Madras High Court
A.Eswaramoorthy vs The Secretary To Government on 4 November, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.11.2009
CORAM
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
W.P.NOS.4509,4510,4511,4512,4513,4514,4515,4516,4517,4518,7411, 7412,7413,7414,7415,7416,7417,7418,8874,8938,9181,10752,10753, 10754,10755,10756,10757,10758,10759,10760,10761,10762,10763, 10764,11224,11807,12032,12870,13130,13367,13490,13491,13492, 13493,13494,13495,13496,13497,14463,14487,14888,15667,17196, 17197,17198,17472,18226,18227,18228,18229,18230,18231,18232, 18351,18538, 18539, 18659,19469,19470,19471,19472,19473,19510, 19587,19821,20280,20281,20282,20283,20284,20285 OF 2009,
20470,22924,22976 OF 2008
AND CONNECTED MISCELLANEOUS PETITIONS
W.P.NO.4509 OF 2009
A.Eswaramoorthy .. Petitioner
Versus
1.The Secretary to Government
Home (Police IV) Department
Fort St.George
Chennai 600 009.
2.The Director General of Police /
Chairman, Tamil Nadu Uniformed Services
Recruitment Board
Anna Salai, chennai 600 002.
3.The Director General of Police
Dr.Radhakrishnan Salai
Mylapore
Chennai 600 004.
4.R.Arjun Kumar
Sub Inspector of Police
Security Branch CID
(R-4-Impleaded as per order
dated 10.09.2009 in
M.P.2/09 in W.P.4509/2009) .. Respondents
PRAYER IN W.P.NO.4509 OF 2009: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the 2nd respondent to add one mark to the petitioner for recruitment of Sub-Inspector of Police (Men-department Quota) 2006 and further direct the respondents to select and appoint the petitioner as Sub-Inspector of Police under 20% department candidates quota and fix the appropriate place in the selection and grant all consequential service and monetary benefits.
For Petitioners in W.P.Nos.4509 to 4518/2009,
7411 to 7418/2009, 17196 to 17198/2009,
14463/2009,14487/2009,
10752 to 10764/2009,
20280 to 20285/2009, 20470/2009 : M/s.S.Sivakumar
For Petitioners in W.P.Nos.8874/2009,
8938/2009,9181/2009,15667/2009 : M/s.G.Bala and Daisy
For Petitioners in W.P.No.12870/2009,
14888/2009,18659/2009,
18226 to 18232/2009 : Mr.G.Srinivasan
For Petitioners in W.P.Nos.11807/2009
& 13130/2009 : Mr.K.Ravi Anantha Padmanaban
For Petitioner in W.P.No.13367/2009 : M/s.A.Jenesenan
For Petitioners in W.P.Nos.13490 to 13497/2009 : Mr.J.Saravanan
For Petitioners in W.P.No.15874/2009,
19469 to 19473/2009,19510/2009
: Mr.K.Venkataramani
Senior Counsel for
M/s.Mr.Muthappan
For Petitioners in W.P.Nos.12032/2009,
17472/2009,18538&18539/2009 : Mr.C.Selvaraju
Senior Counsel for
Mr.P.Athi Veera Rama Pandian
For Petitioner in W.P.No.18351/2009 : M/s.P.I.Thirumoorthy
For Petitioner in W.P.No.19587/2009 : M/s.A.R.M.Arunachalam
For Petitioner in W.P.No.19821/2009 : M/s.V.Manohar
For Petitioners in W.P.Nos.21924&22976/2008 : Mr.S.Thirumavalavan
For Respondents in all Writ Petitions : Mr.P.S.Raman
Advocate General
* * * * *
C O M M O N O R D E R
In view of the common issues involved in all the writ petitions, they have been taken up together for disposal and a common order is passed.
2.The brief facts of the case in a nutshell are as follows:
A notification was issued by the Tamil Nadu Uniformed Services Recruitment Board as per the directions of the Government of Tamil Nadu in the newspapers on 18.07.2006 for the recruitment of Sub-Inspector of Police. The Tamil Nadu Uniformed Services Recruitment Board has been constituted by the Government of Tamil Nadu for the purpose of recruiting the eligible candidates for various posts in the police department. The notification has been issued for the selection of 682 Sub-Inspector of Police. The selection was for a large number of vacancies since over the years the posts have not been filled up. Out of 682 posts, 517 vacancies have been reserved for direct recruitment and out of the same 445 were meant for men and 72 for women respectively. Two women ST candidates from the backlog vacancies in direct recruitment of selection were also included in the list. Of the remaining 146 vacancies which have been earmarked for departmental candidates with the percentage of 20, 126 have been allotted for men and 20 for women. Even in the said category, 17 women candidates in the backlog vacancies coming under various reserved categories were also included.
Recruitment process in the above said selection was conducted at 12 Centres throughout the State. The recruitment process consists of Certificate Verification, Physical Measurement Test, Endurance Test, Physical Efficiency Test, Written Test, Viva-voce. A candidate who fails in any one of the above said process is eliminated then and there by issuing a disqualification slip. After the completion of the Physical Efficiency Test, Written Test was held on 20.05.2007. Thereafter, based upon the marks obtained in the Viva-voce as well as the Written Test, candidates have been selected. The appointments have been made from 20.12.2007 onwards.
Writ petitions have been filed in the year 2007 by the unsuccessful candidates before the Hon'ble High Court, challenging the provisional selected list and also seeking consideration based upon special sport category and special quota. In the said writ petitions, the grievances of the petitioners therein were that the quota fixed for each category has not been followed, Written Test not conducted properly, ST/SC quota has not been filled up, quota earmarked for the wards of the police personnel not published, there is a lack of transparency in the selection, marks have been awarded in the Sports Certificate and lesser marks have been given to the petitioners in the Viva-voce. The writ petitions have been dismissed by the learned single Judge of the Hon'ble High Court in and by the order dated 20.11.2007 and the writ appeal filed in Writ Appeal No.194 of 2007 etc. were also dismissed by the Hon'ble Division Bench on 28.03.2008.
