Rajasthan High Court - Jaipur
Umesh Kumar Sharma & Ors vs . on 11 April, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: JUDGMENT :: (1) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.345/2013 Umesh Kumar Sharma & Ors. Vs. Sudarshan Gaur & Ors. (2) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.344/2013 Mohan Lal Gwala & Ors. Vs. Rajasthan Public Service Commission,Ajmer & Ors. (3) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.387/2013 Roop Kishor Meena & Ors. Vs. Sudarshan Gaur & Ors. (4) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.440/2013 Mukesh Kumar Sharma & Ors. Vs. Rajasthan Public Service Commission, Ajmer & Ors. (5) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.686/2013 Naresh Kumar & Ors. Vs. Sudarshan Gaur & Ors. (6) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.695/2013 Rameshwar Lal & Ors. Vs. Rajasthan Public Service Commission, Ajmer & Ors. (7) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.849/2013 Rajkumar Singh & Ors. Vs. Rajasthan Public Service Commission, Ajmer & Ors. (8) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.972/2013 Rajasthan Public Service Commission, Ajmer Vs. Sudarshan Gaur & Ors. (9) D.B. CIVIL SPECIAL APPEAL (WRIT) NO.956/2013 Vidhya Choudhary & Ors. Vs. Rajasthan Public Service Commission, Ajmer & Ors. Date of Judgment : 11th April, 2014 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA Mr.G.K.Garg, Senior Advocate assisted by Ms.Anita Agarwal, Mr.Banwari Sharma Mr.Sanjeev Prakash Sharma, Senior Advocate assisted by Mr.Gaurav Sharma, Mr.Sarthak Rastogi, for the appellants. Mr.S.N.Kumawat, for the RPSC. Mr.Vigyan Shah, for the respondents. ***** BY THE COURT (PER HON'BLE THE CHIEF JUSTICE) :
The instant appeals preferred by some of the participants of the direct recruitment process, initiated by the advertisement dated 17.2.2012 issued by the Rajasthan Public Service Commission, Ajmer (for short, hereafter referred to as 'Commission/respondent-Commission'), to the post of Headmaster (Secondary School and equivalent posts) as well as by the Commission itself, seek to impeach the common judgment and order dated 15.2.2013 rendered in a batch of writ petitions instituted by the private respondents herein.
We have heard Mr.G.K.Garg, Senior Advocate assisted by Ms.Anita Agarwal, Mr.Banwari Sharma, Mr.Sanjeev Prakash Sharma, Senior Advocate assisted by Mr.Gaurav Sharma, Mr.Sarthak Rastogi for the appellants and Mr.S.N.Kumawat, learned counsel for the Commission and Mr.Vigyan Shah, learned counsel for the respondents.
The rival versions portraying the relevant facts, having regard to the identicalness in the challenges, would be recited from the pleadings pertaining to D.B.Civil Special Appeals (Writ) No.344/2013 and 345/2013.
As adverted to hereinabove, the respondent-Commission had issued an advertisement dated 17.2.2012 for direct recruitment to the post of Headmaster (Secondary School) and equivalent posts. Though prior thereto, an advertisement to the said effect had been issued on 28.4.2011 and corrigendum dated 19.8.2011 and 9.9.2011 had followed, all these were withdrawn. The writ petitioners (private respondents herein), responded thereto and offered their candidature in the respective categories claiming themselves to be eligible and qualified for being selected for the post involved. As meanwhile, vide notification dated 29.6.2011, the Rajasthan Education Service Rules, 1970 (hereafter referred to as 'the Rules'), governing the process, had been amended and a scheme of examination and syllabus for the post of Headmaster (Secondary School) had been provided, the advertisement also incorporated the said scheme. In terms of the scheme, the examination was to comprise of two papers of 300 marks each i.e.Paper-I General Studies and Paper-II General Awareness about Education and Educational Administration.
Whereas Paper-I constituted of five subject segments with marks separately allotted therefor, in Paper-II there were six subject units, for which marks were individually assigned. The written examination was held on 15.5.2012, and according to the writ petitioners, the candidates encountered several mistakes in the questions, difference in the Hindi and English versions thereof, typographical errors and also errors in the options for the answers thereto, and when these were pointed out, the invigilators opined that they could submit their objections to the Commission later on. The writ petitioners averred that several candidates thereafter submitted representations before the Commission enumerating these mistakes/errors/anomalies, and as these were neither attended to nor remedied, they approached this Court, both at the Principal Seat, Jodhpur and at its Bench at Jaipur, by instituting several writ proceedings. The writ petitioners however, admitted that the Commission did issue model answer key and invite objections thereto in the prescribed format from the candidates vide press note dated 9.10.2012. Subsequent thereto, the writ petitioners having come to learn that the Commission had deleted certain questions in the model answer key, they submitted representations to be informed about the manner, in which the marks for the questions deleted had been distributed. This was more particularly, to ascertain as to whether such marks had been proportionately divided amongst the questions in the particular subject(s) pertaining to the questions deleted, or generally over all the questions in the paper. The Commission eventually, declared the results on 18.11.2012 and published the final answer key of Paper-I and Paper-II on 19.11.2012. The marks of the candidates were also declared on the next date i.e.20.11.2012. According to the writ petitioners, the final answer key though claimed to be based on the opinion of the experts on receipt of the objections submitted by the candidates, were replete with mistakes, thus adversely affecting their results due to which, they were not empanelled in the merit list. The writ petitioners averred that initially in the model answer key, the Commission had deleted 19 questions (9 in Paper-I and 10 in Paper-II), but in the final answer key, the number of deleted questions was 22 (6 in Paper-I and 16 in Paper-II). The writ petitioners contended as well that in 12 questions, answers did vary from model answer key in both the papers. They pleaded too, that to their knowledge, the Commission as well did not distribute marks of the deleted questions in a particular subject amongst the remaining questions in the same subject, but had distributed those proportionately amongst all the remaining questions in the paper, which according to them, was in contravention of the scheme of the examination prescribed by the Rules and also the advertisement dated 17.2.2012. According to them, due to this pattern of distribution of marks, some candidates were unduly benefited at the cost of others, otherwise proficient in the subject segments, the questions relatable whereto had been deleted. The writ petitioners, in this regard, also referred to the distribution of marks of the deleted questions subject-wise, as resorted to by the Commission in the recruitment process pertaining to the post of Accountant and Junior Accountant governed by the Rajasthan Subordinate Accounts Service Rules, 1963 and other similar examinations, pursuant to the orders passed by this Court in the related proceedings. The writ petitioners asserted further that the answers provided by them to the questions involved were taken from authentic books published by government agencies like Board of Secondary Education, Rajasthan, Ajmer, NCERT and government websites, Sujas etc. widely read and referred to by the students, being integrants of the course material provided to them. Contending that in the face of such an anomalous exercise, abounding in mistakes in questions, answers thereto and wrong distribution of marks relatable to the questions deleted, the selection of the candidates for appointment purportedly made by the Commission, was clearly invalid, the writ petitioners solicited interference with the results and the final answer key, and sought for a direction to the respondents to conduct a fresh examination for recruitment to the post of Headmaster, as involved.
