versus
Rahul Bhagat and Ors. Respondents/
Contemnors
O R D E R
Civil Appeal Nos.5318-5319 of 2013 (@ S.L.P. (C) Nos. 26341-26342 of
2011)
with
Civil Appeal No.5320 of 2013 (@S.L.P. (C) No. 26349 of 2011)
H.L. Dattu, J.
1. Leave granted in all the Special Leave Petitions.
2. These batch of appeals are directed against the common judgment and
order passed by the High Court of Chhattisgarh in Writ Petition
Nos. 3087, 3204 and 4229 of 2009, dated 06.09.2011, whereby and
whereunder the High Court has dismissed the Writ Petitions filed by
the appellants herein and confirmed the revised merit list drawn
after the selective re-evaluation of the answer scripts of all the
candidates who had appeared in the Main Examination for the posts
of Subedars, Platoon Commanders and Sub-Inspectors in the
respondent-State of Chhattisgarh.
3. The appellants before us (in SLP (C) Nos. 26341-26342 of 2011 and
26349 of 2011) are the 26 candidates aggrieved by the cancellation
of the first merit list and the redrawal of the second revised
merit list by the Chhattisgarh Professional Examination Board (for
short “respondent-Board”), whereby their appointments to the
aforesaid posts have been cancelled.
4. The facts in a nutshell are as under:
On 18.09.2006, an advertisement inviting applications for
recruitment to 380 posts of Subedars, Platoon Commanders and Sub-
Inspectors in the respondent-State was issued by the Police
Headquarters, Chhattisgarh. For the said purpose, the Preliminary
Examination was conducted on 24.12.2006 and the successful candidates
thereat were called for the Main Examination held in two parts as
Paper I and II on 04.02.2007 and 05.02.2007, respectively. After
conducting physical examination and personal interviews, the final
merit list of candidates was published on 08.04.2008, whereby all the
appellants herein were selected. Based on the said merit list, the
appointment letters were issued to the selected candidates including
the appellants on various dates between 21.08.2008 and 15.09.2008. In
the meanwhile, the Inspector General of Police and the respondent-
Board received complaints in respect of defects/mistakes in several
questions of the Main Examination Papers. The respondent-Board
constituted an Expert Committee to inquire into the complaints. Upon
examination of the two Papers, two sets of defects were noticed: (a)
eight questions in Paper II itself were incorrect and (b) model
answers for evaluation of answer scripts to another eight questions of
Paper II were incorrect. The respondent-Board directed for deletion of
the first set of eight questions in Paper II and preparation of
correct model answers key for objective questions in Papers I and II
and accordingly carried out re-evaluation of the answer scripts of the
candidates. On 27.06.2009 a new revised merit list was published
wherein the names of twenty six appellants did not figure at all and
accordingly, the appointment of the appellants were cancelled by the
respondent-State.
5. At the time of publication of the revised merit list, the
appellants were already undergoing training along with other
candidates who were selected in the first list. The appellants
aggrieved by the cancellation of the aforesaid appointment in the
wake of revised merit list filed several Writ Petitions before the
learned Single Judge inter alia challenging the validity of the
revised merit list on the ground that decision of re-evaluation by
the respondent-Board was arbitrary and irrational and therefore the
said list requires to be quashed.
6. The learned Single Judge while entertaining the Writ Petitions had
issued an interim order directing the respondent-State not to take
any coercive steps against the appellants and further to allow them
to continue their training programme. The learned Single Judge has
observed that a substantial question of public importance has
arisen in the matter and therefore, referred the matter to the
Division Bench with a request to consider and decide the following
question of law of public importance:
“Whether the VYAPM (respondent-Board) 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, cancelling the first
select list?”