Thereafter from the month of June 2008 onwards, applications have been made by the petitioners at different point of time seeking the particulars of the marks awarded, key answers as well as the copies of the answer sheets written by them. Accordingly, the Tamil Nadu Uniformed Services Recruitment Board has furnished all the particulars required by the petitioners after taking some time. The petitioners after receiving the said particulars came to understand that marks have been wrongly awarded by selecting wrong key answers as the correct key answers. In other words, the selected candidates who answer some of the questions wrongly have been given marks as against the non-selected candidates who have answered correctly but given the marks wrongly in view of the mistakes committed by the respondents in awarding marks by choosing in correct key answers.
Thereafter, further informations have been sought for by the petitioners from the Tamil Nadu Uniformed Services Recruitment Board. A reply has been given by the Tamil Nadu Uniformed Services Recruitment Board stating that for question no.11, answer no.D is the correct answer, for question no.38, all the answers are right and question no.44, option-A is the correct answer. The Board has also requested the first respondent to look into the anomaly caused by correcting the answer papers with wrong key answers by providing appointment to the affected candidates. However, the said request was rejected by the first respondent.
As per the Written Test, the OMR answer sheets have been evaluated by the computer instead of manual corrections. The candidates were given the choice of shading the correct answers in the OMR answer sheets in pencil.
Question No.11 is as follows:
11.Greenhouse effect is caused by A) Oxygen depletion B) Ozone layer depletion C) Hydrogen reduction D) Greenery reduction Question No.38 is as follows:
38.What percentage (%) of human body weight is water ?
A) 55 B) 65 C) 70 D) 80 Question No.44 is as follows: 44.Free India's first Governor-General was A) Mountbatten B) Rajaji C) Dr.Zakir Hussain D) Dr.Radhakrishnan
The evaluation was made by giving the key answer for question no.11 as Ozone Layer Depletion (B), for question no.38 as 70 (C) and question no.44 as Rajaji (B) respectively. The correct answers which are subsequently given by the Board for question no.11 is (D), question no.38, all the answers and question no.44 is (A). Therefore, there is no dispute regarding the correct answers as per the subsequent communication sent by the Board. In other words, there is an admission by the respondents about the mistakes committed in correcting the answer sheets on the basis of wrong key answers.
Thereafter, after obtaining the above said information from the Board under the Right to Information Act, the petitioners have filed the present writ petition seeking a writ of mandamus directing the respondents to include the marks which were wrongly awarded to the petitioners in view of the wrong key answers resulting in wrong evaluation. An application was filed under Rule 2-A of the Appellate-Side Rules and the said application filed in M.P.No.2 of 2009 in W.P.No.4509 of 2009 was ordered permitting to implead the fourth respondent therein as the representative of the selected candidates.
3.Heard Shri.K.Venkataramani, Shri.C.Selvaraj learned senior counsels and Mr.S.Sivakumar, M/s.G.Bala and Daisy, Mr.G.Srinivasan, Mr.K.Ravi Anantha Padmanaban, Mr.A.Jenesenan, Mr.J.Saravanan, Mr.P.I.Thirumoorthy, Mr. A.R.M.Arunachalam, Mr.V.Manohar, Mr.S.Thirumavalavan, learned counsels appearing for the petitioners and Shri.P.S.Raman, learned Advocate General appearing for the respondents.
4.The submissions on behalf of the petitioners are as follows:
It is submitted by the learned counsels for the petitioners that inasmuch as the respondents having admitted the mistakes in not awarding the marks correctly and awarding the marks wrongly to the selected candidates, as a consequent thereon the said marks should be added to the marks obtained by the petitioners and with the added marks, they should be considered for the post of Sub-Inspector of Police. It is further submitted that the present situation is only because of the respondents and therefore, they cannot take advantage of their own wrong. The petitioners were not aware of the awarding of the wrong marks earlier since they came to know about the facts only in pursuant to the application made by them under the Right to Information Act. Even the question paper has been taken away from the petitioners after the examination was over and therefore, the petitioners were in dark not knowing about the mistakes committed by the respondents. The said mistake having been admitted by the respondents as seen by the letter sent by the Board to the Government dated 30.01.2009 wherein there is an admission by the Board that the question papers were opened only in the printing press and neither the question paper nor the key has been verified, nothing prevented the Board from verifying the same after the examination is over. The Board being a creation of the Government all the respondents are responsible for the mistakes committed by the Board.
The learned counsels further submitted that in a case where mistakes were committed by the respondents and because of the same candidates are made to suffer then the said mistakes will have to be made good by rectifying the key answers by awarding marks to the petitioners. It is further submitted that in such a case Supernumerary Posts will have to be created by appointing such of those persons who otherwise would have been selected but for the awarding of the wrong marks.
In support of the contention that the marks will have to be awarded by creating the Supernumerary Post, the learned senior counsel Shri.C.Selvaraj has relied upon the judgments reported in W.P.NO.18714 OF 2008 etc. DATED 13.08.2008; (2005) 13 SCC 749 [GURU NANAK DEV UNIVERSITY v. SAUMIL GARG AND OTHERS]; (1996) 7 SCC 106 [STATE OF ORISSA v. PRAJNAPARAMITA SAMANTHA]; (1984 ) 2 SCC 319 [ABHIJIT SEN v. STATE OF U.P.]; (1996) 10 SCC 177 [D.K.REDDY v. UNION OF INDIA]; (1997) 11 SCC 488 [DELHI ADMINISTRATION v. NAND LAL PANT]; (1998) 4 SCC 107 [UNION OF INDIA v. AKHILESH CHANDRA AGRAWAL] AND W.P.NO.12127 OF 2008 etc DATED 31.07.2008. Mr.K.Venkataramani, learned senior counsel further submitted that the vacancies have been taken into account as available as on 31.12.2004. If the vacancies available as on the date of the appointment are taken into account, then the contentions raised on behalf of the respondents will fall to the ground since by adopting the said procedure all the persons who are otherwise eligible would have a chance to get appointed. In support of his contention, the learned senior counsel has relied upon the judgment reported in (2002) 10 SCC 549 [SANDEEP SINGH v. STATE OF HARYANA AND ANOTHER] wherein, the Hon'ble Apex Court was pleased to observe that the vacancies available upto the date of interview should be filled up from among the candidate selected in the competitive test. The said judgment of the Hon'ble Apex Court has also been followed by the Hon'ble Division Bench in and by the order DATED 27.04.2007 in W.P.NO.22770 of 2003 etc. Hence, the learned senior counsel submitted that the said procedure will have to be followed in the present case as well.
