Madhya Pradesh High Court
Deepak Singhal vs General Administration Department on 1 May, 2017
W. A. No.211/2017
01.05.2017
Shri B. Azad, learned counsel for the appellant.
Shri V. P. Khare, learned counsel for the respondent
No.2/MPPSC.
Heard.
Facts of the case are that the appellant was not
permitted to participate in the examination process for the post of Tax Assistant in the Commercial Tax Department on the ground that he was working on contract basis and, therefore, he could not be given relaxation in age.
He challenged the said action by filing W. P. No.839/2011 on 20.01.2011. On 21.01.2011, an interim order was passed directing the MPPSC to permit the appellant to participate in the examination. Thereafter, on 13.09.2013, the writ petition was allowed.
The respondent No.2 challenged the said order by filing W. A. No.1031/2013, which was dismissed vide order dated 24.07.2014 and, thereafter, SLP No.19371/2014 against the said order was also dismissed on 02.12.2014. After dismissal of SLP, result of the appellant was declared on 30.01.2015.
The grievance of the appellant is that much prior to the date of declaration of result, on 16.12.2011, his OMR sheet was destroyed. He has attempted all the questions and, therefore, he filed the present writ appeal for directing the respondent No.2 to produce the OMR sheet.
The stand of the respondent No.2 before the Writ Court was that the OMR sheet and the modal answer sheet pertaining to the Tax Assistant Examination 2010 have been destroyed on 16.12.2011 as per rules, as the result of other students were declared on 11.02.2011 and the same was destroyed after a period of six months from the date of declaration of result.
The contention of the learned counsel for the appellant is that the result was declared on 30.01.2015 and, therefore, answer sheet of the appellant was destroyed even much prior to the expiry of six months. Therefore, in view of the law laid down by the Division Bench in the case of M. P. Public Service Commission vs. Ravinshankar Agrawal & others decided on 19.04.2017 in W. A. No.85/2017 will apply in the present case also and prays that the respondent No.2 be directed to award compensation accordingly. Order dated 19.04.2017 reads as under :-
The challenge in the present appeals is to an order dated 8.11.2016, whereby the writ petitions filed by the writ petitioners were allowed in the light to the earlier Division Bench judgment of this Court in the case of Chanchal Modi Vs. State of M.P. and another - 2014 (3) MPLJ 84. The writ petitioners (respondents herein) were the candidates for the post of Assistant District Prosecution Officers for which the applications were invited vide advertisement dated 5.7.2010. The written examination was conducted on 14.11.2010 on the basis of multiple choice questions i.e. by filling the answers in OMR sheet. The final select list was issued on 30.6.2011. The writ petitioners were not amongst the successful candidates. The petitioners filed the writ petition before the Court inter alia challenging the answer key finalized by the Madhya Pradesh Public Service Commission to be erroneous.
02. Similar challenge was made before the coordinate Bench of this Court at Gwalior. The writ petition was dismissed, but the Division Bench allowed the appeal by the order in the case of Chanchal Modi (supra). The Court has held that the model answer key is incorrect in respect of some of the petitioners. Such finding was recorded on the basis of the report of an expert Committee constituted by the High Court. The Court decided the appeals with the following directions :-
"59. - Hence, all the appeals are allowed with the following directions :-
(i) The impugned judgment dated 22-3-2012 passed by the writ Court in all the connected writ petitions is hereby set aside.
(ii) That the respondent Public Service Commission is directed to scrutinize the case of each of the appellant and the answers given by him in the light of the correct answers of the questions mentioned in the judgment and if on revaluation and scrutiny, it be found that the appellant/appellants has/have received higher marks than the cut off marks or equal marks the cut off marks fixed by the PSC in the event of equal marks, they be offered employment or if it is not possible for the State to offer the employment, the successful appellant be paid a compensation of Rs.Five Lakh.
(iii) The directions be complied with within 45 days from the date of receipt of copy of the judgment.
(iv) No order as to costs."
03. The appellants in the aforesaid cases were also the candidates in the same selection process i.e. Assistant District Prosecution Officer for which the applications were invited vide advertisement dated 5.7.2010. In respect of same selection process, this Court has already passed an order to reexamine the answer sheets and again to declare the revised result. But the stand of the appellants in the present appeals is that the OMR sheets were destroyed, in pursuance to the decision taken by the public service commission on 19.10.2011. The Commission has destroyed the answer sheets except in which notices from of the Court are received up to 12.12.2011. It is thus sought to be contended that the appellants cannot re-examine the answer sheets for the reasons that it does not have any answer sheets to examine and the direction issued by the learned Single Bench is incapable of being complied with.
