Full Judgment Text
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PETITIONER:
ASSOCIATION OF SELECTED CANDIDATES OF 38TH COMBINED
Vs.
RESPONDENT:
BIHAR PUBLIC SERVICE COMMISSION & ORS.
DATE OF JUDGMENT: 31/10/1996
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N I
S.C. AGRAWAL, J.
These appeals are directed against the judgment of the
Patna High Court dated January 16, 1995 in C.W.O.C.Nos. 4504
and 4180 of 1994 relating to the 38th Combined Competitive
(Main) Examination conducted by the Bihar Public Service
Commission (hereinafter referred to as ‘the Commission’) for
making selection for appointment to the civil services in
the State of Bihar.
The combined Competitive Examination conducted by the
Commission in two parts. There is a Preliminary Examination
for all the applicants and those who qualify in the
preliminary examination which is followed by viva voce test.
Prior to the 37th examination, of the Commission was
adopting the system of evaluation of the answer books by
outside examiners and for that purpose answer books were
sent to the examiners outside the State. Before the
Commencement of the 37th examination, the Chairman of the
Commission decided to introduce the system of centralised
evaluation of answer books.
The said system of centralised evaluation of answer
books was assailed in a writ petition filed before the Patna
High Court (Sanjay Kumar & Ors vs. The main ground of attack
which was accepted by the High Court, was that the decision
regarding change of mode of evaluation had been taken by the
Chairman alone and not by the Commission and that the
Chairman was not competent to take such a decision and it
could be taken only by the Commission, i.e.. the Chairman
and all the members. Taking note of the fact that major and
substantial role regarding taking of decisions was left in
hands of the chairman and that over the years no member ever
objected to the conduct of examination in this manner and at
the time of the 37th examination also no member, save one,
raised any objection or made any protest regarding the
manner and mode in which the decisions regarding the conduct
of the examination were being taken by the Chairman, the
High Court held that the Commission had adopted this as the
matter of conduct of examinations. The High Court,
therefore, did not interfere with the result of the 37th
examination. at the same time, the High Court directed the
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Commission to evolve a procedure for the conduct of
examinations which must be both reasonable and in conformity
with law and that rules be framed for ensuring that the
entire body of the Commission fully participate in the
decision making process on basic issues and policy matters,
As regards the centralised evaluation system the High Court
has observed that the reasons cited for introducing the
system were indeed good and valid and one could not find any
fault with them but in the concluding remarks the High Court
expressed the view that "the Commission will be well advised
to once again consider the question of sending the answer
books to the examiners outside the State of Bihar as this
process seems to evoke greater confidence and keeps the
Commissions’ examinations free from any controversy"
The said decision in Sanjay Kumar case (supra) was
given on June 11, 1992 and by that time the process for
conducting the 38th combined Competitive Examination had
commenced. The Preliminary examination had been held on May
24, 1992 and the result of the said examination was declared
on July 17/18/,1992. The written part of the Main
examination was delayed on account of filing of writ
petitions by unsuccessful candidates in the Patna High Court
against the result of the preliminary examination. The writ
petitions were disposed of by the High Court on July
29,1993. Thereafter, on August 16,1993, the Commission
decided that the Main (written) examination would commence
with effect from September 20, 1993 at Patna and Ranchi
centres and that "the Question Setter/Moderators/Examiners
should be of Professor/Reader rank and should be from
outside the State and whose names figure in the UGC Handbook
or Handbook of Association of the University Teachers and
the Panel thereof should be put up before the Commission for
approval".
The matter of evaluation of answer books connected with
the 38th Combined Competitive (main) Examination was further
considered by the Commission at its meeting held on
September 18, 1993 and it was decided to adopt the system of
centralised evaluation at the office of the Commission under
the strict vigilance of the. In the said meeting it was
also decided that the selection of examiners and head-
examiners be made from among the Readers and Professors
whose names figure in the Handbook of Teachers Published by
the University Grants Commission and by the Association of
University Teachers available in the commission’s office and
that a list of such teachers prepared by the Secretary will
be approved with necessary changes indicated therein. It was
also decided to make utmost efforts to get such examiners
and head-examiners more and more and more from outside Bihar
and in case of non-availability they should be replaced from
among the persons from Bihar and who also figure in those
Handbooks and who are of eminence and who have been
associated with various commission’s working and that the
Secretary/officer on Special Duty incharge examinations will
ensure that examiners/head-head-examiners invited for
evaluation should not be involved in any misconduct
previously. The said meeting of the Commission held on
September 18, 1993 was attended by the Chairman and six
members of the Commission out of whom the Chairman and four
members voted in favour of the Resolution and two members
expressed their dissent.