In so far as the contentions raised by the respondents on the ground of constructive res judicata is concerned, it is submitted by the learned counsels for the petitioners that the issue raised in the present writ petition has not been raised earlier and therefore, the question of constructive res judicata would not arise for consideration. Further, the other objections regarding delay and laches also liable to be rejected, since the petitioners were not aware of the marks earlier and immediately after getting the information from the respondents, they have filed the present writ petitions. Moreover the fact that the earlier writ petitions have been filed and adjudicated also will have to be taken into consideration in favour of the petitioners in so far as the delay and laches are concerned. Hence, the learned counsels prayed for allowing of the writ petitions. All the learned counsels submitted that they are not seeking to set aside the selection already made and the petitioners are willing to forgo the seniority and they will be satisfied, if they are considered for the post of Sub-Inspector of Police based upon the correct marks being awarded to them.
A counter affidavit has been filed on behalf of the second respondent namely, the Director General of Police who is the Chairman of the Tamil Nadu Uniformed Services Recruitment Board. The various averments on merits made by the petitioners have not been denied. What is stated in the counter affidavit is the legal submissions on the ground of constructive res judicata, delay and laches. It is further stated in the counter affidavit that the selected candidates have not been made as parties and inasmuch as the impleadment made in one of the writ petition which pertains to 20% quota reserved for service candidates, impleading the fourth respondent therein which comes under 80% direct recruitment cannot be construed as a proper service of notice and therefore, the writ petitions are liable to be dismissed for non-joinder of necessary parties.
5.The submissions made by the learned Advocate General are as follows:
The learned Advocate General submitted that it is no doubt true that mistakes have crept in the key answers resulting in wrong evaluation of the answer sheets. The learned Advocate General further submitted that inasmuch as specific vacancies having been notified by the second respondent, the vacancies cannot be extended to the petitioners. If any extension is made that would be affecting the future vacancies preventing new candidates from participating in the selection process. It is further submitted that the writ petitions are liable to be dismissed on the ground of res judicata, since the petitioners having raised the said plea earlier cannot re-adjudicate the same in the present writ petitions. Further even assuming the said plea has not been specifically raised and considered and the said plea having been available earlier cannot be permitted to be raised at present. The learned Advocate General also submitted that having allowed the selected candidates to be selected and thereafter to work in the various places, the writ petitions will have to be dismissed for delay and laches.
The learned Advocate General relied upon the judgments reported in (2006) 3 SCC 330 [STATE OF U.P. v. RAJKUMAR SHARMA]; (2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALA STATE PUBLIC SERVICE COMMISSION]; AIR 2002 SC 1523 [S.RENUKA v. STATE OF A.P.]; (1998) 8 SCC 59 [ROSHNI DEVI v. STATE OF HARYANA]; AND AIR 2001 SC 1851 [ALL INDIA SC & ST EMPLOYEES ASSOCIATION v. A.ARTHUR JEEN] and submitted that when the selected list expires, a selected candidate cannot insist that he should be appointed in pursuant to the said list. It is also submitted that a candidate in the selected list does not have a vested right to be selected and such a case, a writ of mandamus cannot be issued. Therefore, the learned Advocate General prayed for the dismissal of the writ petitions.
6.In the present case on hand, there is no dispute on facts inasmuch as question no.11, 38 and 44 have been wrongly evaluated. A reading of the reply given by the second respondent subsequently to one of the petitioners under the Right to Information Act would show that the right answer for question no.11 is option (D), for question no.38, all the answers and question no.44 is option (A). It is also admitted by the respondents that question no.11, a wrong answer has been given in the key answer by indicating that option (B) as the correct answer and for question no.38, the wrong answer of (C) has been given and for question no.44, wrong answer of (B) has been given. Even in the counter affidavit, the said fact that wrong answers have been given for question nos.11, 38 and 44 has not been denied and it is further not denied that the correct answer to question no.11 is (D), 38 all answers and 44 (A) respectively. Therefore, this Court finds that there is no dispute on fact. Hence, this Court will have to proceed that wrong key answers have been given as indicated above and the correct answers are subsequently given by the second respondent.
7.Mr.C.Selvaraj, learned senior counsel submitted that even the answers given by the second respondent subsequently for question no.11 is not correct, since for question no.11, answer (D) cannot be the correct answer as per the text book of the 10th Standard. This Court finds that the subsequent evaluation has been done by the second respondent on consulting the experts and therefore, the contention of the learned senior counsel for the petitioners cannot be accepted by this Court. However inasmuch as the key answer given for question no.11 is also wrong and the correct answer being option no.(D), the same will have to be taken as the correct answer. This Court while exercising the power under Article 226 of the Constitution of India cannot act as a supervising body or an expert in evaluating the key answers given by the respondents which was given subsequently based upon consultation of the experts. Therefore, this Court is of the opinion that the said decision of the second respondent cannot be reviewed by this Hon'ble Court. The Hon'ble Apex Court in the judgment reported in (2005) 13 SCC 749 [GURU NANAK DEV UNIVERSITY v. SAUMIL GARG AND OTHERS] has held that until and unless it is demonstratively erroneous and clear, the Court should not substitute its own opinion on the decision made by an authority who is competent to say so. The Hon'ble Apex Court was pleased to observe that when there is a benefit of doubt, the same will have to go in favour of examining the body. Therefore, on a consideration of the above said legal position, this Court is of the opinion that question no.11 will have to be evaluated by awarding the correct key answer as option no.(D).
8.In so far as the power of this Hon'ble Court in directing the respondents to award the marks to the petitioners is concerned, the said issue has been settled by various decisions of the Hon'ble High Court as well as the Hon'ble Apex Court. When there is a patent error and illegality or total arbitrariness on the part of the respondents, then this Court can very well exercise the power under Article 226 of the Constitution of India.