The respondents, in their reply, averred that on receipt of the requisition from the State of Rajasthan, the above referred advertisement was issued for appointment to 2093 posts of Headmaster and till the last date of the submission of the application form, i.e.10.3.2012 in all, 1,01,340 candidates did apply. The Commission conducted the written examination on 15.5.2012 in two sessions and eventually, results were declared on 18.11.2012, in which 2072 candidates were declared to have passed in all respective categories. Contending that all the petitioners had been adjudged unsuccessful, the respondents maintained that the challenge was wholly vacuous. They stated that prior to the instant proceedings, a writ petition being S.B.Civil Writ Petition No.6588/2012 (Hanuman Ram Choudhary & Ors. Vs. State of Rajasthan & Ors.) was filed before this Court and by order dated 9.10.2012, permission was granted to the Commission to publish the answer key on its website and to invite objections from the candidates having grievance with regard thereto, by or before 5.11.2012. Objections were accordingly lodged and the Commission, on a scrutiny thereof, referred the same to the expert committee, and on the basis of its (expert committee) report thereon, the revised results were published on 18.11.2012. Apart from contending that it is the prerogative of the paper setter to prepare the key on the basis of the prescribed books and to select the correct answer, and that, his/her discretion ought not to be lightly made subject to judicial scrutiny, the respondents insisted that S.B.Civil Writ Petition No.12780/2012 (Praveen Singh & Ors. Vs. State of Rajasthan & Ors.) instituted by a bunch of similarly situated candidates seeking the same relief on the same impugnment as herein, had been dismissed and that D.B.Civil Special Appeal No.38/2013 preferred against the judgment and order dated 4.12.2012 passed in S.B.Civil Writ Petition No.12791/2012 (Joga Ram Choudhary & Ors. Vs. State of Rajasthan & Ors.) also by equally placed candidates, seeking the same reliefs, had been dismissed on 10.1.2013, in affirmation of the adjudication made by the learned Single Judge, negating an identical challenge. According to the respondents, the issues raised in the writ petitions have, after exhaustive scrutiny, been unequivocally answered against the candidates, and that, further adjudication was not called for in the exercise of this Court's power of judicial review. That the writ petitioners have unnecessarily endeavoured to linger the already concluded debate pertaining to the questions referred to by them, has been stated.
The writ petitioners, in their reply not only, have questioned the manner of functioning of the respondent-Commission, they have alleged as well in their rejoinder that the answers acted upon by it, were without reference to the recognized and authentic books published by the Board of Secondary Education, Rajasthan, Ajmer, NCERT, New Delhi, Hindi Granth Academy and by the government. They admitted to have submitted their objections to the questions, now referred to in the writ petitions, before the Commission and since been examined by the expert committee, but alleged that it (expert committee) did not pay any heed thereto, as a result whereof, they and other candidates similarly placed had been denied selection. The writ petitioners, amongst others, in order to reinforce their imputation of acceptance of wrong options as right answers by the Commission, referred to the following questions:-
"????? - "D"
Question 15. Which district had the highest growth of population in Rajasthan during 2001-2011?
?????? - 15. ???????? ?? ??? ???? ??? ???? 2001-???? ?? ????? ???????? ???????? ?????? ?? ??? ?? ! ???????? ????? - ?????? ?????? - (?) ?????? ! ??????????? ?? ????? - ?????? ?????? - (?) ?????? ! Question-29. District having highest decadal population growth in Rajasthan during 2001-11 is ?
?????? - 29. 2001-11 ?? ??? ?? ????? ???????? ?? ???????? ???????? ?????? ???? ???? ?? ?
???????? ????? - ?????? ?????? - (3) ?????? ! ??????????? ?? ????? - ?????? ?????? - (4) ?????? ! Vis-a-vis question No.29, according to them, they had collected information from the SUJAS 2011 (Information and Public Relations) Directorate of Census Operations, Jaipur. Reference has been made also to an information said to have been furnished under the Right to Information Act, 2005 by the Directorate of Census Operations, Rajasthan that District Barmer had the highest growth rate of 32.55% in the decade 2001-2011 and District Jaipur had the highest population growth of 14,12,900 in the said decade. Referring to Class XII book of NCERT and Board of Secondary Education, Ajmer explaining the difference between growth rate and growth, the petitioners contended that the answer adopted by the Commission to question No.29 as 'Barmer' was wrong, and that, the right answer was Jaipur. Claiming that difference in population growth during 2001-2011 at Jaipur had been rightly answered as 14,12,900, the writ petitioners asserted that on this count as well, the answer accepted by the Commission qua question No.29 is apparently wrong and against the government data. Though two other questions were also referred to in the reply, as in course of the arguments, the same had not been referred to, details thereof have not been set out herein at this stage.
