Punjab-Haryana High Court
Nidhi vs State Of Haryana And Anr on 19 March, 2018
Bench: A.B. Chaudhari, Inderjit Singh
CWP No.24195 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.24195 of 2013 (O&M)
Date of decision: March 19, 2018
Nidhi
......Petitioner
Versus
State of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Ms. Nidhi, Petitioner in person with
Mr. Anurag Jain, Advocate.
Mr. Vivek Saini, DAG Haryana.
Mr. Sumeet Mahajan, Advocate with
Mr. Deepak Suri, Advocate for respondent No.2.
Mr. Brijesh Khosla, Advocate for respondent No.3.
****
A.B. CHAUDHARI, J (Oral)
By the present petition, the present petitioner-Nidhi has prayed
for quashing of the result dated 11.10.2013 (Annexure P-5 & P-6) of
preliminary examination of Haryana Superior Judicial Preliminary Exam-
2013 held on 22.09.2013 and with a direction to revise answer-keys for
question Nos.13, 64, 73 and 114 of question booklet 'A' code series.
FACTS
The Punjab and Haryana High Court had issued notification
No.64 dated 29.04.2013 advertising 17 posts for appointment to the posts
in Haryana Superior Judicial Services by way of direct recruitment out of
which, 8 posts were meant for General Category. For the selection
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process, 3 stages were indicated, namely (i) Preliminary Examination, (ii)
Main examination, & (iii) Viva-Voce. As per said notification, the
preliminary exam would be of objective type of questions with multiple
choice answers. The answer-sheet was to be evaluated with the help of
computer. There would be 125 questions and each question shall carry 4
marks and for every wrong answer, 1 mark will be deducted. There was no
minimum pass marks. The marks obtained in preliminary examination
would not have any effect for computing the final result. The petitioner
applied and appeared in the preliminary examination. On 27.09.2013, by
publishing notice, objections were invited by respondent No.2 in relation
to the answer-key on question paper of code 'A' series. Pursuant to the said
notice, the petitioner submitted objection for question No.16 on the
ground that the answer could not be option 'c', but ought to be option 'b'.
Accordingly, the answer-key was corrected. The result of the preliminary
examination was declared on 11.10.2013. The petitioner obtained 276
marks which were less than the cut-off marks provided for General
Category which were 278. Thus, she missed the final examination.
On 24.10.2013, respondent No.2 had floated standard answer-
key for code 'A' series question papers on the website. In so far as the
question Nos.13, 64 and 114 are concerned, answer to those questions in
the provisional answering key for 'A' code series were correct, but then
they were made incorrect. In so far as the answer key for question No.73
of the same series is concerned, the same was incorrect in provisional
answer-key so also in final answer-key. Providing wrong answer-key
adversely affected the petitioner.
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The petitioner has, in Paras 12, 13, 14 and 15 of the petition,
described as to how wrong answer-key was provided to the question
Nos.13, 64, 73 and 114. It is in the above background, the petitioner
prayed for the reliefs as stated above. The petition was lodged in this
Court on 31.10.2013 and by order dated 15.11.2013, she was allowed to
appear provisionally in the main examination that was scheduled to be
held on 22.11.2013. But the result was to be produced in sealed cover. The
petition was admitted on 15.09.2014 with an order to hear the same within
three months. The petitioner approached the Hon'ble Apex Court which
directed, vide order dated 24.10.2016, to hear the petition and accordingly,
this Court had fixed the petition for arguments. Respondent No.2 has filed
the written statement to the present petition and has opposed the same.
ARGUMENTS
In support of the petition, learned counsel for the petitioner
submitted that the petitioner was allowed by this Court provisionally to
appear in the main examination and what remains to be declared is result
of the same. This Court having found that the case was made out by the
petitioner, she was allowed to appear in the main examination and
therefore, now this Court may declare the result. We do not agree as we
will have to decide the petition on its own merit.