9.This Hon'ble Court in W.P.NO.12127 of 2008 etc. DATED 31.07.2008 has considered the similar matter in extenstio and observed as follows:
"15. The scope of interference, under Article 226 of Constitution of India, when there is violation of statutory duties and injustice caused to any person was considered by the Honourable Supreme Court in the following cases:
(a) In Dwarka Nath v. I.T.Officer, AIR 1966 SC 81 = (1965) 3 SCR 536 = 57 I.T.R. 349, a three-Judges Bench of the Supreme Court has held as follows:
"Art.226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. ...."
(b) In Rohtas Industries v. Its Union, AIR 1976 SC 425 = 1976 Labour and Industrial Cases, 303 (3J), the Supreme Court held that the expansive and extraordinary power of the High Courts under Art.226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual - and be available for any (other) purpose - even one for which another may exist.
(c) In Shri Anadi Mukta Sadguri S.M.V.S.J.M.S. Trust v. V.R.Rudani, AIR 1989 SC 1607 = (1989) 2 SCC 691, it has been held as follows:
"17. ............. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose.
18. ..............
19. ..............
20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied."
(d) In Union of India and others v. R.Reddappa and another, (1993) 4 SCC 269, the Supreme Court has observed that once the Court is satisfied of injustice or arbitrariness, then the restriction, self-imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice.
(e) In B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749, the Supreme Court approving the decision of the Orissa High Court in Krishna Chandra Pallai v. Union of India, (AIR 1992 Orissa 261)(FB) held as follows:
"High Court being a Court of plenary jurisdiction has inherent power to do complete justice between parties similar to Supreme Court's power under Art.142."
(f) In Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377 = AIR 1997 SC 645 = 1997 Lab.L.C. 365: (1997) 1 LNN 75, the Supreme Court has reiterated the Court's power under Art.226 as follows:
"No limitation except self imposed - the arm of Court long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts."
(g) Following the said decisions, K.Sampath, J. in the decision reported in (2001) 1 MLJ 180 (Sudarshan Kumar v. University of Madras) ordered re-scrutiny/proper valuation of B.E.degree paper (Electrical and Electronics Engineering) conducted by the Anna University wherein the candidate was originally given 30% of the marks and after re-assessment one Examiner awarded 78% and another examiner awarded 69% and this Court ordered to take average of the said two i.e., 75% and by virtue of that re-assessment a brilliant candidate who was declared fail in the B.E.degree was declared pass with distinction. The examination regulations of Anna University prohibits re-assessment/re-scrutiny. The learned Judge further observed in paragraph 12 as follows:
"....... The amendment to Art.226 in 1963 inserting Art.226 (1-A) reiterate the targets of the writ power as inclusive of any person by the expressive reference to the 'residence of such person'. The Supreme Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. ......"
(Emphasis Supplied)
(h) When allegations of large scale malpractice was made re-valuation was ordered to be done by the Bangalore University, Department of Commerce and Management. Even though it was not found in the scheme of examination the same was upheld by the Supreme Court in the decision reported in (2007) 9 SCC 558 (Karnataka Power Corporation Ltd., v. A.T.Chandrashekar).
(i) The question of not submitting objection in time is also considered by the Supreme Court in the decision reported in AIR 1999 SC 199 (C.Tulasi Priya v. A.P.State Council of Higher Education), wherein in the Medical Entrance Examination the candidate was initially supplied with wrong paper and only after 20 minutes, on discovery of the mistake, Invigilator supplied correct question paper, that is after 30 minutes of commencing of the examination. The non-submitting of protest was not found favour with the Supreme Court in granting relief to the said candidate and the Supreme Court in paragraph 10 observed as follows:
"............ The refusal of the High Court to interfere on this ground has, regretably, compounded the injustice done to the appellant. ............."
(j) In the decision reported in AIR 1984 SC 1402 = (1984) 2 SCC 319 (Abhijit Sen v. State of U.P.) in paragraph 2, the Supreme Court considered the implications of supplying wrong key answers, which reads thus, "2. At the outset it may be stated that Civil Appeal No.4116/83 (filed by appellant Abhijit Sen) and Civil Appeal No. 4118/83 (filed by appellant Satyendra Vikram Singh) were not pressed before us and have to be dismissed. Kumari Shivani Aggarwal and Kumari Sunita Khare (the appellants in Civil Appeal Nos.4117 and 4119 of 1983) have challenged the Universitys decision (which decision has been upheld by the Allahabad High Court) of refusing them admission to the MBBS course in any of the seven Medical Colleges. Learned Counsel appearing for them contended that the key-answer supplied by the paper-setter to Question 31 in Zoology paper (being alternative No.2) was wrong or incorrect and the answer given by both the appellants (by ticking alternative No.4) was the correct answer according to recognized text-books and therefore each one of these appellants was entitled to an addition of four marks (three marks for giving correct answer plus one mark which had been wrongly deducted by treating their answers as wrong) and if such addition of four marks was made each one was entitled to get admission. In the case of Kumari Sunita Khare (appellant in Civil Appeal No.4119/83) her counsel raised a further similar contention with regard to Question 100 in Zoology paper, as according to him the key-answer supplied by the paper-setter (being alternative No.3) was clearly wrong or incorrect while the answer given by that appellant (by ticking alternative No.4) was the correct answer according to recognized text-books and therefore so far as she was concerned even if her contention with regard to Question 31 was not accepted she was entitled to addition of four marks (three for giving correct answer plus one mark which was wrongly deducted by treating her answer as incorrect) in regard to Question 100 and even on this basis she would be entitled to get admission. Counsel for the respondents did not dispute before us that if the two appellants or either of them is found entitled to an addition of four marks as suggested on their behalf they will have to be given admission to MBBS course but counsel disputed the validity of the contention urged on behalf of the appellants that key-answer supplied by the paper-setter to either Question 31 or Question 100 in Zoology paper was wrong or that the answers furnished by the appellants were correct. Counsel urged that since the Court was embarking upon a course of finding out and determining the correct answer having regard to the recognized text-books or authoritative books on the subject it would be immaterial whether the key-answer supplied by the paper-setter was found to be wrong, not being in conformity with the correct answer determined by the Court but the appellants would not be entitled to addition of four marks unless their answers were in conformity with the correct answers found by the Court. In other words according to counsel for the respondents if a situation was reached where both the answers, namely, the one given by the appellants as well as the key-answer supplied by the paper-setter, were found to be wrong with reference to the correct answer as determined by the Court the appellants should not succeed. We think there is considerable force in this last submission made by the counsel for the respondents."