The learned Single Judge, by the impugned judgment and order, did interfere with the results declared on 18.11.2012 and directed the respondent-Commission to constitute an expert committee of three members, and if possible, to refer to an agency to get a fair opinion regarding the disputed questions. While observing that it was expected that the committee to be set up would offer fair opinion with regard to the correctness of the questions involved and the answers thereto, the learned Single Judge directed the respondent-Commission to declare the results afresh and to expedite the process of recruitment. In arriving at this conclusion, the learned Single Judge did analyze the opinion of the experts vis-a-vis the following questions:-
70.Which district had the highest growth of population in Rajasthan during 2001-2011?
(1)Jaisalmer (2)Barmer (3)Jaipur (4)Jodhpur "??????-70: ???????? ?? ??? ???? ??? ???? ????-???? ?? ????? ???????? ???????? ?????? ?? ??? ???
(i) ???????
(ii) ??????
(iii) ?????
(iv) ??????
101. District having highest decadal population growth in Rajasthan during 2001-11 is:
(1)Jaisalmer (2)Jodhpur (3)Barmer (4)Jaipur 119: Who is the Prime Minister of China?
(1)Hu Jintao (2)Le Peng (3)Jen Ziabao (4)Bo-Xilai Qua question No.70, His Lordship recorded that there was a difference in the Hindi and English versions thereof and concluded that the opinion of the expert in this regard did overlook the difference between growth of population and growth rate of population. Vis-a-vis question No.101, the learned Single Judge was of the view that if the total growth of population is looked into for the decade 2001-2011, it was higher in Jaipur, but if it was assessed in terms of the rate, then it was in Barmer. Reference was also made to the informations furnished under the Right to Information Act, 2005 vide the letter dated 28.12.2012 as set out herein :-
??????? ???????????? ???? ??. ??. ??. ????????? ?????? 28.12.2012 ?? ?????? ???? ?? ????????? ????? ?? ????? ??????????? ?? :
????? ?????? 01 2001-2011?? ?????? ?? ?????? ???????? ????? ??? ???????? ?????? ?? ?????? ???? ??? ??? ?? ?? ?? 32.55% ??.
????? ?????? 02 2001-2011 ?? ??? ?? ????? ???????? ?? ???????? ???????? ?????? ???? ???? ????? ??? ????? 1412900 ?? ?????? ??? ??.
Qua the difference between growth and growth rate, ensuing in different answers, His Lordship held the view that the experts had ignored this difference and Barmer was taken to be the correct answer for both the questions, though contrary to the opinion of the Department of Census, Rajasthan. Apropos question No.119, His Lordship held that none of the options, indicated as answers, was correct, yet option No.3 had been accepted by the experts. Mentioning that the name of Prime Minister of China was Wen Jiabao, whereas Jen Ziabao had been accepted to be correct, it was concluded that the experts were not justified to accept option No.3 Jen Ziabao to be the name of the premier of that country. It was thus determined, on the basis of these disclosures, that no prudent person could accept the answers acted upon by the respondent-Commission, as those were incorrect on the face of the records. The learned Single Judge thus, was of the opinion that the desired questions needed re-examination by an independent committee, preferably of three members, and if need be, by an agency like the Board of Secondary Education, Rajasthan, Ajmer or any parallel agency of the government, and that, on the basis of the answers received, the respondent-Commission would issue the merit list afresh so as to facilitate recruitment to the post of Headmaster, without further delay.
As the impugned judgment and order would reveal, the learned Single Judge also did fault the distribution of marks, following the deletion of questions. Referring to the scheme of the examination and syllabus as per the amendment to the Rules vide notification dated 29.6.2011, His Lordship concluded that the allotment of marks to the segment subjects comprising of the two papers and the variation of weightage patent therefrom, distribution of marks, on deletion of questions in any segment subject, ought to have been limited to the remaining questions of that segment and not allocated to the remaining questions generally, as the same did have the potential of exceeding the maximum marks, otherwise assigned to a particular constituent subject. The respondent-Commission was thus directed to give weightage of marks of deleted questions subject-wise to maintain the allocation of total marks provided under the Rules for each subject, pursuant to the notification dated 29.6.2011.
Mr. Sharma has insistently argued that in the face of the judgment of a coordinate Bench of this Court dated 04.01.2013, rendered in D.B. Civil Special Appeal No.1032/2012- Praveen Singh & Ors. Vs. State of Rajasthan & Ors., affirming the rejection of the challenge identical to the one presently laid in all respects in S.B. Civil Writ Petition No.12780/2012, the impugned judgment and order, if sustained, would result in reopening of the already concluded public participatory process pertaining to the same recruitment and thus, in view of the law of binding precedent , the learned Single Judge ought not to have entertained the writ petitions. Apart from asserting that the exercise ordered by the learned Single Judge would result in incessant revision of the merit list on successive challenges on identical counts, a consequence impermissible in law, the learned Senior Counsel has maintained that the impugned judgment and order, on this count alone, is liable to be interfered with. Mr. Sharma has argued that as admittedly, in terms of the order dated 09.10.2012, passed in Hanuman Ram Choudhary (supra), the writ petitioners herein along with other candidates, had recorded their objections to the questions as well as the answer key perceived by them to be incorrect and/or anomalous and that the final results declared on 18.11.2012 were based on the comments/ recommendations of the expert committee, constituted for the purpose by the Commission, there was no scope whatsoever to re-examine a few of those, anew in the exercise of power of judicial review and direct a fresh scrutiny thereof by the another committee. This is more so as this aspect, in particular along with other incidental facets of the debate, had been conclusively adjudicated upon by the coordinate Bench of this Court, as is evident from the decision rendered in Praveen Singh & Ors. (supra), Mr. Sharma urged that as the expert committee's report would testify that the answers to the disputed questions accepted by it, are backed by authoritative datas negating any deduction that those are impeachable, incorrect or erroneous, no interference therewith by this Court in the exercise of its power under Article 226 of the Constitution of India was allowable, thus rendering the impugned judgment and order unsustainable in law and on facts. The learned Senior Counsel underlined that it being proclaimed in unambiguous terms in the order dated 09.10.2012, rendered in Hanuman Ram Choudhary (supra), that no further opportunity to any candidate to raise any objection would be granted after registering the same in response to the answer-key published by the respondent-Commission on its website in terms thereof, the same conveyed the desire of this Court to attach finality to the process underway and thus, the endeavour of the writ-petitioners to re-open the already concluded exercise by ostensibly suggesting errors in the answers to the questions, though common, but not specifically adverted to in Praveen Singh & Ors. (supra), if entertained, would not only unnecessarily protract the process to the great detriment and prejudice to the appellants who have been selected, but also would amount to abuse of the process of the Court. Without prejudice to these, Mr. Sharma has urged that meanwhile, the respondent-Commission has appointed about 1500 candidates, however, leaving aside the present appellants, though higher in order of merit. In endorsement of his pleas, the learned Senior Counsel has placed reliance on the decisions of the Apex Court in Union of India And Another Vs. Raghubir Singh (Dead) By LRs. Etc., (1989) 2 SCC 754, Official Liquidator Vs. Dayanand And Others, (2008) 10 SCC 1, Himachal Pradesh Public Service Commission Vs. Mukesh Thakur And Another, (2010) 6 SCC 759 and State of Rajasthan Vs. Ucchab Lal Chhanwal, 2013 STPL(Web) 858 SC.