7. The Division Bench has delved into merits of the matter at length
and analyzed the arguments advanced by both the parties. The
Division Bench has noticed the pattern of the Main Examination to
include two separate papers: Paper I comprising of both objective
and subjective type questions- 7 and 4 in number in Hindi and
English languages, respectively and Paper II comprising of 150
objective-type questions of General Knowledge. Further that the
Expert Committee constituted by the respondent-Board examined both
Paper I and II and found irregularities only in respect of the
eight incorrect objective questions of Paper II and model answers
to another eight questions in model answers key of Paper II,
pursuant to which the respondent-Board re-evaluated Paper II and
only objective questions of Paper I on basis of fresh model answers
key and in toto only sixteen questions and answers of Paper II were
interfered with upon such re-evaluation. The eight incorrect
questions were deleted and their marks were distributed on the pro-
rata basis in accordance with Clause 14 of the Examination Conduct
Rules (for short “the Rules”) of the respondent-Board and the other
eight questions, answers to which were incorrect in the first model
answers key were re-evaluated on the basis of new model answers key
and marks were awarded accordingly. The Division Bench has observed
that since all the questions so re-evaluated were objective type
carrying fixed marks for only one correct answer, the possibility
of difference in marking scheme or prejudice during re-evaluation
does not arise and therefore has concluded that no irregularity or
illegality could be said to have crept in the manner and method of
re-evaluation carried out by the respondent-Board and that the said
decision of re-evaluation was justified, balanced and harmonious
and has not caused any injustice to the candidates and therefore
cannot be interfered with unless found arbitrary, unreasonable or
malafide which is not the case at hand. In consequence of the
aforesaid conclusion, the Division Bench has thought it fit to
uphold the cancellation of appointments of the appellants qua the
first list and accordingly dismissed the writ petitions.
8. It is the correctness or otherwise of the said judgment and order
passed by the High Court which is before us in these appeals by
special leave.
9. We have heard Shri P.P. Rao and Shri Ravindra Srivastava learned
Senior Counsels appearing for the appellants and Shri Mukul Rohtagi
and Shri P.S. Patwalia learned Senior Counsels appearing for the
respondents and have also carefully perused the documents on
record.
10. Shri Rao would submit that the decision of the respondent-Board to
re-evaluate the answer scripts in the absence of any statutory
provisions for the same and subsequent publication of a revised
merit list cancelling the appointment of the appellants is
arbitrary and has caused prejudice to the appellants. He would
further submit that Clause 14 of the Rules providing for procedure
to be adopted in respect of erroneous objective questions is of a
wider ambit and includes exigencies such as model answers to
examination questions being incorrect and therefore, the respondent-
Board instead of directing re-evaluation of answer scripts ought to
have acted in compliance with the said statutory provision.
11. Per contra, Shri Rohtagi, learned Senior Counsel would submit that
the re-evaluation of answer scripts affected three genre of
objective questions: firstly, the eight questions in Paper II which
were found incorrect; secondly, the eight questions in Paper II
answers to which were found to be incorrect in the model answers
key and thirdly, the questions in Paper I to which no model answers
were provided for prior to the appointment of the Expert Committee.
He would submit that the first set of eight questions was deleted
and marks were awarded on a pro-rata basis in accordance with
Clause 14 of the Rules. The second set of eight questions were re-
evaluated on the basis of corrected model answers key and the third
set of questions in Paper I, all being objective type, were re-
evaluated with the aid of model answers key prepared by the Expert
Committee. He would submit that the decision of the respondent-
Board to re-evaluate the answer scripts has not caused any
prejudice to the appellants-herein but in fact identified and
rectified the irregularities in the earlier evaluation of answer
scripts of the candidates and therefore, such decision cannot be
termed as arbitrary, vindictive and whimsical.
12. In these appeals what falls for our consideration is whether the
decision of the respondent-Board in directing re-evaluation of the
answer scripts has caused any prejudice to the appellants appointed
qua the first merit list, dated 08.04.2008.
13. At the outset, before delving into the merits of the submissions
made by the learned Senior Counsels, the relevant statutory
provisions and the re-evaluation scheme requires to be noticed.
14. It is not in dispute nor it can be disputed that for the purposes
of re-evaluation, the eight questions found incorrect were deleted
and their marks were rightly allotted on a pro-rata basis in
accordance with Clause 14 of the Rules which reads as under:
“Clause 14. Wrong (Defective) objective type question, its
cancellation and marks to be allotted in lieu of it.
