Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5318-5319 OF 2013
(@ S.L.P.(C) Nos.26341-26342 of 2011)
Vikas Pratap Singh and Ors. Appellants
Versus
State of Chhattisgarh and Ors. Respondents
WITH
CIVIL APPEAL NO. 5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Appellants
Versus
State of Chhattisgarh and Ors. Respondents
AND
JUDGMENT
CONTEMPT PETITION NO. 433 OF 2011
IN
CIVIL APPEAL NO.5320 OF 2013
(@ S.L.P.(C) No. 26349 OF 2011)
Rajendra Singh Kanwar and Ors. Petitioners
Versus
Rahul Bhagat and Ors. Respondents/
Contemnors
O R D E R
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Civil Appeal Nos.5318-5319 of 2013 (@ S.L.P. (C)
Nos. 26341-26342 of 2011)
WITH
Civil Appeal No.5320 of 2013 (@S.L.P. (C) No.
26349 of 2011)
H.L. Dattu, J.
1.Leave granted in all the Special Leave
Petitions.
2.These batch of appeals are directed against the
common judgment and order passed by the High
Court of Chhattisgarh in Writ Petition Nos.
3087, 3204 and 4229 of 2009, dated 06.09.2011,
whereby and whereunder the High Court has
dismissed the Writ Petitions filed by the
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appellants herein and confirmed the revised
merit list drawn after the selective re-
evaluation of the answer scripts of all the
candidates who had appeared in the Main
Examination for the posts of Subedars, Platoon
Commanders and Sub-Inspectors in the
respondent-State of Chhattisgarh.
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3.The appellants before us (in SLP (C) Nos.
26341-26342 of 2011 and 26349 of 2011) are the
26 candidates aggrieved by the cancellation of
the first merit list and the redrawal of the
second revised merit list by the Chhattisgarh
Professional Examination Board (for short
“respondent-Board”), whereby their appointments
to the aforesaid posts have been cancelled.
4.The facts in a nutshell are as under:
On 18.09.2006, an advertisement inviting
applications for recruitment to 380 posts of
Subedars, Platoon Commanders and Sub-Inspectors
in the respondent-State was issued by the Police
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Headquarters, Chhattisgarh. For the said purpose,
the Preliminary Examination was conducted on
24.12.2006 and the successful candidates thereat
were called for the Main Examination held in two
parts as Paper I and II on 04.02.2007 and
05.02.2007, respectively. After conducting
physical examination and personal interviews, the
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final merit list of candidates was published on
08.04.2008, whereby all the appellants herein
were selected. Based on the said merit list, the
appointment letters were issued to the selected
candidates including the appellants on various
dates between 21.08.2008 and 15.09.2008. In the
meanwhile, the Inspector General of Police and
the respondent-Board received complaints in
respect of defects/mistakes in several questions
of the Main Examination Papers. The respondent-
Board constituted an Expert Committee to inquire
into the complaints. Upon examination of the two
Papers, two sets of defects were noticed: (a)
eight questions in Paper II itself were incorrect
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and (b) model answers for evaluation of answer
scripts to another eight questions of Paper II
were incorrect. The respondent-Board directed for
deletion of the first set of eight questions in
Paper II and preparation of correct model answers
key for objective questions in Papers I and II
and accordingly carried out re-evaluation of the
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answer scripts of the candidates. On 27.06.2009 a
new revised merit list was published wherein the
names of twenty six appellants did not figure at
all and accordingly, the appointment of the
appellants were cancelled by the respondent-
State.
5.At the time of publication of the revised merit
list, the appellants were already undergoing
training along with other candidates who were
selected in the first list. The appellants
aggrieved by the cancellation of the aforesaid
appointment in the wake of revised merit list
filed several Writ Petitions before the learned
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Single Judge inter alia challenging the
validity of the revised merit list on the
ground that decision of re-evaluation by the
respondent-Board was arbitrary and irrational
and therefore the said list requires to be
quashed.
6.The learned Single Judge while entertaining the
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Writ Petitions had issued an interim order
directing the respondent-State not to take any
coercive steps against the appellants and
further to allow them to continue their
training programme. The learned Single Judge
has observed that a substantial question of
public importance has arisen in the matter and
therefore, referred the matter to the Division
Bench with a request to consider and decide the
following question of law of public importance:
“Whether the VYAPM (respondent-Board)
after publication of the select list
and passing of the appointment orders
also on the basis of evaluation of
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questions, could have done the exercise
of re-evaluating the answers after
editing and reframing answers, and
prepare the second select list for
fresh recruitment of the candidates,
cancelling the first select list?”
