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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2525-2516 OF 2013
(Arising out of S.L.P. (C) Nos.5752-53 of 2008
Rajesh Kumar & Ors. etc. …Appellants
Versus
State of Bihar & Ors. etc. …Respondents
With
CIVIL APPEAL NO. 2517 OF 2013
(Arising out of SLP (C) No.6456 of 2008)
Abhishek Kumar & Ors. …Appellants
Versus
State of Bihar & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. Application of an erroneous “Model Answer Key” for evaluation
of answer scripts of candidates appearing in a competitive
examination is bound to lead to erroneous results and an equally
erroneous inter-se merit list of such candidates. That is precisely
what appears to have happened in the present appeals which arise
out of a common judgment delivered by the High Court of Judicature
at Patna whereby the High Court has directed the Bihar Staff
Selection Commission to conduct a fresh examination and re-draw the
merit list on that basis. For those who have already been appointed
on the basis of the earlier examination, a fresh examination has
been directed by the High Court before they are finally ousted from
the posts held by them.
The appellants who happen to be the
beneficiaries of the erroneous evaluation of the answer scripts
have assailed the order passed by the High Court in these appeals
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which arise in the following backdrop:
3. By an advertisement dated 14th August 2006, applications were
invited by the Bihar State Staff Selection Commission from eligible
candidates for appointment against 2268 posts of Junior Engineer
(Civil) out of which 1057 posts were in the open merit category.
The selection process, it appears, comprised a written objective
type examination, held by the Staff Selection Commission who drew
up a Select List of 210 successful candidates including 143
appellants in these appeals based on the performance of the
candidates in the examination. The evaluation of the answer scripts
was, however, assailed by 13 unsuccessful candidates, respondents 6
to 18 in these appeals, in CWJC No.885 of 2007. The writ
petitioners did not implead the selected candidates as party
respondents ostensibly because the petitioners prayed for a limited
relief of a writ of mandamus to the Staff Selection Commission to
produce the answer-sheets in the Court and to get the same reevaluated manually by an independent body.
4. While the above writ petition was still pending, 35 candidates
were appointed as Junior Engineers in Road Construction Department
of the Government of Bihar while 144 others were appointed in Water
Resources Department. Nine of the selected candidates were
appointed in the Public Health Engineering Department taking the
total number of those appointed to 188 out of 210 candidates
included in the merit list. Posting orders were also issued to all
those appointed. Needless to say that since only 210 candidates had
qualified for appointment in terms of the relevant Rules, the
selection process left nearly 2080 posts of Junior Engineers
unfilled in the State.
5. In the writ petition filed by the aggrieved candidates, a
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Single Judge of the High Court referred the “Model Answer Key” to
experts. The model answers were examined by two experts, Dr.
(Prof.) C.N. Sinha, and Prof. KSP Singh, associated with NIT,
Patna, who found several such answers to be wrong. In addition,
two questions were also found to be wrong while two others were
found to have been repeated. Question No.100 was also found to be
defective as the choices in the answer key were printed but only
partially.
6. Based on the report of the said two experts, a Single Judge of
the High Court held that 41 model answers out of 100 were wrong.
It was also held that two questions were wrong while two others
were repeated. The Single Judge on that basis held that the entire
examination was liable to be cancelled and so also the appointments
made on the basis thereof. Certain further and consequential
directions were also issued by the Single Judge asking the
Commission to identify and proceed against persons responsible for
the errors in the question paper and the “Model Answer Key”.
7. Aggrieved by the order of the Single Judge, the appellants
filed LPA No.70 of 2008 before the Division Bench of that High
Court. By the order impugned in these appeals, the High Court has
partly allowed the appeal holding that model answers in respect of
45 questions out of 100 were wrong. The Division Bench modified the
order passed by the learned Single Judge and declared that the
entire examination need not be cancelled as there was no allegation
of any corrupt motive or malpractice in regard to the other
question papers. A fresh examination in Civil Engineering Paper
only was, according to the Division Bench, sufficient to rectify
the defect and prevent injustice to any candidate. The Division
Bench further held that while those appointed on the basis of thePage 4
impugned selection shall be allowed to continue until publication
of the fresh result, anyone of them who failed to make the grade on
the basis of the fresh examination shall be given a chance to
appear in another examination to be conducted by the Staff
Selection Commission. The present appeals assail the correctness of
the said judgment and order of the High Court as already noticed
earlier.
