Himachal Pradesh High Court
Ashutosh Parmar vs State Of Himachal Pradesh And Others on 1 October, 2015
Bench: Tarlok Singh Chauhan, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 1118 of 2014 Judgment reserved on: 24.9.2015.
Date of Decision : 1.10.2015.
Ashutosh Parmar ...Petitioner
of
Versus
State of Himachal Pradesh and others. . ...Respondents.
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting ? Yes
For the Petitioner : Mr. B.B.Vaid, Advocate.
For the Respondents : Ms. Meenakshi Sharma, Mr. Rupinder Singh,
Addl. A.Gs., with Ms. Parul Negi, Dy. A.G. for respondent No.1.
Mr. Vikas Rathore, Advocate, for respondent No.2.
Mr. D.K. Khanna, Advocate, for respondent No.3.
Mr. Rahul Mahajan, Advocate, for
respondent No.4.
Mr. Abhishek Sood, Advocate, for
respondent No.5.
Mr. Subhash Sharma, Advocate, for
respondent No.6.
Mr. Anil Gaur, Advocate, vice Mr. Trilok Jamwal, Advocate, for respondent No.7. Mr. Ashwani K. Sharma, Senior Advocate, with Ms. Monika Shukla, Advocate, for respondent No.8.
Tarlok Singh Chauhan, Judge The petitioner pursuant to advertisement dated 1.2.2013 appeared in the examination conducted by the Himachal Pradesh Public Service Commission (for short 'Public Service Commission') for __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 2 the post of Civil Judge (Junior Division) in Himachal Pradesh.
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Petitioner qualified the preliminary examination, however, failed to qualify the main written (narrative) examination and has assailed his non-selection on the ground that there was tampering in his answer books more particularly relating to Hindi and Criminal Law, which of adversely affected his result and ultimately resulted in his non-
selection.
2. rt The Public Service Commission which undertook the selection process has filed its reply and has contested the petition by raising number of objections including the plea of estoppel and maintainability on the ground that what the petitioner was seeking was revaluation of his papers which is not permissible in law. The allegation regarding interpolation and tampering of the answer books has been specifically denied. The private respondents have also filed replies on similar lines as the Public Service Commission.
We have heard learned counsel for the parties and also gone through the records of the case carefully.
3. At the outset, it may be observed that one of us (Justice Tarlok Singh Chauhan, J.) has already dealt with a similar issue in Chanchal Thakur vs. State of H.P. and others, CWP No. 10832 of 2011, decided on 22.5.2015. The petitioner therein had made identical allegations of interpolation and tampering in her answer books pertaining to HPAS Examination. Negating such contention, it was held:-
"5. Pursuant to directions passed by this Court on 15.5.2015, the original answer sheets of the petitioner was produced by the Public Service Commission. It is apparent from the bare ::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 3 perusal of the answer sheets, that there is overwriting and cutting on the same. But then every cutting or overwriting .
cannot be termed to be an interpolation of the document. It is normal that during course of checking of the examination papers, the examiner may after a relook change his mind with respect to the awarding of marks and, therefore, there is no reason to eye the same with suspicion. Any and every of circumstance is not suspicious circumstance."
4. It was further held that in absence of any allegation of rt malafides such plea would normally not be available and it is apt to reproduce paras 6 to 8 of the judgment, which reads thus:
"6. Learned counsel for the petitioner would contend that the marks of the petitioner have been malafidely been reduced. This plea is equally without force. It is more than settled that the allegations regarding malafides cannot be vaguely made and it must be specific and clear (Refer: Federation of Railway Officers Association vs. Union of India (2003) 4 SCC 289).
7. The only allegation of malafide is contained in para 16 of the petition, which reads thus:
"16. The petitioner after having seen her answer sheet has every reason to believe that she has been deprived deliberately by the respondent Public Service Commission's casual ways of dealing with the answer sheets of Language papers of H.P.A.S. (Main)-2009."
8. The aforesaid allegation is far too vague and otherwise farfetched. Moreover, the concerned examiner who has checked the papers has not been made a party, so as to afford him adequate opportunity to meet these allegations."
Admittedly, the judgment rendered in Chanchal Thakur's case (supra), has attained finality.
5. It would further be noticed that what the petitioner in fact seeks by this petition is a roving inquiry to re-scrutinize the entire ::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 4 record of selected candidates, as would be clear from para 18 of the .
petition, the relevant extract whereof reads as under:
"18........ The answer books of all the candidates and the records pertaining to all the candidates deserve to be retained as the court can scrutinize the pattern of giving the marks to other candidates and whether the petitioner has been given the similar treatment and whether justice has been done to him."
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6. Further, the petitioner appears to have presumed that the cuttings here or there in the answer sheets has been deliberately done rt but at whose instance, is not forthcoming. Even the allegations of malafides are delightfully vague and that apart are totally unsubstantiated as would be clear from the perusal of para 19 (b) of the petition, which reads thus:
"19(b). That the allotted marks of the petitioner in his Hindi paper and the Criminal law paper, have been reduced by respondent No.3 malafide and illegally. The same has been done without any right or authority since the job of the examiner cannot be undertaken by respondent No.3."