On October 5, 1993, the officer on Special Duty (OSD)
submitted a note regarding the holding of centralised
evaluation. The said note was circulated among the members.
On such circulation, Shri Shiv Jalan Thakur and Sri B. Ram,
the two members who had dissented at the meeting held on
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September 18, 1993, reiterated their view opposing the
centralised evaluation system. Shri S. Singh, who had
supported the Resolution reiterated his view. Shri K.P.
Singh, who also had supported the Resolution, expressed the
view that since there is sharp division among the members
over the issue, it would be wise to get the papers evaluated
by the examiners outside the State and he suggested that
meeting of the commission be held to discuss the issue in
the light of the note of the OSD, Shri S.N. Singh, who also
had voted in favour of the Resolution, suggested that the
matter be placed before the full Commission. Smt. C.B. Devi
stated that although in the meeting held on September 18,
1993 she was in favour of the centralised evaluation. but in
view of the controversy, the matter be placed before the
Commission again. Shri Karma Oraon, who did not attend the
meeting held on September 18, 1993, suggested that the
Commission should meet and deliberate upon the issues raised
by OSD. Shri S.S. Mashhadi and Shri Saryu Prasad, who also
had not attended the meeting held on September 18,1993,
agreed with the view of Shri K.P. Singh and opined that the
matter be discussed by the Full Commission. A meeting of
the Commission was held on November 3, 1993. In the said
meeting the Bihar Public Service Commission rules of
Procedure 1993 (hereinafter referred to as the Rules of
Procedure’) were adopted by majority. Rule 3 of the said
rules made provision for allocation of the business of the
Commission. In the said rule it was provided that the
business of the Commission shall be transacted either by the
Commission or by one or more members including the Chairman
as specified in the Schedule appended to the rules, It was
further laid down that the Chairman may, if he considers
necessary or expedient to do so in public interest, direct
that any particular matter or business be placed before the
Commission for disposal and that any other business of the
Commission not specified in the Schedule shall be transacted
by the Commission . Clauses (viii) to (xi) of Rule a made
the following provisions :-
"A (viii), For appointment as
question setters, moderators and
examiners for evaluation of answer
books the Officer on Special Duty
incharge of Examinations shall
prepare a panel of teachers who
have put in at least ten years of
service in a Constituent/Government
College or five years in a post-
graduate Department and place it
for approval before a Committee
consisting of the Chairman and two
Members nominated by hem.
(ix) The Officer on Special Duty
incharge of Examinations shall,
with the prior approval of the
Chairman, appoint paper setters,
moderators and examiners from the
panel approved vide Sub-Rule (viii)
of Chapter III.
(x) In making such appointments
every care should be taken to
ensure that on such person is
appointed as was found guilty of
misconduct of any University
Government or Government Body or
against whom any enquiry or
investigation may be pending on
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allegation of misconduct or whose
integrity is in doubt, Any person
whose work as Head examiner, Paper
Setter or Moderator is found to be
unsatisfactory by the Commission
shall not úe re-appointed for that
purpose.
(xi) Notwithstanding anything
contained heretobefore evaluation
of answer books, the Commission may
decide for centralised evaluation
in the premises of the Bihar public
Service Commission. In such
eventuality, the Chairman s hereby
authorised to take appropriate
steps in accordance with the
guidelines prescribed for the
selection of examiners."