After the exams, the Chhattisgarh Professional Examination Board
(VYAPAM) gets each question examined by the subject expert.
If, upon examination by the subject experts, the questions are
found defective/ wrong, it is rejected. Questions may be
rejected on the following reasons:
i) if the structure of the question is wrong;
ii) out of the options given as answers, if more than one
options are correct.
iii) If no option is correct.
iv) If there is difference in Hindi and English translation of
any question because of which different meaning is drawn
from both and one correct answer could not be ascertained.
v) If any other printing mistake is there because of which
correct answer is not ascertainable or more than one
option is correct.
On such rejection of question upon the recommendation of Subject
Expert Committee, on such questions the marks would be awarded
by the Chhattisgarh Professional Examination Board (VYAPAM) to
the candidates in proportion to their marks obtained in the
particular question paper. Whether the rejected question has
been or not been attempted. The question papers in which the
questions have been rejected, their evaluation procedure would
be as follows, if in any question papers out of 100 questions
two questions are rejected and after evaluation candidate
secures 81 marks out of 98 questions then in such case
calculation of marks would be done as (81*100)/100-2= 82.65. On
which basis merit would be determined. ”
The other eight questions whose answers were found incorrect in the
earlier model answers key were re-evaluated on the basis of revised
model answers key. In Paper I, only the objective type questions were
re-evaluated with the aid of model answers key prepared and provided
to the examiners for the first time after the inquiry by the
respondent-Board.
15. The submission made by Shri Rao in respect of Clause 14 being an
inclusive provision and thus providing ample room for inclusion of
similar irregularities that may occur in conduct of competitive
examinations fails to convince us. Clause 14 contemplates and
enlists five specific instances wherein the question in the
examination paper itself is wrong and thus could not possibly be
evaluated to have any correct answer. It is in such circumstances
that it provides for deletion of such incorrect questions and the
consequent pro-rata distribution of the marks allocated to them.
The said Rule is clear and only provides for the procedure in case
of discrepancies in questions only. It does not leave any room for
inclusion of the exigency such as errors in answers/model answers
and therefore, the respondent-Board has rightly re-evaluated only
eight incorrect questions as per Clause 14.
16. In respect of the respondent-Board’s propriety in taking the
decision of re-evaluation of answer scripts, we are of the
considered view that the respondent-Board is an independent body
entrusted with the duty of proper conduct of competitive
examinations to reach accurate results in fair and proper manner
with the help of Experts and is empowered to decide upon re-
evaluation of answer sheets in the absence of any specific
provision in that regard, if any irregularity at any stage of
evaluation process is found. (See: Chairman, J & K State Board of
Education v. Feyaz Ahmed Malik and others, (2000) 3 SCC
59 and Sahiti and Ors. v. The Chancellor, Dr. N.T.R. University of
Health Sciences and Ors., (2009) 1 SCC 599). It is settled law that
if the irregularities in evaluation could be noticed and corrected
specifically and undeserving select candidates be identified and in
their place deserving candidates be included in select list, then
no illegality would be said to have crept in the process of re-
evaluation. The respondent-Board thus identified the irregularities
which had crept in the evaluation procedure and corrected the same
by employing the method of re-evaluation in respect of the eight
questions answers to which were incorrect and by deletion of the
eight incorrect questions and allotment of their marks on pro-rata
basis. The said decision cannot be characterized as arbitrary.
Undue prejudice indeed would have been caused had there been re-
evaluation of subjective answers, which is not the case herein.
17. In view of the aforesaid, we are of the considered opinion that in
the facts and circumstances of the case the decision of re-
evaluation by the respondent-Board was a valid decision which could
not be said to have caused any prejudice, whatsoever, either to the
appellants or to the candidates selected in the revised merit list
and therefore, we do not find any infirmity in the judgment and
order passed by the High Court to the aforesaid extent.