In the said decision the Supreme Court granted relief to one candidate.
(k) Ordering re-valuation of answer books only to the candidates approaching the High Court till the date of the decision is also upheld by the Supreme Court in the decision reported in (1996) 7 SCC 106 (State of Orissa v. Prajnaparamita Samanta) wherein at para 8 the Supreme Court held thus, "8. Admittedly, the petitioners and the appellants in question had approached either the High Court or this Court after the decision of the High Court on 27-3-1992. The High Court has rightly set down the said date as a cut-off limit and directed consideration of the answer books only of those examinees who had approached the High Court till that date. It is only those who are diligent and approach the court in time who can be given such relief. The academic year cannot be extended for any length of time for the benefit of those who choose to approach the court at their sweet will. The consideration on the basis of which relief is granted in such cases is always circumscribed by the tenure of the academic year(s) concerned. We, therefore, do not see anything wrong if the High Court has laid down the said date as the cut-off date for the purpose. In the circumstances, there is no merit in these writ petitions and the civil appeals, and they are dismissed with no order as to costs." (Emphasis Supplied)
(l) In the recent decision of the Supreme Court reported in AIR 2007 SC 3098 = (2007) 8 SCC 242 (Secretary, W.B.Council of Higher Secondary Education v. Ayan Das) the Supreme Court gave a caution to entertain writ petition seeking re-valuation and direction to produce answer papers. In paragraph 10 (SCC) it is held as follows:
"10. The courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some question has not been evaluated or that the evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases examining body can provide model answers to the questions. In such cases the examinees satisfy the court that model answer is different from what has been adopted by the Board. Then only can the court ask for the production of answer scripts to allow inspection of the answer scripts by the examinee. ..........."
(m) In (2005) 13 SCC 749 (Guru Nanak Dev University v. Saumil Garg) in paragraph 6 the Supreme Court held that paper setters and those who finalise the key answers must see that only one correct answer out of four options given and if none of the answer is correct, it is their duty to say so. Paragraph 6 reads as follows:
"6. The University is in appeal on grant of leave. We have also before us both sets of students one, students who support the University in their challenge to the directions contained in the impugned judgment, and two, the students who support the impugned directions for re-examination of the key answers in respect of all 200 questions. The High Court has also issued directions for appropriate action to be taken against those who are responsible for the entire confusion and the mess. The High Court has also issued directions for fixing responsibility on the paper-setters and those who have been vested with the responsibility to finalise the key answers and consequential steps to be taken. The said direction of the High Court does not call for any interference. Those who set the papers and those who finalise the key answers have to bear in mind that what is at stake is the career of the young students at the very threshold of their attempt to get entry into professional courses where there is cut-throat competition. The questions posed must have only one correct answer out of the four options given. Likewise, there is responsibility on those who finalise the key answers. If none of the answers is correct, it becomes their duty to say that none of the answers is correct, so that if any remedial action is to be taken, it should be taken before the answers are valuated. It is evident that on both these aspects, there was serious lapse which resulted in litigation which is otherwise avoidable."
(Emphasis Supplied) Again in para 12, if the questions are vague or incapable of having a correct answer the persons who attended the said questions alone can be awarded marks. The same is held in paragraph 12 of the said judgment thus, "12. There is yet another problem, namely, that of seven questions which are so vague that they are incapable of having a correct answer. The appellant University, in respect of those seven questions, has given the credit to all the students who had participated in the entrance test irrespective of whether someone had answered the questions or not. We do not think that that is the proper course to follow. It is wholly unjust to give marks to a student who did not even attempt to answer those questions. This course would mean that a student who did not answer say all the seven questions would still get 28 marks, each correct answer having four marks. The reasonable procedure to be followed, in our opinion, would be to give credit only to those who attempted the said questions or some of them. Having regard to the circumstances of the case, we direct that for the students who attempted those questions or some of those questions, insofar as they are concerned, the said questions should not be treated to be part of the question paper. To illustrate, if a student answered all the said seven vague questions, insofar as that student is concerned, total marks would be counted out of 772 i.e. 800 less 28 and likewise depending upon number of such questions, if any, answered by the student. The seven vague questions are Question 4 in Physics, Questions 76 and 89 in Chemistry, Questions 147 and 148 in Botany and Questions 156 and 163 in Zoology of Question Paper Code A."
(Emphasis Supplied)
(n) While preparing the key answers how much care should be taken by the Examiner/person setting the question paper and the consequences arising out of the said wrong key answers was considered by the Supreme Court in the decision reported in (2005) 13 SCC 744 (Manish Ujwal v. Maharishi Dayanand Saraswati University) (para 10).
(o) The same is the view taken by the Supreme Court in the decision reported in AIR 1983 SC 1230 = (1983) 4 SCC 309 (Kanpur University v. Samir Gupta). In paragraphs 16 and 17 the Supreme Court held as follows:
"16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree 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 of 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 contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.
17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance Test for admission to the medical colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong."
(p) Similar issue with regard to the wrong questions or wrong key answers or more than one answer is correct for one question with regard to the entrance examination conducted for MBBS and BDS course for the academic year 2004-2005 was considered by this Court in the decision reported in 2004 WLR 639 (D.Shylaja v. The Secretary to Government & Others). In paragraph 52 this Court directed the Anna University to re-value the answer papers for certain questions, though under the scheme revaluation was not permitted, which reads as follows:
"52. In the result, the writ petitions are allowed in part. The University is directed to revalue all the answer papers. Question Nos.27 and 33 in Biology question paper in version code MA-7, question Nos.11, 64 and 77 of version code BS6 relating to physical science shall not be deleted and mark should be awarded to any student who has indicated any of the correct choices. It is further directed question No.76 in version code BS6 should be evaluated and credit should be given to the students who have given the correct option as per the key answer provided by the paper setter. Question No.105 in version code MA-7 is to be revalued and option No.4 should be taken as the correct answer and not option No.3 as indicated by the committee. Question No.117 in version code BS6 should be deleted from consideration. The necessary revaluation may be done within a period of three days from the date of receipt of a copy of this Judgment and revised marks may be furnished to the selection committee immediately to enable the selection committee to finalise the selection. The selection committee may fix suitable dates for counselling. There is no order as to costs. Consequently, the connected miscellaneous petitions are closed."