7. Similar issue came up before the learned Division Bench of the Hon'ble Punjab and Haryana High Court in Neeraj Kumar vs. Registrar General of Punjab and Haryana High Court, CWP No. 23018 of 2014, decided on November 12, 2014. The petitioner therein was an aspirant of the Superior Judicial Service in Haryana and on the basis of the information received under the Right to Information Act, had levelled allegations regarding cutting and tampering in his answer books and had sought roving inquiry to re-scrutinize the entire record by levelling vague and unsubstantiated allegations of malafide and the Court held as follows:
::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 5"....The petitioner seeks a roving inquiry to re-scrutinize the entire record of selected candidates, the answer sheets of the .
petitioner and seeks to call for the list of marks sent by the Examiner after marking the answers and further seeks to compare the marks assigned on the answer sheets with Examiner's list. All these prayers are based on merely vague and unsubstantiated allegations of malafide. The petitioner has of presumed that a cutting here or there in his answer sheets was at the behest of selected candidates. There is no specific case pleaded in the writ petition nor is there any averment made by the petitioner substantiating his claim.
rt On vague and unsubstantiated averments, this Court cannot make a roving inquiry, which is sought for by the petitioner. Even otherwise, it is a question of fact whether the change in the marks awarded to the petitioner was on account of any malafide and whether the marks actually awarded to him were not the marks to which he was entitled. It would not be appropriate for this Court to enter into such factual controversy under Article 226 of the Constitution of India."
8. The petitioner would then argue that he has been deliberately awarded lesser marks in the subject of Hindi. We are afraid that even this question on totally unsubstantiated allegations is not open to judicial review. There is no material whatsoever available on record whereby this allegation could be even remotely substantiated.
9. To be fair to the learned counsel for the petitioner, he has relied upon the judgment of the Hon'ble Supreme Court in Biswa Ranjan Sahoo and others vs. Sushanta Kumar Dinda and others (1996) 5 SCC 365 to canvass that even in absence of malafide this Court can take an appropriate action when there is large scale interpolation and tampering of the answer sheets.
::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 610. We have gone through the judgment and find that the .
same is not applicable to the facts of the instant case. Admittedly, in the aforesaid case the Tribunal after calling for the records of the selection and on perusal of the record, had noted as under:
"The perusal of the Answer Book of the candidates with Roll No.001078 (Umakanta Panigrahi) shows that though at Sl.No.3, in of the first page of the answer book, his marks were shown as '00' it was changed to '20'. At Serial Number 11, there has been correction of the original marks to 25, the original marks appearing to be 20. rt This is how the total was brought to 95. In second page of the answer book though the mark given for Question No.11 B were 10, later 5 has been added by someone to make it 15. In page No.4, after the answer 1/8 written by the candidate, there could be seen some alternation to 0.8 by someone. The facing page or the Answer Book of the of candidate 001235 (Sri Biswa Ranjan Sahoo) show over writing at three places appears to have been changed to 18 and total 91 appears to have been changed to 94. It is not possible to mark out how and why answer book 001567 of candidate Rajani Kanta Guru was evaluated by different examiner and marks noted in pencil as also his signature as apparently initials on this answer book are totally different from the initials of the other examiner. There is practically no explanation coming forth as to how and why this examiner was different from this paper alone. We have perused the original tabulation which reveals that the marks obtained by the petitioner in the interview were altered and then total made of the marks obtained in the written test as well as the interview. Even for a naked eye, it appears that the marks obtained by the petitioner were originally 24 and the same reduced to 22 by subsequent correction and totally with this correction total was also brought down to 117 from 119. "
It is after perusal of this report and taking into account the enormity and malpractices in the selection process, the Hon'ble Supreme Court held that notice and opportunity of hearing in such like case is not required to be afforded to the persons who would be ultimately affected by such selection.
::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 711. In the instant case, it is not even the allegation of the .
petitioner that there has been mal-practice in the selection process.
The entire edifice of the petitioner claim is based only on suspicion and, therefore, cannot be countenanced. This Court cannot direct roving or fishing inquiry and moreso, when only general and bald of allegations regarding tampering with the answer-sheets have been made.
12. rt That apart, it would be seen that the petitioner has in fact, failed to make a grade in Hindi by nine marks and this fact in itself would have been sufficient to throw out the petition, but since it was a question of career of an individual, we still proceed to deal with all the contentions as raised in this petition.
13. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another, reported in (2010) 6 SCC 759, it was specifically held by the Hon'ble Supreme Court that it is not permissible for the High Court to examine the question paper and answer-sheets itself, particularly, when the commission had assessed the inter-se merit of the candidates. If there is any discrepancy in framing of the question or evaluation of the answer, it could be for all candidates appearing for the examination and not for an individual candidate.
14. At this stage, we may also note that what the petitioner in fact is seeking is revaluation of his answer-books, which again is not permissible in view of the decision of the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anr. vs. Paritosh Bhupeshkumar Sheth & Ors.(1984) 4 SCC 27 wherein the Hon'ble Supreme Court has rejected the ::: Downloaded on - 15/04/2017 19:01:59 :::HCHP 8 contention that in the absence of provision for revaluation, a direction .
to this effect can still be issued by the Court. This view was approved, relied upon and reiterated by the Hon'ble Supreme Court in Pramod Kumar Srivastava vs. Bihar Public Service Commission, (2004) 6 SCC 714 and subsequently reiterated in the case of Mukesh Thakur of (supra).
15. Having said so, we find no merit in this petition and the rt same is accordingly dismissed alongwith pending application(s), if any, leaving the parties to bear their costs.
(Tarlok Singh Chauhan) Judge.
October 1st , 2015 ( P. S. Rana ),
(GR) Judge.
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