Deepak Kumar vs State of Punjab

Rajesh Bindal, J.—This order will dispose of a bunch of petitions bearing CWP Nos. 124, 320, 1071, 1475, 1750, 1797, 1800, 2385, 2857, 3034, 3381, 4027, 4158 and 7697 of 2014, as common questions of law and facts are involved.

The issue under consideration is regarding selection to the post of Inspector (Group B) in the Department of Food, Civil Supplies and Consumer Affairs, Punjab.

Arguments of petitioners

Mr. Sardavinder Goyal, Advocate appearing for the petitioners in CWP No. 124, 1071, 4027 and 4158 of 2014 submitted that advertisement for 461 posts of Inspector (Group B) in the Department of Food, Civil Supplies and Consumer Affairs, Punjab was issued on 8.10.2013. The last date for submission of applications on-line was 9.11.2013. The selection procedure was specified in the advertisement itself, which was on the basis of written examination only with no marks for interview. A public notice was subsequently published in the newspapers, as well as uploaded on the website intimating the applicants that due to receipt of large number of applications, the written test will be held in two stages. First stage test will be held for shortlisting of candidates on 15.12.2013 in two shifts, namely, morning and evening. The applicants will be divided equally in both the shifts. The allocation of shift to the candidates will be at random. Five times the number of vacancies in each category from both shifts will be shortlisted for second stage test, which will be held on 12.1.2014. No weightage of marks obtained by the candidates in first stage test was to be given as the same was only for shortlisting. After first stage examination, 4,609 candidates were shortlisted for second stage test. Though as per the data supplied, 4,709 candidates should have been permitted to appear in the second stage test, but only 4,609 candidates were allowed, hence, there was difference of 100 candidates, which is not clear from the summary statistics uploaded on the website after declaration of result of first stage.

The second submission made by learned counsel for the petitioners is that 271 candidates were allowed direct entry to second stage test without they having appeared in first stage test. Though a plea is sought to be taken that there was some problem in the examination centre on account of some candidates coming late and disturbing the process of examination, but neither any complaint was made to the police nor any enquiry was conducted in that regard. In the absence thereof, permitting these 271 candidates directly for second stage test is illegal, as the same has reduced the chances of the petitioners for shortlisting for second stage test.

Third submission made on behalf of the petitioners is that it is the admitted case of the official respondents that question paper was leaked, as a result thereof, the entire examination should have been scrapped but only action taken by the authorities was to cancel the candidature of the candidate from whose possession mobile phone was recovered through which he may have transmitted the question paper outside the centre.

Still further, the submission is that there were about 1,90,000 candidates, out of which about 1,00,000 candidates could appear in first stage test, the centres for which were located in tri-city only. A number of candidates could not reach the examination centres because of heavy rush. If the test was to be conducted in two shifts with different question papers, the same could very well be on different dates and at different places as well throughout the State of Punjab. Rather, the question paper should have been one and the test should have been conducted at different centres in the State of Punjab at the same time. In fact, shortlisting the candidates by taking test with two different question papers from two sets of candidates is arbitrary as intelligentsia of the candidates has not been examined on one touch stone. When all the candidates could not appear in first stage test on account of heavy rush, they were deprived of their right to participate in the process of selection on account of an erroneous method adopted.

Learned counsel also raised the issue regarding questions No. 104 and 136 in the second stage test. It was submitted that answer keys to the aforesaid questions being incorrect, the same should also be taken out.

In CWP No. 1475 of 2014, Mr. Ravi Pratap Singh, learned counsel for the petitioner submitted that the petitioner was a candidate in Sports (General) category. He had secured 99.75% marks. Even though the candidate in general category, who secured marks less than the petitioner, finds place in the merit, but still the candidature of the petitioner was not considered, even if he is ignored in Sports category.

