Virendra Kumar vs Bihar Vdhan Sabha, Patna and Others

As prayed for by learned counsel for the appellant, he is permitted to implead the Cabinet Vigilance Department, Government of Bihar, through the Additional Director General of Police (Vigilance), 6, Circular Road, Patna, as party respondent No. 9. Heard Mr. Pushkar Narain Shahi for the appellant, Mr. Mahendra Prasad Gupta for respondent Nos. 1 to 4 (Bihar Vidhan Sabha), Mr. Bishnu Kant Dubey for respondent Nos. 6 to 8, and Mrs. Anita Sinha for respondent No. 9. The writ petitioner (appellant herein) has preferred this appeal under Clause 10 of the Letters Patent of the Patna High Court, and is aggrieved by the order dated 25.8.2005, passed in C.W.J.C. No. 13948 of 2002 (Virendra Kumar vs. Bihar Vidhan Sabha and Others), whereby the writ petition has been dismissed, and the selection process.conducted by respondent Nos. 1 to 4 herein for selection of reporters has been upheld.

Respondent nos:1 to 4 had issued an advertisement, inviting applications for appointment of Reporters. A total number of 3637 applications were received, most of them were found to be invalid, and only 691 applications were in order. The selection process was to be held in two stages, the first stage comprised of Short-hand dictation in English as well as in Hindi. The test of the first stage took place between. 13.5.2002 to 16.5.2002. Amongst those of the candidates who appeared at this stage, 12 were selected to appear at the second and the final stage of the selection process. After completion of the entire selection process, respondent No. 6 (Bablu Kumar), respondent No. 7 (Sanjeev Kumar) and respondent No. 8 (Shambhu Kumar) have been appointed as Reporters in Hindi. The petitioner did not qualify to be considered for the second stage, leading to the present writ petition. On consideration of the entire materials on record, the learned writ court upheld the selection process.

It appears from a perusal of the proceedings of the writ court including the impugned order that the original records with respect to the selection process were not placed for consideration. In pursuance of the direction of this Court, learned counsel for respondent Nos. 1 to 4 have produced the entire original records including the answer-books of the appellant and respondent Nos. 6 and 7. Learned counsel for the parties have been permitted to inspect the records on 10.1.2008 and 11.1.2008. Photo copies of the answer books have been kept on record.

While assailing the validity of the selection process, learned counsel for the appellant submits that respondent Nos. 6 and 7 have disclosed their identity in their answer-books. He next submits that the advertisement nowhere stated that preference shall be given to Hindi Short-hand Stenographers. He lastly submits that, even if it is taken that 10% of the mistakes were within condonable limits, respondent No. 8 was given further relaxation of 1.6%. In his submission, the advertisement does not disclose that the respondent authorities had reserved for themselves any such discretion.

Learned counsel for respondent Nos. 1 to 4 has placed the minutes of the authorities which, in his submission, disclose thoughtful consideration of the matter to give preference to Hindi Short-hand Stenographers, and to raise the condonable limit. He could not make any submission in so far as the identification marks recorded by respondent Nos. 6 and 7 are concerned, and submitted that the answer books speak for themselves.

Learned counsel for respondent Nos. 6 to 8 has also supported the selection process. He submitted that no warning was given to the candidates that it was impermissible for the candidate to put any identification mark on their answer-books. He next submits that it is not '' the appellant''s case, that he was a superior candidate or that he was disqualified for some invalid reason. He has also relied on the counter affidavits in the writ proceedings in an effort to establish that the condonation in favour of respondent No. 8 was after a thoughtful consideration of the matter and for valid reason(s).

Learned counsel for respondent No. 9 submits that it shall abide by the directions of this Court.

We have perused the materials on record as well as the original records, and considered the submissions of learned counsel for the parties. We must at the out-set make it clear that we have confined ourselves to scrutiny of the first stage of the selection process, inter alia, for the reason that no fault has been pointed out with respect to the second and the final stage of the selection process. We have had the benefit of perusal of the original records, pertaining to the selection process. In so far as the question of giving preference to Hindi Shorthand Stenographers and the enhancement of condonable limit in Hindi Short-hand is concerned, we have been taken through the notes recorded in the concerned file of the Bihar Assembly, a photo copy of which is marked Annexure-E to the counter affidavit of respondent Nos. 1 to 4 in the writ proceedings. It appears from the note of the then Secretary of the Bihar Assembly that both these aspects were given proper consideration. It has been noted therein that on account of shortage of Hindi Short-hand Stenographers, work of the Assembly was suffering. It has further been noted that the proceedings of the Assembly are mostly conducted in Hindi and it was, therefore, decided to give preference to Hindi Short-hand Stenographers. Furthermore, the note disclosed that 10% was perhaps initially considered to be the condonable limit of errors in Short-hand dictation. Respondent Nos. 6 and 7 were within 10%, but the errors of respondent No. 8 had exceeded by 1.6%. In that view of the matter, it was decided to enhance the condonable limit. It is further stated therein that none of the other candidates including the writ-petitioner were within this condonable limit. In fact, it appears to us that the appellant had over-shot by 18%. In the facts and circumstances of the case, therefore, we consider it to be a bonafide exercise of discretion to give preference to Hindi Shorthand Stenographers and to condone the mistakes up to a reasonable level. We do not find fault with this part of the selection process.

We must consider the contention made on behalf of respondent Nos. 6 to 8 that the appellant had fared rather poorly in the selection process compared to respondent Nos. 6 to 8. The following is the summary of performance prepared by learned counsel for the appellant, copies whereof have been supplied to learned counsel appearing in this case during the course of submissions:

Appellant Virendra Kumar

15.5.2002 - Hindi Short-hand mistakes 31+60 + 46= 137

15.5.2002 - English Short-hand mistakes- 36

21.9.2002 - English typing test-Mistakes- Nil

21.9.2002 - Hindi Typing test- Mistakes- 3.