Mr. Garg, appearing for the appellants in D.B. Civil Special Appeal(Writ) No.344/2013, argued that the observation of the learned Single Judge in the impugned judgment order that only three questions were involved, to be examined in Praveen Singh & Ors. (supra), is erroneous and that in fact, the questions now raised, amongst others, did exist as well, but were not debated upon therein and thus, the writ-petitioners are estopped from urging the same, afresh, in a different set of proceedings. The learned Senior Counsel has urged that the step taken by the respondent-Commission to correct the question No.67 of Paper-II, Series-A, as noted by the learned Single Judge in the impugned judgment and order, in this premise, is wholly inconsequential. Apart from contending that in the teeth of the decision rendered in Praveen Singh & Ors. (supra), the pleas raised by the writ-petitioners are hit by the principle of res judicata, the learned Single Judge ought to have rejected the writ petitions on the ground of non impleadment of the selectees, who were necessary parties, Mr. Garg, to buttress his contentions, relied upon the decisions of the Apex Court in Ambika Prasad Mishra Vs. State of U.P. And Others, (1980) 3 SCC 719, All India SC & ST Employees' Association And Another Vs. A.Arthur Jeen And Others, (2001) 6 SCC 380 and Vijay Singh Charak Vs. Union of India And Others, (2007) 9 SCC 743.
Mr. Rastogi, in continuation of the above assertions, argued that though Paper-I and Paper-II are comprised of subject components, allocation of marks for each segment, per se however does not connote that in the event of deletion of any question, distribution of the marks relatable thereto, would have to be essentially confined to the concerned subject. As the question paper had been structured as an assembly of questions drawn from the different subject components, the respondent-Commission was right in distributing the marks of the deleted questions by apportioning the same over the surviving questions in general. Mr.Rastogi, while reiterating that all the questions including those as highlighted in the writ petitions in hand, were involved in Praveen Singh & Ors. (supra), the decision therein was final and binding on all concerned, associated with the process and thus, the directions contained in the impugned judgment and order, are untenable. The learned counsel argued that as finality to a process of recruitment to public office of the kind involved, has to be essentially ensured, interference with the decision impugned is an imperative necessity. Reliance was placed on the decisions of the Apex Court in Basavaiah (DR.) Vs. H.L. Ramesh And Others, (2010) 8 SCC 372 and Sajeesh Babu K. Vs. N.K. Santhosh & Ors., JT 2012(10) SC 614.
Mr. Kumawat, appearing for the Commission, also appellant in some of the appeals, has emphatically urged that the scheme of the examination as per the Rules amended vide notification dated 29.06.2011, did not obligate distribution of marks of the deleted questions only amongst the remaining questions of the same subject. As no pattern of separate cluster of questions, subject-wise, was contemplated in drawing up the question paper, the Commission did not err in distributing the marks of the deleted questions generally over the remaining questions, he urged. Mr.Kumawat has pointed out that the appeal preferred by the Commission is directed against the adjudication made vis-a-vis this facet.
Mr. Shah, per contra, has persuasively urged that the decision rendered in Praveen Singh & Ors. (supra) being in contextual facts, qua only three questions, as analyzed therein, the writ-petitioners were not debarred in law from projecting the apparent anomalies pertaining to other questions and/or answers pertaining thereto. The learned counsel maintained that the opportunity granted to the candidates to lodge their objections to the model answer-key vide order dated 09.10.2012 passed in Hanuman Ram Choudhary (supra), did, by no means, prohibit them to demonstrate before this Court the patent errors attendant on the questions/ answers apart from those, dealt with in Praveen Singh & Ors. (supra) and thus, the plea of estoppel is wholly misplaced. Referring in particular to question Nos.70, 101 and 119, alluded herein above, Mr. Shah insisted that in the face of apparent errors in the answers thereto and the bearing thereof on the overall results, the learned Single Judge was fully justified in adopting the course, as directed by the impugned judgment and order. The learned counsel argued further that the scheme of the examination, contemplated by the Rules, as amended by the notification dated 29.06.2011, clearly mandated weightage to the subject components, constituting Paper-I and Paper-II and thus, distribution of the marks of the related questions over the remaining questions in general, was in breach of the said scheme and thus, void. That the stand of the respondent-Commission in this regard was incompatible to the course adopted by it for the purpose of recruitment to the post of Junior Accountant, initiated by an advertisement dated 06.09.2011, where allotment of the marks of the deleted questions was confined to the respective subjects, was underlined. The learned counsel argued that as the errors in the answer-key pertaining to the questions enumerated by the writ-petitioners, were patently wrong, the learned Single Judge rightly intervened to protect the sanctity of the process as, by no means, any candidate ought to be selected on the basis of the wrong answers. Reliance was placed on the decisions of the Apex Court in Uttaranchal Road Transport Corpn. and Ors. Vs. Mansaram Nainwal, AIR 2006 SC 2840, Special Leave to Appeal(Civil) Nos.10445-10446/2013- Ramdev Agarwal & Ors. Vs. Rajasthan Public Service Commission & Ors, (d/d 10.05.2013) and of this Court in D.B. Civil Special Appeal(W) No.698/2013- State of Rajasthan Vs. Kamlesh Kumar Sharma & Ors. etc. (d/d 25.10.2013), S.B. Civil Writ Petition No.15638/2012- Suresh Kumar & Ors. Vs. RPSC & Ors. etc. (d/d 15.12.2012) and DBSAW No.1685/2012- Keshav Singh & Ors. Vs. RPSC & Ors. etc. (d/d 22.04.2013) The contentious pleadings and the dissident arguments have received our due consideration.
