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In response to the writ petition on notice of motion being issued, the Registrar of this Court and the District & Sessions Court, Ambala have filed a joint written statement and have contested the case. It is the stand of the official respondents that when malpractices were alleged in the written examination in which the petitioners had participated with respect to leakage of question papers and cheating they did not agitate the matter or approach this Court either on its administrative or judicial side during the interregnum between the declaration of the result of the written examination and the holding of the proficiency test in handling of Computers which was spaced out by more than two months. The petitioners willingly participated in the Computer test without raising any dispute with respect to cheating, use of unfair means etc prior thereto. They are, therefore, precluded from questioning the process of the written examination. It is stated that respondent No.2, the District & Sessions Judge, Ambala vide letter dated CWP Nos.5660 & 17085 of 2009 29.09.2008 had ordered that the written examination be held on 02.11.2008 and pursuant thereto had issued directions accordingly that services of all the Judicial Officers and staff in Ambala Sessions Division would be required to help in the conduct of the examination and deal with a large number of applications recieved. All Judicial Officers and the staff at Ambala were directed to remain present on the day of the written examination. Duties were to be assigned to all the staff in due course. A roster of duties was circulated on 25.10.2008. For each Centre an Additional District & Sessions Judge was appointed as Centre Incharge and two Judicial Magistrates were appointed as Supervisors to assist the Centre Incharge. The contention of the petitioners that no Judicial Officer had been appointed to oversee the Examination Centre is therefore palpably false and is aimed at prejudicing the mind of the Court. An order was passed by the answering respondent on 01.11.2008 wherein one ADJ and one JMIC were assigned the duties of supervising the process of preparation of copies of the question papers. These two officers remained closetted with two officials who operated the Xerox machines throughout the process which started at about 2:00 PM on 01.11.2008 and ended at midnight. Except these two Officers and two persons deputed with them, no other person was permitted to enter the strong room. The allegations to the contrary in the writ petition have been refuted. The question papers were sealed in different boxes as per requirements in the Centres. The room where the process of preparation of copies of question papers had been carried out was locked and the key entrusted to the ADJ which was handed over to the answering respondents on the next day after the paper was attempted by the candidates. There was CWP Nos.5660 & 17085 of 2009 no leakage of question papers. It is admitted that one incident of a staff member trying to help a candidate was brought to the notice of the answering respondent No 2. The complaint led to immediate suspension of that staff member. The candidature of that helped candidate was cancelled. The copy of the order is Annexure R-2/5. The official has been charge- sheeted and departmental inquiry was pending on the date of filing of the written statement. Except for this, no other complaint of any kind as alleged was received or made by any person to the answering respondent or to any other officer. If such had happened that would have been taken care of there and then. The High Court was informed of the incident on the same day. The fact that the petitioners had not made any complaint and kept mum for two months till the test of proficiency in operation of Computers was held speaks against them. The answer sheets were checked by one ADJ and two JMICs. After the result of the written examination was declared on 14.01.2009 and displayed on the notice board, three times the number of candidates of each category were called for the Computer proficiency test. On 22.01.2009 the official respondents issued an order deciding that for testing the proficiency of candidates in operation of Computers, a practical examination and viva-voce would be held. This was done in the background that no detailed criteria was spelt out in the recruitment and service rules for testing the proficiency of candidates in operation of Computers then with a view to conduct a fair test, a practical examination as also viva-voce should be conducted applicable to all uniformally. The criteria was fixed in consultation with the Administrative Judge of the Ambala Sessions Division. A Committee was constituted consisting of the Sessions Judge, CWP Nos.5660 & 17085 of 2009 Ambala, one ADJ and one Additional Civil Judge (Sr. Division), Ambala to oversee conduct the Computer proficiency test which was ordered to be done by a directive dated 24.01.2009 passed by this Court on its administrative side. This limb of the selection process including evaluation of answer sheets of the Computer proficiency test held on 25.01.2009 were entrusted to an independent agency i.e. Kalpana Chawla Government Polytechnic College, Ambala and papers were checked by their staff members. The test was conducted by staff of the Polytechnic and was supervised by the Committee formed for the purpose consisting of Judicial Officers. The viva-voce test qua proficiency in computers was conducted not single handedly as alleged but by the District & Sessions Judge, Ambala together with the Principal of the said Polytechnic. The final result was declared on 02.02.2009 and was displayed on the notice board. However, thereafter an error was pointed out in the totaling of the marks obtained in the written test and those obtained in the Computer proficiency test in the final result, which was ordered to be corrected on 06.02.2009 and the revised list was accordingly displayed.

