Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5874 OF 2022
(@ SPECIAL LEAVE PETITION (C) NO.5079 OF 2020)
HARKIRAT SINGH GHUMAN … Appellant(s)
VERSUS
PUNJAB & HARYANA HIGH COURT & ORS. … Respondent(s)
J U D G M E N T
Ajay Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the judgment and
order passed by the Division Bench of the High Court of Punjab
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and Haryana dated 23 January, 2020, dismissing the writ
petition at the motion stage.
3. The appellant is one of the applicants who had participated
in the selection process initiated by the respondents holding
selections for direct recruitment to Punjab Superior Judicial
Signature Not Verified
Digitally signed by
GEETA AHUJA
Date: 2022.09.10
10:01:22 IST
Reason:
Service/Haryana Superior Judicial Service.
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4. That two separate advertisements came to be published for
holding competitive examination for direct recruitment for 8
vacancies in the Punjab Superior Judicial Service and 11
vacancies in the Haryana Superior Judicial Service, 2019 by
th th
notifications dated 30 May, 2019 and 7 August, 2019
respectively and the recruitment was made in terms of the
procedure prescribed under the Punjab Superior Judicial
Services Rules, 2007/ Haryana Superior Judicial Services Rules,
2007.
5. It may be relevant to note that the posts came to be
separately advertised under the Punjab/Haryana Superior
Judicial Service Rules, 2007 but the process of selection is on
the same standards except that language paper is separate and
the applicants have to first qualify the written test followed with
vivavoce with a restriction that candidate has to secure 40% or
more marks in each paper and such of the qualified candidates
who fall within three times of the number of vacancies are called
for vivavoce but only such of the candidates will be considered to
have successfully qualified the Punjab/Haryana Superior
Judicial Service Examination unless in open category candidate
obtains 50% marks and in reserved category candidate obtains
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45% marks in the aggregate out of the total marks fixed for the
written test and vivavoce. The format/pattern of examination is
the same for both the recruitments held under the Punjab
Superior Judicial Service Rules, 2007 and Haryana Superior
Judicial Service Rules, 2007.
6. The appellant also applied pursuant to advertisement dated
th th
30 May, 2019 and 7 August, 2019 with regard to
Punjab/Haryana Superior Judicial Service Examination, 2019
and a common written examination was held for both the States
of Punjab and Haryana, except Language Paper separately
th st
conducted from 29 November, 2019 to 1 December, 2019 and
it reveals from the record that 118 candidates appeared in the
State of Punjab and 230 in the State of Haryana.
7. Thus, in total 348 candidates participated in the selection
process and appeared in the common written examination. The
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result of the written examination was declared on 18 December,
2019. In Punjab Superior Judicial Service, 3 candidates from
open category and 1 candidate from backward category cleared
the examination and qualified for vivavoce. At the same time,
under the Haryana Superior Judicial Service, 11 candidates from
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open category out of which 3 candidates were common who
qualified in both the States for viva voce.
8. The appellant, being disappointed of not being qualified in
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the written examination declared on 18 December 2019, filed a
writ petition before the High Court of Punjab and Haryana at
Chandigarh under Article 226 of the Constitution with his three
fold grievance :
(i) That in Punjab/Haryana Superior Judicial Services
Rules, there is no condition regarding securing minimum
marks in the main written examination and the condition
in the advertisement of securing minimum 40% or more
marks in each paper for qualifying for vivavoce is
contrary to the Scheme of Rules;
(ii) Paper V (Criminal Law) was of 200 marks but at the
commencement of the examination, the question paper
handed over to the candidates was incomplete and it
contained only 4 questions whose aggregate came out to
be 160 marks instead of 200 marks as shown on the
overleaf of the question paper, but when the candidates
made complaint of the alleged discrepancy to the notice
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of the invigilator, after approx. one hour of the
commencement of examination, question no.4 was
handed over as supplementary question paper to all the
candidates and apart from this being a procedural defect,
it created a panic among the candidates and no extra
time was given for answering the additional question and
this was one of the manifest procedural defect in Paper V
(Criminal Law) and has caused grave prejudice to the
appellant.