The said decision was confirmed by a Division Bench of this Court in W.A.No.2476 of 2004 etc., batch by Judgment dated 2.8.2004 (G.Nanthini v. The Registrar, Anna University, Chennai-25) with slight modification with regard to the number of question. While disposing of the writ appeals, in paragraph 6 the Division Bench held as follows:
"6. Before parting with the case, we want to address the respondents something in the interest of students and their parents in the context of quality of examination. The very object of bypassing the descriptive type examination and choosing the objective type multiple choices examination is to enhance the standard of education so that the student is made ready to answer more questions just by ticking the correct answer out of four alternative answers. For that purpose, he is made to read comprehensively, absorb the contents and then come to a quick decision. When quick decision with such precision is the objective, among the alternative answers provided, one should be the correct answer while the remaining three should not be correct. Only then the correct answer can be called as the key answer. There cannot be a concept of more than one key answer. Key answer shall be only one. The courts have been doing this exercise and sometimes, in the interest of the career of the students, direct the awarding of marks for more than one question. But that should be only an exception and not the rule. But, unfortunately, the exception has become a rule and the rule an exception because of the falling standards in the conduct of examinations. We do not understand as to why there should be an appellate forum, even at the threshold, by setting up an expert committee. The paper setter chooses questions from question bank where the key answers are already provided. By setting up the expert committee, the paper setter is reduced to just a clerk, as the key answer which is indicated has got absolutely no weightage as against the opinion of the expert committee as the University conducting the examination only takes note of the views of the expert committee for awarding marks. This practice has to be discontinued. When the papers are set, choosing questions from the question bank already carrying the key answers, experts in the various disciplines have to be chosen to form the question bank and that should be a step before conducting the examination and not like the instant one in setting up the expert committee ex post facto. All the questions should be definite and so also the answers provided. All efforts should be taken that there should not be more than one correct answer as a key answer and no room is given for creating any confusion."
10.Therefore on a consideration of the above said judgments relied on by this Court earlier, this Court is of the opinion that a selection process would requires transparency and fairness. When the said process is found to be demonstratively wrong and in view of the same candidates who are otherwise eligible are not selected then the power under Article 226 of the Constitution of India will have to be necessarily exercised by this Hon'ble Court. It is also to be seen that each one has got a right to be considered for a post. The right to be considered would also include the right to be considered properly. Hence when facts are not in dispute and the admitted position is that the respondents have committed the mistakes and due to the same the eligible candidates have lost their chances then they are entitled to be considered based upon the same.
11.As contended by Mr.K.Venkataramani, learned senior counsel for the petitioners in a case where admittedly mistakes have been committed by the respondents and due to which the meritorious candidates could not be considered, this Court will have to pass appropriate orders by moulding the relief. A reading of the judgment relied upon by the learned senior counsel for the petitioners reported in (2002) 10 SCC 549 [SANDEEP SINGH v. STATE OF HARYANA AND ANOTHER] would show that there is no bar for filling up the vacancies till the date of interview. The Hon'ble Apex Court has observed as follows:
"3. It is contended on behalf of the appellants that not only the judgment of the High Court in Hooda Case has already been reversed by this Court in Hooda, but also several circulars of the Government support the contentions that the vacancies available up to the date of interview should be filled up from amongst the said competitive test rather than to have carried forward in respect of those vacancies for the next test. In respect of this contention the circulars of the years 1957 and 1972 had been placed before us. Mr.Mahabir Singh, however, appearing for the State of Haryana vehemently urged that these circulars will have no application in cases where appointment is made through written competitive examination and therefore the Public Service Commission would be entitled only to send the list of selected candidates in respect of vacancies for which the requisition had been made and advertisement was issued and not any further future vacancies. According to him, the judgment of this Court in Hooda did not consider the subsequent circular of the Government in the year 1993. It is no doubt true that the reported decision of this Court in Hooda does not refer to the aforesaid circular of the year 1993. But it was stated to us that the State of Haryana had filed a review application and appended the said circular of 1993 and the said review application stood rejected by this Court. That apart, even on first principle, it appeals to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. In the case in hand, no statutory embargo has been pointed out to us. In this view of the matter, the judgment of this Court in Hooda should apply to the facts and circumstances. Be it stated that we have been shown the government circular of the year 1993 in Hindi and going through the same, we are persuaded to hold that the circular says the same thing that we have indicated earlier in this judgment. In the aforesaid premises, we set aside the impugned judgments of the Punjab and Haryana High Court and allow these appeals and writ petitions and direct that these four persons, who had appeared at the competitive test in the year 1993 pursuant to the advertisement dated 24.12.1992 should be considered for being appointed to the Haryana Civil Services (Executive Branch). We make it clear that if any other persons, who had appeared at the said examination and who had not approached the Court till today, will not be entitled to file any such application for getting this relief in question so far as the examination of the year 1993 is concerned. It is also made clear that the appellants will get the benefit of this order prospectively i.e. from the date of appointment. The Government may decide the matter within three months."
12.The said judgment of the Hon'ble Apex Court was also considered and followed by the Hon'ble Division Bench in W.P.NO.22770 of 2003 etc. DATED 27.04.2007 wherein, the Hon'ble Division Bench has observed as follows:
"20.The learned senior counsel appearing on behalf of the petitioners would rely on a judgment of the Apex Court in SANDEEP SINGH vs. STATE OF HARYANA AND ANOTHER [(2002) 10 SC 549]. In the said case, like in the case on hand, the number of Haryana Civil Services (Executive Branch) posts had been indicated in the advertisement but it was stipulated that the vacancy position may change. From the date of the advertisement and till the date of holding the interview, several other posts in the services fell vacant, but Public Service Commission ultimately gave only a list of those number of vacancies for which initial requisition had been made. In such circumstances, the Apex Court had, in no uncertain terms, had held that "vacancies available upto the date of interview should be filled up from amongst the candidates selected in the said competitive test."
