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Raj Narayan Uttam And Others v. State Of U.P. And Others - SPECIAL APPEAL No. - 709 of 2007  RD-AH 14779 (31 August 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 23.07.2007
Judgment delivered on 31.08.2007
Special Appeal No.709 of 2007
Raj Narayan Uttam & Ors. Vs. State of U.P. & Ors.
Special Appeal No.600 of 2007
Atul Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
Special Appeal No.601 of 2007
Anand Prakash Vs. State of U.P. & Ors.
Special Appeal No.603 of 2007
Km. Ambika & Ors. Vs. Vinod Kumar Tripathi & Ors.
Special Appeal No.609 of 2007
Anita Kumari & Anr. Vs. State of U.P. & Ors.
Special Appeal No.613 of 2007
Kausar Praveen & Anr. Vs. State of U.P. & Ors.
Special Appeal No.668 of 2007
Shalini Singh Vs. State of U.P. & Ors.
Special Appeal No.597 of 2007
Rajesh Ram & Ors. Vs. State of U.P. & Ors.
Hon. S. Rafat Alam, J.
Hon. Sunil Ambwani, J.
1. The appellants in these special appeals are the candidates, who have succeeded in the direct recruitment to Sub Inspector, Civil Police/ Platoon Commanders, PAC, 2001 in the selections, initiated in pursuance of the advertisement dated 1.9.2001 and have completed their training. They have challenged the judgment of the learned Single Judge dated 24.4.2007 in writ petition No.62126 of 2005 and other connected petitions allowing the writ petitions filed by those candidates, who had competed along with the appellants upto the third stage of selection i.e. main written examination but did not succeed to be included in the select list after the interviews. Learned Single Judge has cancelled the final list of selections and has directed it to be redrawn after rechecking of the answer sheets of the main written examination and then to interview those, who find place in such redrawn list.
2. In the first round of litigation in the selections for the direct recruitment initiated in 2001, for which the last selections were held in the year 1999, this Court by its judgment in Narendra Pratap Singh Vs. Director General of Police, U.P. reported in (2002) 3 ESC (All) 339 directed the respondents to recalculate the number of posts in general category by applying 2% reservation for sportsmen, and adding 2% posts for sportsmen also, while calculating the total number of vacancies in general. The Court after examining the provisions of sub-section (2), (3) and (4) of Section 3 of U.P. Public Services (Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Castes) Act No.4 of 1994, held that if in 1999 recruitment any vacancy reserved for any category of persons mentioned in sub-section (1) remains unfilled, and if even after special recruitment the vacancies are not filled up, the said vacancy may be carried forward to the next year.
3. The selections were initially initiated by press release dated 31.8.2001 for 799 posts of Sub-Inspectors, Civil Police (Male); 89 posts of Sub-Inspectors, Civil Police (Female); and 99 posts of Platoon Commanders, PAC (Male). Thereafter, taking into account some carry forward backlog vacancies of 1999 examination, and the judgment in Narendra Pratap Singh case, the total number of 1045 vacancies coming into existence till 31.12.2001, included 880 posts of Sub-Inspector, Civil Police and 165 posts of Platoon Commanders, PAC.
4. The selection was held in four stages; namely, (1) preliminary written examination; (2) physical ability test; (3) main written examination; and (4) interview/medical examination. The candidates were required to secure 50% marks in preliminary written examination to qualify for the next stage. In physical ability test every candidate was to fulfill the required standards for judging the physical ability. A candidate, who did not fulfill minimum standards in any item of test for judging physical ability was declared unsuccessful at the test spot itself. In the main written examination a candidate was required to obtain minimum qualifying marks of 40% in every subject, to be considered in interviews.
5. The main written examination held on 6.1.2002, conducted through INDUP received many complaints. By the Government Order dated 31.1.2002 the State Government cancelled the main written examination on account of leakage of question papers. It was re-advertised and conducted afresh on 25.5.2003 under the supervision of the police department. While interviews were in progress, a second round of litigation was initiated by those, who did not succeed in the main written examination (the third stage of selections) challenging the main written examinations, on the ground that the selections provide for reservation, of more than 50% posts of Scheduled Castes, Scheduled Tribes and Other Backward Classes; and that the composition of marks in the main written examination was changed by reducing the number of questions (75) of numerical in the total of 200 and increasing the number of questions of general awareness from 75 to 152. The candidates were also aggrieved by the disturbance of the ratio of calling the candidates for interview; namely, 2:5 for each post provided for in the Government Order dated 8.6.1998. It was alleged that the requisite number of candidates were not called for interview causing serious prejudice to the petitioners. The entire batch of writ petitions led by Writ Petition No.34757 of 2007, Durgesh Pratap Singh & Ors. Vs. State of U.P. were dismissed on 26.2.2004. A Special Appeal No.460 of 2004 connected with four other special appeals challenging the judgment was dismissed by the Division Bench on 12.5.2004.
6. This third round of litigation in the same selections of the year 2001, started with the batch of writ petitions challenging the final select list dated 3.9.2005 published after interviews. By prayer No.2 the petitioners claimed the relief of a writ of mandamus directing the authorities to produce the records of the preliminary, main and final examination, and tabulation sheet so that the illegality committed could be verified. By prayer No.3 a direction was sought to the concerned authorities to prepare the result state wise, as per the terms and conditions of the advertisement providing suitable representation to the categories as per the reservation applying the state as unit. The pleadings and the grounds taken in the writ petitions were focused only on the issue that the selection process held up for about two years was suddenly revived by the new Government, which changed the interview boards and that instead of state wise interviews, the candidates were called for zone wise interviews. It was alleged that the number of candidates allowed to appear in the interviews were called beyond the ratio 2.5 for one post and the number of candidates finally selected would show that the vacancies were filled up zone wise, in which persons getting lesser marks in some zone were selected while in other zones the candidates with higher marks were left out causing discrimination in the same selections.
