Raju Sharma and another vs Haryana State Agriculture Marketing Board and another

A.K. Sikri, C.J.—The respondent No. 2 - Haryana Staff Selection Commission (HSSC) invited applications for 65 posts of Mandi Supervisors, which included 11 posts meant for SC candidates and 6 posts for BCA candidates. Petitioner No. 1 submitted his application for BCA category while petitioner No. 2 for SC category. Both the petitioners appeared in the written examination on 20.4.2008. After 5 days of the examination i.e. 25.4.2008, the petitioner No. 2 sent a representation to the Chairman, HSSC, alleging that questions/options given in the question paper were incorrect. He requested for exclusion of those questions before declaration of result of the written examination. Few days thereafter i.e. 1.5.2008, he submitted another application under the RTI Act requesting for supply of question papers as well as OMR sheets (answer sheets). The SPIO declined to supply copy of the answer key. Thereafter, on 31.5.2008, HSSC declared the result of written examination. The names of the appellants did not find mention in the list of successful candidates. Last BCA candidate, who was declared pass, had obtained 198 marks and the last SC candidate declared as pass in the written test had obtained 190 marks. Dissatisfied with their non-selection, these two appellants approached this Court by way of writ petition filed on 8.7.2008 praying for writ of mandamus directing the respondents to produce the OMR sheets and the answer keys of the appellants and also supply them the question papers as well as the marks obtained by them in the written examination. Many other consequential reliefs were also sought including recast of the result on the ground that number of questions set in the question papers were either wrong or against many questions more than one options were the correct options.

Notice in this writ petition was issued for 27.8.2008 on which date, learned Deputy Advocate General, Haryana, who was present in the Court, accepted the notice. However, even when the notice was issued, the HSSC destroyed the answer-sheets/record on 25th October, 2008. The Single Bench took serious note of this and directed presence of Secretary, Staff Selection Commission and to explain as to how record was destroyed. The appellants had even filed criminal contempt petition which was, however, disposed of on 31.1.2011, giving liberty to the appellants to move application in the writ petition. Since the writ petition was still pending, matter was ultimately argued and the learned single Judge has dismissed the writ petition vide judgment dated 13.3.2012. The main reason for dismissing the writ petition is contained in para-4 which reads as under:-

The answer-sheets themselves have no value except that they give out results of candidates that give passage for appointment to public posts. The issue could be, therefore, whether the non- production, in any way materially affected the petitioners'' cause. The petitioners'' grievance had been that they had performed very well in the exams and they were sure to have been qualified for attending the interview and would have been also selected. Even apart from the absence of answer-sheets, if there was no information at all about the marks that they have secured, the non-production of the answer-sheets would have been material. In this case, there has been an information of the marks secured not merely of the petitioners but of the marks secured by all the candidates through their reference to the original computer print outs of the appraisals of OMR sheets. It is a matter of record and which is admitted that the cut off marks for BCA candidates were 198 and for SC candidates, they were 190, for being called for interview. The information supplied is that the first petitioner had 182 marks and the second petitioner had 146 marks which would mean that both the candidates had not qualified for being called for the interview. If it was merely a statement of marks that has been produced, there could be a cause for genuine complaint. On the other hand, as observed already, the computer printouts of the dedicated scanner device containing the details of the question with respective choices of answers against each question (from among choices (a) to (d) for each candidate have been produced before this Court. It is a matter of technical information that OMR answer-sheets give themselves to a process of image capturing from the answer-sheets through a technique called contrasting reflectivity at pre-determined positions on a page, which is later utilized to detect the marked areas by the fact that they reflect less light than the blank areas of the paper.

