Neeraj vs State of Punjab and Others

Rajesh Bindal, J.—This order will dispose of CWP Nos. 10225 of 2010 and 8550 of 2012. However, the facts have been extracted from CWP No. 10225 of 2010.

The petitioner, who was a candidate for the post of Vocational Masters/Mistress (Secretarial/Commercial Practice) in response to the advertisement dated 23.9.2009, has filed the present writ petition, with a grievance that the tentative merit list had not been prepared strictly in terms of the criteria laid down in the advertisement itself.

Learned counsel for the petitioner submitted that the petitioner was eligible in terms of the advertisement issued for the above said post. The tentative merit list was displayed on the website in which name of the petitioner was at Sr. No. 111, however, finding that while preparing the provisional merit list, the petitioner had not been given marks for professional qualification, she filed the present writ petition. The selections were finalised much thereafter. Though the appointments were made in July, 2011, but still the respondents did not take steps to correct their mistake. As against 39 vacancies advertised for the General Category, only 35 candidates were appointed and 4 seats remained vacant. He further submitted that vide order dated 7.1.2011, this Court had directed that selection/appointment, if any made pursuant to the advertisement shall be subject to out come of the writ petition. In the present case, the merit list of the candidates has not been prepared strictly in terms of the criteria laid down in the advertisement itself. The same being erroneous, the selection made on that basis deserves to be set aside or in the alternative, the petitioner may be offered appointment. He further referred to an order passed by this Court on 9.9.2013, wherein all the aforesaid facts have been noticed in brief and learned counsel for the State sought time to explore the option of offering appointment to the petitioners, who are two in number, instead of quashing the entire selection.

On the other hand, learned counsel for the State submitted that as against 39 posts advertised for the General category only 35 appointments were made. She was not able to clearly state as to why 4 posts were kept vacant. She admitted that there was error in preparation of merit list, as the candidate had not been given marks for their professional qualification, though the same was required in terms of the criteria laid down in the advertisement. There was no explanation available as to why the aforesaid error was not noticed when the petition had been filed much prior to the finalisation of the selection. However, she submitted that the result can be re-worked out after calculating the marks obtained by a candidate in the professional qualification and whosoever comes in the merit list may be offered appointment and the candidate who will not fall in the revised merit list, will be removed.

Along with the additional affidavit dated 16.5.2014 of Ramesh Kumar, Deputy Director (School Administration), office of the Director Public Instructions (Secondary Education), Punjab, filed in Court, on 16.5.2014, the revised merit list of the candidates who have been selected, has been annexed. On that basis it is stated that 21 out of them will still remain in merit list, whereas 14 candidates, who were selected and appointed in July, 2011 may have to be removed. 4 seats which remained vacant can also be filled. It was further submitted that in total 779 applications were received. The candidates who attended the counselling, were less. However, learned counsel for the State did not dispute the fact that in case the result of all the applicants who had attended the counselling is revised, the position of the candidates, who may find place in final merit list will be different. The revision will have bearing not only in General Category but in reserved categories as well. She further submitted that as per the instructions, the State is ready and willing to carry out that exercise as it may not be possible to offer appointment to the petitioners, who are two in number, as the same will open a flood gate for other candidates, who may approach the Court later on.

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

The fact that while preparing the tentative as well as the final merit list, in the process of selection for the post of Vocational Mistress (Secretarial/Commercial Practice) in response to the advertisement dated 23.9.2009, the criteria as laid down in the advertisement was not followed. The criteria as mentioned in the advertisement is reproduced here as under:-

Criteria for selection: The selection of the concerned category will be made on the basis of merit prepared after adding the percentage of marks obtained in essential and professional qualifications and higher education and experience, duly countersigned by concerned Distt. Education Officer (S. E.) or any competent officer. The criteria of merit is as under:-

(a) Maximum percentage of marks in educational and professional qualification: 80

b) Non Teaching:

Maximum marks for higher qualification: 10 For Lecturers:

1 & 2...

for Master Cadre:

1 to 3

Vocational Master and Mistresses:

First higher qualification: 05

Second higher qualification: 10

C & V Cadre: ---

Senior Laboratory attendant:..

