Harkirat Singh Ghuman vs Punjab And Haryana High Court

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5874 OF 2022 (@ SPECIAL LEAVE PETITION (C) NO.5079 OF 2020)

HARKIRAT SINGH GHUMAN … Appellant(s)

VERSUS

PUNJAB & HARYANA HIGH COURT & ORS. … Respondent(s)

JUDGMENT

Ajay Rastogi, J.

1. Leave granted.

2. The instant appeal is directed against the judgment and

order passed by the Division Bench of the High Court of Punjab

and Haryana dated 23rd January, 2020, dismissing the writ

petition at the motion stage.

3. The appellant is one of the applicants who had participated

in the selection process initiated by the respondents holding

selections for direct recruitment to Punjab Superior Judicial Signature Not Verified Digitally signed by Rajni Mukhi

Service/Haryana Superior Judicial Service. Date: 2022.08.29 18:39:50 IST Reason:

1 | Page

4. That two separate advertisements came to be published for

holding competitive examination for direct recruitment for 8

vacancies in the Punjab Superior Judicial Service and 11

vacancies in the Haryana Superior Judicial Service, 2019 by

notifications dated 30th May, 2019 and 7th August, 2019

respectively and the recruitment was made in terms of the

procedure prescribed under the Punjab Superior Judicial

Services Rules, 2007/ Haryana Superior Judicial Services Rules,

2007.

5. It may be relevant to note that the posts came to be

separately advertised under the Punjab/Haryana Superior

Judicial Service Rules, 2007 but the process of selection is on

the same standards except that language paper is separate and

the applicants have to first qualify the written test followed with

viva­voce with a restriction that candidate has to secure 40% or

more marks in each paper and such of the qualified candidates

who fall within three times of the number of vacancies are called

for viva­voce but only such of the candidates will be considered to

have successfully qualified the Punjab/Haryana Superior

Judicial Service Examination unless in open category candidate

obtains 50% marks and in reserved category candidate obtains 2 | Page 45% marks in the aggregate out of the total marks fixed for the

written test and viva­voce. The format/pattern of examination is

the same for both the recruitments held under the Punjab

Superior Judicial Service Rules, 2007 and Haryana Superior

Judicial Service Rules, 2007.

6. The appellant also applied pursuant to advertisement dated

30th May, 2019 and 7th August, 2019 with regard to

Punjab/Haryana Superior Judicial Service Examination, 2019

and a common written examination was held for both the States

of Punjab and Haryana, except Language Paper separately

conducted from 29th November, 2019 to 1st December, 2019 and

it reveals from the record that 118 candidates appeared in the

State of Punjab and 230 in the State of Haryana.

7. Thus, in total 348 candidates participated in the selection

process and appeared in the common written examination. The

result of the written examination was declared on 18 th December,

2019. In Punjab Superior Judicial Service, 3 candidates from

open category and 1 candidate from backward category cleared

the examination and qualified for viva­voce. At the same time,

under the Haryana Superior Judicial Service, 11 candidates from

3 | Page open category out of which 3 candidates were common who

qualified in both the States for viva voce.

8. The appellant, being disappointed of not being qualified in

the written examination declared on 18 th December 2019, filed a

writ petition before the High Court of Punjab and Haryana at

Chandigarh under Article 226 of the Constitution with his three­

fold grievance :

(i) That in Punjab/Haryana Superior Judicial Services

Rules, there is no condition regarding securing minimum

marks in the main written examination and the condition

in the advertisement of securing minimum 40% or more

marks in each paper for qualifying for viva­voce is

contrary to the Scheme of Rules;

(ii) Paper V (Criminal Law) was of 200 marks but at the

commencement of the examination, the question paper

handed over to the candidates was incomplete and it

contained only 4 questions whose aggregate came out to

be 160 marks instead of 200 marks as shown on the

overleaf of the question paper, but when the candidates

made complaint of the alleged discrepancy to the notice

4 | Page of the invigilator, after approx. one hour of the

commencement of examination, question no.4 was

handed over as supplementary question paper to all the

candidates and apart from this being a procedural defect,

it created a panic among the candidates and no extra

time was given for answering the additional question and

this was one of the manifest procedural defect in Paper V

(Criminal Law) and has caused grave prejudice to the

appellant.