The OSD submitted a Note on November 9, 1993 wherein
he referred to the Rules of Procedure and suggested that a
Committee may be constituted for approval of the list of
examiners, On November 23, 1993, he submitted two Notes
stating that the office had prepared a new list of examiners
and a list had also been received from the Universities of
Bihar, Muzaffarpur and Patna. On November 23, 1993, the
Chairman approved the panel of examiners/hear-examiners as
prepared by the office and also the panel sent by the Vice
Chancellors of the three universities aforementioned. The
evaluation of answer books commenced on November 28, 1993 in
the premises of the Commission by the examiners so
appointed. The result of 38th Main written examination was
declared on April 27, 1994 and 657 candidates, who were
declared successful, were required to appear for viva voce
test which was to commence from May 14, 1994. In the
meanwhile a writ petition (C.W.J.C.No. 4180 of 1994) was
filed in the High Court wherein it was prayed that the
result of the 38th Combined Competitive (Main) Examination
may be quashed and that the Commission be directed to send
the answer books of the said examination for evaluation by
the examiners outside the State of Bihar, On May 28/29,1994
the Commission declared the final list of successful
candidates for appointment on various posts. Thereafter
another writ petition (CWJC No.4504 of 1994) was filed in
the High Court.
In both the writ petitions the decision of the
Commission for having centralised evaluation of answer books
as well as the decision regarding appointment of examiners
for the purpose of such evaluation were challenged. The writ
petitions have been allowed by the High Court by the
impugned judgment. The High Court has held that the process
of taking the decision to have centralised evaluation as
well as its implementation were bad and as a result the
entire evaluation process has been rendered illegal and
arbitrary. The High Court has directed the Commission to get
the answer books of the 38th Combined Competitive (Main)
Examination evaluated afresh by sending them for evaluation
outside the State.
The High Court has emphasised that the earlier decision
of the Commission dated August 16, 1993 for having the
answer books examined by the examiners from outside the
State, had been taken unanimously at the meeting of the
Commission which was attended by the Chairman and eight out
of nine members. As regards the decision taken on September
18, 1993, the High Court has observed that the said meeting
was attended by Chairman and six members and out of them
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while the Chairman and four members were in favour of the
decision, two members had dissented and that after the said
decision had been taken the matter had been circulated and
almost the whole Commission except two including the
Chairman wanted a fresh consideration in the light of the
difficulties pointed out by the OSD, The High Court has
observed that when the majority of the members were against
centralised evaluation and had desired further debate and
discussion the Chairman had no option but to convene a
meeting of the Full Commission and try for a consensus but
nothing appears to have been done for full one month. The
High Court has also referred to the fact that after the
minutes of Smt. C.B. Devi dated October 8,1993 the file
appears to have disappeared until November 9, 1993 when the
OSD submitted his note regarding approval of the list of
examiners. According to the High Court the conduct of the
Chairman in pre-empting any discussion and getting
centralised evaluation done in the circumstances verges on
mala fide. As regards the appointment of examiners the High
Court has held that as per the decisions of the commission
dated August 16, 1993 and September 18,1993 the examiners
were to be of the rank of Professor/Reader from outside the
State whose names figure in the UGC Handbook or the Handbook
of Association of University Teachers and that Shri ram
Rattan Singh, one of the examiners, does not figure in the
Handbook and the cannot claim to be of the rank of
Professor/Reader and there may be such several types of
persons who evaluated the answer books. While dealing with
the stand of the Commission that the answer books had been
evaluated by teachers of constituent/government colleges
having ten years teaching experience or a teacher having
five years teaching experience in postgraduate department,
the High Court has observed that the said stand is virtually
a quotation of Chapter III rule 4(viii) of the Rules of
Procedure and that besides being a bald omnibus stand,
factually did not appear to be true. According to the High
Court the circumstances in which the office prepared the
list of examiners during the interregnum between October 8
and November 9,1993, when the file had virtually disappeared
were suspicious. The High Court has further observed that
there was nothing on the record to suggest that the teachers
of the rank of Professor/Reader, as mentioned in the
Handbooks were not available for evaluation, they might not
be available for evaluation of answer books at Patna within
the premises of the Commissions but surely they have been
available at their respective places provided These answer
books had been sent outside.