(iii) Despite repeated demands, the respondents have failed to
provide the marks obtained by the appellant in the
written examination. Even the application filed by the
appellant under the Right to Information Act came to be
rejected.
9. All the three objections raised by the appellant were
repelled by the High Court at the motion stage, without calling for
the written response from the respondents under the judgment
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and order impugned dated 23 January, 2020, which is the
subject matter of challenge in appeal before us.
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10. It will be relevant to note that while entertaining the present
appeal and calling upon the respondents for their written
response, this Court permitted the respondents by an Order
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dated 26 February, 2020 to continue with the process of
interview with a further direction that the result would not be
declared in the meantime. It is informed to this Court that in
terms of the liberty granted by this Court, respondents held the
interview, but result has not been declared because of the interim
order of this Court.
11. The appellant, who appeared inperson before us, has
primarily raised four objections in reference to the procedure
adopted by the respondents in holding written examination by
the respondents pursuant to the advertisements for Punjab/
Haryana Superior Judicial Service Examination, 2019, as follows:
(i) Criminal Law Paper (Paper V), which was of 200 marks
contained only four questions(1,2, 3 and 5) and question
no.4 was missing and it was of 160 marks which was
made available to the candidates and after the
discrepancy was brought to notice of the Invigilator, a
supplementary question paper was supplied indicating
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question no.4 in the midst of examination calling upon
the candidates to attempt question no.4 and objection of
the appellant is that the procedure which has been
adopted by the respondents itself creates a doubt in the
process of selection that from where this question no.4
was generated and how it was made available to the
candidates in the midst of the examination is a mystery
and no justification has been tendered by the
respondents even in the counter affidavit filed before this
Court and this fact has not been disputed that question
no.4 of Paper V (Criminal Law) was made available to the
candidates during course of the examination. Thus,
according to him, the procedure followed by the
respondents is neither transparent nor fair and the
written examination may be cancelled or at least this
question paper deserves to be cancelled and the
respondents be directed to hold Paper V (Criminal Law)
afresh and only thereafter the merit list be declared of the
candidates who qualified the main examination.
(ii) The second objection of the appellant is that in the
question paper of General Knowledge (Paper VI), which
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was of multiple choice/objective type paper, there were
no instructions on the overleaf of the examination paper
as to how and in what manner the paper has to be
attempted by the candidates and the OMR sheet was not
supplied and the candidates were called upon to make a
circle out of the four multiple choices, which according to
them is correct option and the question paper supplied
has to be returned back to the Invigilators.
12. The submission of the appellantinperson is that in
absence of the multiplechoice question paper being made
available to the candidates to retain, it may not be possible to
respond as to which option out of the four options, is the correct
option. According to him, the question paper, for the first time, is
made available to the appellant along with the counter affidavit
filed before this Court and it reveals to him that there are
discrepancies in eight questions and in some questions either of
the four options are not correct.
13. His submission is that even till today, the provisional
answer key has not been uploaded to make the candidates aware
of the right option out of the four options available and the
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candidate has no liberty to raise any objection and if the answer
key is uploaded after the final result is declared, obviously after
the vivavoce is over, no one is going to entertain the objection, if
any, to be raised at the later stage and that became .
fait accompli
(iii) Further objection of the appellant is that Bare Acts were
made available to the candidates but this fact was not
indicated in the advertisement, which, according to him,
is contrary to the Scheme of Rules.
(iv) Further apprehension of the appellant is that the answer
scripts were examined by the examiners in haste and the
reason to support is that, the last examination was held
st
on 1 December, 2019 and within a short period of 17
days, the result was declared of the written examination
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on 18 December, 2019 which was not humanly possible
and to support his submission, the appellant submits
that when he applied for obtaining the marks which he
had secured in the written examination, under the right
to information, that was declined and his application
came to be rejected by the competent authority under the
th
right to information by an order dated 6 January, 2020.
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14. Noticing the four objections indicated above to its logical
conclusion, the appellant submits that the procedure followed by
the respondents is neither fair nor transparent and so many
infirmities have been committed in the process of selection and
the only inevitable solution is to cancel the written examination
held by the respondents pursuant to the advertisements issued
by the States of Punjab and Haryana holding common selection
for Punjab/Haryana Superior Judicial Service Examination, 2019
and to hold the written examination afresh in accordance with
the Scheme of Rules 2007.
