Himachal Pradesh High Court
Anshul Guleria vs State Of Himachal Pradesh And Others on 30 October, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
CWPOA No.3318 of 2019 Reserved on: 28.09.2020 Decided on: 30.10.2020 __________________________________________________________________ Anshul Guleria ....Petitioner.
Versus State of Himachal Pradesh and others ....Respondents.
__________________________________________________________________ Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. 1 Whether approved for reporting? Yes ___________________________________________________ For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate, with Mr. Rajesh Kumar, Advocate.
For the respondents: Mr. Sumesh Raj, Mr. Dinesh Thakur and Mr. Sanjeev Sood, Additional Advocates General, with Ms. Divya Sood, Deputy Advocate General, for respondents No.1 and 2-State.
Mr. Raj Kumar Negi, Advocate, for
respondent No.3.
(Through Video Conferencing)
Ajay Mohan Goel, Judge
By way of this writ petition, the petitioner has sought a direction to respondent No.3 to correct the options of Question Nos.8, 37, 39 and 49 and thereafter award the marks for such right answers to the petitioner. Further prayer has been made for issuing direction to respondent 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -2-No.3 to recommend the name of petitioner for the post of .
Physical Education Teacher and to the respondent-
Department to offer appointment to the petitioner against the post of Physical Education Teacher.
2. Brief facts necessary for adjudication of the present petition are that respondent No.3 advertised the posts of Physical Education Teacher on the asking of respondents No.1 and 2 in the year, 2013. Petitioner also applied for being considered for appointment against the post, in question. The date of written test which was to be of objective nature, was 21.07.2013, as is evident from Annexure P1, the admit card of the petitioner. His Roll Number was '75403'. As per the petitioner, result of written test was declared on 01.12.2013 and he was declared qualified in written test and was thereafter called for interview. Respondent No.3 recommended the name of 35 candidates for the posts of Physical Education Teacher and the last candidate recommended in unreserved general category was the one, who had secured total 187 marks.
Though, the petitioner had secured 159 marks in written test, yet, he was not sure about his final position, as he was not knowing how many marks were awarded to him in the ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -3- interview. He applied for said information under the Right to .
Information Act. Though, initially his request was rejected, but later-on, vide Annexure P3, the information was supplied to him, vide letter dated 12.02.2014. In terms of the said information, petitioner was astonished to see that respondents had altered the answers of three questions in the revised key, which initially were marked as correct and apart from this, information also demonstrated that petitioner had secured 186 marks in all, i.e., just one mark less than the last candidate recommended in general unreserved category.
According to the petitioner, the answers which were post revision given as correct key answers with regard to Question Nos.37, 39 and 49, were palpably wrong and similar was the case with Question No.8. As per petitioner, on account of this, he stood denied marks for answering the questions correctly, whereas, the candidates, who stood appointed, were wrong beneficiaries of the revised key answers so prepared by respondent No.3. It is in this backdrop that the petition stood filed by the petitioner with the prayers already enumerated hereinabove. It stands mentioned in the petition that the selected candidates were not being impleaded as party respondents as there were enumerable posts of Physical ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -4- Education Teachers lying vacant in different Schools of the .
State.
3. Respondents No.1 and 2 have filed a joint reply to the writ petition and respondent No.3 has filed a separate reply. Whereas, the stand of respondents No.1 and 2 is that since the cause of action pertained to respondent No.3, therefore, the grievance of the petitioner is to be redressed by the said respondent, the stand of respondent No.3 is that after conducting written/screening test for the post of Physical Education Teacher on 21.08.2013, the replying respondent had put up the answer keys in the webpage of the Board inviting objections from the candidates within seven days on the answers given in the provisional answer keys.
Certain candidates had raised objection against the answers of Question Nos.37, 39 and 49. As merit was found in the objections so raised, therefore, necessary corrections were carried out in the answer keys of the said questions and thereafter revised final answer key was displayed on the basis of which, the recommendations were made. It is also the stand of respondent No.3 that as far as Question No.8 is concerned, the provisional key answer remained unchanged and further the petitioner had failed to raise any objection ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -5- with regard to the provisional answer key of this question, .
therefore, such plea could not be taken by the petitioner subsequently. On these basis, respondent No.3 has prayed for dismissal of the writ petition.