7. The selected candidates were not made parties to the writ petitions. Learned Single Judge directed the police headquarters to advertise and communicate to all the candidates, who had taken part in the selections notified on 1.9.2001, to appear if they wish to contest the matter. During the course of hearing, the Court called for the records and that on the request of counsel for the petitioners the Court allowed the counsels to inspect the records. The Court also directed the State counsel to give to them the questions papers and key answers. The hearing was then adjourned. The petitioners, thereafter, filed supplementary affidavits stating therein that key answers of 21 questions of the written examination were either incorrect, or had multiple right answers, and that number of candidates called for interview in the concerned category was beyond the prescribed ratio of 2:5 against one post.
8. In the counter affidavit filed on behalf of the State Government it was admitted that 7 key answers as pointed out by the petitioners were either incorrect or had multiple answers. In respect of 14 questions, no definite reply was submitted. Learned Judge observed that the Court was not satisfied with the manner in which the reply was filed by the State authorities and insisted upon the Advocate General to obtain the expert opinion with regard to correctness of the 21 key answers in dispute and to supply the same to the Court. The Court then observed:- "at that stage parties agreed that argument may be closed and State-respondents may supply the expert opinion to the Court within reasonable time. It was ordered accordingly".
9. The arguments were closed and the judgment was reserved on 5.1.2007. It appears that thereafter the matter was sent to the experts of the University of Allahabad and that a report was obtained. The learned Judge in its judgment dated 24.4.2007 observed:- "From the expert opinion it is now an admitted position that stand as taken by the counsel for the petitioners in respect of 21 key answers being either incorrect or had multiple correct answers is factually correct. The report of the expert shall form part of the record of the present writ petition."
10. The order sheet then shows that on 24.4.2007 while delivering judgment on the request of the State counsel the expert report was returned to the State counsel. The original report or a copy thereof was not kept on record. It is admitted to counsels for both the appellants as well as contesting respondent that they have not seen the report. The report was submitted by the State counsel and was perused only by the State counsel and the learned Judge. A copy of the report was not given to either of the parties. The Court, however, has relied on the report, which was submitted after the judgment was reserved, and, which was not shown to any of the parties.
11. By the judgment challenged in these intra court special appeals the learned Judge relying upon the judgment in Manish Ujjwal, JT 2005 (8) SC 2382 and K. Channegowda and ors. Vs. Karnataka Public Service Commission & Ors., observed that the difference of 42 marks would virtually have the effect of redetermination of entire list of candidates to be invited for interviews in the ratio of 2.5 candidates against 1 post. He was of the opinion that in the given case the total marks actually received by the selected candidates may be reduced by 42 because incorrect answers; at the same time a candidate not invited for interview may be entitled for addition of 42 marks in the total marks actually awarded. Learned Judge further observed that the position will become worst because in given case a candidates, which according to his merit may have been invited for selection within the reserved category because of his low merit, on correct marks awarded to him may become entitle to be considered in the general category itself, thereby creating a reserved vacancy for the candidate belonging to the same category.
12. The learned Judge thereafter directed revaluation of the marks with protection to those selectees, who continue in the select list after revaluation of marks in written test that they will not be required to undergo training afresh and shall be appointed immediately. With regard to issue of calling the number of candidates for interview for one post, learned Judge observed that after revaluation the state-respondents shall ensure that in respect of each category the ratio fixed is strictly followed. The entire select list notified on 3rd September, 2005 was quashed with direction to revaluate answersheet of all the candidates by feeding correct key answers as per the report of the expert committee of the University of Allahabad and on the basis of correct marks obtained by the candidate after such revaluation, they shall be assigned their ranking in their respective category for being invited to interviews. A further direction was given to complete the process within one month and to publish the select list.
13. On 6th July, 2007 while calling for counter affidavits to be filed by the respondents this Court passed following interim orders:-
"At the outset learned counsel appearing for the appellants in this appeal and other connected appeals, learned Standing Counsel appearing for the State-respondents and Sri Shailendra, learned counsel appearing for the private respondent requested that this appeal may be decided finally at the admission stage itself. Looking to the urgency and exigency of the matter and also as agreed to by the learned counsel for the parties, the appeal is, accordingly, taken up for hearing.
Sri Ashok Khare, learned Senior Counsel appearing for the appellants argued that though no fault has been attributed either of mis-representation or of fraud in the enquiry report or in the judgment under appeal yet it has been directed to re-evaluate the answer sheets of all the candidates and thereafter reassign their ranking in their respective category and then to invite for interview in the ratio of 2.5 candidates against one post. It is contended that the appellants; having cleared the written test and the interview were given appointment as per merit. Thereafter, they also joined the post and are performing their duties, hence the selection and appointment having attained finality there was no justification for reevaluation of the answer sheets. It is further submitted that the copy of the report; of the expert committee constituted by the Allahabad University under the orders of the Hon'ble Single Judge passed in the writ petition, was not provided to them.
The copy of the above report is not on record nor the same is available with the learned counsel for the parties.
Since the report of the Committee has been referred in the judgment, to appreciate the controversy it is necessary for this Court to peruse the same. Thus, as requested by the learned counsel for the parties, list the appeal for further argument on 16.7.2007 at 2 PM along with all connected appeals and also with the record of the writ petition.
The preliminary objection about the maintainability of the appeal raised by Sri Shailendra, learned counsel for the contesting respondents shall also be considered on the next date.
Looking to the facts of the case and in view; of the contentions made before us and also in view of the fact that the appellants have already joined pursuant to their appointment and have also undergone the training and are discharging their duties as of date, it is provided that the status quo as of date shall be maintained by the parties until further orders of this Court.
List on 16th July, 2007 for further argument at 2 PM."