Before adverting to the issues of moment, the peripheral facet of non-impleadment of the candidates declared successful as per the results published on 18.11.2012, needs to be adjudged in the passing. Admittedly, in the writ petitions neither they had been impleaded nor any representative of theirs, was arrayed as a respondent. Be that as it may, some of them, to reiterate, who are in appeal, have laid their pleadings and dialectically assailed the determination made in the writ petitions. In the conspectus of contrasting orientations, these candidates thus cannot, but be acknowledged as necessary parties necessitating their impleadment in the writ petitions. Be that as it may, in view of the elaborate exchanges made in the course of hearing of the appeals, we are not inclined to non suit the writ petitioners on this ground. The decisions of the Hon'ble Apex Court in this regard in All India SC & ST Employees' Association And Another Vs. A.Arthur Jeen And Others(supra) and State of Rajasthan Vs. Ucchab Lal Chhanwal (supra) therefor, are not being dilated upon. The recruitment process initiated in the year 2012 now deserves a quietus and thus, further procrastination thereof, on this ground, is obviable.
The parties are not in issue that there has been a previous bout of litigation pertaining to the same process before this Court in S.B.Civil Writ Petition No.6588/2012 (Hanuman Ram Choudhary & Ors. Vs. State of Rajasthan & Ors.) witnessing a challenge thereto. This Court by its order dated 09.10.2012, as sought for by the Commission, granted it the liberty to publish the answer-key of the same examination on its website and to invite objections of the candidates having any grievance in connection therewith. The Commission was permitted to publish answer-key of the written examination conducted by it on its website and to seek objections from all the candidates ventilating their grievances on wrong answers on or before 05.11.2012. It was, however, made clear that while publishing the answer-key on the website, it would also be communicated to the candidates that no further opportunity for raising any objection would be granted. Extraction of the operative portion of the above order would facilitate ready reference:-
After hearing learned counsel for the parties, I deem it proper to allow the application filed by the respondent Commission for seeking permission to publish answer key on website of the Commission and to invite objection from the candidates having any grievance with regard to answer key. Consequently, the application is allowed. The respondent Commission is hereby permitted to publish the answer-key of the written examination conducted by the Raj. Public Service Commission for the post of Teacher Grade-II on the website and to seek objections from all the candidates with regard to their grievance of wrong answers of the questions on or before 05.11.2012. It is made clear that while publishing the answer key on the website, it may also be informed to the candidates that no further opportunity of raising any objection shall be granted. The answer key may be published on the website but objections of the candidates may be invited through publication in the newspaper. The respondent Commission is directed to complete the process on or before 5.11.2012. The application is disposed of.
Subsequent thereto, by order dated 09.11.2012, this Court, in the above writ proceedings, also permitted the Commission to proceed with the selection process in accordance with law. While doing so, this Court recorded the submission advanced on behalf of the Commission that the grievance of the writ-petitioner in Hanuman Ram Choudhary(supra), with regard to wrong questions and answers had been considered and examined by the expert committee and that it (Commission) would prepare the results on the basis of the recommendations made by it(expert committee). This Court then permitted the Commission to evaluate the results of the examination for the post of Head Master, Secondary Education on the basis of recommendations made by the expert committee and to proceed with the exercise of selection, in accordance with law. The relevant excerpt of this order dated 09.11.2012 is also extracted herein below:-
After hearing learned counsel for the parties, the stay application is disposed of with the direction to the Raj. Public Service Commission to assess the result of the post of Head Master, Secondary Education on the basis of recommendations made by the expert committee and the Raj. Public Service Commission will be at liberty to proceed with the further process of selection in accordance with law but till disposal of the writ petition, five posts of Head Master, Secondary Education shall be kept vacant.
In our comprehension, a cumulative reading of the orders dated 09.10.2012 and 09.11.2012, would evince that this Court did seek to attach finality to the process thereby. The final results on 18.11.2012 were published thereafter.