It is therefore submitted by Mr. Karminder Singh, learned counsel appearing for the High Court and the Sessions Division that the entire selection process was fair and transparent and no illegality of any kind whatsoever as pleaded in the writ petition crept in the selection process. Both the petitioners cleared the written test. After computing the marks of the written examination and the Computer proficiency test they were placed at Sr. No.83 and 89 respectively in the merit list. The petitioners have neither been declared failed or ineligible nor their candidature, at any stage, CWP Nos.5660 & 17085 of 2009 has been rejected for any reason. Infact both of them were included in the select list. According to Rule 7 of the Rules, a select list for the post of Clerk remains in force till one year and posts of Clerks falling vacant during the said period are to be filled from amongst the candidates included in the select list as per merit. The selection process has become a deadball and the select list rendered infructuous. The writ petition has been filed by certain disgruntled elements who were not able to make the grade. The petitioners having participated in the selection process cannot be allowed to turn round and challenge the same by reason of their non-selection.

The petitioners have filed a replication to the written statement filed by respondent Nos.1 and 2. It is explained that though they participated in the selection process but could not approach the Court earlier as irregularities committed in the selection process came to the notice of the petitioners only after the declaration of results, selection and appointments of respondent Nos.3 to 9 who were close relatives of members of the staff of the establishment of the Ambala Sessions Division. The petitioners submit that for preparing more than 2180 question papers each consisting of 8 pages then according to advise received by the petitioners from private experts they urge that 2180 question papers would take 18 hours to Xerox. Time would also be taken for arranging of pages and putting them into order and stapling them. After stapling, four bundles of about 500 question papers each were to be prepared and sealed afterwards. Here again time was needed. If all four formalities were observed then 30 hours are required to complete the process through Xeroxing leading to preparation of four bundles of question papers. It would be humanly impossible that two CWP Nos.5660 & 17085 of 2009 persons operating a Xerox machine could complete the process from 2 PM till midnight. It is suggested that 4-5 or more persons who were close to the 2nd respondent were tasked to help in preparing xerox copies of the question papers and it is these extra hands unoficially assigned duty that managed to steal the question papers which has resulted in leakage and thereby relatives of 4-5 persons managed to procure selection and appointment as highlighted in the writ petition resulting in selection being tainted and defective. With respect to award of 10 marks for written examination and 15 for viva-voce in the Computer proficiency test it is said that that could have been authorized only by the High Court but not by the Administrative Judge of the Sessions Division alone. The criteria was therefore evolved for Computer Proficiency Test suddenly and without due permission of the High Court to whom the rule making function is entrusted.

It is the further contention of the learned counsel for the petitioners that converting the Computer proficiency test into one of award of marks for the written examination and the viva-voce held de hors the conditions of the advertisement or the same being contrary to the rules is misplaced and unmerited. The amended rule required testing of proficiency in operation of Computers and such condition imposed is clearly CWP Nos.5660 & 17085 of 2009 supplemental to the rule and does not supplant it. If such criteria was introduced, no prejudice was caused to any candidate since it was applied across board. Its purpose clearly appears to be to recruit the most efficient candidates in the operation of Computers on which Court work substantially rests. I have no doubt that this was a salutary step towards a fairer selection of recruiting the best possible amongst the avialable talent.