The Single Bench also observed that conduct of the respondent in destroying the answer-sheets within three months was inappropriate and it puts the public institution like the Staff Selection Board in a very poor light. At the same time, in the facts of the present case, it is held that no prejudice is caused to the appellants as is clear from the following discussion:

If the marks sheets which are maintained and produced before Court represents records maintained in the usual course, I have no reason to suspect that they could have been tampered with. The fact that the respondents have destroyed all the answer-sheets would have spelt gross prejudice to the petitioners if there had been a sure basis that the answers were not properly appraised. In an objective type of questioning where the answers are on a multiple choice basis, they leave no room for any subjectivity of the examiner. The entire system of answer appraisals have been reduced to a mere mechanical process of extracting the answers from the multiple choice field and awarding of marks dependent on the choice adopted for each question by a candidate. This manner of reckoning cannot be easily manipulated by a human intervention. The OMR technique is believed to assure 99.995% accuracy, as per technical journals. I will not, therefore, find that the petitioners could have any justifiable grievance that they have been wrongly apprised or they ought to have been taken as selected.

The production of answer-sheets in Court themselves cannot be a matter of course by the only fact that the candidate believes that he had performed well and he was expecting very high marks. In quite a situation, there might be a mismatch between what a candidate apprises himself to be than how a third party appraisal turns out to be. A candidate can flatter himself by believing that he was extraordinarily brilliant and that is why, we have a system of examinations by institutions like State Recruitment Boards or the Staff Selection Commissions. Therefore, the Courts have been weary of interventions at every level at the time of selection and the preponderance of decisions point to the fact that it shall be never a matter of course that a person secures answer-sheets in Courts. The Court shall not summon the answer-sheets at the mere asking and there ought to be a very strong proof about any manipulation before such a power is exercised. The petitioners'' prayer itself ought not to mean that it should be taken to have been allowed at his asking so as to construe a destruction of records as immediately giving a rightful cause of action for the petitioners to secure the ultimate result that they should be treated as passed or a fresh appraisal should be done. As I have extracted above the production of answer-sheets themselves cannot be treated as an end. It is merely means to secure an end namely of what the result could have been. If the result was seen to be not in favour of the petitioners by the OMR mark-sheets that have been produced before the Court, that would settle the issue that the petitioners were not entitled to secure the answer-sheets.

Thus, insofar as conduct of the Selection Board in destroying records is concerned, following observations are made:-

...However at the same time, I must observe that the conduct of the respondents in destroying the answer-sheets within 3 months puts the public institution like the Staff Selection Board in a very poor light. More so, that the answer-sheets were destroyed when they had definite information from the AG''s office that the original records were required to be produced in Court. It is a lame excuse to say that they had not a copy of the writ petition and therefore, they had no information that they would be required to keep the answer-sheets.

The expression, cliched as it may sound, ''justice shall not only be done but must be seen to be done'' is anchored to a procedural due process. A 99.995% accuracy in OMR appraisal still leaves a margin of .005% inaccuracy. The candidate is bound to have 100% assurance that he had a fair deal. The production of the original answer-sheet alone would have done it, if there were a doubt in the Court to require its production. The 2nd respondent ought to know that it shall obey its own rules for safe custody of records, and respond with alacrity when a demand comes through RTI Act. The 2nd respondent failed on both counts. The transparency in public office that is sought to be secured through the Right to Information Act will take a serious beating if the Public Offices behave like the way they have done by destroying the public records that would make meaningless an exercise which the Act assiduously seeks to protect.

Even while dismissing the writ petition for the relief, I would award a cost of Rs. 10,000/- in favour of each of the petitioners against the 2nd respondent.

Before us, the main thrust of the argument of Mr. Arora, learned counsel appearing for the appellants, remains the same, namely, untimely destruction of the records and it was emphasised that this has caused prejudice to the appellants. Reference was made to the judgment of the Supreme Court in Central Board of Secondary Education and Another Vs. Aditya Bandopadhyay and Others, , wherein the apex court has held that it is the right of an examinee to inspect answer books and to seek certified copies. Mr. Arora also submitted that in identical circumstances, the Supreme Court had directed holding of fresh examination in the case of Poonam Rani @ Poonam vs. State of Haryana and another, Civil Appeal No. 4128 of 2012, decided by the apex court on May 01, 2012.

