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
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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
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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
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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
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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
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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
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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
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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
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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
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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”
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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.”
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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.
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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.
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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.
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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]
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
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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
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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
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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
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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
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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
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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
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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
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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
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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”
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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.”
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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.
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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.
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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.
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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]
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