14. Shri R.N. Singh, Sr. Advocate assisted by Shri Ram Gopal Tripathi appearing in Special Appeal No.600 of 2007 submits that the petitioners did not plead or raise the grounds on which the learned Single Judge has allowed the writ petition. The petitioners in the writ petitions had essentially taken the grounds of delay in selections and constitution of region wise interview boards in which instead of state wise lists, region wise lists were prepared and candidates larger in number than the prescribed ratios were called for interviews, thereby depriving the petitioners equal opportunity in selections. The grounds that the key answers of some of the questions were wrong and thereby the main written examination was not fair, on which the writ petitions have been allowed were available to the petitioners on appearing in the main written examination. These grounds were available and should or ought to have been raised by the petitioners in the batch of writ petitions led by Durgesh Pratap Singh decided by this Court on 26.2.2004. The issues with regard to fairness in the main written examination and ratio in which the candidates were called for interviews was closed with the previous judgment affirmed in appeal. The principle of constructive resjudicata invoking estoppel by conduct were applicable in the case. The learned Single Judge committed an error in allowing the petitioners to raise such grounds. He further submits that the judgment is procedurally ultra vires as it is based on gross errors committed in the manner, the records were summoned and key answers were provided to the unsuccessful candidates. The rules of the Court do not warrant such a procedure to be followed, which allows the petitioners to fish out the grounds for challenge from the records produced in Court.
15. Shri R.N. Singh submits that the selections were not challenged on the ground of any error in preparation of key answers. The written examination was initially held on 6.1.2002 through INDUP. A large number of complaints were received on which the State Government vide its order dated 31.1.2002 cancelled the main written examinations on account of leakage of question papers. It was held again after re-advertisement on 25.5.2003 under the supervision of the police department and was challenged in the batch of writ petitions in Durgesh Pratap Singh's case. The learned Single Judge should not have allowed the candidates an access to the records and then to dig out grounds to challenge the selections. The learned Single Judge committed an error violating fundamental principles of natural justice, in calling for an experts report on 14 doubtful questions from the University of Allahabad. The proceedings were closed and the judgment was reserved. Learned Single Judge should not have called for an expert report, presented before him in sealed cover, in his chambers and relied upon it without disclosing the contents of the report to either of the parties. The writ petitions have been allowed with directions to reevaluate the key answers on the basis of report for which learned Single Judge states that it was made part of the record but was then returned to the Standing Counsel. The report is not on record and was not made available to both the successful and the unsuccessful candidates. The reliance on such a report, which is wrapped in secrecy, for cancelling the result of the public examination in which about thirty thousand candidates had appeared is unknown to the procedures adopted by the Court. The Courts stand for justice, which requires open and transparent procedure to be followed in hearing the matters. When a Judge calls for expert report after close of the argument and reserves the judgment, and returns the report on the day of delivery of judgment without showing it to either of the parties or keeping it on record he should not have relied upon it, to deliver the judgment. The judgment as such is procedurally ultra vires and should not be sustained.
16. Shri R.N. Singh then argued that the entire reasoning of the learned Single Judge is based on incorrect assessment of facts, in as much as he has observed in the judgment that the written examination was of 200 marks. In the words of learned Judge "It is admitted on record that written examination was of 200 marks comprising of two papers of 100 marks each. The questions were objective in nature and the candidates were required to mark the correct answer by marking the space against the set out of 4 answers given on an OMR sheet".
17. Shri R.N. Singh submits that infact the main written examination was of 600 marks including 200 questions of General Hindi and 400 of General Knowledge and further 75 marks for interviews. The entire assessment as such was based on wrong assumptions.
18. Shri R.N. Singh then submitted that assuming everything is against the selected candidates, in Manish Ujjwal's case relied upon in the judgment to set aside the final result, the Supreme Court did not disturb the first counselling and allowed the reevaluated results of the written examination to be applied to the second counselling. He submits in Sanjay Singh & Anr. Vs. U.P. Public Services Commission, Allahabad & Anr., Writ Petition No.165 of 2005 decided by the Supreme Court on 9.1.2007 while holding that scaling system was unsuited to Civil Judge (Junior Division) Examination, the Supreme Court made the judgment applicable to the judicial officers' examination prospectively and in Indrapreet Singh Kohloon Vs. State of Punjab, JT (2006) 5 SC 352 balancing equities the Supreme Court did not agree with the Punjab High Court cancelling all selections held by the Public Service Commission, Punjab. Shri Singh submits that equities demand that those, who were successful in the seven years long and torturous selection process, should not be allowed to suffer on account of minor technical mistakes having no material bearing on the results. Shri R.N. Singh strongly contended that the appellants did not concede to anything before the learned Single Judge and that the Advocate General appearing on behalf of the State could not have given concession against the rights of the petitioners, which had matured. Closing his arguments he submits that most of the appellants have left their jobs and vacations to join police force, before training and have become overage for any other public services. The cancellation of their selections, revaluation and fresh interviews will make untold hardship upon them.
19. Shri V.K. Singh, Sr. Advocate assisted by Smt. Archana Singh appearing in Special Appeal No.603 of 2007 adopted all the arguments of Shri R.N. Singh. He submits that almost all the candidates except those, who are in reserved categories and many of them also have become overage. More than 200 candidates have resigned from their jobs loosing lien in services to which they were appointed. The six wrong answers and one incorrect question, which were wrong and incorrect for all the candidates could not be a ground to cancel the results of the written examination. He submits that though there would not be much difference in ultimate result, the Court may, if it finds that those candidates, who would secure higher marks than the last selected candidates may be adjusted in about 186 vacancies, which have not been filled up either on account of the fact that the candidates were not available in those reserved categories or some of the selectees did not join.