When this matter was argued on 6.11.2012, direction was given to the counsel for State of Haryana to give particulars of the officers who took the decision to destroy the answer-sheets even when notice of motion was served upon the respondents. The HSSC was also directed to give the number of candidates who appeared in the said written examination and how many of them were unsuccessful. In compliance with these directions, additional affidavit dated 7.11.2012 has been filed by the Secretary, Haryana Staff Selection Commission. In this affidavit, it is stated that the respondent-Commission vide Advertisement No. 14/2007, Cat. No. 27 dated 9.11.2007 advertised 65 (GEN-30, SC-11, BCA-6, BCB-6, ESM GEN-4, ESM SC-2, ESM BCA-1, ESM BCB-2, OSP GEN-1, OSP SC-1, OSP BCA-1) posts of Mandi Supervisor, Haryana Agricultural Marketing Board and the required details of the candidates appeared in the written test held on 20.4.2008, qualified the said test for interview and remained unsuccessful in the test are as under:-

The details of destruction of OMR sheets are given as under:-

It is emphasised, at the same time, that the action of destroying the answer-sheets was bona fide and following explanation in this behalf is given:-

As per Commission resolution dated 27.7.92 read with dated 1.10.94 the OMR sheets of the written test are required to be destroyed after 3 months from the date of declaration of result of selection. However, the Respondent-Commission inadvertently has taken the 3 months time from the date of declaration of result of written test instead of final result. Now, after the judgment of the Hon''ble High Court dated 29.6.2010 in LPA No. 1390 of 2009-Poonam Rani Vs. State of Haryana & ors., the Respondent-Commission has been strictly adhering the 3 months period from the date of declaration of final result.

That the copy of CWP No. 12375 of 2008- Raju Sharma & anr. Vs. Haryana State Agricultural Marketing Board & anr. Was actually personally collected from Advocate General, Haryana office on 4.2.2009 as the same was not received with the Commission whereas the OMR sheets were destroyed on 25.10.2008. Therefore, the subject matter of the writ petition came to the notice of the deponent only on 4.2.2009. Hence, there is no malafide intention in destroying the OMR sheets. However, the deponent tenders unqualified apology for the acts of omission and commission, if any and in future will strictly adhere the 3 months period for the purpose of destruction of OMR sheets from the date of declaration of final result.

From the aforesaid, it is clear that though the OMR sheets of the written test were required to be destroyed after 3 months from the date of declaration of ''result of selection'', the Commission calculated this 3 months time from the date of declaration of ''result of written test'' and not the final result. This explanation is hardly convincing. The Resolution dated 27.7.1992 is very clear and unambiguous which was passed by the respondents pursuant to the directions of the Supreme Court in the case of Pritpal Singh and others Vs. State of Haryana and others, . That judgment pronounced almost 15 years before the present selection conducted in the year 2008, had resulted in issuance of the following directions to the Haryana Subordinate Services Selection Board pertaining to reservation of record:

The Board is directed to preserve the answer papers of the candidates and the tabulations of marks made by the examiners for at least three months after the declaration of the results of the selection. All records of the Board itself pertaining to the selection shall be maintained in files or registered chronologically and these shall also be preserved for the aforesaid period.

That was also a case where the selection board had destroyed the necessary sheets immediately after the declaration of the result which action was strongly condemned by the Supreme Court. It resulted in modifying the earlier resolution dated 27.7.1992 vide resolution dated 1.10.1994, which is in following words:

In view of the Hon''ble High Court order passed on 10-9-90 in C.W.P. No. 7748 of 1990 Suresh Kumar Taneja v/s State of Haryana & others the Board laid down the policy (vide the resolution dated 27-7-1992) to be adopted in future for destroying the old record.

In view of the orders passed by the Hon''ble Supreme Court of India dated 27-7-1994 in SLP No. 7798-807/92(Civil Appeal No. 5027-36 of 1994 Prit Pal Singh & other v/s State of Haryana) the Board resolves to modify part (ii) of the resolution dated 27-7-1992 to the extent that the answer papers i.e., Answer Sheets (except Written Examination result, Award List, Key Book) will be destroyed after three months from the date of declaration of the result of the selection.