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7.The Division Bench has delved into merits of
the matter at length and analyzed the arguments
advanced by both the parties. The Division
Bench has noticed the pattern of the Main
Examination to include two separate papers:
Paper I comprising of both objective and
subjective type questions- 7 and 4 in number in
Hindi and English languages, respectively and
Paper II comprising of 150 objective-type
questions of General Knowledge. Further that
the Expert Committee constituted by the
respondent-Board examined both Paper I and II
and found irregularities only in respect of the
eight incorrect objective questions of Paper II
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and model answers to another eight questions in
model answers key of Paper II, pursuant to
which the respondent-Board re-evaluated Paper
II and only objective questions of Paper I on
basis of fresh model answers key and in toto
only sixteen questions and answers of Paper II
were interfered with upon such re-evaluation.
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The eight incorrect questions were deleted and
their marks were distributed on the pro-rata
basis in accordance with Clause 14 of the
Examination Conduct Rules (for short “the
Rules”) of the respondent-Board and the other
eight questions, answers to which were
incorrect in the first model answers key were
re-evaluated on the basis of new model answers
key and marks were awarded accordingly. The
Division Bench has observed that since all the
questions so re-evaluated were objective type
carrying fixed marks for only one correct
answer, the possibility of difference in
marking scheme or prejudice during re-
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evaluation does not arise and therefore has
concluded that no irregularity or illegality
could be said to have crept in the manner and
method of re-evaluation carried out by the
respondent-Board and that the said decision of
re-evaluation was justified, balanced and
harmonious and has not caused any injustice to
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the candidates and therefore cannot be
interfered with unless found arbitrary,
unreasonable or malafide which is not the case
at hand. In consequence of the aforesaid
conclusion, the Division Bench has thought it
fit to uphold the cancellation of appointments
of the appellants qua the first list and
accordingly dismissed the writ petitions.
8.It is the correctness or otherwise of the said
judgment and order passed by the High Court
which is before us in these appeals by special
leave.
9.We have heard Shri P.P. Rao and Shri Ravindra
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Srivastava learned Senior Counsels appearing
for the appellants and Shri Mukul Rohtagi and
Shri P.S. Patwalia learned Senior Counsels
appearing for the respondents and have also
carefully perused the documents on record.
10. Shri Rao would submit that the decision of the
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respondent-Board to re-evaluate the answer
scripts in the absence of any statutory
provisions for the same and subsequent
publication of a revised merit list cancelling
the appointment of the appellants is arbitrary
and has caused prejudice to the appellants. He
would further submit that Clause 14 of the
Rules providing for procedure to be adopted in
respect of erroneous objective questions is of
a wider ambit and includes exigencies such as
model answers to examination questions being
incorrect and therefore, the respondent-Board
instead of directing re-evaluation of answer
scripts ought to have acted in compliance with
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the said statutory provision.
11. Per contra , Shri Rohtagi, learned Senior
Counsel would submit that the re-evaluation of
answer scripts affected three genre of
objective questions: firstly , the eight
questions in Paper II which were found
incorrect; secondly , the eight questions in
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Paper II answers to which were found to be
incorrect in the model answers key and thirdly ,
the questions in Paper I to which no model
answers were provided for prior to the
appointment of the Expert Committee. He would
submit that the first set of eight questions
was deleted and marks were awarded on a pro-
rata basis in accordance with Clause 14 of the
Rules. The second set of eight questions were
re-evaluated on the basis of corrected model
answers key and the third set of questions in
Paper I, all being objective type, were re-
evaluated with the aid of model answers key
prepared by the Expert Committee. He would
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submit that the decision of the respondent-
Board to re-evaluate the answer scripts has not
caused any prejudice to the appellants-herein
but in fact identified and rectified the
irregularities in the earlier evaluation of
answer scripts of the candidates and therefore,
such decision cannot be termed as arbitrary,
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vindictive and whimsical.
12. In these appeals what falls for our
consideration is whether the decision of the
respondent-Board in directing re-evaluation of
the answer scripts has caused any prejudice to
the appellants appointed qua the first merit
list, dated 08.04.2008.
13. At the outset, before delving into the merits
of the submissions made by the learned Senior
Counsels, the relevant statutory provisions and
the re-evaluation scheme requires to be
noticed.