20. Shri Ashok Khare, Sr. Advocate appearing in Special Appeal No.709 of 2007 submits that the writ petitions were not founded on wrong key answers and that the petitioners have nowhere, even after having looked into the key answers, stated in the only supplementary affidavit of Shri Jawahar Lal filed on 14.11.2006, that they had given correct answers, which were treated as wrong answers. Shri Khare submits that the petitioners did not have any cause of action to maintain the writ petition and that unless they plead and affirm that their answers were correct, they would not acquire the cause to file or support the writ petition midway during the hearing. He submits that the Court allowed the petitioners to make a fishing and roving enquiry, which is not permissible in such large public selections. A large number of selected candidates had to resign to accept the employment and further hundreds may have taken employment between 2001-04 elsewhere. There are about 157 vacancies on the advertised posts on which the petitioners in writ petitions could be adjusted. Learned Judge should have asked revaluation of the results of the petitioners alone to find out whether they could get higher marks than the successful candidates but then if the successful candidates have also answered correctly both the candidates would be on equal footing.
21. Shri Ashok Khare submits that in Dr. Surya Narain Vs. State of U.P., (1996) 3 UPLBEC 2229 this Court while examining the recruitment to U.P. Homeopathic Medical Services found that the petitioners were fully qualified. The preference clause was totally ignored and it was not established by the commission by providing any cogent or reliable evidence as to how marks were awarded separately in accordance with the provisions of the rules and criteria prescribed in the advertisement. The Division Bench in which one of us was party, however, found that since there was no material whatsoever to establish as to what marks were actually awarded for the academic qualification and for interview and the Court was left to guess and probe into darkness, did not interfere with the selections as the fresh selections would have been unreasonably delayed causing inconvenience to public in general. In the larger interest, inspite of concluding that the selections was most arbitrary and unreasonable, the Court dismissed the writ petitions, after finding that 50 posts of Homeopathic Medical Officers out of which 15 were reserved for female candidates, were still lying vacant and allowed the commission to forward all the names of selected persons to the State Government for appointment.
22. Shri Shashi Nandan, Sr. Advocate appearing in Special Appeal No.601 of 2007 submits that there are three categories of candidates in the selections. Those, who failed in the preliminary examination, physical efficiency test and in the written examination may be put in the first category. The second category includes those, who have benefitted out of main written examination and were selected. The third category is of those, candidates, who benefitted from the main written examination but were not selected as they did not do well in the interviews. Having obtained benefit of succeeding in the main written examination, the petitioners in the writ petitions could not have turned around and challenged the same by filing writ petitions. They were not prejudiced by the written examination and are infact beneficiary of the same. The petitioners before the learned Single Judge did not have the standing file the writ petitions and challenging the main written examination on any ground including that their papers were examined by wrong key answers. He submits that the Court should not have permitted a fishing and roving enquiry to virtually hand over the grounds to the petitioners to challenge the main written examination. They are estopped by their conduct in challenging the examinations. So far as ratio of candidates appearing for interviews is concerned, the point was covered by the judgment in Durgesh Pratap Singh and could not be allowed to be taken up again even if on facts it was found that in some categories larger number of candidates were invited.
23. Shri W.H. Khan appearing in Special Appeal No.613 of 2007 submits that the learned Single Judge has carved out a third case without any pleading or ground in the writ petition. He has relied upon Bikri Kar Karmchari Sangh and Ors., AIR 2000 SC 622 and Chairman, Jal Nigam, JT (2006) 10 SC 500 in which principles of constructive resjudicata were explained. He submits that the observations of the learned Single Judge that "21 key answers being either incorrect, or had multiple answers is factually correct" is based on an expert report, which has not been seen by either the petitioners or the appellants. There is no way to know as to who were the experts and on what material reliance was placed by them. Shri W.H. Khan has also relied upon Dr. Surya Narayan's case, 1996 UPLBEC (3) 229 in which the Division Bench of this Court even after finding that the selections sufferred from irregularities did not interfere on the ground of delay and the fact that large number of candidates had settled.
24. Shri Umesh Narain Sharma, Sr. Advocate appearing in Civil Appeal No.609 of 2007 states that 129 candidates, who have completed training were much higher in merit list and that even if we exclude the number of marks, which are stated to be doubtful, their selections cannot be affected. He submits that the selected candidates did not give any concession, and that the State Government only made certain suggestions in response to the Court's queries about readjustment of the results. These suggestions cannot take away the rights created in favour of selected candidates. Relying upon Andhra Pradesh Public Service Commission, (2007) ACJ 81 Shri Abhishek Srivastava appearing in Special Appeal No.668 of 2007 states that any mistake in the selections, will not vitiate the results and that these mistakes should only be cured prospectively.
25. Shri Shailendra appearing for successful petitioners- respondents submits that entire result of the main examination were affected by the seven wrong key answers. He asserts that 14 more key answers were wrong or had multiple correct answers and that both the parties had conceded that the matter regarding remaining 14 questions be sent to the experts and that the Court may rely upon the same. Shri Shailendra submits that key answers were not published by the selection board and that the petitioners had no way to find out the key answers. It is only when the records were summoned by the Court and that the petitioners requested for supplying the key answers that the error, which vitiated the entire selections, came to light. The petitioners before the learned Single Judge had succeeded in the main written examination. They are grossly prejudiced by a large number of candidates called beyond the ratio of 2:5 for 1 post for interviews. He submits that if 21 key answers are incorrect, the entire select list will be affected.
26. Shri Shailendra submits that in public competitive examinations, such mistakes cannot be condoned. The petitioner-respondents have also waited for seven years for completing selections for no fault on their part. They are unemployed and were looking for fair selection to join the police service. They suspected that things were going wrong but had no way to prove it The opportunity was given by the Court in supplying the key answers from which it was found that 21 key answers were wrong. In the supplementary affidavit these mistakes have been pointed out meaning thereby that the petitioners had not only attempted but had also correctly answered the questions, which were not given any marks. Each question carried two marks and that a difference of 42 marks, in a selection in which many candidates were placed on a single mark has prejudiced the petitioners and materially affected the selections.