4. I have heard learned counsel for the parties and gone through the pleadings as well documents appended therewith.
5. When this case was listed on 20.07.2020, this Court passed the following order:-
"By way of this petition, the petitioner has prayed for the following reliefs:-
"(i) That a writ in the nature of mandamus may be issued directing the respondents, particularly Respondent No.3 to correct the options of question No. 8, 37, 39 and 49 and thereafter award the marks for such right answers to the present petitioner with further directions to the Respondent No. 3 to recommend the name of the petitioner for the post of Physical Education Teacher.
(ii) That further a writ in the nature of mandamus may very kindly be issued directing the respondents No. 1 and 2 that after the recommendation is made by Respondent No. 3 for offering the appointment to the post of Physical Education Teacher to the petitioner in the interest of justice and fair play.
(iii) The respondents may kindly be directed to produce the entire record pertaining to the case before this Hon'ble Court for its kind perusal.::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -6-
(iv) Or any other relief as this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also .
kindly be passed in favour of the petitioner and against the respondents in the interest of justice and fair play."
2. Mr. Sanjeev Bhushan, learned Senior Counsel appearing for the petitioner has primarily argued that in this case after the provisional answer key of the written test conducted by the respondent-Selection Board was issued, some of the dissatisfied candidates submitted their objections to the same. In response to the said objections raised by some of the candidates, alternations were made and answer key was revised but persons like the petitioner, whose earlier answers were initially found correct as per respondent No. 3 but were subsequently altered to their disadvantage, were not informed about the same.
3. Learned Counsel for respondent No. 3 has not been able to deny this fact so pointed out by learned Senior Counsel. He has handed over to the Court the instructions imparted to him by Secretary of respondent No. 3, dated 16.03.2020, relevant portion of which reads as under:-
"On the given matter, I am directed to say that this Commission had advertised the posts of Physical Education Teacher under Post Code 347 vide advertisement No. 23/2012 dated 15.09.2012 by inviting applications from the eligible candidates.
The applicant had applied for the aforesaid post and was admitted provisionally to participate in the objective type written screening test against Roll No. 75403 (Question Booklet Series-C) held on 21st July 2013. It is also submitted that soon after conducting the written screening test for the post of Physical Education Teacher, ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -7- the provisional answer key(s) was published by the Commission on its website on 23-07-2013 and objections .
were invited from the candidates within seven days i.e. up to 31.07.2013 against the answers of questions of the provisional answer key (s) alongwith documentary proof.
The objection(s) received from the candidates on the answers of questions given in the provisional answer key(s), were examined by the panel of experts and only after the opinion of the panel of experts, the answer(s) keys were finalized/revised and the answer sheets of all the appeared candidates were evaluated. It is pertinent to mention here that earlier to avoid multiple key(s) were not hosted on the web-site of the Commission with the assumption that the applicants may also object the final answer key(s) and in such manner the selection process initiated for a particular post would never come to an end. It is further submitted that from 17.10.2018 onwards the final answer key(s) of all the post codes after its vetting by the expert panels are also uploaded on the web-site of the Commission at the time of declaration of the result of written screening test for the information of the candidates.
You are, therefore, requested to apprise the Hon'ble Court of the facts and defend the aforesaid case accordingly."
4. In my considered view, even without going into the factual aspect as to whether certain key answers subsequently declared by respondent No. 3 are correct or not, the very mechanism adopted by the respondents herein is arbitrary. The stand taken by them that in case the final answer keys are hosted on website, then, the selection ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -8- process would never come to an end because the possibility of some other candidate raising the objections to the same cannot be ruled .
out, does not satisfies the judicial conscious of this Court. This Court concurs that at some stage there has to be finality to everything but a candidate whose answer was initially found to be correct by respondent No. 3, cannot be kept in lurch by rendering him remedy less if subsequently respondent No. 3 comes to a contrary conclusion. This is more so because herein we are dealing with the issue of public employment.
