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Shri Ashok Gaur, learned Senior Advocate, referring to the provisions for direct recruitment contained in Part IV of the Rajasthan Prosecution Subordinate Service Rules, 1978 (for short, 'the Rules of 1978') argued that though Rule 21 of the said Rules empowers the Commission to scrutinize the applications and requires as many candidates as seems to them desirable to appear for interview but that Rule has not been properly followed by RPSC while conducting screening test. Only those candidates who were graduate and possessed the degree of LL.B. with experience of two years at the time were required to apply but no weightage was given for such eligibility qualification or the experience either. Though no weightage has been given to the marks of the written examination, none-the-less selection for appointment is solely dependent on the chance one might get to appear for interview. Weightage ought to be given to the marks in the written examination. When second result was declared by including 74 candidates, 9 candidates were liable to be excluded but they were not excluded. Similarly when third result was declared and 96 more candidates were called to face interview, 31 candidates were such who were liable to be excluded. Those who did not deserve to be called for interview, were thus called for interview.

Shri S.N. Kumawat, learned Additional Advocate General appearing for RPSC argued that immediately after the examination was held, RPSC published a press note inviting objections from all concerned as to the correctness of the key answers. Number of representations were received, all of which were sent to the expert committee. RPSC in fairness to all candidates decided to accept the recommendation of such expert committee and deleted 9 questions. There thus remained only 91 questions as against 100 questions in the paper, thereby increasing the value of each question. Candidates three times the number of vacancies were to be called to face interview but, 502 candidates in all were called by applying bunching principle because of tie in the marks and the last candidate was found to secure 59.52%. The marks were rounded off to full to 60% and all those who could secure marks upto 60% were called to appear in the interview. Regarding inclusion of the questions suggested by Prof. J.K. Malik, it was suggested that he was merely asked to contribute the questions and in the like manner, others were also called upon to contribute the questions. The final paper was prepared at the level of the Chairman of RPSC with the help of moderators. This was done in absolute secrecy and manuscripts of the questions contributed by different experts were destroyed as per the prevalent practice of RPSC. Learned Additional Advocate General submits that Prof. J.K. Malik denied all the allegations on oath before this court in the writ petition of Girraj Kumar Vyas, supra. He denied the allegations that after accepting the assignment of paper setter, he circulated notes to any student at any coaching center or at his residence. This Court accepting the explanation of Prof. J.K. Malik rejected the objection and that issue has since attained finality. In response to a query by the court, Shri S.N. Kumawat, learned Additional Advocate General, has given written answer contending that if RPSC, at the end of third result, were to apply the ratio of 1:3+bunching principle, then only 544 candidates would have been called for interview instead of 672 candidates (502+74+96). This would have resulted in exclusion of 128 candidates (672-544) and in case three candidates, who were ineligible, are excluded, then this number would come to 125, out of which only 23 candidates have been selected, which has not materially affected the ultimate result of selection. In other words, what the learned Additional Advocate General seeks to convey is that even if the entire result is revised on that formula, only 125 would stand excluded out of 672 candidates. It is submitted that the Commission in exercise of its powers as per Rule 21 of the Rules of 1998 devised the method of holding written examination for the purpose of short listing. There is a resolution by all members of the Commission in 'Full Commission' to call candidates minimum three times the number of vacancies, for interview, but no maximum limit is prescribed. Therefore, RPSC acted well within its jurisdiction even if it called candidates slightly more than four times the number of vacancies.

Figures disclosed by RPSC reveal that when the result was for the first time revised with deletion of one question and second result was declared, 74 additional candidates were called to face interview and 12 out of them, were selected finally. When second time the result was revised with deletion of two questions and third result was declared, 96 candidates had to be again called for interview, 19 candidates out of them were selected. Thus, 31 (12+19) candidates were selected out of 170 (74+96), who were called to face interview following revision of result on two different occasions. As per RPSC, if simultaneous exclusion was made at the time of first revision of result, 9 candidates were liable to be excluded and at the time of second revision, 31 candidates were liable to be excluded. Had RPSC applied the ratio of three times the available vacancies plus bunching principle, then only 544 candidates could have been called for interview as against which it actually called 672 candidates, three of whom were ineligible and thus out of 669 candidates who were interviewed, 125 were such, who otherwise did not deserve to be called for interview on that formula. Out of these 125 candidates, 23 candidates have been selected as against total 159 vacancies. Since those figures have been furnished by RPSC, they have to be accepted as correct. In view of the analysis that has been made above with regard to correctness of questions and the options given thereunder, while questions no.13, 18, 25 and 43 of C-series are liable to be deleted, answer key with respect to question 77 (C-series) has be changed. On the figures of earlier two revisions consequent upon deletion of three (1+2) questions, it can easily be visualized that the said exercise is likely to bring about drastic changes in the result that may be ultimately declared.

Contention that RPSC in its 'full commission' has taken a decision that minimum three times candidates of number of vacancies shall be called for interview but there is no maximum limit, therefore, even if it has called four-and-a-half times candidates of number of vacancies for interview, that would not affect the fairness the process of selection, deserves to be rejected for the reasons to be stated presently. Merit of a candidate in any written examination and for that matter in a competitive examination, is determined on the basis of his performance in such written examination. If the candidates are subjected to examination on the basis of wrong answer-key, it is bound to prejudice them affecting fairness of the process of selection. Selection in the instant case though is entirely based on interview but converse of it is also true that those who fail to secure high merit in written examination, would have no chance to get selected. The chance to appear in interview is solely dependent on the position one secures in the merit prepared on the basis of written examination, even if it is styled as the screening test for the purpose of shortlisting the candidates. More the number of candidates appearing for interview, lesser the chances of one getting selected. If the rule to call candidates three times the number of vacancies is strictly adhered to, probabilities of the candidates falling within that limit, would be much higher as compared to the situation when four-and-a-half times candidates of the number of vacancies are called for interview. Taking the worst fact scenario, if the principle on which RPSC has called all the candidates, by not excluding those from the list who were already interviewed and calling additional number of candidates each time, after the result was revised, is again applied while implementing this judgment, total number of candidates interviewed/to be interviewed, might go upto 1000. Doing so would frustrate the very purpose of screening test, which is intended to shortlist the candidates. This would amount to treating unequals as equals and would be discriminatory qua the more meritorious candidates, who despite securing better merit would have significantly reduced chances of selection, with number of interviewees so high. Chances of selection of more meritorious candidates would thus be substantially diminished. There being no weightage of the written examination, they will be treated at par with those who may have figured much below in the merit of the written examination than them. Their selection in such a situation would depend on the subjective evaluation of their merit by members of the interviewing board, thus giving them the leverage to eliminate more meritorious candidates as against those with lesser merit. Interpretation placed by RPSC on its rule is thus bound to create an anomalous situation leading to absurd consequences. The screening test in the name of shortlisting can be justified only if the rule as originally prescribed by RPSC is strictly adhered to.