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To support the arguments, learned counsel for petitioners have relied on the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar & ors (supra). It is submitted that the controversy therein was similar to that involved in these cases. The petitioners are innocent persons. They are not instrumental either to set incorrect answer key or even questions therein. They did not obtain appointment by fraud or malpractice thus looking to all these facts, respondents should be restrained to effect termination of services of the petitioners.

17. That brings us to the submission by Mr. Rao that while re-evaluation is a good option not only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ Petitioners- Respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need not necessarily result in the ouster of the Appellants should they be found to fall below the 'cut off' mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he contended that the Appellants are not responsible for the error committed by the parties in the matter of evaluation of the answer scripts. The position may have been different if the Appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. Secondly, he contended that the Appellants have served the State efficiently and without any complaint for nearly seven years now and most of them, if not all, may have become overage for fresh recruitment within the State or outside the State. They have also lost the opportunity to appear in the subsequent examination held in the year 2007. Their ouster from service after their employment on the basis of a properly conducted competitive examination not itself affected by any malpractice or other extraneous consideration or misrepresentation will cause hardship to them and ruin their careers and lives. The experience gained by these Appellants over the years would also, according to Mr. Rao, go waste as the State will not have the advantage of using valuable human resource which was found useful in the service of the people of the State of Bihar for a long time. Mr. Rao, therefore, prayed for a suitable direction that while re-evaluation can determine the inter-se position of the writ Petitioners and the Appellants in these appeals, the result of such re-evaluation may not lead to their ouster from service, if they fell below the cut off line.

18. There is considerable merit in the submission of Mr. Rao. It goes without saying that the Appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the Appellants who have served the State for nearly seven years now. In the circumstances, while inter-se merit position may be relevant for the Appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.

The para aforesaid shows that there should be a difference between the appointees and non-appointees thus while deciding a particular writ petition, some safeguard can be given to the appointee, if they are not party to the litigation.

The judgment in the case of P Shiva (supra) decided by High Court of Karnataka is not in regard to recruitment but for promotion. The view taken therein was that even if one has not secured required marks for acquiring eligibility, he/she should not be affected unless it is by way of fraud or malpractice or irregularities. In my opinion, the judgment aforesaid is having only persuasive value and, with respect, cannot be accepted to be laying down correct law inasmuch as difference has to be made between ineligible and eligible candidates. The continuance of ineligible candidates would mean violation of the rules or a direction de hors the statutory provisions.