15. To sum up further, the appellant states that the High Court
has even noticed his submission so far as the manifest
discrepancy pointed out in Paper V (Criminal Law) is concerned,
but still nonsuit the claim of the appellant for the reason that he
has not raised any objection during the interregnum period after
the written examination was held and the result was declared on
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18 December, 2019.
16. The appellant further submits that the advertisement is
completely silent of the mechanism to be adopted if the candidate
who had participated in the selection process is having any
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grievance, no inhouse remedy is provided in the advertisement
which is available to the candidates. In the given circumstances,
the reason assigned by the High Court to nonsuit the claim of
the appellant is not sustainable and needs to be interfered with
by this Court.
17. Various applications were filed by such other candidates
who had qualified the written examination and appeared for viva
voce under the interim order of this Court, but since the result
has not been declared, they are also under dilemma as to what
will be their fate, this Court by various orders permitted all of
them to intervene in the proceedings.
18. Per contra, counsel for the respondents while supporting
the finding recorded by the High Court under the impugned
st
judgment submits that Paper V (Criminal Law) was held on 1
December, 2019 from 9.00 a.m. to 12 noon and the paper was
distributed to the candidates 5 minutes before time and
immediately thereafter, it was noticed that question no.4 was
missing from the question paper. Within one hour and before
10.00 a.m., question no.4 was made available to all the
candidates by way of supplementary question paper and as such,
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no prejudice was caused to any of the candidates due to
inadvertent human error committed by the respondents.
Counsel further submits that such a discrepancy certainly
cannot be countenanced, but as the level playing field was the
same for all, no prejudice has been caused to either of the
candidates who had participated in the process of selection.
19. Learned counsel further submits that so far as the grievance
in reference to Paper VI of General Knowledge is concerned, no
such objection was raised by the appellant before the High Court,
but the fact is that it is a multiplechoice question paper and
instructions are made available to all the candidates on the
overleaf indicating the manner in which the questions have to be
attempted. It was specifically mentioned that the correct answer
has to be encircled with a pen and encircling more than one
option or any overwriting/cuttings etc. would entail cancellation
of the said question with no negative marking and to be answered
in two hours duration and there is no reason for the appellant of
making complaint to this Court for the first time and in support
thereof, counsel further submitted that the result was declared
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after almost 17 days on 18 December, 2019, but neither he
made any representation nor filed any complaint either to the
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Registry of the High Court or being a lawyer was aware of this
fact that the remedy is available to him to approach the High
Court under Article 226 of the Constitution, but no grievance was
raised and he was awaiting for outcome of the written
examination, and when he could not succeed, all sorts of
complaints are filed by him of filing a writ petition which cannot
be permitted to be raised at a belated stage and this what the
High Court has observed in the judgment impugned.
20. So far as the objection with regard to his application
submitted under the Right to Information Act, 2005 is concerned,
learned counsel submits that the marks of the written
examination could not be made available until the process of
selection is finalised and that was the reason which was
communicated to him by the Public Information Officer (PIO) by a
th
communication dated 6 January, 2020 taking recourse to Rule
4(2) of the High Court of Punjab and Haryana (Right to
Information) Rules, 2007 and, if at all, he is aggrieved by the
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communication made dated 6 January, 2020, inbuilt
mechanism has been provided under the Right to Information
Act, 2005 and even if the marks are not made available, it would,
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in no manner, defeat the process of selection held by the
respondents.
21. Counsel further submits that so far as the apprehension of
undue haste in declaring the result of written examination is
concerned, the alleged apprehension has no legs to stand and the
answer sheets have been examined by the examiners authorised
by the High Court and evaluated within a reasonable time, no
adverse inference can be drawn and such like objections deserve
to be outrightly rejected.