(iii) Despite repeated demands, the respondents have failed to

provide the marks obtained by the appellant in the

written examination. Even the application filed by the

appellant under the Right to Information Act came to be

rejected.

9. All the three objections raised by the appellant were

repelled by the High Court at the motion stage, without calling for

the written response from the respondents under the judgment

and order impugned dated 23rd January, 2020, which is the

subject matter of challenge in appeal before us.

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10. It will be relevant to note that while entertaining the present

appeal and calling upon the respondents for their written

response, this Court permitted the respondents by an Order

dated 26th February, 2020 to continue with the process of

interview with a further direction that the result would not be

declared in the meantime. It is informed to this Court that in

terms of the liberty granted by this Court, respondents held the

interview, but result has not been declared because of the interim

order of this Court.

11. The appellant, who appeared in­person before us, has

primarily raised four objections in reference to the procedure

adopted by the respondents in holding written examination by

the respondents pursuant to the advertisements for Punjab/

Haryana Superior Judicial Service Examination, 2019, as follows:

(i) Criminal Law Paper (Paper V), which was of 200 marks

contained only four questions(1,2, 3 and 5) and question

no.4 was missing and it was of 160 marks which was

made available to the candidates and after the

discrepancy was brought to notice of the Invigilator, a

supplementary question paper was supplied indicating

6 | Page question no.4 in the midst of examination calling upon

the candidates to attempt question no.4 and objection of

the appellant is that the procedure which has been

adopted by the respondents itself creates a doubt in the

process of selection that from where this question no.4

was generated and how it was made available to the

candidates in the midst of the examination is a mystery

and no justification has been tendered by the

respondents even in the counter affidavit filed before this

Court and this fact has not been disputed that question

no.4 of Paper V (Criminal Law) was made available to the

candidates during course of the examination. Thus,

according to him, the procedure followed by the

respondents is neither transparent nor fair and the

written examination may be cancelled or at least this

question paper deserves to be cancelled and the

respondents be directed to hold Paper V (Criminal Law)

afresh and only thereafter the merit list be declared of the

candidates who qualified the main examination.

(ii) The second objection of the appellant is that in the

question paper of General Knowledge (Paper VI), which 7 | Page was of multiple choice/objective type paper, there were

no instructions on the overleaf of the examination paper

as to how and in what manner the paper has to be

attempted by the candidates and the OMR sheet was not

supplied and the candidates were called upon to make a

circle out of the four multiple choices, which according to

them is correct option and the question paper supplied

has to be returned back to the Invigilators.

12. The submission of the appellant­in­person is that in

absence of the multiple­choice question paper being made

available to the candidates to retain, it may not be possible to

respond as to which option out of the four options, is the correct

option. According to him, the question paper, for the first time, is

made available to the appellant along with the counter affidavit

filed before this Court and it reveals to him that there are

discrepancies in eight questions and in some questions either of

the four options are not correct.

13. His submission is that even till today, the provisional

answer key has not been uploaded to make the candidates aware

of the right option out of the four options available and the

8 | Page candidate has no liberty to raise any objection and if the answer

key is uploaded after the final result is declared, obviously after

the viva­voce is over, no one is going to entertain the objection, if

any, to be raised at the later stage and that became fait accompli.

(iii) Further objection of the appellant is that Bare Acts were

made available to the candidates but this fact was not

indicated in the advertisement, which, according to him,

is contrary to the Scheme of Rules.