In CWP No. 1750 of 2014, Mr. Pankaj Sharma, learned counsel for the petitioner submitted that the petitioner herein is a candidate in Ex-servicemen General Category. As per Clause 6 in the advertisement under the heading ''reservation'', it was provided that lineal descendents of Ex-Servicemen can also apply in Ex-Servicemen category provided they satisfy the eligibility conditions of a general category candidate. However, their candidature will be considered only if sufficient number of Ex-Servicemen candidates do not clear the test in this category. In the case in hand, the aforesaid clause was violated. The preference, as was required to be given, was not adhered to. The number of candidates, who were Ex-Servicemen, were ignored, whereas lineal descendents were permitted to steal a march over them. The minimum cut-off marks in first stage test was fixed as 52.50%. The lineal descendents, who had secured marks upto that level, were permitted to appear in second stage test, whereas the petitioner, who is an Ex-Serviceman and had secured 52.75% marks, was not even shortlisted. In the merit list of the candidates in Ex-Servicemen category, out of total 300, only 76 candidates are Ex-Servicemen, whereas 224 candidates are lineal descendents of Ex-Servicemen. It was further submitted that though it is claimed by the State that the candidates five times each considering the number of vacancies were shortlisted from morning and evening shifts, but still as against 33 vacancies, in the morning shift the shortlisted candidates were 185 as against 165, whereas in the evening shift, the figure was 202. Some candidates have been shown as bracketed as well, for which there is no explanation.

In CWP No. 1797 of 2014, Mr. Chanchal K. Singla, learned counsel for the petitioner reiterated the contention already raised to the effect that the petitioner could not reach the centre due to heavy rush on the date when first stage test was conducted.

In CWP No. 2857 of 2014, the submission of Mr. Vivek Sharma, learned counsel for the petitioner is that though the petitioner is physically handicapped with hearing impairment, however, in the application submitted on-line, he mentioned his category as "General". The application fee was also deposited accordingly. Realising his error, he immediately sent e-mail to the authorities for correcting his category. The same was considered, however, his candidature was wrongly considered in the category of "Orth. Handicap" and not with "Hearing Impairment". If the candidature of the petitioner is considered in that category, he gets selected.

In CWP No. 3381 of 2014, Mr. Vivek Sharma, learned counsel for the petitioner submitted that the petitioner herein belongs to Backward Class category. The candidates, who had secured more marks in reserved category, should have been adjusted in general category as a result of which more persons in reserved category will get chance of appointment after getting shortlisted in first stage test. In support of the argument, reliance was placed upon Bhupinder Kaur and others v. Vanita and others, 2011(3) RSJ 485 (P & H).

In CWP No. 7697 of 2014, Mr. G.S. Bal, learned counsel for the petitioner submitted that the petitioner is a candidate belonging to Schedule Caste (Others) category. His grievance is that if in the first stage test the candidates securing more marks in reserved category are shifted to general category, as they are required to, the petitioner gets a chance of appointment.

Arguments of respondents

On the other hand, learned counsel for the State submitted that in pursuance to the advertisement issued, 1,90,267 applications were received, out of which 1,86,332 candidates were declared eligible. About 13,000 candidates, who were declared eligible, did not download their admit cards. About 1,20,000 candidates appeared in first stage test. The minimum cut off marks prescribed were 52.50%. The test was outsourced to Punjab University. The question papers were sent to each examination centre before start of the examination and even the examiners also reached there, hence, to plead that the candidates could not reach in time is patently erroneous. Once they had been informed in advance about the date, time and venue, they were required to make appropriate arrangement to reach the centre in advance. Those, who did not or could not reach, may not be serious.

In response to the submissions made by learned counsel for the petitioners, learned counsel for the official respondents submitted that as regards permitting 271 candidates direct entry for second stage test is concerned, the same was for the reason that at Centre No. 1338 in evening shift, 271 candidates, who had come in time, were appearing in the test. Some of the candidates reached late. They were not allowed entry in the examination centre. They forced their entry into examination hall and disturbed the process and even torn out the answer sheets. As a result thereof, it was decided that aforesaid 271 candidates, who had come in time and were appearing in the examination before the same was disturbed in the aforesaid centre, be allowed to participate in second stage test as they were not at fault. These candidates are over and above the candidates who have been shortlisted as per the criteria and the minimum marks prescribed by the authorities. The relevant fact here is that only one of these 271 candidates finally made to the merit list after second stage test.

