Punjab-Haryana High Court
Dr.Suruchi Sharda And Others vs State Of Punjab And Others on 23 August, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.11774 OF 2011 /1/
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL
IVIL WRIT PETITION NO.11774 OF 2011
JUDGMENT RESERVED ON: AUGUST 23, 2013
DATE OF DECISION: SEPTEMBER 03, 2013
Dr.Suruchi Sharda and others .......Petitioners
Versus
State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Arvind Kashyap, Advocate for the petitioners.
Ms.Sudeepti Sharma, Deputy Advocate General,Punjab.
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TEJINDER SINGH DHINDSA, J.
This order shall dispose of Civil Writ Petition No.11774 of 2011 (Suruchi Suruchi Sharda and others v. State of Punjab and others), others Civil Writ Petition No.11784 of 2011 (Amrinder Amrinder Singh and others v. The State of Punjab and others) others and Civil Writ Petition No.13680 of 2011 (Parminder Parminder Kaur v. State of Punjab and others).
others
2. Challenge in the instant writ petition is to the public notice dated 10.6.2011, Annexure P8, whereby the Directorate of Homeopathy, Punjab had taken a decision to cancel the written Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /2/ examination that was held on 19.12.2010 for recruitment to 58 posts of Homeopathic Medical Officers and 55 posts of Homeopathic Dispensers. Further challenge is to the consequential public notice dated 7.7.2011, Annexure P11, whereby the fresh test was announced to be held on 17.7.2011.
3. It would be pertinent to notice that while issuing notice of motion, this Court on 11.7.2011 had stayed the operation of public notice dated 7.7.2011, Annexure P11, as regards holding of fresh test.
4. Brief facts that would require notice are that the Directorate of Homeopathy issued advertisement dated 4.11.2010, Annexure P1, for recruitment of 58 posts of Homeopathic Medical Officers and 55 posts of Homeopathic Dispensers on contractual basis under the National Rural Health Mission. The essential qualifications and other conditions of eligibility were laid down in the advertisement. That apart, the candidates were informed that a written test would be conducted and the final merit list would be prepared on the basis of marks obtained in such written test. It was specifically stipulated that there would be no interview and the candidates would be called for a process of counselling to facilitate the checking of their original certificates. All the petitioners were eligible either for the post of Homeopathic Medical Officer or Homeopathic Dispenser, and duly applied for the same. The written test for the posts was held on 19.12.2010 which was conducted by the Centre for Development of Advanced Computing, Mohali (hereinafter to be referred as "C-DAC"). The result of the written examination was Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /3/ declared on 24.1.2011. It has been pleaded that all the petitioners had secured sufficiently high merit in comparison to the posts advertised against their respective categories i.e. General Category/BC category/SC category. Accordingly, in the light of the merit secured, the petitioners were also called for the counselling held on 12.2.2011.
5. However, the appointment letters in pursuance to the written examination/counselling process having taken place were not being issued. The petitioners sought information in this regard by invoking the provisions of the Right to Information Act. The petitioners were informed that the matter was under
consideration as a complaint regarding some questions in the written examination being incorrect had been filed and a report dated 10.3.2011 had been submitted by a Committee in which a number of questions have been found to be faulty and with regard to certain other questions the answer key was incorrect. The controversy has reached this Court finally on account of the decision contained in the impugned notices dated 10.6.2011, Annexure P8, and 7.7.2011, Annexure P11, in terms of which the respondent-Department has taken a decision to cancel the written examination and to hold the same afresh.
6. Learned counsel appearing for the petitioners would assail the decision of scrapping of written examination primarily in terms of raising the following submissions:
i) It is contended that the petitioners having participated in the written test and having secured high merit had a legitimate expectation to be appointed to the posts. There being no Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /4/ allegation as regards any mal-practice or use of unfair means, there could be no justifiable basis to scrap the examination.
ii) It has been argued that even if the answer keys in relation to certain questions were incorrect, the merit list can be re-cast by resorting to a process of re-evaluation/re-checking by identifying such questions. The decision to cancel the earlier examination and to hold a fresh examination would entail loss of time and public money.
In support of the contentions at (i) and (ii) above, heavy reliance has been placed upon a Division Bench judgment of this Court in Saumil Garg and others v. State of Punjab and others, 2005(3) Law Herald (P&H) (DB) 529.
iii) Learned counsel for the petitioners have even made an effort to dispute the report of the Committee dated 10.3.2001 in which a finding had been given that a number of questions were either faulty or the answer keys were incorrect. In this regard, the individual questions have been identified and the literature on the subject which is all in technical terms has been collated and appended as Annexure P9 along with the writ petition. The assertion put forth on behalf of the petitioners is that there was essentially nothing wrong with the questions put to the candidates in the written examination but the discrepancy was limited only as regards the answer key being incorrect for certain questions. Learned counsel would re-iterate the submission that such issue was open to be resolved by an exercise of re-checking and not by scrapping the written examination and holding the same afresh.