27. Shri Shailendra submits that though there were irregularities in interviews, learned Single Judge has taken care in observing that after re-evaluating the answers, the fresh list would be drawn and that state wise interviews will be held. The grounds taken against the irregularities in interviews as such will be fully cured. Shri Shailendra has relied upon the Supreme Court judgment in Raj Kumar & Ors. Vs. Shakti Raj & Ors., (1997) 9 SCC 527 in which distinguishing Madan Lal Vs. State of Jammu and Kashmir, (1995) 3 SCC 486 it was said that where selections suffer from glaring illegalities, the candidates appearing for the selections and remaining unsuccessful were not barred from questioning them. In such case principles of acquiescence/ estoppel are not applicable. In Union of India Vs. O. Chakradhar, (2002) 3 SCC 146 the Supreme Court considering recruitment on the post of clerk-cum-typist by the Railway Recruitment Board held in para 8 that the nature and the extent of the illegalities and irregularities committed in conducting a selection, have to be scrutinised in each case, so as to come to a conclusion, about future course of action to be adopted in the matter. If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons, who have been unlawfully benefitted or wrongfully deprived of their selections, it will neither be possible nor necessary to issue individual show cause notices to each selectees. The only way would be to cancel the whole selection. The motive behind the irregularities committed also has its relevance.
28. Shri Shailendra submits that in Escorts Forms Ltd. Vs. Commissioner, Kumayun Division, Nainital, (2004) 4 SCC 281 the Supreme Court discussing the principles of resjudicata held that it applies to adversarial proceedings. The plea is not available where there is no contest on an issue between the parties and there is no conscious adjudication of the issue. In the present case he submits that the matter with regard to wrong key answers was neither adjudged nor judicially acted upon or decided or settled by previous judgments. In U.P. State Road Transport Corporation Vs. State of U.P. (2005) 1 SCC 444 it is held that principles of resjudicata is not limited by the specific words of Section 11 CPC.
Shri Ravi Kiran Jain appearing for the respondents submits that the petitioners in Writ Petition Nos.74215 of 2006 and 67582 of 2006 are not made parties to these appeals. He submits that the petitioners-respondents acquired cause of action only when the final results were declared. He defended the procedure adopted by the learned Single Judge in calling for the expert report, and submits that Rule 8 of Chapter XXII of the Rules of the Court provides for procedure to be followed in deciding the writ petitions under Art.226 of the Constitution of India. It provides that all questions arising for determination under the chapter shall be decided ordinarily upon affidavits, but the Court may direct that such questions as it may consider necessary, be decided on such other evidence and in such other manner as it may deem fit and in that case, it may follow such procedure, and may pass such order as may appear to be just. Shri Jain further submits that index point of last general (male) candidate were 558.25, whereas the petitioner-respondents had secured 554.80 and 554.40 respectively, and thus there was a slender margin in the matter of selection. He has relied upon the judgment in Krishna Yadav, AIR 1994 SC 2166, where on mass irregularities the whole examination was quashed. Shri Jain submits that the incorrect key answers have made the entire examination farce. He has also relied upon Union of India Vs. O. Chakradhar (Supra) in support of his submissions and submits that the whole selections deserve to be cancelled.
29. Shri Jafar Naiyer, the Addl. Advocate General assisted by Shri Amit Sthalekar, Addl. Chief Standing Counsel submits that the State Government is ready to abide by any direction given by the Court. Under the directions of the learned Single Judge the question paper and key answers were sent to the expert and that report in sealed cover was submitted for perusal of the Court. On the day of delivery of judgment the report was taken back. It is admitted to him that the copies of report were neither given to the petitioners nor the respondents. He has relied upon the judgments in Union Territory of Chandigarh Vs. Dilbag Singh, AIR 1993 SC 796 (Para 8 and 11); Gurdeep Singh Vs. State of J & K, 1995 Supp. (1) SCC 188 (Para 12); Union of India & Anr. Vs. O. Chakradhar, (2002) 3 SCC 146 (para 8) and State of U.P. & Anr. Vs. Raj Kumar Sharma & Ors., (2006) 3 SCC 330 (para 12,14 and 16), in making submissions that selectees do not have right of appointment or right of hearing when cancellation is for bonafide and valid reasons. Where the enquiry reveals favouritism, corruption at the behest of member of selection committee, the cancellation of select list is not open to challenge on the ground that the charges are not established. Advantageous gain by illegal means cannot be permitted to be retained as it will jeopardize the purity of selection process itself endanger cynical disrespect towards judicial process and embolden errant authorities and candidate into sense of complacency and impunity that is achieved by such wrongs. Mere inclusion of candidate named in the select list does not confer any right to the selectees even if some of the vacancies are unfilled.
30. In pursuance of our queries the Addl. Advocate General has submitted correct position of the number of vacancies, number of persons selected and those, who were sent for training and have been given appointments. Shri Amit Sthalekar, Addl. Chief Standing Counsel has obtained instructions from Shri Deepak Kumar Bhatt, Addl. Superintendent of Police (Establishment), Police Headquarter, U.P. and has informed the Court that the competitive examination for direct recruitment to Sub-Inspectors, Civil Police and Platoon Commanders, PAC, 2001 was held for 1045 posts including 880 posts of Sub-Inspectors and 165 of Platoon Commanders, PAC. Out of 880 vacancies 793 were reserved for male and 87 for female candidates. Out of 1045 vacancies the results were declared for 1002 candidates. The result of four candidates was not announced on the orders of the High Court. The seven candidates were not found fit in the medical examination and that the suitable candidates were not found available in Scheduled Tribe category for 26 posts of Sub-Inspectors and 6 of Platoon Commanders. These 32 vacancies were directed to be carried forward for the next examinations. Later in view of the High Court judgment in Writ Petition No.61688 of 2005, Jyoti Kumar Singh Vs. State of U.P. and Writ Petition No.64135 of 2005 Hiraman Vs. State of U.P. two more candidates were found to be successful by addition of Scheduled Caste candidates in the category of Scheduled Tribe candidates and thus a total of 30 vacancies were carried forward. In this manner the result was confined to 1004 candidates.