14. It is not in dispute nor it can be disputed
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that for the purposes of re-evaluation, the
eight questions found incorrect were deleted
and their marks were rightly allotted on a pro-
rata basis in accordance with Clause 14 of the
Rules which reads as under:
“Clause 14. Wrong (Defective) objective
type question, its cancellation and marks
to be allotted in lieu of it.
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After the exams, the Chhattisgarh
Professional Examination Board (VYAPAM)
gets each question examined by the subject
expert. If, upon examination by the
subject experts, the questions are found
defective/ wrong, it is rejected.
Questions may be rejected on the following
reasons:
(i) if the structure of the question is
wrong;
(ii) out of the options given as answers,
if more than one options are correct.
(iii) If no option is correct.
(iv) If there is difference in Hindi and
English translation of any question
because of which different meaning is
drawn from both and one correct
answer could not be ascertained.
(v) If any other printing mistake is
there because of which correct answer
is not ascertainable or more than one
option is correct.
On such rejection of question upon the
recommendation of Subject Expert
Committee, on such questions the marks
would be awarded by the Chhattisgarh
Professional Examination Board (VYAPAM)
to the candidates in proportion to their
marks obtained in the particular question
paper. Whether the rejected question has
been or not been attempted. The question
papers in which the questions have been
rejected, their evaluation procedure
would be as follows, if in any question
papers out of 100 questions two questions
are rejected and after evaluation
candidate secures 81 marks out of 98
questions then in such case calculation
of marks would be done as (81*100)/100-2=
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82.65. On which basis merit would be
determined. ”
The other eight questions whose answers were
found incorrect in the earlier model answers key
were re-evaluated on the basis of revised model
answers key. In Paper I, only the objective type
questions were re-evaluated with the aid of model
answers key prepared and provided to the
examiners for the first time after the inquiry by
the respondent-Board.
15. The submission made by Shri Rao in respect of
Clause 14 being an inclusive provision and thus
providing ample room for inclusion of similar
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irregularities that may occur in conduct of
competitive examinations fails to convince us.
Clause 14 contemplates and enlists five
specific instances wherein the question in the
examination paper itself is wrong and thus
could not possibly be evaluated to have any
correct answer. It is in such circumstances
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that it provides for deletion of such incorrect
questions and the consequent pro-rata
distribution of the marks allocated to them.
The said Rule is clear and only provides for
the procedure in case of discrepancies in
questions only. It does not leave any room for
inclusion of the exigency such as errors in
answers/model answers and therefore, the
respondent-Board has rightly re-evaluated only
eight incorrect questions as per Clause 14.
16. In respect of the respondent-Board’s propriety
in taking the decision of re-evaluation of
answer scripts, we are of the considered view
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that the respondent-Board is an independent
body entrusted with the duty of proper conduct
of competitive examinations to reach accurate
results in fair and proper manner with the help
of Experts and is empowered to decide upon re-
evaluation of answer sheets in the absence of
any specific provision in that regard, if any
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irregularity at any stage of evaluation process
is found. ( See: Chairman, J & K State Board of
Education v. Feyaz Ahmed Malik and others,
(2000) 3 SCC 59 and Sahiti and Ors. v. The
Chancellor, Dr. N.T.R. University of Health
Sciences and Ors., (2009) 1 SCC 599). It is
settled law that if the irregularities in
evaluation could be noticed and corrected
specifically and undeserving select candidates
be identified and in their place deserving
candidates be included in select list, then no
illegality would be said to have crept in the
process of re-evaluation. The respondent-Board
thus identified the irregularities which had
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crept in the evaluation procedure and corrected
the same by employing the method of re-
evaluation in respect of the eight questions
answers to which were incorrect and by deletion
of the eight incorrect questions and allotment
of their marks on pro-rata basis. The said
decision cannot be characterized as arbitrary.
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Undue prejudice indeed would have been caused
had there been re-evaluation of subjective
answers, which is not the case herein.
17. In view of the aforesaid, we are of the
considered opinion that in the facts and
circumstances of the case the decision of re-
evaluation by the respondent-Board was a valid
decision which could not be said to have caused
any prejudice, whatsoever, either to the
appellants or to the candidates selected in the
revised merit list and therefore, we do not
find any infirmity in the judgment and order
passed by the High Court to the aforesaid
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extent.