Feeling aggrieved by the judgment of the High Court the
Commission has filed C.A.Nos. 3102-3103 of 1995 and the
selected candidates have filed C.A.Nos.3104-3106 of 1995.
The High Court has annulled the evaluation of the
answer books for Main Written Examination for two reasons:
(i) the process of taking the decision to hold centralised
evaluation was bad and (ii) the appointment of examiners was
not made in accordance with the decision taken by the
Commission on August 16, 1993 and September 18, 1993.
As regards the adoption of the system of centralised
evaluation of the answer books it is no doubt true that in
Sanjay Kumar (supra) the High Court had expressed the view
that the Commission would be well advised once again to
consider the question of sending the answer books to the
examiners outside the State of Bihar as this process seems
to evoke greater confidence and keeps the Commissions
examinations free from any controversy. But in the said case
the High Court has also observed that so far as the
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introduction of centralised system of evaluation was
concerned, the reasons assigned for the same were indeed
good and valid and one could not find any fault with them.
The only fault that was found by the High Court in the
decision to have centralised evaluation was that it had not
been taken by the Commission but was taken by the Chairman
alone and that such a decision should have been taken by the
Commission. After the said judgment in Sanjay Kumar (supra)
the matter was considered by the Commission at its meeting
held on August 16, 1993. It was decided that the Question
Setters/Moderators/Examiners would be of Professor/Reader
rank and should be from outside the State. The matter of
evaluation was again considered by the Commission at the
meeting held on September 18, 1993. The proceedings of the
said meeting, which were placed before the High Court, have
been placed before us. The said proceedings show that the
Commission took into consideration the fact that there would
be about 1.5 lakhs answer books and that the gigantic work
of despatching the same to different destinations would
cause inordinate delay in declaring the result which had
already been delayed on account of prolonged litigation and
there would be disruption of schedule of competitive
examinations and it would also aggravate the suffering among
the unemployed youths who had the Taste of bitter suffering
because of discomfiture of overage. In the said meeting the
following points surfaced prominently for discussion:-
"(a) Whether the Commission can opt
for centralised evaluation at the
Commission’s office under a
foolproof system where there is no
scope of leakage and consequential
allegation on that account in order
to save time likely to be consumed
in despatch of the answer books to
various destinations outside Bihar
and their arrival back at the
office of the Commission.
(b) Whether the option of the
Commission will not be in
derogation of the observations of
the Hon’ble Patna High Court given
in C.W.J.C.No.1192/92 concerning
37th Combined Competitive
Examination wherein the Commission
has been well-advised to send the
answer books outside Bihar to avoid
any allegation in future.
(c) Whether it is incumbent upon
this Commission to evolve any best
device in the circumstances which
not only avoids chances of genuine
allegation but mitigates the
suffering of the unemployed youths
who by such inordinate delay have
already become restive and are
always found hogging around in the
Commission’s campus for immediate
remedial measures.
(d) In the event of Commission
contemplating to go in favour of
centralised evaluation, how best of
the examiners and hear-examiners be
drawn from the academic world and
what best criteria be prescribed
for their selection.
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(e) Any other arrangement the
Commission considered appropriate
as incidental and consequential."