He further submitted that for shortlisting, while prescribing minimum 52.50% marks, it was decided to shortlist five times the number of vacancies each in the morning and evening shifts. Finally, 4,609 candidates were allowed to appear in second stage test. The total shortlisted candidates in morning shift were 2,331, whereas in evening shift, they were 2,378, the total being 4,709. As the candidates could apply simultaneously in more than one category and were considered as such, they were in the list of shortlisted candidates in different categories simultaneously. These were 371 in number. After reducing the same from 4,709, the remaining candidates actually to be permitted for second stage test were 4,338. Adding 271 candidates from Centre No. 1338, who were not permitted to take their examination on account of disturbance created by the candidates who had come late, total 4,609 candidates were permitted to appear in second stage test. The statistics show that in some categories, the candidates available after first stage test were not five times the number of vacancies as they did not get minimum qualifying marks fixed, whereas in some categories, more persons had to be shortlisted considering the fact that the marks secured by last candidate to be shortlisted had been secured by more than one person. They all were shown as bracketed and permitted to sit in second stage test.

Regarding shortlisting of candidates, learned counsel for the State submitted that there is nothing wrong in not allowing the candidates of reserved category, who had secured more marks than the last candidate in general category, to shift in that category and adding further candidates in the list of reserved category candidates in the short-listing process. He further submitted that a candidate, who had applied in sports category, had to be considered in that category only. He cannot be permitted to shift in general category.

As far as candidates in the category of ex-servicemen and the dependents thereof is concerned, learned counsel for the State could not dispute the fact that the petitioner herein had secure more marks than the candidates, who were shortlisted and further that he is ex-serviceman himself, whereas the shortlisted candidates were lineal descendents.

It was further submitted that there was no leakage of question paper as such. The only fact was that one of the candidates was having mobile. He was caught while clicking the picture of the question paper and his candidature was cancelled. There is no material to show that the candidate had misutilised the mobile carried by him for transmitting either the question paper outside the centre or for getting the answers thereof.

As regards conduct of two different tests for shortlisting is concerned, learned counsel for the State submitted that the process cannot be said to be erroneous till such time the marks obtained by the candidates in the preliminary test are not counted towards the final selection.

As far as consideration of candidature of the petitioner in CWP No. 2857 of 2014 in physically disabled category is concerned, it was submitted that the petitioner initially filled the application in general category and deposited the fee accordingly. Thereafter, he sent an e-mail stating that he belongs to the category of "Orth. Handicap". His candidature was considered in that category, however, now the claim is sought to be made that the petitioner is physically disabled in the category of "Hearing Impairment". It was further submitted that even after permitting change of category to the petitioner, admit card was issued to him for appearance in the preliminary examination and he never raised any objection. The issue was sought only after the final examination was conducted before declaration of result, hence, the petitioner is not entitled to any relief.

Learned counsel for the University submitted that as far as question No. 104 is concerned, the statement is a little bit ambiguous as opined by the expert, whereas as far as question No. 136 is concerned, the question and the answer key are correct.

Heard learned counsel for the parties and perused the paper book.

Following issues arise for consideration by this court in the bunch of petitions:

Whether permitting 271 candidates from centre No. 1338 to appear directly in second stage test is erroneous ?

Whether at the preliminary stage, two different tests could be conducted for shortlisting ?

Whether explanation for difference of 100 candidates shortlisted for second stage test is acceptable ?

Whether the candidates of reserved category securing marks more than last candidate in general category were to be shifted in general category at the stage of shortlisting ?

Whether a candidate in reserved category is to be considered in general category if he is not found eligible for reserved category ?

Whether the alleged problems faced by the candidates for appearance in preliminary test will result in setting aside the test ?

Effect of error in answer keys in second stage test ?

Effect of alleged leakage of question paper ?

Whether shortlisting of candidates in Ex-servicemen category was erroneous ?

Change of category by physically disabled candidate ?

Issue No. 1

As regards permitting 271 candidates from Centre No. 1338 to directly appeared in second stage test is concerned, I find the explanation given by the State to be reasonable as the conduct of examination at that centre was disturbed by some of the candidates, who came late. With a view to ensure that none of the candidates appearing in that centre suffer any prejudice, the authorities permitted all the candidates who had come in time to appear in second stage test. Permitting these 271 candidates to sit in second stage test has not prejudiced any of other candidate as these are in addition to the candidates shortlisted as per the criteria laid down by the selecting authority.