18. It is brought to our notice that in view of the interim orders
passed by the learned Single Judge the appellants have now
completed their training and have been in service for more than
three years. Therefore the only question which survives for our
consideration and decision is whether after having undergone
training and assumed charge at their place of posting the 26
appellants be ousted from service on the basis of cancellation of
their appointment qua the revised merit list.
19. Shri Rao would submit that the case of these appellants requires
sympathetic consideration by this Court, since the appointment of
appellants on the basis of a properly conducted competitive
examination cannot be said to have been affected by any malpractice
or other extraneous consideration or misrepresentation on their
part. The ouster of 26 appellants from service after having
successfully undergone training and serving the respondent-State
for more than three years now would cause undue hardship to them
and ruin their lives and careers. He would further submit that an
irretrievable loss in terms of life and livelihood would be caused
to eight appellants amongst them who have now become over aged and
have also lost the opportunity to appear in the subsequent
examinations. He would place reliance upon the decision of this
Court in Rajesh Kumar and Ors. v. State of Bihar and Ors., 2013(3)
SCALE 393 wherein this Court has directed the respondent-State to
re-evaluate the answer scripts on the basis of correct model
answers key and sympathetically considered the case of such
candidates who, after having being appointed in terms of erroneous
evaluation and having served the State for considerable length of
time, would not find place in the fresh merit list drawn after re-
evaluation and directed the respondent-State against ousting of
such candidates and further that they be placed at the bottom of
the fresh merit list.
20. The pristine maxim of fraus et jus nunquam cohabitant (fraud and
justice never dwell together) has never lost its temper over the
centuries and it continues to dwell in spirit and body of service
law jurisprudence. It is settled law that no legal right in respect
of appointment to a said post vests in a candidate who has obtained
the employment by fraud, mischief, misrepresentation or malafide.
(See: District Collector & Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram and another v. M. Tripura
Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu v. Jagannath
and others, (1994) 1 SCC 1 and Union of India and others v. M.
Bhaskaran, 1995 Suppl. (4) SCC 100). It is also settled law that a
person appointed erroneously on a post must not reap the benefits
of wrongful appointment jeopardizing the interests of the
meritorious and worthy candidates. However, in cases where a
wrongful or irregular appointment is made without any mistake on
the part of the appointee and upon discovery of such error or
irregularity the appointee is terminated, this Court has taken a
sympathetic view in the light of various factors including bonafide
of the candidate in such appointment and length of service of the
candidate after such appointment (See: Vinodan T. and Ors. v.
University of Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v.
Neeraj Awasthi and Ors. (2006) 1 SCC 667).
21. In Girjesh Shrivastava and Ors. v. State of M.P. and Ors., (2010)
10 SCC 707, the High Court had invalidated the rule prescribing
selection procedure which awarded grace marks of 25 per cent and
age relaxation to the candidates with three years’ long non-formal
teaching experiences as a consequence of which several candidates
appointed as teachers at the formal education institutions under
the said rule stood ousted. This Court while concurring with the
observations made by the High Court kept in view that upon
rectification of irregularities in appointment after a considerable
length of time an order for cancellation of appointment would
severely affect economic security of a number of candidates and
observed as follows:
“28. …Most of them were earlier teaching in Non-formal education
centers, from where they had resigned to apply in response to
the advertisement. They had left their previous employment in
view of the fact that for their three year long teaching
experiences, the interview process in the present selection was
awarding them grace marks of 25 per cent. It had also given them
a relaxation of 8 years with respect to their age. Now, if they
lose their jobs as a result of High Court's order, they would be
effectively unemployed as they cannot even revert to their
earlier jobs in the Non-formal education centers, which have
been abolished since then. This would severely affect the
economic security of many families. Most of them are between the
age group of 35-45 years, and the prospects for them of finding
another job are rather dim. Some of them were in fact awaiting
their salary rise at the time of quashing of their appointment
by the High Court.”