After considering all the pertinent aspects of the
matter the Commission decided to adopt the system of
centralised evaluation at the office of the Commission under
strict vigilance of the Chairman and members nominated by
the Commission. The Commission took note of the fact that
there had not been any comment over the system of
centralised evaluation adopted during the 37th Combined
Competitive Examination and, therefore, decided that the
same system with necessary changes and ensuring fuller
involvement of the Members be adopted for evaluation of
answer books connected with the 38th Combined Competitive
(Main) Examination. The Commission reiterated its earlier
decision dated August 16, 1993 that selection of examiners
and hear-examiners be made from among the Readers and
Professors whose names figure in the Handbooks of Teachers
published by the UGC and by the Association of University
Teachers available in the Commission’s office and that a
list of such teachers prepared by the Secretary will be
approved with necessary changes indicated therein. The
Commission also decided to make utmost efforts to get such
examiners and head examiners more and more from outside
Bihar and in case of non-availability they should be
replaced from among persons from Bihar and who also figure
in these Handbooks and who are of eminence and have been
associated with various Commissions’ working and that the
Secretary/officer on Special Duty in charge examinations
will ensure that examiners/head-examiners invited for
evaluation should not be involved in any misconduct
previously. The meeting held on September 18, 1993 was
attended by the Chairman and six members out of whom the
Chairman and four members voted in favour of the Resolution
and two members expressed their dissent. But that does not
affect the validity of the decision which was adopted by
majority of the members present at the meeting. The fact
that subsequently when the note dated October 5, 1993
submitted by the Officer on Special Duty was circulated
majority of the members felt that the matter may be
reconsidered by the full Commission, does not mean that the
decision taken at the meeting held on September 18, 1993
stood nullified. The said decision could be rescinded only
by a resolution adopted at a properly convened meeting of
the Commission. Since no such resolution was passed the
decision taken at the meeting held on September 18, 1993
remained in force. The centralised evaluation of answer
books for 38th Combined Competitive (Main) Examination on
the basis of the said decision cannot, therefore, be held to
be vitiated by any legal infirmity.
The conduct of the Chairman of the Commission in not
convening a meeting of the Full Commission to reconsider the
decision dated September 18,1993 for introducing centralised
evaluation has been adversely commented upon by the High
Court and it has been observed that it verges on mala fide.
We are unable to endorse these observations. As mentioned
earlier in Sanjay Kumar (supra) the High Court had not found
any fault with the centralised evaluation system that was
introduced by the Chairman for the 37th Combined Competitive
Examination. In the impugned judgment also the High Court
has observed:-
"I should not be understood as
condemning outright the system of
centralised evaluation. Materials
have not been produced before us
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either in its favour or against it.
I am not aware of the recent trends
in the field of public
administration in this regard."
The comments of the Members on the note of OSD under
circulation were made on October 7 and 8, 1993 Prior to that
the Main Written Examination had commenced on September 20,
1993. In the circumstances, the Chairman could have
reasonably proceeded on the basis that since the writ ten
examination has already commenced it may not be appropriate
to reopen the matter of evaluation of answer books and the
same may be done in accordance with the decision already
taken on September 18, 1993. Moreover the matter did come up
for consideration before the Commission on November 3, 1993
when the Rules of Procedure were adopted. The Commission,
instead of reconsidering the decision dated September 18,
1993 regarding centralised evaluation of answer books,
approved Rule 4(xi) which enables adoption of centralised
evaluation in the premises of the Commission. The Members,
if they so wanted, could have disapproved the said provision
and could have reviewed the decision regarding centralised
evaluation taken on September 18, 1993. They did not choose
to do so.
As regards the comment made by the High Court that the
file had disappeared after the note of Smt.C.B. Devi dated
October 8, 1993 Dill November 9, 1993, Shri Kapil Sibal, the
learned senior counsel appearing for the Commission, has
pointed out that the two writ petitions (CWJC Nos.7203 and
8049 of 1992) filed in the Patna High Court by the candidate
who were unsuccessful in the Preliminary Examination wherein
they had prayed for quashing of the results of the said
examination were dismissed by the High Court by judgment
dated July 29, 1993 and Special Leave Petition (C) No.
15178/93 was filed by the Association of Civil Service
Examinees against the said decision in this Court. In the
said Special Leave Petition this Court, on October 8, 1993,
had issued notice to the Commission and granted time for
filling counter affidavit. It is stated that the original
file was sent to the counsel of the Commission in Delhi for
preparing the counter affidavit in the said special leave
petition. There was thus nothing mysterious about the file
not being available in the office of the Commission during
the period from October 8 to November 9, 1993 and the High
Court was in error in drawing an adverse inference
therefrom.
There is no material on the record which may indicate
that the Chairmen, in not having the matter of centralised
evaluation reconsidered by convening a meeting of the full
Commission between October 8, 1993 and November 3, 1993 was
actuated by any extraneous consideration. In the
circumstances, the observation by the High Court that the
conduct of the Chairman in this regard verges on mala fide
cannot be upheld and has to be set aside.