22. Ms. Kaveeta Wadia, counsel for one of the intervenors,
Aashish Saldi s/o Hans Raj Saldi, brought to our notice that the
applicant is inservice officer who is presently serving as
Additional Civil Judge (Senior Division) and had participated in
the limited competitive examination against 10% of quota
reserved for inservice officers and he had participated in the
selection process initiated by the State of Punjab under the
limited competitive examination for the eligible judicial officers
held by the respondents in terms of Rule 7(3)(b) of the Punjab
Superior Judicial Service Rules, 2007 and he was the only
candidate who qualified in the written examination and was
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called for vivavoce but the final fate is not known to him and the
fact is that he is not even remotely concerned with the present
grievance which has been raised by the appellant in the instant
proceedings and despite been appeared in the interview, his
result has been withheld under the interim orders of this Court.
23. Learned counsel submitted that at least the respondents be
directed to declare the result of the applicant who is not even
remotely concerned with the complaint in reference to which the
present appellant has approached this Court and this fact has
not been disputed by either of the parties.
24. We have heard counsel for the parties and with their
assistance perused the records of the case.
25. We deal with the first objection later and would like to
observe that so far as Paper VI (General Knowledge) is concerned,
it is a multiplechoice question paper having 100 questions and
all instructions were made available to the candidates specifically
indicated on the overleaf of the question paper and all the
candidates have attempted the paper including the present
appellant.
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26. That all the candidates who had appeared in Paper VI
(General Knowledge) had a common level playing field and in the
absence of any material on record in rebuttal, the submission is
not sustainable and deserves rejection. But to keep transparency
in the process of holding examination, particularly in such cases
where there is a multiplechoice question paper, it is always
advisable that for such question papers, there shall always be an
OMR sheet which may be provided to the candidates so that the
question paper can be retained by each of the participants and
after the examination is held, a provisional answer key is to be
uploaded inviting objections from the candidates who had
participated in the selection process, to be furnished within a
reasonable time and after collating such objections, the same be
placed before a subject expert committee to be constituted by the
recruiting/competent authority and after the report is submitted
by the subject expert committee, the same be examined by the
recruiting authority and thereafter the final answer key is to be
uploaded. We make it clear that no presumption is to be drawn
that the result has to be declared, but at least the candidates
may be provided the final answer keys to enable them to make
their own assessment. This is one of the mechanisms by which
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fairness and transparency which is a sine qua non in the public
employment can be resorted to.
27. So far as the other two objections in reference to Bare Acts
made available to the candidates and the apprehension of haste
in declaration of result are concerned, both the objections are
completely baseless and deserve rejection.
28. So far as the marks of the written examination not being
supplied to the appellant under the Right to Information Act,
th
2005 by communication dated 6 January, 2020, are concerned,
this position has been settled by a catena of judgments of this
Court that as long as the process is not complete, the marks of
the written examination are not to be uploaded or made available
to the candidates and if it is being permitted, that will not be in
the interest of the applicants. The disclosure of the marks in the
main examination before it is finalised and the vivavoce is
conducted, would be against the principles of transparency,
rather it will invite criticism of bias or favouritism.
29. To clarify further, in such cases, where the written
examination is followed with vivavoce, declaration of result of the
written examination before conducting vivavoce may not be valid
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and justified but in cases where determination of merit is based
on written examination, it must be declared and made available
to candidates without any loss of time and this Court can take a
judicial notice of the fact that in such cases where the written
examination is followed with interview/vivavoce and the
members in the interview board are made aware of the marks
secured by the candidates in the written examination that may
likely to form bias affecting the impartial evaluation of the
candidates in vivavoce and in our considered view, it may always
be avoided.
30. So far as the objection in reference to Paper V (Criminal
Law) is concerned, we find substance in the submission made
and after this fact has not been disputed by the respondents as
well that initially when the question paper was supplied, it
contained only four questions (i.e. question nos.1, 2, 3 and 5),
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held on 1 December, 2019 from 9.00 a.m. to 12 noon and the
question paper was distributed to all the candidates containing
four questions and question no.4 was found to be missing and
this act cannot be said to be an inadvertent human error as
being projected by the respondents and after the objection being
raised by the candidates of question no.4 not made available, the
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Invigilators informed to the concerned authorities and a
supplementary sheet was made available to the candidates after
one hour of the main examination commenced i.e. by 9.00 a.m.