Issue No. 2

As far as the contention raised by learned counsel for the petitioners that comparative merit of the candidates in the preliminary examination could not be tested by prescribing two different question papers in two different sessions is concerned, the same is misconceived, if considered in the light of the judgment of Hon''ble the Supreme Court in Pitta Naveen Kumar and Others Vs. Raja Narasaiah Zangiti and Others, , wherein it was observed that such a mode is permissible if the marks obtained by the candidates in the preliminary examination are not to be considered for the purpose of preparation of merit list at the time of final selection, as the object of the same is only shortlisting of candidates. The relevant paragraph thereof is extracted below:

...The reason therefor is not far to seek. The result of the first preliminary examination had not been announced. A combined result was announced both in respect of the first preliminary examination as also the second preliminary examination. Both the examinations were held to be a part of the same recruitment process. It may be that in relation thereto different question papers were set or different examiners examined them but it must be borne in mind that the said examinations were held only for the purpose of elimination of candidates. The result of the said examination was not to affect the ultimate selection process.

In the case in hand as well, the definite stand of the State is that the preliminary examination was only for shortlisting the candidates considering large number of applications received. The final selection was to be made only on the basis of marks obtained in second stage test. Accordingly, the aforesaid contention is rejected.

Issue No. 3

As far as difference of 100 candidates, who were permitted to appear in second stage test is concerned, I find merit in the explanation given by learned counsel for State. While prescribing minimum 52.50% marks, the Commission decided to shortlist five times the number of vacancies each in the morning and evening shifts. Finally, 4,609 candidates were allowed to appear in second stage test. The total shortlisted candidates in morning shift were 2,331, whereas in evening shift, they were 2,378, the total being 4,709. As the candidates could apply simultaneously in more than one category and were considered as such, they were in the list of shortlisted candidates in different categories simultaneously. These were 371 in number. After reducing the same from 4,709, the remaining candidates actually to be permitted for second stage test were 4,338. Adding 271 candidates from Centre No. 1338, who were not permitted to take their examination on account of disturbance created by the candidates who had come late, total 4,609 candidates were permitted to appear in second stage test.

Issue No. 4

As far as the contention raised by learned counsel for the petitioners that at the time of shortlisting of candidates in the preliminary examination, the action of the authorities in not shifting the reserved category candidates, who had secured more marks than the last shortlisted candidate in general category, to that category is strictly in accordance with law as such a course is not permissible at the shortlisting stage and it is applicable only at the time of final selection. Reference can be made to the judgment of this court in Paramveer Singh and Others Vs. Punjab Public Service Commission and Others , wherein it was observed as under:

In another case reported as Union of India (UOI) and Others Vs. Dalbir Singh and Another, initiated process for selection to 20 posts of Mazdoor both in general and reserved categories. Two separate board proceedings were held for general category candidates and reserved category candidates. Some of the candidates belonging to the reserved categories secured more marks than the general category candidates but they were selected only in reserved category. Some of the reserved category candidates belonging to O.B.C. Who had secured more marks than the general category candidates approached the Central Administrative Tribunal, Chandigarh seeking a direction for shifting the reserved category candidates to general category for selection. The Tribunal allowed the application and issued directions for selection of reserved category candidates who had secured more marks than general category against general category posts. The High Court of Punjab & Haryana, Chandigarh affirmed the order of the Tribunal, however, the Hon''ble Supreme Court set aside the order of the High Court. Having regard to the statutory provisions and ratio of various judgments noticed herein above, following principles emerge:-

(i) Reserved category candidates who secured higher merit in the process of selection for appointment are to be considered for appointment against general category vacancies notwithstanding the fact that they have applied under the reserved categories and the resultant slot under the reserved category will be occupied by the reserved category candidates next in the order of merit.

(ii) Above principle is, however, applicable at the time of making appointment on completion of the selection process.

(iii) Principle at point (i) will have not application at the stage of qualifying examination, shortlisting or screening test.

[Emphasis supplied]

Issue No. 5

I find merit in the contention raised by learned counsel for the petitioner in CWP No. 1475 of 2014, where the candidature of the petitioner, who had applied in sports category, was not considered in that category, as he could not get the requisite sports accreditation certificate. His prayer that in the absence thereof, his candidature was to be considered in general category. The action of the authorities in this regard, whereby they had denied consideration of the candidature of the petitioner herein in general category, who had secured more marks than the shortlisted candidates in general category is found to be erroneous. If a candidate claims reservation in any category and it is found that he is not eligible in that category, he immediately shifts to general category and his merit position has to be considered on the basis of marks obtained by him. Consideration of his candidature cannot be denied altogether.