8. It is noteworthy that while the challenge to the selection
process referred to above was still pending before the High Court,
a fresh selection process was initiated to fill up the available
vacancies in which those eligible appeared for a written test on
29th July 2007. This test was held pursuant to advertisement No.1906
of 2006 issued on 29th November 2006. The result of the examination
was, however, stayed by the High Court while disposing of the
appeal filed before it with a direction to the effect that the same
shall be declared only after selection in pursuance of the first
examination was completed. With the filing of the present appeals
the restraint order against the declaration of the result pursuant
to the second advertisement was vacated by this Court by an order
dated 30th August 2011 with a direction that those qualified shall
be given appointments without prejudice to the rights of the
appellants and subject to the outcome of these appeals.
9. It is common ground that pursuant to the above direction, a
list of 392 selected candidates was sent to the State Government by
the Staff Selection Commission for issuing appointment orders in
their favour. What is significant is that the writ petitioners,
respondents 6 to 18 in these appeals were also declared successful
in the second selection and included in the list of 392 successful
candidates. That six out of the said respondents have beenPage 5
appointed while the remaining have not chosen to join is also
admitted. They have apparently found better avenues of employment.
10. When the matter came up before us on 2nd July 2012, it was
argued on behalf of the writ petitioners – respondents 6 to 18 by
Mr. Gaurav Agrawal that they have no objection to the continuance
in office of the appellants in these appeals subject to the
condition that the answer scripts of the writ petitioners are reevaluated with the help of a correct answer key and if they are
found to have made the grade, the benefit of appointment earned by
them in terms of the 2nd selection process related back to the date
when the appellants in these appeals were first appointed, and
their seniority determined according to their placement in the
merit list. It was in that background that we directed an affidavit
to be filed by the Government of Bihar whether it was agreeable to
the re-evaluation of the answer scripts of respondents 6 to 18 on
the basis of a correct key and their placement in the merit list
depending upon the inter-se merit of the candidates. The Staff
Selection Commission was also similarly directed to respond to the
proposal made by the writ petitioners – respondents 6 to 18 and
file an affidavit.
11. An affidavit has, pursuant to the above directions, been filed
by the Commission as also by the Chief Secretary of the Government
of Bihar in which the Staff Selection Commission as also the
Government appear to be opposing the prayer made by the writ
petitioners for re-evaluation of their answer scripts for the
purpose of re-casting of the merit list which will eventually be
the basis for their inter-se seniority also. The affidavits
primarily do so on the premise that any re-evaluation limited to
the answer scripts of respondents 6 to 18, writ petitioners beforePage 6
the High Court would lead to multiplicity of legal proceedings as
similar requests for re-evaluation are bound to be made by other
candidates who may also have been similarly prejudiced on account
of the use of erroneous “Model Answer Key”.
12. We have in the above backdrop heard learned counsel for the
parties at some length who have taken us through the impugned
orders and other material placed on record. Appearing for the
appellants, Mr. P.P. Rao, learned senior counsel, argued that the
High Court had committed an error in quashing the entire selection
process even when the petitioners had not made any prayer to that
effect. Mr. Rao was at pains to argue that a relief which was not
even prayed for by the writ petitioners could not be granted by the
Court whatever may have been the compulsion of equity, justice and
good conscience. Reliance in support of that proposition was placed
by him upon Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234
and State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC 436.
There is, in our view, no merit in that contention. The reasons are
not far to seek. It is true that the writ petitioners had not
impleaded the selected candidates as party respondents to the case.