18. It is brought to our notice that in view of
the interim orders passed by the learned Single
Judge the appellants have now completed their
training and have been in service for more than
three years. Therefore the only question which
survives for our consideration and decision is
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whether after having undergone training and
assumed charge at their place of posting the 26
appellants be ousted from service on the basis
of cancellation of their appointment qua the
revised merit list.
19. Shri Rao would submit that the case of these
appellants requires sympathetic consideration
by this Court, since the appointment of
appellants on the basis of a properly conducted
competitive examination cannot be said to have
been affected by any malpractice or other
extraneous consideration or misrepresentation
on their part. The ouster of 26 appellants from
service after having successfully undergone
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training and serving the respondent-State for
more than three years now would cause undue
hardship to them and ruin their lives and
careers. He would further submit that an
irretrievable loss in terms of life and
livelihood would be caused to eight appellants
amongst them who have now become over aged and
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have also lost the opportunity to appear in the
subsequent examinations. He would place
reliance upon the decision of this Court in
Rajesh Kumar and Ors. v. State of Bihar and
Ors., 2013(3) SCALE 393 wherein this Court has
directed the respondent-State to re-evaluate
the answer scripts on the basis of correct
model answers key and sympathetically
considered the case of such candidates who,
after having being appointed in terms of
erroneous evaluation and having served the
State for considerable length of time, would
not find place in the fresh merit list drawn
after re-evaluation and directed the
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respondent-State against ousting of such
candidates and further that they be placed at
the bottom of the fresh merit list.
20. The pristine maxim of fraus et jus nunquam
cohabitant (fraud and justice never dwell
together) has never lost its temper over the
centuries and it continues to dwell in spirit
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and body of service law jurisprudence. It is
settled law that no legal right in respect of
appointment to a said post vests in a candidate
who has obtained the employment by fraud,
mischief, misrepresentation or malafide. ( See:
District Collector & Chairman, Vizianagaram
Social Welfare Residential School Society,
Vizianagaram and another v. M. Tripura Sundari
Devi, (1990) 3 SCC 655 , P. Chengalvaraya Naidu
v. Jagannath and others, (1994) 1 SCC 1
and Union of India and others v. M. Bhaskaran,
1995 Suppl. (4) SCC 100). It is also settled
law that a person appointed erroneously on a
post must not reap the benefits of wrongful
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appointment jeopardizing the interests of the
meritorious and worthy candidates. However, in
cases where a wrongful or irregular appointment
is made without any mistake on the part of the
appointee and upon discovery of such error or
irregularity the appointee is terminated, this
Court has taken a sympathetic view in the
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light of various factors including bonafide of
the candidate in such appointment and length of
service of the candidate after such appointment
(See: Vinodan T. and Ors. v. University of
Calicut and Ors .,(2002) 4 SCC 726 ; State of
U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC
667).
21. In Girjesh Shrivastava and Ors. v. State of
M.P. and Ors., (2010) 10 SCC 707, the High
Court had invalidated the rule prescribing
selection procedure which awarded grace marks
of 25 per cent and age relaxation to the
candidates with three years’ long non-formal
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teaching experiences as a consequence of which
several candidates appointed as teachers at the
formal education institutions under the said
rule stood ousted. This Court while concurring
with the observations made by the High Court
kept in view that upon rectification of
irregularities in appointment after a
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considerable length of time an order for
cancellation of appointment would severely
affect economic security of a number of
candidates and observed as follows:
“28. …Most of them were earlier teaching
in Non-formal education centers, from
where they had resigned to apply in
response to the advertisement. They had
left their previous employment in view
of the fact that for their three year
long teaching experiences, the interview
process in the present selection was
awarding them grace marks of 25 per
cent. It had also given them a
relaxation of 8 years with respect to
their age. Now, if they lose their jobs
as a result of High Court's order, they
would be effectively unemployed as they
cannot even revert to their earlier jobs
in the Non-formal education centers,
which have been abolished since then.
This would severely affect the economic
security of many families. Most of them
are between the age group of 35-45
years, and the prospects for them of
finding another job are rather dim. Some
of them were in fact awaiting their
salary rise at the time of quashing of
their appointment by the High Court.”