Assistant Librarian: xx xx

The petitioner had filed the writ petition in this Court in May, 2010. At that time, only a tentative merit list had been prepared. Admittedly, final selection and appointments were made in July, 2011. Despite defect having been pointed out by the petitioner, the selecting authority did not make any effort to correct the error and continued with the selections which are contrary to the criteria laid down in the advertisement. It was also not disputed before this Court that despite an interim order dated 7.1.2011 regarding the selection/appointment, if any made pursuant to the advertisement shall be subject to out come of the writ petition, no such caution was put in the appointment letters issued to the candidates.

As it has not been disputed by learned counsel for the State that while preparing the tentative or the final merit list, the marks obtained by a candidate in the professional qualification were not added. The result to that extent is erroneous.

There were total 78 posts of Vocational Masters/Mistresses (Secretarial/Commercial Practice) against which 779 applications were received. The candidates, who attended the counselling, may be a little less, as the exact figure thereof is not available. After giving weightage to the candidates for the professional qualification, the entire result of selection is bound to change. The affect will not be limited to the candidates in the General Category. While noticing these arguments raised by learned counsel for the parties on 9.9.2013, this Court passed the following order:-

The petitioner had applied for the post of Vocational Master in pursuance to the advertisement dated 23.09.2009 (Annexure P-1). There is no dispute as regards the fact that the petitioner possesses the essential qualifications prescribed for the post i.e. B.A. along with diploma in Commercial and Secretarial Practice from the State Board of Technical Education. In the advertisement itself, the criteria for selection was laid down in terms of which, the merit was to be prepared after adding the percentage of marks obtained in the essential and provisional qualifications and higher education and experience. It is also not a matter of dispute that while preparing the final merit list, the petitioner had been assigned weightage only towards the graduation degree and no marks have been awarded in relation to his diploma in Commercial and Secretarial Practice. The precise contention raised is that if weightage was to be awarded to the petitioner towards his diploma, he would secure more marks than the last candidate selected and appointed.

In the light of such admitted factual position, only two courses of action are open to this Court. One is to be set aside the entire selection and to issue directions for preparation of the merit list afresh. The other option is that in case there may be any vacant post of Vocational Masters/Mistresses available, the petitioner may be adjusted against any such post. In this regard, notice is being taken of the submission made by the learned counsel for the petitioner that as per information supplied under the Right to Information Act, 2005, four posts of Vocational Masters (general category) in relation to the original advertised posts are still lying vacant.

Learned State counsel prays for some time to explore option No. 2.

Today, the stand taken by learned counsel for the State is that it will be difficult to concede appointments to the petitioners even though out of 39 posts advertised in the General Category, 4 posts remained unfilled. It is for the reason that taking advantage of this order passed, the other candidates may approach the Court later on. Under these circumstances, the right course would be to revise the entire result.

No doubt, once it is admitted that merit list prepared by the selecting agency was not in terms of the criteria laid down in the advertisement, the result should be re-worked out and the candidates who find place in the merit list deserve to be offered appointment, whereas those who have already been appointed, may have to give way. But the fact remains that though the petitioner had filed the present writ petition much prior to the finalisation of the selection and issuance of appointment letters to the selected candidates and even an interim order was passed to the effect that the selection/appointment, if any made pursuant to the advertisement shall be subject to out come of the writ petition, still the State while issuing appointment letters to the selected candidates did not put a condition that the selection will be subject to the decision of the pending writ petition. It is also a fact that the selection process in the case was started way back in the year 2009 and the tentative merit list was displayed on the website in the year 2010 and final appointment letters were issued in the July, 2011, except the present two candidates, none felt aggrieved against the selection process and approach the Court. It has been held by Hon''ble the Supreme Court in Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, , that even if order of the Court is that appointment shall subject to the decision of the pending litigation still the effected candidates even if not all still in the representative capacity have to be impleaded as respondents.