(iv) Further apprehension of the appellant is that the answer

scripts were examined by the examiners in haste and the

reason to support is that, the last examination was held

on 1st December, 2019 and within a short period of 17

days, the result was declared of the written examination

on 18th December, 2019 which was not humanly possible

and to support his submission, the appellant submits

that when he applied for obtaining the marks which he

had secured in the written examination, under the right

to information, that was declined and his application

came to be rejected by the competent authority under the

right to information by an order dated 6th January, 2020.

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14. Noticing the four objections indicated above to its logical

conclusion, the appellant submits that the procedure followed by

the respondents is neither fair nor transparent and so many

infirmities have been committed in the process of selection and

the only inevitable solution is to cancel the written examination

held by the respondents pursuant to the advertisements issued

by the States of Punjab and Haryana holding common selection

for Punjab/Haryana Superior Judicial Service Examination, 2019

and to hold the written examination afresh in accordance with

the Scheme of Rules 2007.

15. To sum up further, the appellant states that the High Court

has even noticed his submission so far as the manifest

discrepancy pointed out in Paper V (Criminal Law) is concerned,

but still non­suit the claim of the appellant for the reason that he

has not raised any objection during the interregnum period after

the written examination was held and the result was declared on

18th December, 2019.

16. The appellant further submits that the advertisement is

completely silent of the mechanism to be adopted if the candidate

who had participated in the selection process is having any

10 | P a g e grievance, no in­house remedy is provided in the advertisement

which is available to the candidates. In the given circumstances,

the reason assigned by the High Court to non­suit the claim of

the appellant is not sustainable and needs to be interfered with

by this Court.

17. Various applications were filed by such other candidates

who had qualified the written examination and appeared for viva­

voce under the interim order of this Court, but since the result

has not been declared, they are also under dilemma as to what

will be their fate, this Court by various orders permitted all of

them to intervene in the proceedings.

18. Per contra, counsel for the respondents while supporting

the finding recorded by the High Court under the impugned

judgment submits that Paper V (Criminal Law) was held on 1 st

December, 2019 from 9.00 a.m. to 12 noon and the paper was

distributed to the candidates 5 minutes before time and

immediately thereafter, it was noticed that question no.4 was

missing from the question paper. Within one hour and before

10.00 a.m., question no.4 was made available to all the

candidates by way of supplementary question paper and as such,

11 | P a g e no prejudice was caused to any of the candidates due to

inadvertent human error committed by the respondents.

Counsel further submits that such a discrepancy certainly

cannot be countenanced, but as the level playing field was the

same for all, no prejudice has been caused to either of the

candidates who had participated in the process of selection.

19. Learned counsel further submits that so far as the grievance

in reference to Paper VI of General Knowledge is concerned, no

such objection was raised by the appellant before the High Court,

but the fact is that it is a multiple­choice question paper and

instructions are made available to all the candidates on the

overleaf indicating the manner in which the questions have to be

attempted. It was specifically mentioned that the correct answer

has to be encircled with a pen and encircling more than one

option or any over­writing/cuttings etc. would entail cancellation

of the said question with no negative marking and to be answered

in two hours duration and there is no reason for the appellant of

making complaint to this Court for the first time and in support

thereof, counsel further submitted that the result was declared

after almost 17 days on 18th December, 2019, but neither he

made any representation nor filed any complaint either to the 12 | P a g e Registry of the High Court or being a lawyer was aware of this

fact that the remedy is available to him to approach the High

Court under Article 226 of the Constitution, but no grievance was

raised and he was awaiting for outcome of the written

examination, and when he could not succeed, all sorts of

complaints are filed by him of filing a writ petition which cannot

be permitted to be raised at a belated stage and this what the

High Court has observed in the judgment impugned.

20. So far as the objection with regard to his application

submitted under the Right to Information Act, 2005 is concerned,

learned counsel submits that the marks of the written

examination could not be made available until the process of

selection is finalised and that was the reason which was

communicated to him by the Public Information Officer (PIO) by a

communication dated 6th January, 2020 taking recourse to Rule

4(2) of the High Court of Punjab and Haryana (Right to

Information) Rules, 2007 and, if at all, he is aggrieved by the

communication made dated 6th January, 2020, inbuilt

mechanism has been provided under the Right to Information

Act, 2005 and even if the marks are not made available, it would,

13 | P a g e in no manner, defeat the process of selection held by the

respondents.