The petitioner is mainly aggrieved by wrong answer-key to the
question Nos.13, 64, 73 and 114 which has affected the result as the
petitioner received only 2 marks less than the cut-off marks and could
have been a successful candidate. The petitioner should not be allowed to
suffer because of the wrong answer-key and therefore, it is necessary to
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grant relief prayed for by her. Demonstrating as to how answer-key were
wrong relying on the certain decisions of the Hon'ble Apex Court and
High Court, learned counsel for the petitioner strenuously contended that
all these questions pointed out above provided for wrong answer-key and
therefore, the petitioner should not be allowed to suffer for the mistake of
respondent No.2.
We would narrate in details about arguments regarding wrong
answer-key as contended by the counsel for the petitioner, at appropriate
stage.
Learned counsel for the petitioner, in response to the objection
about non-joinder of necessary party, submitted that, though, other
candidates were selected at the relevant time and have also joined the
posts for which they were selected, they would not be the necessary party
to the petition as the petition was filed well in advance and at that time.
There was no occasion to make them parties to the petition. The petition
was filed at the earliest. The petition cannot be said to have become bad
for non-joinder of necessary parties. At any rate, according to the counsel
for the petitioner, out of 8 posts for General Category, only 7 posts have
been filled up. That is one more reason why selected and appointed
candidates would not be affected and hence, the objection as to non-
joinder is misplaced. He, then contended that one post being still vacant,
the petitioner can well be accommodated. Learned counsel for the
petitioner cited number of decisions and we would quote the relevant
decisions in the matter.
Per contra, learned counsel for the official respondents stoutly
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opposed the petition by raising a preliminary objection that in matters
relating to alleged inconsistencies in the question papers from the answer-
key, writ jurisdiction cannot be invoked and rather the entire exercise has
to be left to the body which undertakes the process of examination. There
is hardly any scope to entertain the writ petition and issue any directions.
The petition is also bad for non-joinder of necessary parties, namely the
candidates selected and appointed during the pendency of the present
petition who have joined the services in the year 2015 and have been
working peacefully. The petition is therefore, liable to be dismissed for
non-joinder of necessary parties.
Learned counsel for respondent No.2 then contended that even
otherwise the submissions about alleged answer-key to the questions
which have been narrated before this Court are factually incorrect and the
petitioner is under misconception that wrong answer-key was provided. At
any rate, the petitioner had never objected to or submitted any objection in
relation to the questions about which she is making grievance now in this
Court and therefore, the petitioner is not entitled to put to challenge on the
ground that the answer-key were wrong. Learned counsel for respondent
No.2-High Court also cited decisions which we would refer at appropriate
stage to buttress his points.
CONSIDERATION
We have heard learned counsel for the rival parties at length.
We have perused the entire record. As stated above, the challenge raised
by the petitioner is on the ground that the answer-key to question Nos.13,
64, 73 and 114 of question booklet 'A' code series were incorrectly or
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wrongly shown. We think it would be appropriate to deal with the
submissions on merits instead of refusing to exercise the writ jurisdiction
instead of accepting the objection by respondent No.2. With the above
background, we proceed further.
As to the question No.13, vide Para 12 of the petition, the
submission is based on Section 308 of the Code of Criminal Procedure,
1973 (for short 'Cr. P.C.') and the judgment of the Hon'ble Apex Court in
the case of Renuka Bai alias Rinku alias Rattan and another versus
State of Maharashtra, 2006 (4) R.C.R. (Criminal). Learned counsel for
the petitioner led emphasis on Paragraph 33 of the said judgment and
contended that the correct answer as per the said judgment would be as
suggested by the present petitioner, namely answer '(a)' to question No.13.
Section 308 of Cr. P.C. Sub-Section (1) and proviso 2 thereof
reads thus:-
"308. Trial of person not complying with conditions of
pardon.-- (1) Where, in regard to a person who has accepted
a tender of pardon made under section 306 or section 307, the
Public Prosecutor certifies that in his opinion such person
has, either by wilfully concealing anything essential or by
giving false evidence, not complied with the condition on
which the tender was made, such person may be tried for the
offence in respect of which the pardon was so tendered or for
any other offence of which he appears to have been guilty in
connection with the same matter, and also for the offence of
giving false evidence:
Provided that such person shall not be tried jointly with
any of the other accused:
Provided further that such person shall not be tried for
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the offence of giving false evidence except with the sanction of
the High Court, and nothing contained in section 195 or
section 340 shall apply to that offence."