None of the selected candidate is party in the present petition. The appointments have already been made more than three years ago. The candidates have already joined and are working. They have gained experience. If they at this stage are impleaded as party, their service and subsequent final disposal of the case will take more time. In the meantime, they will gain more experience. By that time many of them may be over age or may have left other opportunities of employment. It is not the case that any of the selected candidate had played any role in preparation of the merit list which is not in terms of the criteria laid down in the advertisement. It is the mistake committed by the selecting authority. No doubt, learned counsel for the State submitted that they are ready and willing to revise the entire merit list and offer appointment to the candidates in terms of the revise merit list and in this process may remove the candidates, who may not find place in the revised merit list. But the issue still remains as to whether the candidates so appointed and permitted to work for 4-5 years can be removed? Though this issue as such at this stage does not arise in the present writ petition but still while taking a holistic view of the entire matter and considering as to what relief could be given in the facts and circumstances of the case, this Court is entering into that area.

The issue as to whether the candidates, who had been appointed on the basis of an erroneous result declared at the first instance without there being any allegation of fraud or misrepresentation on the part of the selected candidates, should be removed from service as they had secured marks less than the last selected candidate in terms of the revised list, has been gone into by Hon''ble the Supreme Court on a number of occasions.

In Rajesh Kumar and Others etc. Vs. State of Bihar and Others etc., finding that an erroneous "model answer key" was applied for evaluation of the answer scripts of the candidates appearing in a competitive examination, the High Court directed for conduct of fresh examination and to re-draw the merit list on the basis thereof. The issue there was raised by the candidates, who had already been appointed on the basis of an erroneous evaluation of the answer scripts. The learned Single Judge of the High Court directed cancellation of the entire result and the appointments made on the basis thereof. However, the Division Bench, on an appeal, held that the entire examination need not be cancelled as there was no allegation of any corrupt motive or malpractice qua all the question papers. The fresh examination in one subject was held to be sufficient to rectify the mistake. The candidates already selected were allowed to continue till the fresh result was to be declared. Hon''ble the Supreme Court opined that once it was found that the answer key to some of the questions was not correct, the same was bound to affect the result of examination qua all the candidates whether they were party to the proceedings or not. The result itself was vitiated on account of application of a wrong key. All the appointments made would also be rendered unsustainable. The High Court under these circumstances was entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key. It was held that instead of directing fresh examination, the appropriate way was to correct the answer key and get the answer scripts re-evaluated on the basis thereof when there was no allegation of any malpractice, fraud or corrupt motive, which can possibly vitiate the entire examination. This process was less expensive and quicker as well.

Hon''ble the Supreme Court in the aforesaid judgment accepted the submission made on behalf of the selected candidates on the basis of alleged incorrect answer key that in case they do not fall within the select list prepared after re-evaluation of the answer sheets with the help of correct answer key, they should not be ousted. The reason was that they were not responsible for the error committed and further they had served the State without any complaint for nearly 7 years. Most of them may have become over-age for fresh recruitment in the State or outside the State. They had lost opportunity to appear in any subsequent examination held after their selection. Their ouster from service, once selected on the basis of a competitive examination without there being any allegation of malpractice, misrepresentation or other extraneous consideration, will cause undue hardship to them and ruin their careers and lives. It was found that the selected candidates did not, in any manner, contributed to the preparation of erroneous key or the distorted result. In these circumstances, ouster of the candidates, who may not fall in the select list after re-evaluation of the result, need not be an inevitable and inexorable consequence. However, re-evaluation process may additionally benefit those who have lost the hope of appointment on the basis of a wrong key applied for evaluating the answer sheets at the first place. The candidates, who find place in the merit list after re-evaluation, would certainly be entitled to appointment and place in the seniority list as per their merit position. Relevant paragraphs of the judgment and the directions issued by Hon''ble the Supreme Court in the aforesaid judgment are extracted below:

That brings us to the submission by Mr. Rao that while re-evaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to the writ petitioners. Respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the appellants should they be found to fall below the "cut-off" mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the court or justified their ouster. Secondly, he contended that the appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter se position of the writ petitioners and the appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cutoff line.