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Therefore, mindful of the aforesaid circumstances
this Court directed non-ouster of the candidates
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appointed under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra
Singh, (2008) 2 SCC 750 this Court considered
the age of the employee who was erroneously
promoted and the duration of his service on the
promoted post and the factor of retiring from
service on attaining the age of superannuation
and observed as follows:
“31. The last prayer on behalf of
respondent, however, needs to be
sympathetically considered. The
respondent is holding the post of Senior
Accountant (Functional) since last
seventeen years. He is on the verge of
retirement, so much so, that only few
days have remained. He will be reaching
at the age of superannuation by the end
of this month i.e. December 31, 2007. In
our view, therefore, it would not be
appropriate now to revert the respondent
to the post of Accountant for very short
period. We, therefore, direct the
appellants to continue the respondent as
Senior Accountant (Functional) till he
reaches the age of superannuation i.e.
upto December 31, 2007. At the same time,
we hold that since the action of the
Authorities was in accordance with
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Statutory Rules, an order passed by the
Deputy Accountant-General canceling
promotion of the respondent and reverting
him to his substantive post of Accountant
was legal and valid and the respondent
could not have been promoted as Senior
Accountant, he would be deemed to have
retired as Accountant and not as Senior
Accountant (Functional) and his
pensionary and retiral benefits would be
fixed accordingly by treating him as
Accountant all through out.
32. For the foregoing reasons, the appeal
is partly allowed. Though the respondent
is allowed to continue on the post of
Senior Accountant (Functional) till he
reaches the age of retirement i.e.
December 31, 2007 and salary paid to him
in that capacity will not be recovered,
his retiral benefits will be fixed not as
Senior Accountant (Functional) but as
Accountant. In the facts and
circumstances of case, there shall be no
order as to costs.”
23. This Court in Gujarat State Deputy Executive
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Engineers' Association v. State of Gujarat and
Ors., 1994 Supp (2) SCC 591 although recorded a
finding that appointments given under the `wait
list' were not in accordance with law but
refused to set aside such appointments in view
of length of service (five years and more).
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24. In Buddhi Nath Chaudhary and Ors. v. Akhil
Kumar and Ors., (2001) 2 SCR 18, even though
the appointments were held to be improper, this
Court did not disturb the appointments on the
ground that the incumbents had worked for
several years and had gained experience and
observed:
"We have extended equitable
considerations to such selected
candidates who have worked on the
posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar
and Ors., (1993) II LLJ 1159 SC and Tridip Kumar
Dingal and Ors. v. State of West Bengal and Ors.,
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(2009) 1 SCC 768)
25. Admittedly, in the instant case the error
committed by the respondent-Board in the matter
of evaluation of the answer scripts could not
be attributed to the appellants as they have
neither been found to have committed any fraud
or misrepresentation in being appointed qua the
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first merit list nor has the preparation of the
erroneous model answer key or the specious
result contributed to them. Had the contrary
been the case, it would have justified their
ouster upon re-evaluation and deprived them of
any sympathy from this Court irrespective of
their length of service.
26. In our considered view, the appellants have
successfully undergone training and are
efficiently serving the respondent-State for
more than three years and undoubtedly their
termination would not only impinge upon the
economic security of the appellants and their
dependants but also adversely affect their
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careers. This would be highly unjust and
grossly unfair to the appellants who are
innocent appointees of an erroneous evaluation
of the answer scripts. However, their
continuation in service should neither give any
unfair advantage to the appellants nor cause
undue prejudice to the candidates selected qua
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the revised merit list.
27. Accordingly, we direct the respondent-State
to appoint the appellants in the revised merit
list placing them at the bottom of the said
list. The candidates who have crossed the
minimum statutory age for appointment shall be
accommodated with suitable age relaxation.
28. We clarify that their appointment shall for
all intents and purpose be fresh appointment
which would not entitle the appellants to any
back wages, seniority or any other benefit
based on their earlier appointment.
29. The order passed by the High Court shall stand
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modified to the above extent. Appeals disposed
of.
30. There shall be no order as to costs.
Contempt Petition No. 433 of 2011 in Civil Appeal
No.5320 of 2013 (@ S.L.P. (C) No. 26349 of 2011)
In view of the orders passed in Special
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Leave Petition (C) Nos. 26341-26342 of 2011 and
Special Leave Petition (C) No. 26349 of 2011,
nothing survives in this Contempt Petition for
our consideration and decision. The Contempt
Petition is accordingly dismissed as having
become infructuous.
Ordered accordingly.
................
....J.
[H.L. DATTU]
......
..............J.
[JAGDISH SINGH KHEHAR]
NEW DELHI;
JULY 09, 2013.
JUDGMENT
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