21. Counsel further submits that so far as the apprehension of

undue haste in declaring the result of written examination is

concerned, the alleged apprehension has no legs to stand and the

answer sheets have been examined by the examiners authorised

by the High Court and evaluated within a reasonable time, no

adverse inference can be drawn and such like objections deserve

to be outrightly rejected.

22. Ms. Malvika Kapila, counsel for one of the intervenors,

Aashish Saldi s/o Hans Raj Saldi, brought to our notice that the

applicant is in­service officer who is presently serving as

Additional Civil Judge (Senior Division) and had participated in

the limited competitive examination against 10% of quota

reserved for in­service officers and he had participated in the

selection process initiated by the State of Punjab under the

limited competitive examination for the eligible judicial officers

held by the respondents in terms of Rule 7(3)(b) of the Punjab

Superior Judicial Service Rules, 2007 and he was the only

candidate who qualified in the written examination and was

14 | P a g e called for viva­voce but the final fate is not known to him and the

fact is that he is not even remotely concerned with the present

grievance which has been raised by the appellant in the instant

proceedings and despite been appeared in the interview, his

result has been withheld under the interim orders of this Court.

23. Learned counsel submitted that at least the respondents be

directed to declare the result of the applicant who is not even

remotely concerned with the complaint in reference to which the

present appellant has approached this Court and this fact has

not been disputed by either of the parties.

24. We have heard counsel for the parties and with their

assistance perused the records of the case.

25. We deal with the first objection later and would like to

observe that so far as Paper VI (General Knowledge) is concerned,

it is a multiple­choice question paper having 100 questions and

all instructions were made available to the candidates specifically

indicated on the overleaf of the question paper and all the

candidates have attempted the paper including the present

appellant.

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26. That all the candidates who had appeared in Paper VI

(General Knowledge) had a common level playing field and in the

absence of any material on record in rebuttal, the submission is

not sustainable and deserves rejection. But to keep transparency

in the process of holding examination, particularly in such cases

where there is a multiple­choice question paper, it is always

advisable that for such question papers, there shall always be an

OMR sheet which may be provided to the candidates so that the

question paper can be retained by each of the participants and

after the examination is held, a provisional answer key is to be

uploaded inviting objections from the candidates who had

participated in the selection process, to be furnished within a

reasonable time and after collating such objections, the same be

placed before a subject expert committee to be constituted by the

recruiting/competent authority and after the report is submitted

by the subject expert committee, the same be examined by the

recruiting authority and thereafter the final answer key is to be

uploaded. We make it clear that no presumption is to be drawn

that the result has to be declared, but at least the candidates

may be provided the final answer keys to enable them to make

their own assessment. This is one of the mechanisms by which

16 | P a g e fairness and transparency which is a sine qua non in the public

employment can be resorted to.

27. So far as the other two objections in reference to Bare Acts

made available to the candidates and the apprehension of haste

in declaration of result are concerned, both the objections are

completely baseless and deserve rejection.

28. So far as the marks of the written examination not being

supplied to the appellant under the Right to Information Act,

2005 by communication dated 6th January, 2020, are concerned,

this position has been settled by a catena of judgments of this

Court that as long as the process is not complete, the marks of

the written examination are not to be uploaded or made available

to the candidates and if it is being permitted, that will not be in

the interest of the applicants. The disclosure of the marks in the

main examination before it is finalised and the viva­voce is

conducted, would be against the principles of transparency,

rather it will invite criticism of bias or favouritism.