The appointment of examiners was made by a committee of
two members nominated by the Chairman along with that
Chairman out of the list submitted by the OSD. The High
Court had found fault with the appointment of examiners by
referring to the appointment of Shri Ram Rattan Singh,
retired Chief Inspector of Weights and Measures who is said
to have evaluated the Agriculture paper. It is stated that
he does not figure in the Handbook and he cannot claim to be
of the rank of Professor/Reader. On behalf of the Commission
it has been pointed out that Shri Ram Rattan Singh holds a
Ph.D. degree in Agricultural Economics from Ohio State in
USA and has worked as Professor and Head of the Department
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in Ranchi Agricultural University and as Professor of
Agricultural Economics at Ranchi College of Agriculture for
more than 10 years and has guided several students in their
research and preparation for obtaining Ph.D. degree. It
cannot, therefore, be said that Shri Ram Rattan Singh was
not of the rank of Professor. The High Court has also
commented on the circumstances in which the office prepared
the list of examiners between the period of interregnum
between October 8 and November 9, 1993 when the file is said
to have disappeared. We have already dealt with this aspect
of the case and have found that there was nothing mysterious
n the file being not available in the office from October 8
to November 9, 1993.
Shri S.B. Sanyal, the learned senior counsel appearing
for the respondents, has submitted that the appointment of
the examiners was done virtually by the Chairman because the
committee of two members which was associated in the matter
had been nominated by the Chairman himself. The submission
is that the appointment of the examiners should have been
made by the Full Commission. Reliance has been placed on the
decision of this Court in Naraindas Indurkhya vs. State of
M.P. & Ors. (1974) 3 SCR 624. There is no merit in this
contention. n a multi-member body, like the Commission, it
may not be feasible for every member to associate personally
and directly with decision making in respect of every
matter. It would, therefore, be permissible to constitute
committees of members or authorise a member to consider the
manifold matters which any come up for consideration before
the Commission. This is what has been done by the Rules for
Procedure that were adopted on November 3, 1993. In Rule 3
provision was made regarding allocation of business of the
Commission. It was provided that the business of the
Commission shall be transacted either by the Commission of
one or more members including the Chairman as specified in
the Schedule appended to the rules. With regard to
appointment of examiners express provision was contained in
Rule 4(viii) which prescribed that the said appointment
shall be made on the basis of a panel approved by a
committee consisting of Chairman and two Members nominated
by him. The examiners were appointed in accordance with the
aforesaid provision in the Rule of Procedure.
In Narayandas (supra) the Court was dealing with the
question whether a notification prescribing the textbooks
has been rightly issued by the State Government in
accordance with the provisions of section 4 (1) of the
Madhya Pradesh Prathmik Middle School Tatha Madhyamik
Shiksha (Pathya Pustaken Sambandhi Vyuavstha) Adhiniyam,
1973 which required prior consultation with the Board of
Secondary Education. In that case the matter had not been
considered by the Board and the Chairman of the Board had
made the recommendations on the basis of which the impugned
notification had been issued. It was held that the
recommendations made by the Chairman of the Board, by
himself, could not be regarded as recommendations by the
Board. It was, however, observed :-
"Now we do not dispute the general
proposition that when a power or
function is given by the statute to
a corporate body and no provision
is made in the statute as to how
such power or function shall be
exercised, the corporate body can
by a resolution passed at a general
meeting devise its exercising such
power or function, such as
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authorising one or more of the
members to exercise it on behalf of
the Board."
The said observations lend support to the submission
urged on behalf the Commission that under the Rules of
Procedure adopted by the Commission on November 3, 1993 the
power regarding appointment of examiners had been assigned
to a committee consisting of the Chairman and two members to
be nominated by the Chairman. It cannot therefore be said
that the appointment of examiners suffers from any legal
infirmity.
For the reasons aforementioned the impugned judgment of
the High Court cannot be upheld and has to be set aside. The
appeals are, therefore, allowed the impugned judgment of the
High Court is set aside and the writ petitions filed before
the High Court are dismissed. But in the circumstances,
there will be no order as to costs.