The said proviso specifically makes the previous sanction of
the High Court mandatory and therefore, in the absence of sanction of the
High Court, there is no question of grant of any inherent power to the trial
Court to proceed against the approver. The reliance placed by the
petitioner on Para 33 of the judgment in Renuka Bai alias Rinku alias
Rattan and another's case (supra) is wrong. Para 33 does not at all say or
hold that the aforesaid sanction contemplated by proviso mandatorily is
not required or is dispensed with nor there is any express opinion about it.
On the contrary, Para 33 of the said judgment reads thus:-
"33. In the instant case, the approver Kiran Shinde was
present when many of the murders had taken place and it is
quite possible that he also must have been an active
participant and the High Court was justified in saying that the
approver had not given full details of the crimes. The
approver was moving with the two appellants for a long
period and despite the repeated criminal acts committed by
them, the approver did not inform the police or any
authorities. Some of the children kidnapped by the appellants
were in the custody of the appellants and the approver, and
later their bodies were found. In one case, the post-mortem
examination showed that the child was subjected to some
unnatural offence. The approver himself had admitted that he
had bribed the police many times and saved these appellants
from the clutches of law. Despite all these startling
revelations, the approver could not be proceeded against and
the Public Prosecutor had not taken any step to proceed
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against the approver. We feel, under such circumstances the
Court itself has inherent powers to proceed against the
approver in case he is wilfully suppressing material facts or is
giving false evidence."
The last portion of the above Para shows that in the facts of
the said case, the Hon'ble Apex Court observed accordingly, but then that
is not the ratio decidendi or obiter dicta to say that the sanction
contemplated by the proviso is not required. We, therefore, reject the
submission made by the learned counsel for the petitioner on question
No.13.
The next question referred by the learned counsel for the
petitioner was with reference to question No.64 is that the gift in lieu of
dower or Hiba-bil-iwaz would require compulsory registration. At the
outset, it is the Registration Act, 1908 (for short 'Act') and in particular
Section 17 of the Act which provides for compulsory registration of the
instruments or the documents. In the first place what is required is an
instrument of gift. There is no mention in Section 17 about oral gift or
Hiba-bil-iwaz. Gift made orally or Hiba-bil-iwaz and not by instrument
need not be registered. If it is by instrument or document, the same would
be compulsorily registrable. To repeat, gift in lieu of dower or Hiba-bil-
iwaz sans instrument both do not find mention in Section 17 of the Act for
compulsorily registration. In this behalf, learned counsel for the petitioner
has cited several decisions as to the meaning of gift in lieu of dower as
'Sale' and Hiba-bil-iwaz. The decisions are of various High Courts and we
have gone through the said decisions and the portions pointed out
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therefrom by the learned counsel for the petitioner, carefully. We think all
those decisions would not have any application. Learned counsel for
respondent No.2 has however, cited a recent decision of the Hon'ble Apex
Court in the case of Hafeeza Bibi and others versus Shaikh Farid
(dead) by LRs and others, (2011) 5 SCC 654. We have carefully gone
through the said judgment. Paras 27 and 29 of the said decision read thus:-
"27. In our opinion, merely because the gift is reduced to
writing by a Mohammadan instead of it having been made
orally, such writing does not become a formal document or
instrument of gift. When a gift could be made by a
Mohammadan orally, its nature and character is not changed
because of it having been made by a written document. What
is important for a valid gift under Mohammadan Law is that
three essential requisites must be fulfilled. The form is
immaterial. If all the three essential requisites are satisfied
constituting a valid gift, the transaction of gift would not be
rendered invalid because it has been written on a plain piece
of paper. The distinction that if a written deed of gift recites
the factum of prior gift then such deed is not required to be
registered but when the writing is contemporaneous with the
making of the gift, it must be registered, is inappropriate and
does not seem to us to be in conformity with the rule of gifts in
Mohammadan Law.
..........................