31. Shri Sthalekar further submits that character verification of 937 candidates out of 1004 selected candidates was complete and that they were sent for training subject to the result of the writ petitions. Out of these 859 candidates joined at the training institute. The seventy eight candidates had some personal difficulty and therefore they requested to join in the next training session. Out of these 859 candidates 20 have resigned. Three out of them wanted to rejoin but they were not allowed to do so and five absented themselves after reporting to the training institute and that one more was found to be medically unfit. In this manner 104 candidates did not receive training.
32. It is further submitted that out of these 755 candidates, who had completed training 2 did not appear in the examination after completing training and one was found to have given false affidavit. Out of the remaining candidates 67 candidates were not appointed as their character verification was delayed or that they were involved in some criminal cases. It is submitted that 830 candidates (711 for the post of Sub-Inspectors and 119 for the post of Platoon Commanders) completed the training and that 174 have not been trained. Their appointments, however, were stayed by the Court. The 119 cadets of Platoon Commanders, PAC were given appointment letters as they had completed the training before the grant of the interim order. In this manner 119 Platoon Commanders, PAC have joined and 711 selected and trained as Sub-Inspectors, Civil Police are awaiting appointment letters. In para 5 of the letter sent by Shri Deepak Kumar Bhatt to Shri Amit Sthalekar it is stated that 105 writ petitions were filed against the final select list dated 2.9.2005 in which there are 286 petitioners, and that in 19 writ petitions filed before the Lucknow Bench of this Court there are 44 petitioners. In this manner there are only 333 petitioners in these batch of writ petitions.
33. Shri Jafar Naiyer, learned AAG was repeatedly asked by us to clarify the stand taken by the State Government in these appeals. He avoided the question and submitted that the State Government will abide by whatever orders are issued by the Court. We are dismayed on the position taken by the State Government, in these matters of selections of Sub-Inspectors and Platoon Commanders in the State. It appears to us that the State Government is not keen to fill up the vacancies on the posts, which form the back bone of the police in the State of U.P. or may be the Addl. Advocate General has not appreciated the importance of the matters both for the purposes of stand, which the State Government is required to take in such matters and his duties as an advisor to the State Government. We need not to say anything further on this issue.
34. All the petitioners as well as selected candidates are eligible to be appointed on the posts of Sub-Inspectors, Civil Police and Platoon Commanders of Police. All of them had cleared the preliminary test and physical examination. The purpose of the competitive test is not to eliminate those, who are eligible but to shortlist and to select the best, suitable to the service. It is not like a college examination in which the performance of a student is tested for his ability to be promoted to the higher class. The competitive examination, however, must be fair and provide equal opportunity to all the candidates. In order to challenge the process of selection, the petitioners have to establish that they were discriminated either by not allowing them a fair opportunity to compete with the others or adopting a different criteria for selection. The test of discrimination under Art.14 and 16 of the Constitution of India for selections to public service, is to find out whether any particular candidate or class of candidates, were treated unfairly or did not get equal opportunity to compete. In this third round of litigation in the same selections, the selection process was essentially challenged on the ground that the State wise selections were unreasonably delayed and that after reconstituting regional boards the candidates were called for interview region wise, thereby increasing the chances of those, who did not have sufficient number of marks, to participate in the interviews as against others, who had secured more marks to appear for interviews in other regions. The other grounds of challenge was that larger number of candidates called for interviews in some of the boards giving likelihood of increasing the chance of those candidates for selections. The petitioners, however, did not establish these allegations by placing facts and on their own even after perusing the records and change the focus on number of questions, which were incorrect or had multiple correct answers. The second ground of challenge namely, calling the candidates in larger numbers than prescribed for interviews, was left to be considered on the ground that since the Court had found favour on the first ground and had decided to direct fresh evaluation of the main written examination fresh interviews will be taken in accordance with the prescribed ratio.
35. The petitioners did not amend their writ petition and did not challenge the results on the ground that there were wrong key answers and possible multiple answers to the questions. They were satisfied by supplementary affidavit in which it was nowhere asserted that the petitioners had attempted these questions and had correctly answered the 7 questions, which was wrongly evaluated. They also did not assert that those who had succeeded in the examination answered otherwise or had any possible knowledge of wrong answers to be given to these questions. There was no negative marking on wrong answers. The correct answers to the other 14 questions were not known to the petitioners as they had no chance to see and were not given experts report. The assertion that the 14 key answers had wrong or multiple correct answers was their own assessment, again without any pleading in writ petition or supplementary affidavit, in the manner they or any one else had attempted them. They relied only on assumptions based on their imagination.
36. The writ petitions were not based on malafies or any such large scale irregularities, which may have vitiated the entire selection process. The pleading with regard to region wise interviews or calling persons over and above the prescribed 2.5 for 1 post for interviews, were not established from the record. There are no allegation of any mischief played, which was so widespread so as to make it difficult to point out the candidates, who have unlawfully benefited or were wrongfully deprived of their selections. There were no allegations leveled against any person or persons nor any attempt was made to prove such malafides.
37. In the present case, in case the key answers were wrong or had multiple answers, or if any question was wrong, it was equally wrong for both the petitioners as well as selected candidates. At best it can be said that both the petitioners as well as selected candidates could have answered only one way and were thus tested on equal basis. If the six answers were wrong and one of the question was incorrect, it was wrong and incorrect for both of them. The difference of 14 marks in judging the comparative merit in a grand total of 675 marks allotted to selections (600 for written examination and 75 for interviews it) on such assumptions will not vitiate the entire selections. The Selection Board did not adopt a different criteria for any specified group.