Malik Sushama Rani2013.09.05 12:20 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.11774 OF 2011 /5/
iv) Malafides have also been attributed by the learned
counsel in terms of making a submission that the entire exercise of cancellation of Exam has been done at the behest of respondent No.4 - Dr.Om Parkash Vig who is already serving as a Homeopathic Medical Officer with the Health Department and who is stated to have appeared in the written examination just to facilitate the selection of his wife, namely, Dr.Poonam Vig, daughter of Shri Dharam Pal, respondent No.5. It is stated that even their roll numbers were together i.e. one behind the other and inspite thereof, respondent No.5, Dr.Poonam could only manage merit position No.45. It is contended that respondent No.5 had lodged complaints with the respondent-Department as regards the question paper being incorrect, and respondent No.4 by exerting influence upon the officials of the Department has been successful in getting the examination cancelled.
7. Per contra, learned State counsel would refer to the joint written statement filed on behalf of respondents No.1 and 2 to justify the State action in issuing the impugned notices and for scrapping the written test held on 19.12.2010. It has been stated that a representation dated 20.12.2010 had been preferred by a candidate, namely, Dr.Poonam Vig pointing out that four questions in the question paper relating to the post of Homeopathic Medical Officer were incorrect. A report of the Assistant Director, Homeopathy was called for and thereupon State Government took a decision to get the question paper evaluated for 96 questions instead of 100 questions. After the declaration of the result, another representation dated 5.3.2011 Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /6/ was preferred by Dr.Poonam Vig that ten other questions in addition to the previous four were also erroneous. Acting upon the same, a three-member Technical Committee was constituted by the respondent-Department to examine the issue. The Committee submitted its report dated 10.3.2011, appended as Annexure R5/T along with the written statement stating that out of the ten questions, the options of eight questions were incorrect. It was further opined that upon the whole question paper having been re-examined, apart from the eight questions already referred to, options of five more questions were wrong, thereby bringing the total to 13 questions over and above the four questions which had already been ignored while computing the final result. Upon considering the report dated 10.3.2011 of the Technical Committee, the matter was referred to the Registrar, Guru Ravi Dass Ayurvedic University, Hoshiarpur for examining the question papers for the post of Homeopathic Medical Officers as well as Homeopathic Dispensers. Upon such reference, a three-member Committee was constituted consisting of a) Principal, Homeopathic College, Sector 26, Chandigarh, b) Principal, Mahavira Homeopathic College, Ludhiana and c) Principal, Guru Nanak Dev Homeopathic College, Ludhiana. Such Committee submitted its report dated 28.4.2011, Annexure R7/T. A consolidated report of the Technical Committee of the respondent-Department and the Committee constituted by the Guru Ravi Dass Ayurvedic University, Hoshiarpur was prepared and on the basis thereupon, a decision was taken for cancelling of the earlier test as out of 100 questions in the question paper of Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /7/ Homeopathic Medical Officers, 30 questions were identified as wrong/faulty, and likewise, 18 questions pertaining to Homeopathic Dispensers were found to be erroneous. Further, it was decided that fresh test would be conducted by imposing the entire expenditure to be incurred by C-DAC Mohali. Further more, for the fresh examination to be conducted, the question paper was to be set by the Department at its own level under the supervision of the Principal Secretary, Health and only such candidates were to be called for the re-examination who had previously applied. State counsel would argue that since there was a provision of negative marking which would have affected the merit position adversely, accordingly, the decision to cancel the earlier examination based upon the reports of two Committees is well founded and is bonafide and as such, would not call for any interference.
8. Learned counsel for the parties have been heard at length.
9. Since the entire thrust of the arguments raised by the learned counsel appearing for the petitioners is based upon the Division Bench judgment rendered by this Court in Saumil Garg's case (supra), it would be apposite to advert to the controversy and issue raised therein.
10. The Baba Farid University of Health Sciences, Faridkot had conducted the Punjab Medical Entrance Test, 2005. The result thereof was declared on 5.6.2005. There were reports/allegations of leakage of the question papers and the State Government having deliberated on the matter issued a Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /8/ notification dated 10.6.2005 cancelling the PMET conducted by the Baba Farid University. It was further decided that a second PMET would be conducted by the Guru Nanak Dev University, Amritsar. The second PMET was, accordingly, conducted on 30.6.2005. The petitioners therein had appeared in the second PMET and after having examined their answer sheets as also the corresponding answer key made available to them, they realized that the answer key on the basis of which their answer sheets had been evaluated was wrong for approximately 20 questions. The prayer/claim raised on behalf of the petitioners in Saumil Garg's case (supra) before this Court was for the entire exercise to be yet again re-conducted and the primary grievance raised was with respect to a faulty answer key. The entire issue having been deliberated upon at length, the Division Bench took a view that since there were no allegations as regards any unfair means having been employed during the course of the second PMET and that everything being fair and proper till the point of time when students submitted their answer sheets for evaluation, accordingly, no interference is called for upto the stage of holding of the 2nd PMET and the corrective measures were required only at the stage of evaluation of the answer sheets submitted by the candidates.