04. We have heard learned counsel for the parties and find the action of the Commission in destroying the answer sheets is patently illegal. In as much as, the answer sheets were destroyed even before the expiry of six months of the declaration of result, when the selection process was in question in different writ petitions. The decision of the Commission that the answer sheet shall be destroyed within three months appears to be an attempt to cover up its mistakes or hide under the cover of destruction of the answer sheets. The answer sheets were required to be kept by the Commission for a reasonable period to satisfy the Court in case the Court wants to examine the answer sheets. The decision to destroy the answer sheets soon after the declaration of the result is wholly unfair and to cover up the illegalities, if any, in the process of examination conducted by the Commission.
In fact, the perusal of the record of the writ petition shows that the writ petitioners have earlier filed W.P. No.13933/2011 in which the Commission has filed its reply on 22.9.2011. In such writ petition, an order was passed to the Commission to take steps for furnishing answer sheets in the light of the order passed in the case of Central Board of Secondary Education and others Vs. Aditya Bandopadhyay (2011) 8 SCC 497. It is thereafter, the answer sheets were supplied to the petitioners which have been appended to the writ petition as Annexures P-5 and P-6. Still further in the reply filed by the Commission, there was no assertion that the answer sheets of the petitioners have been destroyed by the Commission.
05. Thus, we find that stand of the Commission that it has destroyed the answer sheets before the notice was served upon it is patently untenable. The candidates were before this Court and there was a direction to supply answer sheets. Once the answer sheets have been supplied then to say that they have destroyed the answer sheet cannot be said to be a reasonable action on the part of the Commission.
Accordingly, we find that the following directions are required to be issued to the appellants/ Public Service Commission in the light of the order passed by the Division Bench of this Court in Chanchal Modi's case (supra) :-
(1) The appellant/Public Service Commission is directed to reconstruct the answer sheets on the basis of the answer sheets supplied to the writ petitioners or otherwise and then to re-evaluate the answer sheet in accordance with the directions given by this Court in the case of Chanchal Modi (supra);
(2) If it is not possible to reconstruct the OMR sheets, the Commission shall grant marks of the answers to the petitioners, which were ordered to be corrected and then declare result of the petitioners and to recommend their names to the State Government for appropriate action, if any of the petitioner has obtained more marks than the last candidate who name was recommended; (3) If none of the two options are possible, then the appellant shall pay cost of Rs.5,00,000/-
(Rs.Five Lakhs) to each of the writ petitioners for their action of destruction of the answer sheets as compensation, for wrongful deprivation of their right of consideration to the appointment on the said post;
(4) The direction to pay compensation of Rs.5,00,000/- (Rs.Five Lakhs) in terms of the direction of the Bench in Chanchal Modi's case would be in addition to the compensation ordered to be paid to the writ petitioners. (5) Such action should be completed within a period of three months.
06. Accordingly, both these appeals are disposed of with directions as mentioned above.
Learned counsel for the respondent No.2 has opposed the prayer and submitted that in the aforesaid matter, facts are different and ratio decided by the Division Bench will not be applicable in the present case and prayed for its dismissal.
In view of the aforesaid so also the fact that respondent admittedly declared the result on 30.01.2015 whereas, much prior to the date of declaration of result, on 16.12.2011, OMR sheet was destroyed, the law laid down by the Division Bench in the case of M. P. Public Service Commission vs. Ravinshankar Agrawal & others (supra) will be applicable in the present case also. Accordingly, impugned order dated 06.03.2017 passed in W. P. No.2827/2015 is set aside and direct the respondent No.2/MPPSC to pay cost of Rs.5,00,000/- (Rupees Five Lacs only) to the appellant for their action of destruction of the answer sheet as compensation, for wrongful deprivation of the right of consideration to the appointment on the said post. The direction to pay compensation of Rs.5,00,000/- in terms of the direction of the Division bench in M. P. Public Service Commission vs. Ravinshankar Agrawal & others (supra) would be in addition to the compensation ordered to be paid to the appellant. Such direction should be completed within a period of three months.
According, W.A. 211/2017 stands disposed of with directions as mentioned above.
(P. K. Jaiswal) (Virender Singh)
Judge Judge
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