There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.

In the result, we allow these appeals, set aside the order passed by the High Court and direct that:

22.1 Answer scripts of candidates appearing in ''A'' series of competition examination held pursuant to Advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) C.N. Sinha and Prof. K.S.P. Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.

22.2 Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.

22.3 In case the writ petitioners, Respondents 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits.

22.4 Such of the appellants as do not make the grade after re-evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of Advertisement No. 1406 of 2006 and the second selection held pursuant to Advertisement No. 1906 of 2006.

22.5 The needful shall be done by the respondents, State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them.

[Emphasis supplied]

In terms of the aforesaid judgment, it may be difficult for the State to remove the candidates who were appointed and continued to work for the past 4-5 years or even more by that time. The entire exercise of firstly impleading them as party in the writ petition, their service, disposal of the writ petition, re-working out of the merit list, issuance of show cause notices and passing of orders, may take long time.

The petitioners before this Court are two in number. It is the admitted position that out of 39 total posts advertised in the General Category, only 35 candidates were appointed and 4 posts remained vacant. One of them had approached this Court much prior to even the selections, whereas one had approached immediately after the selections were made raising the grievance that the merit list has not been prepared in terms of the criteria laid down in the advertisement.

In the aforesaid circumstances, the option is either to give direction for setting aside the entire selection or close the issue by offering appointment to the petitioners, who are before this Court. In my opinion, to shorten the litigation, the second course would be appropriate. In fact, it was so noticed in the order passed by this Court on 9.9.2013.

The apprehension raised by learned counsel for the State in this regard was that if the State concedes that, the other affected candidates may approach this Court seeking appointments referring to the order passed, however, the fact remains that delay and laches is also one of the important aspect to be considered before any petition is entertained by the Court. A petition can always be dismissed on account of delay and laches. Reference can be made to judgment of this Court in CWP No. 3124 of 2011 - Harnam Singh vs. State of Punjab and others, decided on 10.3.2014.

Hon''ble the Supreme Court in Tridip Kumar Dingal''s case (supra) had rejected the claim of some of the candidates, who had joined the proceedings at later stage before Hon''ble the Supreme Court while restricting the relief to the petitioners who were fighting from the very initial stage. In that case, West Bengal Administrative Tribunal in a matter challenging the selection passed an order granting liberty to the authorities to make appointment of the candidates selected and empanelled subject to result in the original application. While considering the issue, Hon''ble the Supreme Court opined as under:

It is undisputed that by the time we are called upon to decide the matter, the selected and appointed candidates have completed ten years. They are thus having rich experience in the field. There are several vacancies. The stand of the State Government is equally fair and reasonable. It was stated that those candidates who had grievance against the selection and had not waived their right to get similar treatment and had approached the Tribunal, High Court and this Court, may be granted similar relief. We are also of the view that such relief can be granted in favour of appellants who were agitated and had raised voice against the selection of candidates before the Tribunal, before the High Court and before us.

Those candidates who had not approached the Tribunal, the High Court or this Court have now filed interim applications in this Court. The learned counsel appearing for those applicants submitted that they may also be granted similar benefits. It was urged that equals must be treated equally which is the fundamental right enshrined in Articles 14 and 16 of the Constitution. It was vehemently argued that it is settled law that fundamental rights cannot be waived. Hence, even if the applicants had not approached this Court earlier, they can come to this Court claiming similar relief by invoking Part III of the Constitution.

We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

For the reasons mentioned above, the writ petitions are allowed. The respondents are directed to offer appointment to the petitioners to the post of Vocational Mistress (Secretarial/Commercial Practice). Needful be done within a period of two months from the date of receipt of copy of the Order. However, it is made clear that the petitioners shall be entitled to all the benefits from the date they join service.