31. The respondents may substantiate in their defence that no
prejudice was caused to any of the candidates on account of the
inadvertent human error being committed, but in our view, this
is a serious lapse on the part of the recruiting authority and
somebody must be held responsible for it and such kind of lapses
certainly cannot be countenanced by this Court but, at the same
time, there is no objection even of the present appellant in
reference to the four questions (nos.1, 2, 3 and 5) of Paper V
(Criminal Law) which was made available to the candidates even
5 minutes before the scheduled time of the examination and even
if we take a judicial notice of the lapses being committed by the
respondents with reference to question no.4, which was indeed
missing from the question paper and supplied to the candidates
after one hour of commencement of the examination, at least so
far as the four questions are concerned, since no objection has
been raised by the appellant in reference to these questions, this
Court has to consider as to whether in such peculiar
circumstances, the written examination, as such, has to be
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cancelled or other option is possible. In our view, in the given
circumstances, the other option which is left to this Court is
either to conduct the examination of Paper V (Criminal Law)
afresh or let the valuation of the four questions (question nos. 1,
2, 3 & 5) of Paper V (Criminal Law) of 160 marks may provide a
common level playing field to all the candidates.
32. At this stage, the Court cannot be oblivious of the fact that
the Punjab/Haryana Superior Judicial Service Examination,
2019 has been held after 45 years and since the fate of the
examination 2019 is still subjudice in this Court, fresh selection
process could not have been initiated and if this irregularity
pointed out can be possibly eliminated from the process of
selection, particularly in the written examination, the endeavour
of the Court should always be to salvage the selection as possible
and taking in totality of the matter, this Court is of the view that
it will serve the purpose to accept the latter option and the
respondents may be directed to valuate question nos.1, 2, 3 and
5 of Paper V (Criminal Law) of 160 marks and we make it clear
that question no.4 which was supplemented at a later stage of 40
marks has to be excluded while valuating the marks secured by
the candidates in Paper V (Criminal Law) and this, in our view,
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may serve the purpose and also salvage the examination process
which was initiated by the respondents in 2019 but could not be
finalised for one or other reason and cancellation or holding the
examination afresh of Paper V (Criminal Law) will not be in the
interest of either of the parties.
33. A request was made to this Court that since those
candidates who had qualified in the written examination and had
appeared in the vivavoce and whose result has been withheld
under the interim orders of this Court, at least they may not be
called upon to appear for interview afresh. We find it difficult to
uphold the submission made for the reason that the interview
board which conducted the vivavoce of the candidates who
qualified in the written examination was different, there are
hardly candidates who had qualified against the number of
vacancies and it would be advisable that there should be one
common board to evaluate the performance of all the candidates
who may now qualify in the revised declaration of the result of
written examination and that, in our view, would do justice to the
candidates.
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34. We would like to note that so far as the intervenor Aashish
Saldi is concerned, he appeared in the written examination
against 10% quota reserved for inservice officers and he had
participated in the selection process initiated under Punjab
Superior Judicial Services in terms of Rule 7(3)(b) of the Punjab
Superior Judicial Services Rules, 2007 and who has no lis with
the present process, at least the final fate of participation of the
officer be declared by the respondents and may be processed
further in accordance with the Rules.
35. The appeal accordingly succeeds and the impugned
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judgment of the High Court dated 23 January, 2020 is hereby
set aside and we direct the respondents to valuate the marks
obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law)
(out of total 160 marks) and after undertaking the process, a
fresh result of the written examination be declared of the
candidates in reference to Punjab/Haryana Superior Judicial
Service Examination, 2019 and those who qualify and fall in the
zone of three times the number of vacancies may be called for
vivavoce and result of the selection process, thereafter be finally
declared in accordance with the scheme of Rules, 2007.
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36. We further direct that the result of the intervenor (Aashish
Saldi), who had participated as an inservice officer in the
selection process initiated under Punjab Superior Judicial
Services shall be declared and further action may be taken in
accordance with Rules, 2007.
37. The directions be complied with within a period of two
months.
38. Pending application(s), if any, shall stand disposed of.
…………..…………J.
(Ajay Rastogi)
…………..…………
J.
(C.T. Ravikumar)
New Delhi
August 29, 2022.
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