21.In this case, the notification was issued on 7.1.1998, written test was conducted on 7.6.1998, interview was conducted on 1.12.1999 and the results were announced on 5.12.1999. Immediately thereafter, the Government tabled a "White Paper on the Reservation in Government Employment" on 11.5.200 before the Tamil Nadu Legislative Assembly wherein in para 6, the details of backlog vacancies regarding S.C. Candidates which arose from 1.4.1989 onwards in respect of Group A are mentioned as 168 and Group B posts as 1545 and in para No.7 of the said Report, it has been stated that the Government took the decision on 11.5.1999 to compute the backlogs by creating equal number of posts in the entry levels. Therefore, the notification dated 7.1.1998 issued by the 1st respondent is subject to all incidence of revision and re-determination of backlog vacancies in the category of Deputy Collector and Deputy Superintendent of Police, which are indisputably entry-level posts by direct recruitment, as has been rightly argued on behalf of the learned senior counsel for the petitioners since it cannot be said that such huge number of vacancies fell vacant only after the interview conducted on 1.12.1999, so as to distinguish the said ruling of the Apex Court. Therefore, following the dictum laid down by the Apex Court in the said judgment, it should be held that the Public Service Commission and the Government should have included such vacancies, which were vacant on the date of interview, also to be filled up by virtue of the Notification issued on 7.1.1998, in which event, not only the petitioners but also many other such similarly placed candidates should have been benefited without undergoing the ordeal of another selection process. Therefore, we are unable to appreciate the stand taken by the Government that no vacancy reserved for the Scheduled Castes has been kept unfilled either in the recruitment relating to the year 1998 or in the recruitments finalised subsequently. As has already been adverted to supra, if the entire vacancies lying vacant on the date of interview were also included in the selection, definitely the petitioners would have got their chance of being selected to Group I services, for which they have applied for".
13.Therefore considering the above said judgments, this Court is of the opinion that the relief will have to be moulded so as to enable the candidates including the petitioners to be considered for the posts of the Sub-Inspector of Police till the date of interview conducted by the respondents while selecting the selected candidates. The contention of the learned Advocate General that other persons namely new candidates will be affected, in the opinion of this Court cannot be accepted, since it is a well settled principle of law that no one has got a vested right to be appointed to a particular post. Moreover new candidates may or may not be selected and therefore, this Court cannot go into the said question which is in the realm of speculation. Further between such candidates and unsuccessful candidates who have answered correctly but got wrong marks the latter have the better right.
14.The learned Advocate General has relied upon the judgments reported in (2006) 3 SCC 330 [STATE OF U.P. v. RAJKUMAR SHARMA]; (2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALA STATE PUBLIC SERVICE COMMISSION]; AIR 2002 SC 1523 [S.RENUKA v. STATE OF A.P.]; (1998) 8 SCC 59 [ROSHNI DEVI v. STATE OF HARYANA] and submitted that a selectee cannot claim appointment as a matter of right and a mere inclusion in the selected list does not confer any right. A reading of the judgments would show that they do not apply to the present case on hand. In the present case, the petitioners are not selected persons and they are also not included in the selected list. A reading of the judgments relied upon by the learned Advocate General would show that all those cases, the candidates have been included in the selected list but they have not been selected in view of the fact that posts were either not available or abolished. The facts in the present case are totally different from the earlier case. In the present case on hand, the petitioners have not been selected and their case is that they have not been selected wrongly due to the mistakes committed by the respondents.
15.In the judgment reported in (2006) 3 SCC 330 [STATE OF U.P. v. RAJKUMAR SHARMA], the posts involved therein have been abolished in view of the creation of a New State of Uttaranchal, since the posts were earmarked for the hill areas. Similarly in the judgment reported in (2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALA STATE PUBLIC SERVICE COMMISSION], the validity of the list got expired and therefore, the Hon'ble Apex Court was pleased to hold that the same cannot be extended at the instance of the persons who are in the reserved and selected list. However in the judgment reported in (1998) 8 SCC 59 [ROSHNI DEVI v. STATE OF HARYANA], the recruitment process through which the appointments were made were cancelled subsequently, since it was found invalid and the facts involved in the judgment reported in AIR 2002 SC 1523 [S.RENUKA v. STATE OF A.P.] pertaining to the empanelled candidate seeking appointment where it was found that the selection was against the rules and reservation policy. Therefore, this Court is of the opinion that the contention of the learned Advocate General placing reliance of the above said judgments cannot be accepted, since in the present case admittedly mistakes have been done by the respondents in awarding marks.
16.The submissions made by the learned Advocate General on the question of constructive res judicata also cannot be accepted by this Hon'ble Court. A question of res judicata would arise only when a question is susceptible of being raised earlier. A reading of the judgment rendered in W.P.NO.14482 of 2007 etc DATED 20.11.2007 would show that the question involved in the present case has not been specifically raised and considered by the Hon'ble Court. The said question was also not raised before the Hon'ble Division Bench which confirmed the judgment of the learned single Judge. Therefore, this Court is of the opinion that the said question having not raised and decided earlier would not amount to constructive res judicata more so, when the said question is not susceptible of being raised earlier. Admittedly, the petitioners have got the information based upon their applications made under the Right to Information Act and after getting the information only they have filed the present writ petitions. It is nobody's case that the petitioners got the information during the pendency of the earlier proceedings since admittedly the petitioners have got the information only thereafter.