38. Learned Single Judge has committed a mistake in assuming that 21 wrong key answers carrying 42 marks in total of 300 marks has vitiated the entire selections. The written examination was of 600 marks comprising of two papers of 400 marks and 200 marks each. The interview carried 75 marks. The State Government admitted that 7 key answers were wrong out of which 6 key answers were wrong and one question was incorrect. In respect of remaining 14 questions the learned Single Judge observed that the State Government submitted a vague reply. The expert report on these 14 questions was not circulated. The entire assumption of variation of the possible variation of 42 marks in 300 marks as such was incorrect.
39. We find substance in the contention of Shri Ashok Khare, Sr. Adv. that there was no assertion in the writ petition, (which was not filed with the allegation of wrong key answers and which was discovered during the pendency of the proceedings) or in supplimentary affidavit that the petitioners had either attempted or had correctly answered all the six questions of which the key answers were incorrect and one incorrect question. They have not said either in the supplementary affidavit filed after looking into the key answers, that they had either attempted or had correctly answered all the six questions and the way one incorrect question was answered by them. The unsuccessful candidate as such cannot, therefore, say that in revaluation they will score higher marks than those, who are successful. The selection board did not adopt any different criteria for any specified group. There is no pleading that the successful candidate or some of them were aware of these wrong key answers. There is no pleading or ground for any foul play or malafides.
40. This is the third round of litigation in the same selections. In the first round in Narendra Pratap Singh Vs. Director General of Police, U.P., (2002) 3 ESC (All) 339 the advertisement was upheld with direction to recalculate the number of posts in general category by applying 2% reservation for sportsmen horizontally and adding 2% posts for sportsmen while calculating the total number of vacancies in general category. In the second round of litigation in Durgesh Pratap Singh Vs. State of U.P. (writ petition No.34757 of 2003) and other connected petitions decided on 26.2.2004 the challenge both on the ground of reservation, ratio of the type of questions asked in the examination and the ground that lesser number of candidates were called for interview than the prescribed ratio of 2:5 was repelled. A Special Appeal No.468 of 2004 against the judgment was dismissed on 12.5.2004. A large number of candidates including those, who were successful and unsuccessful have become overage. Shri R.N. Singh, learned counsel for the petitioner informs that near about 200 candidates, a list of which has been annexed to the affidavit in his special appeal have resigned from the service and occupation in which they were working and have joined and that any change in the merit after revaluation, will put their entire career in jeopardy. The Court as such would be most reluctant to interfere with these selections specially when the grounds on which the writ petition has been allowed were discovered by going through the records produced in Court during the course of hearing and without amending the writ petitions. The Court would not encourage the unsuccessful candidates to go on challenging the selections endlessly at each stage of selections creating uncertainty, confusion and mistrust both amongst the candidates and for the department, which is woefully short of the Sub-Inspectors treated as the back bone of the police force.
41. The principles of resjudicata also apply between two stages in the same litigation. Where a Court of competent jurisdiction had at an early stage decided a matter in one way, it may not allow the parties to re-agitate the matter again on subsequent stage of either the same proceedings or in different proceedings. Where after the main written examination in the competitive examination the unsuccessful candidates had challenged the selections, and their grounds of challenge was not accepted, those who are successful in the main written examination having sought benefit under it and appeared in interviews may not be allowed to re-agitate the issue by challenging the same main written examination on different grounds, even if such grounds have been made available to them at subsequent stage or proceedings. The judicial decisions should attain finality. The same written examination cannot be subjected to litigation by those, who are unsuccessful and again by those, who were successful but could not get sufficient marks in interviews to be selected. It will leave the candidates litigating in the same selection endlessly and would not allow the public posts to be filled up for public good. In such cases the unsuccessful candidates cannot be allowed to challenge the selections except on the ground of malafide or fraud, which has not been sufficiently pleaded and proved. The petitioners had succeeded in the main written examinations and were called for interviews. In the last round of litigation they did not either challenge the decision to hold interviews region wise or the composition of selection boards.
42. In U.P. State Road Transport Corporation Vs. State of U.P., (2005) 1 SCC 444 the Supreme Court held in para 11 and 12 as follows:-
"The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of the Code of Civil Procedure in this respect. Resjudicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. (See Satyadhyan Ghosal Vs. Deorajin Debi, AIR 1960 SC 941).
This Court having specifically considered the question in two earlier decisions as to whether the draft scheme dated 13.2.1986 had lapsed under sub-section (4) of Section 100 of the Act and having recorded a clear finding that the Scheme had not lapsed, it was not at all open to the High Court to examine the said question all over again and to hold that the draft scheme had lapsed. The decision rendered by this Court concluded the controversy and it was not permissible to any party or to any authority/tribunal or court, including the High Court to reopen the issue and to record a contrary finding. We are clearly of the opinion that the High Court committed manifest error of law in re-examining the question and recording a finding, which is totally at variance with the earlier decision of this Court."
43. The Court may innovate in the proceedings under Art.226 of the Constitution of India to discover the truth. The procedure, however, in all such cases has to be fair, reasonable and must conform to the principles of natural justice. In this case on an admission made by the Advocate General that seven key answers were wrong, the Court went on a mission of adventure to find out whether the remaining 14 key answers were also wrong or had multiple correct answers. The suggestion given by learned counsels of the private-respondents that the matter may be referred to expert committee, and that the Court may find out the truth, could not be allowed by the Court to refer the matter to experts after reserving the judgment. Once the parties are heard and the judgment is reserved, no further proceedings may be taken in the matter, even if such proceedings may not prejudice any party. The justice may not only be done but must also seem to be done. The Court could have fixed a date of rehearing and considered the experts report by a well-recognised procedure in giving opportunity to parties to either accept, object or make comments on the report. Once experts report was received and the Court desired to rely upon it, it should have been required to be placed on affidavit and that the other side affected by such report should have been permitted to file counter affidavit. If such procedure was not adopted, the Court should not have relied upon the report to record the findings. These are the basic requirements of the principles of natural justice and fairness in procedure. Any departure from these principles, will allow a justifiable doubt over the discretion exercised by the Court.