Therefore, mindful of the aforesaid circumstances this Court directed
non-ouster of the candidates appointed under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra Singh, (2008) 2 SCC
750 this Court considered the age of the employee who was
erroneously promoted and the duration of his service on the
promoted post and the factor of retiring from service on attaining
the age of superannuation and observed as follows:
“31. The last prayer on behalf of respondent, however, needs to
be sympathetically considered. The respondent is holding the
post of Senior Accountant (Functional) since last seventeen
years. He is on the verge of retirement, so much so, that only
few days have remained. He will be reaching at the age of
superannuation by the end of this month i.e. December 31, 2007.
In our view, therefore, it would not be appropriate now to
revert the respondent to the post of Accountant for very short
period. We, therefore, direct the appellants to continue the
respondent as Senior Accountant (Functional) till he reaches the
age of superannuation i.e. upto December 31, 2007. At the same
time, we hold that since the action of the Authorities was in
accordance with Statutory Rules, an order passed by the Deputy
Accountant-General canceling promotion of the respondent and
reverting him to his substantive post of Accountant was legal
and valid and the respondent could not have been promoted as
Senior Accountant, he would be deemed to have retired as
Accountant and not as Senior Accountant (Functional) and his
pensionary and retiral benefits would be fixed accordingly by
treating him as Accountant all through out.
32. For the foregoing reasons, the appeal is partly allowed.
Though the respondent is allowed to continue on the post of
Senior Accountant (Functional) till he reaches the age of
retirement i.e. December 31, 2007 and salary paid to him in that
capacity will not be recovered, his retiral benefits will be
fixed not as Senior Accountant (Functional) but as Accountant.
In the facts and circumstances of case, there shall be no order
as to costs.”
23. This Court in Gujarat State Deputy Executive Engineers' Association
v. State of Gujarat and Ors., 1994 Supp (2) SCC 591 although
recorded a finding that appointments given under the `wait list'
were not in accordance with law but refused to set aside such
appointments in view of length of service (five years and more).
24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2
SCR 18, even though the appointments were held to be improper, this
Court did not disturb the appointments on the ground that the
incumbents had worked for several years and had gained experience
and observed:
"We have extended equitable considerations to such selected
candidates who have worked on the posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II
LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal
and Ors., (2009) 1 SCC 768)
25. Admittedly, in the instant case the error committed by the
respondent-Board in the matter of evaluation of the answer scripts
could not be attributed to the appellants as they have neither been
found to have committed any fraud or misrepresentation in being
appointed qua the first merit list nor has the preparation of the
erroneous model answer key or the specious result contributed to
them. Had the contrary been the case, it would have justified their
ouster upon re-evaluation and deprived them of any sympathy from
this Court irrespective of their length of service.
26. In our considered view, the appellants have successfully undergone
training and are efficiently serving the respondent-State for more
than three years and undoubtedly their termination would not only
impinge upon the economic security of the appellants and their
dependants but also adversely affect their careers. This would be
highly unjust and grossly unfair to the appellants who are innocent
appointees of an erroneous evaluation of the answer scripts.
However, their continuation in service should neither give any
unfair advantage to the appellants nor cause undue prejudice to the
candidates selected qua the revised merit list.
27. Accordingly, we direct the respondent-State to appoint the
appellants in the revised merit list placing them at the bottom of
the said list. The candidates who have crossed the minimum
statutory age for appointment shall be accommodated with suitable
age relaxation.
28. We clarify that their appointment shall for all intents and purpose
be fresh appointment which would not entitle the appellants to any
back wages, seniority or any other benefit based on their earlier
appointment.
29. The order passed by the High Court shall stand modified to the
above extent. Appeals disposed of.
30. There shall be no order as to costs.
Contempt Petition No. 433 of 2011 in Civil Appeal No.5320 of 2013 (@
S.L.P. (C) No. 26349 of 2011)
In view of the orders passed in Special Leave Petition (C)
Nos. 26341-26342 of 2011 and Special Leave Petition (C) No. 26349 of
2011, nothing survives in this Contempt Petition for our consideration
and decision. The Contempt Petition is accordingly dismissed as
having become infructuous.
Ordered accordingly.
....................J.
[H.L. DATTU]
....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI;
JULY 09, 2013.
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