Being aggrieved by the said results, the candidates unsuccessful, returned to this Court with fresh challenges to the revised answer-key dated 19.11.2012, published by the Commission seeking a direction to it to redetermine the merit list/results by effecting necessary corrections therein(revised answer-key). In one of such writ petitions i.e. S.B.Civil Writ Petition No.12780/2012 (Praveen Singh & Ors. Vs. State of Rajasthan & Ors.), the learned Single Judge, on an analysis of the pleadings of the parties, negated the said assailment vide judgment and order dated 04.12.2012, against which D.B. Civil Special Appeal No.1032/2012 was preferred. In the appeal, it was argued that in the face of demonstrable errors in some of the questions and answer-key impacting adverse bearing on the final results of the appellants rendering them unfit for selection, the learned Single Judge had erred in not exercising the power of judicial review to correct the same in the interest of fairness, objectivity and transparency of the recruitment process involved. In course of the arguments, three questions, in particular with the answers relatable thereto, were dwelt upon to buttress this plea. A coordinate Bench of this Court, on a scrutiny of the pleaded facts and the documents on record, identical to those in hand, declined to intervene. It, amongst others, referred to a decision of the Full Bench of this Court in Lalit Mohan Sharma & Ors. Vs. RPSC, Ajmer & Anr., reported in 2006(1) CDR 834 (Raj.) (FB), declining to accede to the plea of the petitioners therein to examine the disputed questions and correctness of the answers provided by the Commission in the face of the report of the expert committee, constituted by it, observing that the Court was not an expert in the field of education as well as various subjects . That further the expert committee constituted for the purpose had given its report, based upon the recognized text books authored by persons of repute in the field, was noted as well. The coordinate Bench also noticed the observation that in absence of any allegation that the members constituting the committee were lacking in specialization in the concerned subjects or suffered from bias, no further probe in the matter was called for. That different answers to the questions provided in some of the recognized textbooks or books of repute would not per se, be enough to interfere with the evaluation made by the Commission acting on the recommendations of the expert committee and to order redetermination of the answer scripts, was noted as well. The exposition of the Hon'ble Apex Court in Subhash Chandra Verma & Ors. Vs. State of Bihar & Ors., 1995 Suppl.(1) SC 325, that where the examination was of objective type and the key-answers had been settled by the paper setter, evaluation of answer sheets by the staff of the Public Service Commission, even though they had no knowledge of the subject, would be valid, was applied. Reliance was also placed on the following observations from the decision of the Apex Court in Kanpur University Vs. Samir Gupta, AIR 1983 SC 1230:-
It is true that the key-answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process or reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct.
The coordinate Bench, on the above touchstone, did examine the reservation expressed qua the three questions, highlighted by the appellants and on the basis of the text and inputs, relied upon by the expert committee, returned the finding that their(appellants) endeavour to prove the answers adopted by the Commission or its action of deletion of a question to be unassailably wrong are, in the contextual facts, inadequate to warrant interference of this Court. In the teeth of the enunciation made in Kanpur University(supra), noticing that the appellants had admittedly failed to secure the cut-off marks to be selected for the post and also the caveat contained in the order dated 09.10.2012 passed in Hanuman Ram Choudhary(supra), that no further opportunity for raising any objection to the questions and the key-answers would be granted, the coordinate Bench dismissed the appeal vide judgment and order dated 04.01.2013. In making this determination, it was, in categorical terms, recorded that no allegation of bias or mala fide or adherence to extraneous consideration had been made, qua the Commission or the expert committee. Incidentally, on the basis of this adjudication, S.B.Civil Writ Petition No.6588/2012 (Hanuman Ram Choudhary & Ors. Vs. State of Rajasthan & Ors.), was dismissed on 22.10.2013.
The learned Single Judge in the present petitions, though did notice the decision of the coordinate Bench of this Court in Praveen Singh & Ors.(supra), proceeded to examine the impeachment pertaining to question Nos.70 and 101 of Paper-I and question No.119 of Paper-II, on the ground that the expert committee's opinion qua the same, was not correct. In doing so, it was observed that three questions, dealt with in Praveen Singh & Ors.(supra), were different from the subject matter of scrutiny and that the Commission had, even after the said adjudication, corrected question No.67 of Paper-II, Series-I. It is in this context that the learned counsel for the appellants have assiduously proferred the authorities on binding precedent. Whereas in Union of India And Another Vs. Raghubir Singh (Dead) By LRs. Etc.(supra) and Official Liquidator Vs. Dayanand And Others(supra), the Hon'ble Apex Court, underlining the essentiality of predictability and certainty in judicial decisions, had emphasized on the finality of the judgment and order of coordinate and larger benches of superior Courts, it, in Uttaranchal Road Transport Corpn. and Ors. Vs. Mansaram Nainwal(supra), enunciated that a decision is a precedent on its own facts and is an authority for what it actually decides and propounded that every decision contains three basic postulates, (i) findings of material facts, direct and inferential; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. Their Lordships clarified that in a decision essence thereof is its ratio and not every observation found therein or any deduction that may logically flow therefrom. That the exposition of the reason or principle on which a question before a Court had been decided is alone binding as a precedent, was underlined.
In Ambika Prasad Mishra Vs. State of U.P. And Others(supra), however their Lordships referring to Salmond 'Jurisprudence' p.215 (11th edition), had proclaimed that it is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.
Coupled with the above dimension is also one of res judicata of which constructive res judicata is an inalienable facet. That the principle of res judicata is applicable in writ proceedings does not admit of any debate. In Devilal Modi, Proprietor, Daluram Pannalal Modi Vs. Sales Tax Officer Ratlam and Ors., AIR 1965 SC 1150, the Hon'ble Apex Court observed that the rule of constructive res judicata is that a plea that could have been taken by a party in a proceeding between him and his opponent, if in fact not taken, he would not be permitted to take that plea against the same party in subsequent proceeding, which is based on the same cause of action. While highlighting that this doctrine is based on consideration of the public policy, their Lordships observed that if the same is not applied to the writ proceedings, it would be open for the parties to take proceedings one after another and urge new grounds every time and that plainly is inconsistent with consideration of public policy.
Admittedly, the respondents/writ-petitioners herein, had responded to the answer-key published by the Commission, as permitted by this Court vide its order dated 09.10.2012, rendered in Hanuman Ram Choudhary(supra), relating, amongst others, to those oppugned herein. The expert committee as well did examine the same having been referred to it by the Commission and had expressed its opinion, in categorical terms, referring to the relevant source/text in endorsement thereof. In this view of the matter, though open to the writ-petitioners in Praveen Singh & Ors.(supra), they having chosen to limit their impugnment to three questions, referred to in the judgment and order dated 04.01.2013, a fresh assailment by another set of candidates, similarly placed and under the same aegis, having regard to the spirit of the doctrine of constructive res judicata, ought not to be permitted. To encourage any such exploit would have the potential of keeping the otherwise concluded recruitment process in a continual state of uncertainty.