Issue No. 6

The contention of leaned counsel for the petitioners that on account of heavy rush, only about 1,00,000 candidates out of 1,90,000 candidates could appear in the test as the centres were in tri-city only, is to be noticed and rejected. The different centres located in tri-city were notified to the applicants well in advance. The examination was scheduled in two sessions, i.e., morning and evening. That means, the candidates were divided in half. When one has to appear in competitive examination, he/she has to ensure that he/she reaches the place well in advance. The problem regarding rush at the examination centre remain as with many candidates, especially the girls, another family member also comes, but still it is for the candidates to ensure that he/she reaches the centre in time. Merely on that basis, the result of the test at the first stage cannot be set aside. However, this court would certainly observe that the problem, if any, faced by the candidates must have been observed by the authorities conducting examination and in case they find that the same can be avoided, in future considering the number of candidates who have to appear, corrective steps be taken for future so that no one has any complaint that he could not reach the centre in advance.

Issue No. 7

As regards answer keys to the questions in second stage test are concerned, out of 150 questions, finding errors therein, 7 were withdrawn. As regards the issue raised regarding questions No. 104 and 136, in the opinion obtained by the University from an expert, the statement regarding question No. 104 was found to be ambiguous, hence, the benefit of that is required to be given to all the candidates. Therefore, the same is also required to be treated in the manner seven questions were earlier treated where error was found. As far as question No. 136 is concerned, the question and the answer key were found to be correct, hence, no action is required in that regard.

Issue No. 8

As far as leakage of question paper at the time of preliminary stage examination is concerned, the same was in two stages. One of the candidates, who was appearing in after-noon session, was caught carrying a mobile. His candidature was immediately cancelled. Nothing more has come on record as regards cheating or transmission of question paper or the answer key pertaining to any question to any of the candidate who appeared in after-noon session of the preliminary examination. In the absence thereof, it would not be appropriate to cancel the examination as such. It is not a case where the question paper was leaked prior to the start of the examination.

Issue No. 9

As far as the contention raised by learned counsel for the petitioner in the category of ex-servicemen is concerned, I find merit therein. In the case in hand, Clause 6 in the advertisement under the heading "Reservation", provided that lineal descendents of ex-servicemen can also apply in ex-servicemen category provided they satisfy the eligibility conditions of general category candidates, however, their candidature was to be considered only if sufficient number of ex-servicemen candidates do not clear the test in that category. However, the fact remains that the petitioner, who was himself an ex-serviceman, secured 52.75% marks in the preliminary examination but was not shortlisted, whereas the candidates, who had secured marks upto 52.50% were shortlisted. They were lineal descendents. Meaning thereby the clause mentioned in the advertisement regarding giving preference to ex-servicemen has been violated. The merit list of the candidates to be permitted to appear in the second stage test is required to be re-casted strictly in terms of the clause contained in the advertisement.

Issue No. 10

As far as petitioner in CWP No. 2857 of 2014 is concerned, no doubt, the petitioner had initially applied in general category, even though physically disabled. However, still his request made through e-mail that he belongs to the category of "Orth. Handicap" was considered by the authorities and his category was permitted to be changed. Now the issue raised by the petitioner is that in fact, he belongs to physically disabled category of "Hearing Impairment". No doubt, the course sought to be adopted by the petitioner cannot be permitted to change his category, but still considering the fact that the authorities had themselves initially allowed to change his category, the petitioner herein be considered in physically disabled category of "Hearing Impairment", as otherwise also very few candidates are available in this category and ultimately for getting the benefit, the petitioner will have to prove his eligibility in physically handicapped category of "Hearing Impairment".

In view of my aforesaid discussion and findings, conduct of the preliminary examination and the result thereof is upheld. As far as second stage test is concerned, once shortlisting of candidates was found to be erroneous on different counts, the same is set aside. The shortlisting of candidates, who had passed first stage test, be made strictly in accordance with law and thereafter the candidates be permitted to appear in second stage test.

The writ petitions stand disposed of.