Respondent No. 6 Bablu Kumar

16.5.2002 - 2nd sitting Hindi short-hand mistakes-46 + 2 = 48: Remarks of Examiner: Name entered.

16.5.2002 - English short-hand- Incorrect words- 500-74= 426

21.9.2002 - English typing test-mistakes-Nil

21.9.2002 - Hindi typing test mistakes-1

Respondent No. 7 Sanjeev Kumar

16.5.2002 - 2nd sitting Hindi short-hand mistakes- 60 Remarks of Examiner: There is presence of Identifying marks.

16.5.2002 - English shorthand- mistakes-500-148=352

21.9.2002 - English typing test- mistakes- 45

21.9.2002 - Hindi typing test- mistakes- 4

Respondent No. 8. Shambhu Kumar

16.5.2002 - Hindi short-hand mistakes3 + 27 + 47 + 6 = 83

16.5.2002 - English short-hand-mistakes-75 + 61 = 136

21.9.2002 - English typing-test- mistakes- 5

21.9.2002 - Hindi typing test mistakes- 4

Whereas the appellant made 137 mistakes in Hindi short-hand, respondent No. 8 made 83 mistakes, and indeed was given the benefit of 1.6% of further condonation. Respondent Nos. 6 and 7 had made 48 and 60 mistakes respectively and were within the condonable limit. The appellant has indeed made far more mistakes than 11.6%.

The next contention advanced on behalf of the appellant merits serious consideration. It is manifest on a perusal of the answer-book of respondent No. 6 that he has written his full name towards the end of the answer-book covering three pages. After evaluating the answer-book, the examiner has entered the following remarks on page 1 of the answer-book:

"Remarks- Name entered at the end"

Sd/illegible 5.6.02

Similar is the position with respect to the answer-book of respondent No. 7. He has put his signature towards the end of the third page of the answer-book and the examiner after evaluating the answer-books has recorded the following remarks:

Sd/-illegible 5.6.02

Sd/ -illegible 5.6.02

Learned counsel for the appellant raises a serious grievance that disclosure of the name/identification by respondent Nos. 6 and 7 in their answer-books was a purposive attempt on their part to defeat the very object of coding and decoding which renders the selection process with respect to respondent Nos. 6 and 7 highly suspect. The grievance assumes serious dimensions in view of the stand taken in the counter affidavit. The same has been sworn by one Braj Kishore Singh Prabhat who was the Deputy Secretary of the Assembly on 14.8.2003, the date of the affidavit. It is stated as follows in paragraph 24 of the counter affidavit:

"24. That with regard to the statement contained in paragraph No. 12 it is stated that the names written by the respondent No. 6 and 7 were pasted by the whitener and therefore their answer sheet also was evaluated on the basis of the code number given to each answer book."

It is manifest on a perusal of the answer-books that whitener was not pasted/ applied on the identification marks. The counter affidavit of the Assembly to this extent is a blatant falsehood meant to mislead this Court little realizing that the answer-books in original may be perused by this Court. Secondly, even if it were covered/obliterated in the office of the respondents, it had the possibility of determining the authorship of the answer-books entirely defeating the purpose of coding of answer-books meant to prevent illegal help. It is evident from the original records that this aspect of the matter was not at all considered by the authorities, and has not been answered in the counter affidavit. We see an unhappy attempt on the part of the respondent authorities to help respondent Nos. 6 and 7, and leaves us with a strong grievance against the conduct of concerned authorities. We also cannot fail to notice the following statement in the counter of respondent Nos. 1 to 4 with respect to an earlier selection process conducted by the Assembly:

"03. That at the outset it is stated that the petitioner has suppressed a most relevant fact that he has already filed a writ petition, C.W.J.C. No. 6401 of 1999 wherein reliefs prayed for by him if granted by this Hon''ble Court would make this writ application infructuous. In this context it is stated that earlier the writ petitioner was appointed ''in Bihar Vidhan Sabha Sachivalaya without following the prescribed procedure of appointment and even without, ''issuance of any advertisement in the newspaper in regime of the Former Speaker, Shri Gulam Sarwar who, in fact had made more than 460 appointment such illegal appointment in his period."

We are, therefore, constrained to set aside the appointment of respondent Nos. 6 and 7.

Learned counsel for the appellant submits that his case should now be considered for appointment on the basis of the existing selection process. It appears to us that the advertisement was not confined to selection of Hindi Reporters. The candidates were evaluated in Hindi as well as in English. The appellant has fared far better in English Short-hand dictation than respondent Nos. 6 to 8. In that view of the matter, respondent Nos. 1 to 4 are hereby directed to reconsider, the cases of the remaining candidates, other than respondent Nos. 6 and 7, who reached the final stage of selection process for appointment, based on their performance both in Hindi as well as English Short-hand dictation and transcription, provided the respondent authorities consider the need for appointment of English Reporter. This Court will be pleased if the entire process is completed within a period of three months of receipt of a copy of this order.

In the result, we respectfully disagree with the order of the learned Single Judge. The appeal is allowed in the manner indicated hereinabove. Let photo copies of the two answer books be preserved by the Registrar General in a sealed cover.

The Registrar General of this Court is directed to file a complaint petition in a court of competent jurisdiction under appropriate provision(s) of law against Braj Kishore Singh Prabhat, the then Deputy Secretary, since retired, the deponent of the counter affidavit of respondent Nos. 1 to 4, for swearing false affidavit. Let a copy of this order be handed over to Mr. M.P. Gupta, learned counsel for respondent Nos. 1 to 4.