44. Learned Addl. Advocate General made an attempt to file expert report in sealed cover. We did not allow ourselves to commit the same error, and rejected the oral prayer.
45. In Akanksha Gupta Vs. State of U.P. & Ors. (Civil Appeal No.6367 of 2000) decided by Hon'ble Supreme Court on 13th November, 2000 by a short order, the reliance on scrutiny of the answer books made by the Court on its own evaluation, was not accepted. The Supreme Court observed:-
We have read the order under challenge and heard learned counsel. We are of the opinion that this was not the way to proceed to dispose of a writ petition, relying only, as was done, upon the production before the court of a report of the scrutiny made of the answer books. The report should have been required to be placed on affidavit and the other side should have been permitted to file a counter thereto. We have no doubt in the circumstances that the order under challenge must be set aside and the writ petition should be remanded to the High Court to be heard and disposed of on merits with a speaking order.
We do no say any more because we do not wish to prejudice the case on either side.
The appeal is allowed. The order under appeal is set aside. The writ petition (writ petition No.2477 (Misc) of 1999) is remanded to the High Court to be heard and disposed of on merits, with a speaking order expeditiously. The High Court shall from such stage as it deems appropriate.
No order as to costs.
(Shvaraj V. Patil)"
46. Learned Single Judge has strongly relied upon Manish Ujjwal & Ors. Vs. Maharishi Dayanand Saraswati University & Ors., J.T. 2005 (8) SC 382. The matter went to Supreme Court from the judgment of the High Court in writ petition filed by student community challenging their ranking in the entrance test, which were conducted by the University, for admission to the medical course in various colleges in State of Rajasthan. The challenge was based on the averments that various key answers on the basis of which the answer sheets were evaluated were wrong and consequently wrong and erroneous ranking was prepared. The Court found that in the three papers with 300 marks each i.e. 900 in total with negative marking system adopted, six key answers were alleged to be incorrect. The judge hearing the writ petition in High Court called for expert opinion and found that some of the key answers were wrong, the High Court, however, did not interfere in the matter. The Supreme Court did not take into account those key answers in respect of which there was difference of opinion and considered six key answers on which there was unanimity that they were wrong. The Supreme Court then in para 7 of the report examined a positive assertion that the appellants including Manish Ujjwal had attempted all the six disputed questions. The other appellants had not attempted all of them, and that it could have made considerable difference when the rank depended even on a fraction of a mark. The Supreme Court then observed that 30,000 students appeared in the examination and that on the basis of the results declared first counselling for admission to government colleges and 50% quota in private colleges had already taken place. In para 9 it was observed that it was possible that fresh evaluation by feeding correct key answers may have adverse impact on those, who had already secured admission on the basis of result and ranking given by feeding incorrect keys in relation to those questions. Though the Supreme Court was of the opinion that the students community should not suffer on account of demonstrably incorrect key answers, but that at the same time if the admissions already granted as result of first counselling are disturbed it is possible that very commencement of the course may be delayed and that admission process for the course may go beyond 30th September, 2005, which is cut off date according to the time schedule in the regulations and as per the law laid down by this Court in Mridul Dhar (minor) & Anr. Vs. Union of India & Ors. The Supreme Court confined the reevaluation results only to the second counselling.
47. In Kanpur University through Vice Chanceller & Ors. Vs. Samir Gupta & Ors., (1983) 4 SCC 309 the Supreme Court observed that there is presumption about the answers being correct and in case of doubt the Court would unquestionably prefer key answers and as such the key answers to which there is doubt as a result of difference of opinion between experts cannot be relied upon. The Court will only consider those key answers, which are beyond realm of doubt.
48. In the present case the selections have taken seven long years to complete with almost two completed round of litigation intervening the four stages of selection. The result of the main written examination was a matter of dispute and that all questions, which could or ought to have been raised, with available material were considered and decided. All the selected candidates were sent for training and that out of 1004 posts 830 have completed the training. The 119 candidates selected and trained for Platoon Commander, PAC have joined and that 711 selected and trained for Sub-Inspector (Civil Police) are waiting to join. A large number of candidates have left their jobs and occupation in other government services and have joined or are awaiting to join the department. Almost all except a few reserved category candidates have become overage. These successful candidates have spent almost the entire youth in the process of selections and must have adjusted and tuned their lives accordingly. By now those, who have been selected must be married and settled in their life. It would be extremely harsh and unjust to allow their positions to be disturbed, on the grounds, which have been fished out by unsuccessful candidates during the process of hearing of the third round of litigation.
49. It would also be unjust on the part of the Court to get the marks of all the candidates (as directed by the Court), which includes almost 60,000 key answer sheets to be evaluated and to hold interviews afresh, for which there was no complaint at all. The exercise may result into hundreds of candidates loosing their positions in life for which they cannot be held responsible. There is absolutely no pleading or even a suggestion given by the petitioners-respondents that the successful candidates had knowledge of these key answers or gained any undue advantage out of the preparation of six wrong key answers. It is quite possible as asserted by Shri Shailendra that with obvious correct answers given by a candidate with ordinarily knowledge and understanding, each one would have answered these six questions correctly. If that be so, with no negative marking, the results will not be affected. On these facts the Court would not allow the petitioners-respondents to assume that there may be some readjustment, which may ultimately affect the result of interviews and thereby giving a fresh chance to the unsuccessful candidates to compete with those, who have completed training and also those who have joined and are serving.
50. We find that in allowing the petitioners a chance to look into key answers the Court virtually allowed them a fresh inning to compete in the selections. The directions given by the Courts to hold fresh interviews on the plea that the marks in written examination will influence the result, virtually reopens the entire selection based only on assumptions and consequently unsettling the entire process of selection. The procedure adopted by the learned Single Judge, his findings and directions as such cannot be sustained.
51. All the appeals are consequently allowed. The judgment of the learned Single Judge dated 24.4.2007 is set aside. The select list is upheld. There shall be no orders as to costs.
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