29. Section 129 of the TP Act preserves the rule of
Mohammadan Law and excludes the applicability of Section
123 of the TP Act to a gift of an immovable property by a
Mohammadan. We find ourselves in express agreement with
the statement of law reproduced above from Mulla, Principles
of Mahomedan Law (19th Edn.), p. 120. In other words, it is
not the requirement that in all cases where the gift deed is
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contemporaneous to the making of the gift then such deed
must be registered under Section 17 of the Registration Act.
Each case would depend on its own facts."
From the reading of the aforesaid paragraph what is clear is
that merely because a gift deed is made even by writing, one cannot jump
to a conclusion that it must be registered. But such a gift must be
registered if the writing is contemporaneous with the making of the gift. It
is therefore, clear that when a question is asked whether gift in lieu of
dower and Hiba-bil-iwaz are compulsorily registrable documents, in the
circumstances and in the light of the law laid down in Paras 27 and 29
aforesaid, would by itself, be not required to be registered compulsorily,
nor one can jump to answer in the affirmative. But it depends on the
contingencies expressed by the Hon'ble Apex Court above. We are
therefore, of the firm opinion that the answer-key to question No.64 could
not be said to be wrong as alleged by the petitioner.
Now coming to question No.73 with reference to Section 34 of
the Specific Relief Act, 1963 (for short' Specific Relief Act'), in our
opinion, the submission made by learned counsel for the petitioner that the
proviso to Section 34 of the Specific Relief Act contemplates suits for
injunctions and suits for specific performance, is misconceived. Atleast in
so far as suits for specific performance is concerned, the same cannot be
read or interpreted to be the meaning of proviso to Section 34 of the
Specific Relief Act. Therefore, the standard answer-key provided was
correct and the submission that the proviso would attract all three (a), (b),
(c) is not correct. The submission is rejected.
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The next question No.114 is regarding Section 6 of the Hindu
Minority and Guardianship Act, 1956 (for short 'Hindu Minority Act').
Learned counsel for the petitioner vehemently contended that the natural
guardian of the minor child is only the 'father' and in no case, the 'mother'
would be a natural guardian. Therefore, the correct answer was 'b'
according to the petitioner and the answer-key 'c' was wrong. In our
opinion, the submission is again misconceived and misplaced from the
bare reading of Section 6 of the Hindu Minority Act. Following portion of
Section 6 of the Hindu Minority Act reads thus:-
"6. Natural guardians of a Hindu minor.--The natural
guardians of a Hindu minor, in respect of the minor's person
as well as in respect of the minor's property (excluding his or
her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl-the father, and
after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily
be with the mother;
........................."
From a bare reading of the aforesaid provision, it is clear that
the perception carried by the petitioner is totally wrong that it is only the
'father' who is the natural guardian. The provision says that in case of boy
or unmarried girl, the 'mother' is also a guardian and at any rate, for a
minor below age of 5 years ordinarily, 'mother' is the guardian. In the light
of the above provision, the answer-key that both 'mother' and 'father'
would be the natural guardian is correct. To say that only 'father' is the
natural guardian would be contrary to the above provision. In that view of
the matter, we hold that the answer-key given by learned counsel for
respondent No.2 was correct. Learned counsel for the petitioner cited
decision of the Hon'ble Apex Court in the case of Geeta Hariharan
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versus Reserve Bank of India, 1999 (2) R.C.R. (Criminal) 59. We have
gone through the said decision of the Apex Court and we find that the
same is not at all relevant in the light of the discussion made by us above.
It is not in dispute that during the pendency of the above
petition, the entire process of selection, appointment was undertaken as
there was no interim order and the selected candidates have been working
on their respective posts. All of them have not been made parties to the
present petition. We dealt on merits and we find that the very terra-firma
of the petitioner's case is weak. Hence, the submissions about existence of
one vacancy out of 8 posts would be of no avail. We do not decide the
issue about the non-joinder of necessary parties as there is no need to do
it.
The upshot of the above discussion is that there is no merit in
the present writ petition. We, therefore, make the following order:-
ORDER
(i) CWP No.24195 of 2013 is dismissed;
(ii) Interim orders, if any, are vacated;
(iii) No order as to costs.
(A.B. CHAUDHARI) JUDGE (INDERJIT SINGH) JUDGE March 19, 2018 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No 12 of 12 ::: Downloaded on - 08-04-2018 14:40:35 :::