Prabha Rai vs State of Sikkim and Others

P.D. Dinakaran, C.J.—Heard Mr. B. Sharma, learned Senior Counsel appearing for the petitioner, Mr. J.B. Pradhan, learned Additional Advocate General representing respondents No. 1, 2, 3 and 4, Mr. N. Rai, learned Senior Counsel appearing for respondent No. 5 and Mr. D.K. Siwakoti, Learned Counsel appearing for respondents No. 6 and 7.

Originally the writ petitioner filed the above writ petition as a private litigation challenging the appointment of the 5th respondent to the post of Checker in Commercial Taxes Division, Finance, Revenue and Expenditure Department, Government of Sikkim pursuant to the Employment Notice dated 31.07.2008 for filling up of 03 (three) posts of Checker, published in the ''Sikkim Herald'' dated 31.07.2008 and the Corrigendum dated 12.08.2008 published in daily local newspaper ''NOW'' dated 13.08.2008. The said 3 posts were reserved as hereunder:

Reservation No. of Post Roster point 01-UR 01 02-ST 02 03-MBC 03 Total 03 posts

3.1 As per the said Employment Notice dated 31.08.2008, the selection was to be made through open competitive examination. The syllabus of the written examination was also shown as follows:

Syllabus One paper of 100 marks on following subjects. Duration of exam. - 2 hrs.

(a) Arithmetic

(b) General English

(c) General Knowledge

3.2 It was further notified that the candidates selected in the written examination will be called for the Viva voce test before the Committee constituted for the purpose and the candidates already in service should apply through proper channel.

3.3 Accordingly, written examination was conducted on 22.02.2009 and thereafter Viva Voce test for those who qualified in the written examination was conducted on 25.08.2009.

The main grievance of the petitioner, as explained by Mr. B. Sharma, learned Senior Counsel appearing for the petitioner is that the petitioner applied for re-evaluation of her answer sheet on 19.11.2009 and in the meanwhile the 5th respondent also made a representation dated 11.06.2010 requesting for re-evaluation of his answer sheets. Hence, the answer sheets of both the petitioner as well as the 5th respondent were re-evaluated. As per the statement of official respondents, during the re-evaluation it was found that the examiner had awarded marks to many of the wrong answers which vindicated the errors pointed out in the representations of both the petitioner as well as the 5th respondent.

The contest between the petitioner and 5th respondent is only with reference to the MBC post, and not with reference to the posts reserved for Un-reserved and Scheduled Tribe. When the State came with a specific case that the examiner had awarded marks even for wrong answers, it touched the judicial conscious of this Court which necessarily warranted to convert this private litigation into public interest litigation and issued notice to the 6th and 7th respondents calling for their objection, if any, in treating the above writ petition as Public Interest Litigation as they were selected against the posts reserved for Un-reserved and Scheduled Tribe category in the same open competitive examination. Accordingly, 6th and 7th respondents were also impleaded by this Court vide order dated 11.08.2010. They filed their objections on the ground that as there was no lis against the selection of the 6th and 7th respondents to the posts reserved for Un-reserved and Scheduled Tribe categories, there would be no justification for re-evaluating the answer scripts of the 6th and 7th respondents also.

In the meanwhile the State Government filed a Civil Miscellaneous Application No. 68 of 2010 seeking leave of this Court to evaluate all the answer scripts of seventy-two (72) candidates who had appeared in the written examination held on 22/02/2009 for three posts of Checker in the Department of Commercial Tax Division, Finance, Revenue & Expenditure Department, Government of Sikkim.

Mr. J.B. Pradhan, learned Additional Advocate General, explained in detail that since the examiner awarded marks even to the wrong answers the entire evaluation has to be reconsidered as it goes into the root of the issue to decide whether the selection of the other two candidates is also in accordance with law.

Of course, for the above proposition, Mr. B. Sharma, learned Senior Counsel for the petitioner as well as Mr. N. Rai, learned Senior Counsel for respondent No. 5 have no objection. However, there is a strong objection by Mr. D.K. Siwakoti, Learned Counsel for respondents No. 6 and 7 as already indicated above.

We are of considered opinion that since the State is satisfied that marks were awarded for wrong answers, and on that ground they propose to evaluate all the answer sheets afresh, it may not be proper for this Court to sit over such stand taken by Mr. D.K. Siwakoti, Learned Counsel for respondents No. 6 and 7, as otherwise, equals will be treated as unequals; and unequals will be treated as equals, which is contrary to Article 14 of the Constitution of India, giving way to arbitrariness, unreasonableness and discrimination in the matter of selection of candidates to pubic office.

Appreciating the stand taken by the Government in this regard, we are, therefore, of considered view that suffice it to grant leave to the State to take appropriate decision for evaluating all the answer scripts of the 72 candidates who had appeared in the written examination on 22.02.2009 for the purpose of recruitment to the 3 posts of Checkers in the Commercial Taxes Division, Finance, Revenue and Expenditure Department, Government of Sikkim and to implement such decision at the earliest, in any event within 60 (sixty days) from the date of receipt of this order.

The writ petition is ordered accordingly.