Faced with this situation, both learned Additional Advocate General as well as learned Counsel for respondent-Board pray for and are granted a week's time to have instructions in the matter.
As prayed for, list on 27.07.2020."
6. In the subsequent hearings, request was made on behalf of learned counsel for the parties that the case be heard on merit and, accordingly, arguments were heard on merit.
7. Before proceeding further, it is apt to mention at this stage itself that ordinarily, Courts do not enter into footsteps of the experts, who set the test papers and also prepare the answer keys on the basis of relevant text. That being the job of the experts, is best left to the experts themselves and it is settled law that the scope of interference in this regard by the Courts is limited.
::: Downloaded on - 03/11/2020 20:18:07 :::HCHP -9-8. However, in this case, there is one extreme .
important issue which requires consideration and which will be answered by the Court. It is not in dispute that after provisional answer keys were uploaded by respondent No.3 of the written test in issue, certain objections were submitted by the candidates, who had participated in the written test with regard to correctness of some of the provisional answer keys.
The petitioner not being aggrieved by the provisional answer keys, did not submit any objection. It is clearly borne out from the record of the case that on the basis of objections which stood received by respondent No.3 from other candidates, the provisional answer keys of some of the questions were altered. Thereafter, final answer key was circulated by respondent No.3 on the strength of which recommendations were made by respondents No.1 and 2 for appointment. In this process, what has happened is this that persons like the petitioner, who earlier were not aggrieved by the provisional answer keys, but whose marks stood altered on the basis of objections raised to some of the provisional answer keys by other candidates, have been gravely prejudiced as not only their marks got revised on the basis of objections which were raised to some of the provisional ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP
- 10 -
answers by other candidates, moreover, no opportunity was .
given to him before reduction of marks which has gravely prejudiced the petitioner. This Court understands that there has to be finality to everything, but this does not means that a person can be condemned unheard in the event of any such like situation. This Court is of the considered view that in such like eventualities where the provisional answer keys are altered by the Examining Authority on the basis of objections received against some of the answers, then before issuing a final merit list or final answer key, an opportunity has to be given to those candidates whose correct answers are likely to be adversely effected on the basis of acceptance of objections raised by other candidates. One opportunity indeed is necessary to be given and in the absence of the same, undoubtedly, great prejudice and injustice is caused to the candidates concerned, whose marks are altered to their deterrent at their back without being given an opportunity to put forth his/her version for correctness of the provisional answer keys etc. Therefore, this Court orders that respondent No.3 shall ensure that in future, in any selection process undertaken by it, if such an eventuality does arises, then those candidates who earlier might have had not submitted ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP
- 11 -
their objections to the provisional answer keys, but who are .
to be affected by changes to be made in the answers on the basis of objections filed by other candidates, are given an opportunity of putting forth their stand before the final key answers are published and acted upon.
9. Coming to the facts of this case, process in issue has taken place in the year, 2013. The petitioner in his wisdom did not implead the selected candidates as party respondents on the ground that various posts of Physical Education Teacher were lying vacant in the Schools of the State. In my considered view, it was incumbent upon the petitioner to have had impleaded the last candidate selected of the category in which he was competing, as party respondent. Otherwise also, at this stage entering into the issue of correctness of the key answers will open a Pandora box as appointments stand made way back and further scores of the candidates had appeared in the process of selection.
10. Accordingly, this writ petition is disposed of with the directions issued hereinabove to respondent No.3 to set its house in order for future and with further direction to the said respondent to compensate the petitioner by paying costs ::: Downloaded on - 03/11/2020 20:18:07 :::HCHP
- 12 -
to the tune of Rs.25,000/-. Pending miscellaneous .
application(s), if any, also stand disposed of.
(Ajay Mohan Goel)
Judge
October 30, 2020
(Bhardwaj)
r to
::: Downloaded on - 03/11/2020 20:18:07 :::HCHP