We are, thus, of the view, having regard to the gamut of considerations recorded in the judgment and order dated 04.01.2013, rendered in Praveen Singh & Ors.(supra), that the writ-petitioners herein, were estopped in law in view of the singular background of the facts and circumstances of the case to initiate the challenge as laid. They, thus, ought not to have been, in our comprehension, permitted to reopen the process by projecting new fronts of remonstrance, qua the questions consciously not pursued in Praveen Singh & Ors.(supra) case.
These pristine and profound legal principles notwithstanding, we do not intend to cast aside, in the interest of finality of adjudication, the attendant factual aspects bearing on the contestations, as alluded hereinabove. In the present endeavour, the perceived anomalies in the questions and the answer key proved by the expert committee pertain to questions No.6, 15, 19, 29 and 117, which are quoted as hereunder:-
Question- 06. The rules framed for the commencement of the right of children in the State for free and compulsory education are titled as?
?????? 06. ????? ??? ???????? ??? ???????? ?????? ??????? ???? ???? ?? ?????? ?? ??? ?????? ?? ??????? ??????? ???? ??? ???? ?????? ??? ??? ! ???????? ????? - ?????? ?????? (?) ???????? ???????? ??? ???????? ??? ?????? ?? ?????? ???? - 2010 ??????????? ?? ????? - ?????? ?????? - ??? ?????? ??? ???? ??
Question-15. Which district had the highest growth of population in Rajasthan during 2001-2011 ?
?????? - 15. ???????? ?? ??? ???? ??? ???? 2001-???? ?? ????? ???????? ???????? ?????? ?? ??? ?? ?
???????? ????? - ?????? ?????? (?) ?????? ??????????? ?? ????? - ?????? ?????? (?) ?????? Question-19. Who is the Prime Minister of China ? ?????? 19. ??? ?? ???????????? ??? ?? ! ???????? ????? - ?????? ?????? (3) ??? ?????? ??????????? ?? ????? - ?????? ?????? - ??? ?????? ??? ???? ??
Question-29. District having highest decadal population growth in Rajasthan during 2001-11 is ?
?????? 29. 2001-11 ?? ??? ?? ????? ???????? ?? ???????? ???????? ?????? ???? ???? ?? ! ???????? ????? - ?????? ?????? (3) ??????
??????????? ?? ????? - ?????? ?????? (4) ?????
Question-117. In which year Rajasthan State Text Book Board was constituted?
?????? 117. ???????? ????? ????? ?????? ???? ?? ??? ??? ???? ??? ??? ! ???????? ????? - ?????? ?????? - ???????? (Delete) ??????????? ?? ????? - ?????? ?????? - (1) 1973 As would be evident from the comments of the expert committee vis-a-vis question No.6, it had opined that all the four options provided in the answer key are wrong, and that, the correct answer is 'Rajasthan Right of Children to Free and Compulsory Education Rules, 2011', and to endorse this view, referred to the notification No.F.21(19)Edu.-1/E.E./2009 dated 29.3.2011, issued by the Government of Rajasthan, Education (Gr-1) Department. The expert committee thus, recommended that this question ought to be deleted.
For question No.15, the expert committee accepted option No.2 'Barmer' to be the correct answer, and in reinforcement of its view, referred to the relevant extract from the compilation prepared by the Directorate of Census Operations, Rajasthan. Incidentally, it would appear from the extract taken from the writ petition vis-a-vis this question that the answer of the writ petitioners thereto is also 'Barmer'. It is thus, apparent that the writ petitioners, like the other candidates, had understood the question to elicit the answer as to the rate of population growth in the decade 2001-2011.
Vis-a-vis question No.29, according to the expert committee, the import of the expression decadal population growth is the percentage of rise in population in a decade. It thus, identified option No.3 'Barmer' to be the correct answer. The expert Committee, to buttress its view, did rely not only on the relevant extract from the compilation prepared by the Directorate, Census Operations, Rajasthan for the duration 2001-11, but also on the pertinent theory of economic growth and the significance thereof, having a bearing on the percentage of population growth and the website of the Wikipedia Encyclopedia.
For question No.19, the expert committee observed that the correct answer thereto is 'Wen Jiabao'. It was of the view that in option No.3, there was a typographical mistake, but according to it, the same, per se did not justify to delete the same. In support of its recommendation for the answer, it did refer to the text of 'Organizational Structure of the State Council of the People's Republic of China'. Noticeably, that Jen Jiabao is the correct answer, has not been debated before us.
With regard to question No.117, the expert committee commented that the Rajasthan State Textbook Board, in terms of its website, was constituted vide the government order in the year 1973, but the registration thereof, officially, was with effect from 1.1.1974. The committee therefore, accepted option No.1 '1973' to be the correct answer. The Commission however, having noticed the divergence in the years of the constitution and registration of the Board, did decide to delete this question.
On an appraisal of the recommendations of the expert committee qua these questions as well as the texts and the contemporaneous authoritative references relied upon, we are unable to persuade ourselves to conclude that the same can be faulted with.