17.In so far as the submissions made by the learned Advocate General on the ground of delay and laches are concerned, the said contention also deserves to be rejected. A mere delay in itself cannot be a ground for non suiting a party who comes before the Court. This Court is also of the opinion that the delay is suitably explained by the circumstances under which the petitioners have approached this Hon'ble Court. A reading of the letter sent by the second respondent to the first respondent dated 30.01.2009 itself would show that the second respondent has not verified the answers even after the examination. Therefore, the delay cannot be attributed to the petitioners and the fact that the petitioners have been agitated from rights earlier itself would show that they are not lethargic in their efforts. It is also to be seen that the second respondent has not allowed the candidates to take the question papers which would have helped them to verify the correct answers. Moreover the petitioners are entitled to presume that their answers have been evaluated properly and immediately after coming to know that mistakes have been committed by the second respondent in the process of evaluation, they have approached this Court and this Court also is of the opinion that inasmuch as the selected candidates are not sought to be disturbed by the petitioners the reliefs sought for cannot be rejected.
18.In this connection, it is useful to refer the judgment of the Hon'ble Apex Court reported in (2001) 2 SCC 259 [K.THIMMAPPA v. CHAIRMAN, CENTRAL BOARD OF DIRECTORS, SBI] wherein, the Hon'ble Supreme Court has pleased to hold that a petition cannot be rejected solely on the basis of laches alone. In the present case on hand, the petitioners have got a right to be considered for the post and some of the non-selected candidates would have been selected but for the mistakes committed by the respondents. In other words, this Court is of the opinion that for the mistakes some of the non-selected candidates would have been selected and some of the selected candidates would not have been selected and therefore, in such a circumstances the mistakes committed by the respondents would amount to taking away the rights of the candidates which is fundamental in nature who would have otherwise got selected.
19.The contentions of the learned Advocate General also cannot be accepted for one other reason, since the respondents having committed a mistake affecting the valuable rights of the non-selected candidates cannot be allowed to contend that the writ petitions are liable to be dismissed for delay, constructive res judicata, laches and non-joinder of necessary parties. The second respondent Board is a creature of the first respondent and it acts as per the directions of the first respondent. Therefore, when admittedly mistakes have been committed resulting in the selection of some of the non-suitable candidates and non-selection of suitable candidates, the respondents cannot take advantage if the same on a technical plea. A duty is cast upon the respondents to act fairly. A considerations of the procedure adopted by the second respondent would show that the second respondent has never verified the question paper of the key answers either before the examination or thereafter. The said fact would show that there is a serious lapse on the part of the second respondent. This Court is also of the view that the entire scenario has been caused only by the mistakes committed by the respondents. A duty is imposed upon the second respondent to verify the key answers as well as the question papers before the examination and after the same. When the second respondent has got no objection in furnishing the copies of the answer sheets, key answers, and the marks obtained, nothing prevents the second respondent from publishing the same either in the newspaper or in its website after the completion of the examination.
20.The Hon'ble Supreme Court in the judgment reported in (2007) 11 SCC 447 [KUSHESHWAR PRASAD SINGH v. STATE OF BIHAR] has observed as follows:
"13. The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong)".
21.Therefore, this Court is of the opinion that the respondents cannot take advantage of its own wrong and say that the petitioners have not approached this Court earlier and the selection process has not been challenged. In fact, this Court finds that it is the respondents who should have taken action at the appropriate time by rectifying the mistakes by removing the candidates who were not otherwise qualified by replacing the same with the suitable candidates.
22.As observed by Pandit Jawaharlal Nehru, the most important thing about an administration is the belief in its fairplay and integrity. Transparency is one of the basic foundation of the democratic system. By following the transparent and open system the confidence of the public in the system will be enhanced and in fact the same would reduce the litigation because a person will be in a position to know about his position based upon the factual information furnished by an authority concerned. This Court is also of the opinion that in view of the admitted factual position that marks have been wrongly given for the right answers, suitable orders will have to be passed.
23.Inasmuch as the petitioners have not challenged the selection of the selected candidates, this Court is not inclined to go into the selection made already. However, this Court finds that the relief sought for cannot be restricted to the petitioners alone since merely because the others have not approached this Court their rights cannot be taken away. In view of the admitted position that the correct answers, marks have been given wrongly. This Court also cannot prevent such persons from approaching this Court which would only complicate the issue further. Moreover the petitioners will have to get the selection based upon their own merits and not to the exclusion of others who did not even know that they have answered correctly but given wrong marks. Hence, this Court is of the opinion that even those candidates who have not approached this Court who have answered correctly also will have to be considered by the respondents.
24.Hence after taking into consideration of the above said factual and legal position, this Court is of the opinion that it is a fit case where the following directions will have to be issued:
(i)The respondents are directed to prepare a list of all the unselected candidates who have answered question no.11 with option no.(D), question no.38 with all the answers and question no.44 with option no.(A) and grant marks accordingly.
(ii)The respondents are directed to take the cut-off marks fixed for the selection made in the written examination as the basis for respective categories for the consideration of the non-selected candidates who would get higher marks in pursuant to the directions given by this Hon'ble Court.
(iii)The respondents are directed to conduct Viva-voce Test for those candidates who come within the cut-off marks in pursuant to the granting of higher marks in the written examination.
(iv)The respondents are directed to take into consideration of the marks obtained in the interview for those unsuccessful candidates who have already attended the interview and who would be getting additional marks.
(v)The respondents are directed to consider the candidates who would become eligible to be selected in view of the directions of this Hon'ble Court by adding the marks due to them in the available vacancies, in the respective categories, as on the last date of the interview conducted.
(vi)For the future examinations, the second respondent is directed to verify the key answers immediately after the written examination is over and publish the same in the website of the second respondent as well as in anyone of the newspapers.
(vii)The second respondent is also directed to publish the marks obtained by the candidates in the written examination after the evaluation of the written examination in the website of the second respondent.
(viii)In so far as the petitioner in W.P.No.9189 of 2009 is concerned, the respondents are directed to consider the seniority of the petitioner based upon the revised mark by taking into consideration of the marks to be awarded for the right answers in accordance with law.
25.With these observations, the writ petitions are allowed accordingly. The respondents are directed to complete the process of selection in accordance with the directions given above and publish the results within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
sri To
1.The Secretary to Government Home (Police IV) Department Fort St.George Chennai 600 009.
2.The Director General of Police / Chairman, Tamil Nadu Uniformed Services Recruitment Board Anna Salai, chennai 600 002.
3.The Director General of Police Dr.Radhakrishnan Salai Mylapore Chennai 600 004