But it is wholly incorrect to say that the relief prayed for by the
petitioners could not be granted to them simply because there was
no prayer for the same. The writ petitioners, it is evident, on a
plain reading of the writ petition questioned not only the process
of evaluation of the answer scripts by the Commission but
specifically averred that the “Model Answer Key” which formed the
basis for such evaluation was erroneous. One of the questions that,
therefore, fell for consideration by the High Court directly was
whether the “Model Answer Key” was correct. The High Court had
aptly referred that question to experts in the field who, as
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already noticed above, found the “Model Answer Key” to be erroneous
in regard to as many as 45 questions out of a total of 100
questions contained in ‘A’ series question paper. Other errors were
also found to which we have referred earlier. If the key which was
used for evaluating the answer sheets was itself defective the
result prepared on the basis of the same could be no different.
The Division Bench of the High Court was, therefore, perfectly
justified in holding that the result of the examination in so far
as the same pertained to ‘A’ series question paper was vitiated.
This was bound to affect the result of the entire examination qua
every candidate whether or not he was a party to the proceedings.
It also goes without saying that if the result was vitiated by the
application of a wrong key, any appointment made on the basis
thereof would also be rendered unsustainable. The High Court was,
in that view, entitled to mould the relief prayed for in the writ
petition and issue directions considered necessary not only to
maintain the purity of the selection process but also to ensure
that no candidate earned an undeserved advantage over others by
application of an erroneous key.
13. The decisions of this Court in Bharat Amritlal Kothari v.
Dosukhan (2010) 1 SCC 234 and State of Orissa & anr. v. Mamata
Mohanty (2011) 3 SCC 436, relied upon by Mr. Rao are clearly
distinguishable. The power of the Court to mould the relief,
according to the demands of the situation, was never the subject
matter of dispute in those cases. That power is well-recognised
and is available to a writ Court to do complete justice between the
parties. The first limb of the argument advanced by Mr. Rao fails
and is accordingly rejected.
14. Mr. Rao next argued that even if the result of the first
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selection process was vitiated by the use of erroneous “Model
Answer Key” the Court had the option of either directing reevaluation of the answer scripts on the basis of a correct key or a
fresh examination. Out of the two options the former was,
according to Mr. Rao, better and ought to have served the purpose
by not only saving considerable time but money and effort also. He
urged that the Court could have removed the traces of any injustice
or distortions in the selection process by directing re-evaluation
of the answer scripts which would not only present the true picture
of the merit of the candidates concerned but prevent any further
litigation or prejudice to candidates on account of long lapse of
time.
15. Appearing for respondents 6 to 18 Mr. Agrawal submitted that
he had no objection to the order of the High Court being modified
so as to replace “a fresh examination” by “revaluation of the
answer scripts” on the basis of a correct key. Counsel for the
Staff Selection Commission also submitted, on instructions, that
the answer scripts had been preserved and could be subjected to a
fresh evaluation. Learned counsel for the parties were further
agreeable to the key as proposed by Dr. (Prof.) C.N. Sinha and
Prof. KSP Singh of NIT, Patna forming the basis of any such reevaluation by a suitable modification and deletion of question
Nos.6 and 46 which were found to be absurd and question No.34 and
63 which were repeated as Nos.74 and 93. They further agreed to the
deletion of question No.100 the answer to which was not correctly
printed.
16. The submissions made by Mr. Rao are not without merit. Given
the nature of the defect in the answer key the most natural and
logical way of correcting the evaluation of the scripts was toPage 9
correct the key and get the answer scripts re-evaluated on the
basis thereof. There was, in the circumstances, no compelling
reason for directing a fresh examination to be held by the
Commission especially when there was no allegation about any
malpractice, fraud or corrupt motives that could possibly vitiate
the earlier examination to call for a fresh attempt by all
concerned. The process of re-evaluation of the answer scripts with
reference to the correct key will in addition be less expensive
apart from being quicker. The process would also not give any
unfair advantage to anyone of the candidates on account of the time
lag between the examination earlier held and the one that may have
been held pursuant to the direction of the High Court. Suffice it
to say that the re-evaluation was and is a better option, in the
facts and circumstances of the case.