As records could be destroyed only after 3 months from the date of declaration of the "result of selection" and not from the result of written examination, the explanation, therefore, does not inspire confidence and it does not appear to be bona fide. The argument of bona fide gets a further beating when we find that the Board destroyed these answer-sheets even when the writ petition had already been filed; notice thereof issued to the Board and Board knew fully well the prayer of the appellants contained in the writ petition which could entail production of the records in the Court. Notwithstanding the same, the Board went ahead in destroying the records. All this militates against the bogey of bona fides. We are constrained to observed that even when the Courts are repeatedly passing orders in this behalf, still the Board keeps on destroying the records. From such action of the Board, the Courts get the impression that all is not well insofar as selection conducted by the Board is concerned and there is an imminent need for the Board to set its house in order. In Poonam Rani @ Poonam (supra), the Supreme Court deprecated the Commission again for destroying the records within three months, holding the same to be in blatant violation of Resolution dated 1.10.1994, by observing as under:-

The affidavit filed by the Secretary of the Commission before this Court clearly shows that within few days of declaration of the result of the selection, the officers of the Commission destroyed the answer sheets of the written examination held in June, 2008. This was done in blatant violation of Resolution dated 1.10.1994, in terms of which the answer sheets could be destroyed after three months from the date of declaration of the result of the selection. The statement contained in paragraph 12 of application dated 14.3.2012 filed on behalf of the Commission is reflective of the casualness with which the officers of the Commission have treated the issue of destruction of the most important record, i.e., the answer sheets of the candidates which constituted foundation of the final selection. The explanation given by the Secretary for not preserving the answer sheets for three months is frivolous and wholly unacceptable because it is neither the pleaded case of the Commission nor the counsel appearing on its behalf argued that the concerned officers were not aware of Resolution dated 1.10.1994. Therefore, the action of the officers of the Commission to destroy the record cannot but be termed as wholly arbitrary and unjustified. The sole object of this exercise appears to be to ensure that in the event of challenge to the result of the selection, the Court may not be able to scrutinize the record for the purpose of finding out whether the selection was fair and objective or the candidates had been subjected to invidious discrimination.

The learned Single Judge and the Division Bench of the High Court did not pay serious attention to the blatant violation of the resolutions passed by the Commission on the issue of destruction of the record of the selection and erroneously assumed that in the absence of allegations of malafides against the particular officials/officers of the Commission, the Court was not required to go into the legality of their action to destroy the answer sheets within few days of declaration of the result of the selection.

The OMR sheets produced for the first time before this Court cannot be relied upon for recording a finding that the assessment of the candidates'' performance in the written examination was transparent and fair. If the functionaries of the Commission were confident that the selection was not vitiated by any illegality, favouritism or nepotism then they should not have destroyed the answer sheets within few days of the declaration of the result of the selection.

Once we come to the conclusion that in the instant case also records were destroyed by the Commission in violation of its own Resolution dated 1.10.1994, consequence thereof is provided by the Supreme Court in Pritpal Singh''s case (supra) as followed in Poonam Rani @ Poonam (supra). In both the cases, the Court ordered for holding of the fresh examination for the petitioners and others who failed. We would like to quote the precise directions given by the Supreme Court in Poonam Rani @ Poonam (supra):

In the result, the appeal is allowed and the impugned judgment as also the order passed by the learned Single Judge are set aside. The Commission is directed to hold fresh written test and interview for considering the candidature of the appellant and other unsuccessful candidates after giving them due intimation about the date, time and place of the examination and interview. This exercise should be completed within a period of four months from the date of receipt/production of this order. The candidates who are selected on the basis of the exercise undertaken pursuant to this direction shall become entitled to be appointed against the vacancies which may be available on the date of finalisation of the selection. The parties are left to bear their own costs.

We find force in the submission of the learned counsel for the appellants that the learned single Judge did not take into consideration the aforesaid serious violation on the part of the HSSC and the consequence which had to ensue therefrom and let off the Board by imposing the costs of Rs. 10,000/- only. Following the dicta of the Supreme Court in the aforesaid judgment, we have no option but to set aside the order of the learned single Judge insofar as it relates to the appellants herein.

The appeal filed by the appellants is accordingly allowed with the directions to the respondents to hold fresh written test and interview for considering the candidature of the appellants and other unsuccessful candidates after giving them due intimation of date, time and place of the examination and interview. The appellants shall also be entitled to further cost of Rs. 10,000/- of this appeal.