NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4128 OF 2012
(Arising out of SLP(C) No. 31804 of 2010).
Poonam Rani @ Poonam … Appellant
Versus
State of Haryana and another …
Respondents
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 dated
1.10.1994 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 on
20.7.2006, 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
whereof 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/1
to 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 27.7.1992
and 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 Appeal
Nos.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. Further more 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 within
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.
-----------------------
15