17. That brings us to the submission by Mr. Rao that
while reevaluation is a good option not only to do justice to those who may
have suffered on account of an erroneous key being applied to the
process but also to writ petitioners-respondents 6 to 18 in the
matter of allocating to them their rightful place in the merit
list. Such evaluation need not necessarily result in the ouster of
the appellants should they be found to fall below the ‘cut off’
mark in the merit list. Mr. Rao gave two reasons in support of that
submission. Firstly, he contended that the appellants are not
responsible for the error committed by the parties in the matter of
evaluation of the answer scripts. The position may have been
different if the appellants were guilty of any fraud,
misrepresentation or malpractice that would have deprived them of
any sympathy from the Court or justified their ouster. Secondly, he
contended that the appellants have served the State efficiently and
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without any complaint for nearly seven years now and most of them,
if not all, may have become overage for fresh recruitment within
the State or outside the State. They have also lost the
opportunity to appear in the subsequent examination held in the
year 2007. Their ouster from service after their employment on the
basis of a properly conducted competitive examination not itself
affected by any malpractice or other extraneous consideration or
misrepresentation will cause hardship to them and ruin their
careers and lives. The experience gained by these appellants over
the years would also, according to Mr. Rao, go waste as the State
will not have the advantage of using valuable human resource which
was found useful in the service of the people of the State of Bihar
for a long time. Mr. Rao, therefore, prayed for a suitable
direction that while re-evaluation can determine the inter-se
position of the writ petitioners and the appellants in these
appeals, the result of such re-evaluation may not lead to their
ouster from service, if they fell below the cut off line.
18. There is considerable merit in the submission of Mr. Rao.
It
goes without saying that the appellants were innocent parties who
have not, in any manner, contributed to the preparation of the
erroneous key or the distorted result. There is no mention of any
fraud or malpractice against the appellants who have served the
State for nearly seven years now. In the circumstances, while
inter-se merit position may be relevant for the appellants, the
ouster of the latter need not be an inevitable and inexorable
consequence of such a re-evaluation. The re-evaluation process may
additionally benefit those who have lost the hope of an appointment
on the basis of a wrong key applied for evaluating the answer
scripts. Such of those candidates as may be ultimately found to be
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entitled to issue of appointment letters on the basis of their
merit shall benefit by such re-evaluation and shall pick up their
appointments on that basis according to their inter se position on
the merit list.
19. In the result, we allow these appeals, set aside the order
passed by the High Court and direct that -
(1) answer scripts of candidates appearing in 'A' series of
competition examination held pursuant to advertisement No.
1406 of 2006 shall be got re-evaluated on the basis of a
correct key prepared on the basis of the report of Dr.
(Prof.) CN Sinha and Prof. KSP Singh and the observations
made in the body of this order and a fresh merit list
drawn up on that basis.
(2) Candidates who figure in the merit list but have not been
appointed shall be offered appointments in their favour.
Such candidates would earn their seniority from the date
the appellants were first appointed in accordance with
their merit position but without any back wages or other
benefit whatsoever.
(3) In case writ petitioners-respondent nos. 6 to 18 also
figure in the merit list after re-evaluation of the answer
scripts, their appointments shall relate back to the date
when the appellants were first appointed with continuity
of service to them for purpose of seniority but without
any back wages or other incidental benefits.
(4) Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall
figure at the bottom of the list of selected candidates
based on the first selection in terms of advertisement
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No.1406 of 2006 and the second selection held pursuant to
advertisement No.1906 of 2006.
(5) Needful shall be done by the respondents – State and the
Staff Selection Commission expeditiously but not later
than three months from the date a copy of this order is
made available to them.
20. Parties are directed to bear their own costs.
…........………..……J.
(T.S. THAKUR)
...…......…………..……J.
(GYAN SUDHA MISRA)
New Delhi
March 13, 2013