In the backdrop of the fact that the expert committee had reviewed the answers to these questions, particularly, in the context of the objections lodged by the candidates to the model answer key, as permitted by the order dated 9.10.2012 passed in Hanuman Ram Choudhary (supra) with the caveat that no further opportunity to impeach the questions finalized on the receipt of the expert comments would be allowable, we are firmly disinclined to entertain the challenge to the final answer key published on 19.11.2012, as endeavoured by the unsuccessful candidates. Not only, to reiterate, by order dated 9.10.2012, this Court in Hanuman Ram Choudhary (supra), had allowed the Commission to further the process which, in our comprehension, did denote its intention to finalize the same on the basis of the exercise to be undertaken by expert committee to revisit the disputed questions and the answers thereto, no concession of error on the part of the government and/or the Commission, as asserted, vis-a-vis the final comments of the expert committee ensuing in the answer key of 19.11.2012, is also discernible on the face of the records. The interpretation and the understanding of the questions and the answers thereto of the expert committee, has to be construed to be final in all respects and any inference to the contrary thereto, in our estimate, cannot be sustained. As it is, having regard to the framework of the impugnment in Praveen Singh (supra) and the exhaustive determination of all relevant aspects pertaining thereto, the renewed attempt on the part of the writ petitioners in the instant appeals, if entertained even otherwise, would be repugnant to the law of binding precedent and constructive res judicata. On merits as well, in view of the expert committee's recommendations on the disputed questions, we see no cogent or convincing reason to reopen the exercise already concluded with the declaration of the results on 18.11.2012 and publication of the final answer key on 19.11.2012.
Whereas the proposition that erroneous model answer key for evaluation of answer scripts of candidates appearing in a competitive examination has the potential to lead to erroneous results, and that, any appointment on the basis thereof, would be unsustainable, does not admit of any doubt, any deduction to this effect would essentially have to be founded on the contextual facts and no straight-jacket formula dehors the same, can be evolved. It is in this context, the Hon'ble Apex Court in Vikas Pratap Singh & Ors. VS. State of Chhattisgarh & Ors., 2013 (8) SCALE 713, declined to interfere with the decision of the respondent-Board to re-evaluate the answer scripts so as to ensure accurate results in the competitive examination with the help of experts and to include deserving candidates in the select list. This view was adopted, as is patent from the text of the decision, in the facts and circumstances of the case, necessitating such a course.
In Special Leave to Appeal (Civil) Nos.10445-10446/2013 Ramdev Agarwal & Ors. Vs. Rajasthan Public Service Commission & Ors.(supra), emanating from the judgment and order dated 22.4.2013 in a batch of writ appeals, amongst others, DBSAW No.41/2013 & 42/2013, the Hon'ble Apex Court, while refusing to vacate the interim restraint on the operation of that decision, did take note of the fact that the respondent-Commission had agreed for reevaluation of the papers concerned, and that, the committee of experts had been appointed thereafter, and on its suggestions, the exercise, leading to the selections, had been made, and it was that selection, that was sought to be challenged before the Division Bench of this Court. Vis-a-vis the contention raised before it that earlier as well, another expert committee had been appointed, their Lordships observed that inspite thereof, the problem still persisted, and that, the related errors had been accepted by the Commission. Their Lordships thus, recorded that the suggestion of the learned Single Judge to appoint a second expert committee, having been accepted by the Commission, there was no reason for the Division Bench to interfere with the order to that effect. The Apex Court thus, in the interim, declined to disregard the findings of the second expert committee that there were errors, even after the earlier exercise and observed that in view thereof, it was not possible that persons who had not secured pass marks or had given wrong answers, be selected.
In State of Rajasthan VS. Kamlesh Kumar Sharma & Ors., D.B.Civil Special Appeal (Writ) No.698/2013 etc. as well, the process involved was subject to several overhaulings ensuing from repeated rounds of litigation, so much so, that there were more than one revision of the results, for which, contrary to the relevant rules and the practice in vogue, 125 candidates in excess, were called for the interview and a few were also selected. It is in this overwhelming factual perspective that a coordinate Bench of this Court did conclude that in the interest of securing purity, propriety and significance of a selection process, judicial intervention was called upon. It was held, in the contextual facts, that in the exercise involved, undeserving candidates had gained advantage at the cost of deserving candidates. The screening/written test conducted by the respondent-Commission as well as the entire selection process was interfered with and a fresh exercise was directed. This extreme step, needless to say, was an impelling course necessitated by the regnant facts and the unavoidable conclusions precipitated thereby. The setting herein is distinctly distinguishable, and thus, the enunciations in the aforestated authorities are of no avail to the writ petitioners.
That the views and recommendations of a committee of experts demand due deference and connote finality, in absence of bias or mala fide, is an unassailable proposition consistently laid, time out of number. The Hon'ble Apex Court in Sajeesh Babu K. (supra), sounded the concordant note in the following terms:-
21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointment were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture.
18. It is clear that in a matter of appointment selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.
Coupled with the above consummate exposition, is the often proclaimed caveat that a court of law ought not take upon itself the task of statutory authorities, examine the question papers and answers itself, record its opinion thereupon and issue consequential operative directions, as has been reiterated in Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. (supra).
The views expressed by the expert committee in the case in hand vis-a-vis the disputed questions/answer key, as has been dilated hereinabove, in our estimate, ought to be accorded due paramountcy. No allegation of bias or mala fide or extraneous consideration for collateral objectives has been levelled, and rightly. In the overall factual background and the noted litigational events encompassing the same recruitment process with strikingly common orientations, we are of the unhesitant opinion that the impeachment of the writ petitioners of the results declared on 18.11.2012 and the final answer key published on 19.11.2012, does not merit acceptance. It thus fails.
In the face of the determination made hereinabove and the overwhelming singular factual backdrop, as evidenced by Praveen Singh & Ors. (supra), we are of the view that the debate on the manner of distribution of marks does not merit further scrutiny and that too, at the instance of the present writ-petitioners. Our attention as well has not been drawn to any enjoinment in the Rules or a conscious decision of the Commission in this regard.
In the wake of the above, we are thus, of the firm opinion that the impeachment of the selection process on the counts, as canvassed in the present proceedings, ought to fail.
Ordered accordingly.
The appeals are thus, allowed. The impugned judgment and order is thus set aside. Having regard to the sanctity of the orders already passed signifying finality of the results declared on 18.11.2012 and the answer key published on 19.11.2012, the respondent-Commission would forthwith take necessary steps to bring the since procrastinated process to an immediate end, in the interest of public service.
A copy of this judgment be placed in all the files.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J. Skant/KKC/- Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A.