11. In the present case, the situation is different. Herein the competent authority has already taken a decision to scrap the examination conducted and to hold a written examination afresh.
12. As such, the short question that would arise for consideration is, as to whether such decision can sustain? Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.11774 OF 2011 /9/
13. Towards answering such question, it would require to be gone into as to whether the result of the examination held on 19.12.2010 was vitiated only on account of use of an erroneous "answer key" or as to whether the questions put to the candidates were in themselves faulty. This Court would feel handicapped to enter into such thicket on account of lacking the technical expertise on such technical/scientific matter. During the course of arguments, a suggestion came forth from the learned counsel for the petitioners to refer the matter as regards correctness or otherwise of the questions pertaining to the examination to an independent agency and in furtherance of such submission, the Homeopathic Department, State of Punjab was suggested. Such suggestion did not meet with any objection from the learned counsel appearing for the State. This Court, accordingly, deemed it appropriate to refer the issue to the Director, Department of Homeopathy, State of Punjab in the light of the consensus arrived at between the parties and passed an order dated 30.11.2012, the operative part of which read in the following terms:
"Accordingly, as per the consensus arrived at between the parties, the issue is referred to the Director, Department of Homeopathic, State of Punjab, who in turn would be at liberty to constitute a committee of three independent members so as to evaluate the questions as also the answer keys pertaining to the examination already held on 19.12.2010. Such report would specifically point out Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /10/ 10/ any flaws pertaining to the incorrect options pertaining to the questions set in the examination. The Committee shall specifically look into the aspect as to whether pertaining to all the questions, there was only one correct answer option and would also point out as to whether pertaining to any question, there were any options given in the answer key, which did not contain any correct answer.
Such exercise be completed within a period of eight weeks' and the report of the Committee be furnished to this Court to the adjourned date.
List on 28.2.2013."
14. In compliance of the orders dated 30.11.2012, the Head of the Homeopathic Department, State of Punjab constituted a three-member Committee consisting of i) Dr.Bhupinder Singh Chandhok, MD, District Homeopathy Officer, Ajitgarh, ii) Dr.Nirmal Singh, Homeopathic Medical Officer, Government Homeopathic Dispensary, Rajpura (Patiala) and iii) Dr.Hardeep Singh Shahi, Homeopathic Medical Officer, Government Homeopathic Dispensary, Kansal (Ajitgarh) to examine the question paper. A report dated 7.2.2013 was submitted by the Committee and the same has been placed on record as Annexure R12 appended along with an additional affidavit dated 22.2.2013 of Dr.Ramesh Kumar Sharda, Head of Homeopathic Department, State of Punjab.
15. A perusal of such report would reveal that the Committee has examined the question papers i.e. Book Code-A Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /11/ 11/ relating to Homeopathic Medical Officers and Book Code-C relating to Homeopathic Dispensers and has furnished comments/ observations by placing the questions in five different categories i.e. incorrect answer options; more than one correct answer option; no correct answer in the given options; incorrect questions; and questions and answers with flaws. The conclusion drawn by the Committee as regards the question paper relating to Homeopathic Medical Officers is that out of 96 questions, 17 questions were faulty (including incorrect answer keys and incorrect questions). As far as question papers for Homeopathic Dispensers are concerned, 12 questions out of 100 questions were found faulty (including incorrect answer keys and incorrect questions).
16. There would be no occasion for this Court to doubt the correctness of such report dated 7.2.2013, Annexure R12, furnished by an independent agency. The conclusion derived therefrom is that it is not a simple case of the application of an erroneous answer key but even certain questions have been found faulty in both the question papers relating to the post of Homeopathic Medical Officers as also Homeopathic Dispensers. This conclusion, in itself, would make the judgment rendered in Saumil Garg's case (supra) distinguishable. Therein, the only issue was as regards an erroneous answer key having been applied for evaluation of the answer scripts. In the facts of the present case, if the prayer of the petitioners seeking re-evaluation of their answer scripts in their attempt on 19.12.2010 as opposed to holding a fresh examination is to be accepted, it would lead to Malik Sushama Rani 2013.09.05 12:20 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.11774 OF 2011 /12/ 12/ an undesirable result i.e. merit being the casualty. The same, as such, cannot be accepted.
17. The respondent-Department having taken a decision to cancel the earlier examination held on 19.12.2010 and to hold the same afresh coupled with certain corrective measures in the nature of imposing the entire financial burden for such fresh test to be borne by C-DAC, setting of the fresh question papers in house by the Department itself under the supervision of Principal Secretary, Health and confining the holding of such fresh test to only those candidates who had previously applied, the same does not call for any interference.
18. For the reasons recorded above, the writ petitions are dismissed. Suffice it to observe, the State Government would now proceed expeditiously in holding a fresh test and to complete the process of recruitment for the post of Homeopathic Medical Officers as also Homeopathic Dispensers.
( TEJINDER SINGH DHINDSA )
SEPTEMBER 03, 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? (Yes/No)
Malik Sushama Rani
2013.09.05 12:20
I attest to the accuracy and
integrity of this document