29. To clarify further, in such cases, where the written

examination is followed with viva­voce, declaration of result of the

written examination before conducting viva­voce may not be valid

17 | P a g e and justified but in cases where determination of merit is based

on written examination, it must be declared and made available

to candidates without any loss of time and this Court can take a

judicial notice of the fact that in such cases where the written

examination is followed with interview/viva­voce and the

members in the interview board are made aware of the marks

secured by the candidates in the written examination that may

likely to form bias affecting the impartial evaluation of the

candidates in viva­voce and in our considered view, it may always

be avoided.

30. So far as the objection in reference to Paper V (Criminal

Law) is concerned, we find substance in the submission made

and after this fact has not been disputed by the respondents as

well that initially when the question paper was supplied, it

contained only four questions (i.e. question nos.1, 2, 3 and 5),

held on 1st December, 2019 from 9.00 a.m. to 12 noon and the

question paper was distributed to all the candidates containing

four questions and question no.4 was found to be missing and

this act cannot be said to be an inadvertent human error as

being projected by the respondents and after the objection being

raised by the candidates of question no.4 not made available, the 18 | P a g e Invigilators informed to the concerned authorities and a

supplementary sheet was made available to the candidates after

one hour of the main examination commenced i.e. by 9.00 a.m.

31. The respondents may substantiate in their defence that no

prejudice was caused to any of the candidates on account of the

inadvertent human error being committed, but in our view, this

is a serious lapse on the part of the recruiting authority and

somebody must be held responsible for it and such kind of lapses

certainly cannot be countenanced by this Court but, at the same

time, there is no objection even of the present appellant in

reference to the four questions (nos.1, 2, 3 and 5) of Paper V

(Criminal Law) which was made available to the candidates even

5 minutes before the scheduled time of the examination and even

if we take a judicial notice of the lapses being committed by the

respondents with reference to question no.4, which was indeed

missing from the question paper and supplied to the candidates

after one hour of commencement of the examination, at least so

far as the four questions are concerned, since no objection has

been raised by the appellant in reference to these questions, this

Court has to consider as to whether in such peculiar

circumstances, the written examination, as such, has to be 19 | P a g e cancelled or other option is possible. In our view, in the given

circumstances, the other option which is left to this Court is

either to conduct the examination of Paper V (Criminal Law)

afresh or let the valuation of the four questions (question nos. 1,

2, 3 & 5) of Paper V (Criminal Law) of 160 marks may provide a

common level playing field to all the candidates.

32. At this stage, the Court cannot be oblivious of the fact that

the Punjab/Haryana Superior Judicial Service Examination,

2019 has been held after 4­5 years and since the fate of the

examination 2019 is still sub­judice in this Court, fresh selection

process could not have been initiated and if this irregularity

pointed out can be possibly eliminated from the process of

selection, particularly in the written examination, the endeavour

of the Court should always be to salvage the selection as possible

and taking in totality of the matter, this Court is of the view that

it will serve the purpose to accept the latter option and the

respondents may be directed to valuate question nos.1, 2, 3 and

5 of Paper V (Criminal Law) of 160 marks and we make it clear

that question no.4 which was supplemented at a later stage of 40

marks has to be excluded while valuating the marks secured by

the candidates in Paper V (Criminal Law) and this, in our view, 20 | P a g e may serve the purpose and also salvage the examination process

which was initiated by the respondents in 2019 but could not be

finalised for one or other reason and cancellation or holding the

examination afresh of Paper V (Criminal Law) will not be in the

interest of either of the parties.

33. A request was made to this Court that since those

candidates who had qualified in the written examination and had

appeared in the viva­voce and whose result has been withheld

under the interim orders of this Court, at least they may not be

called upon to appear for interview afresh. We find it difficult to

uphold the submission made for the reason that the interview

board which conducted the viva­voce of the candidates who

qualified in the written examination was different, there are

hardly candidates who had qualified against the number of

vacancies and it would be advisable that there should be one

common board to evaluate the performance of all the candidates

who may now qualify in the revised declaration of the result of

written examination and that, in our view, would do justice to the

candidates.

21 | P a g e

34. We would like to note that so far as the intervenor Aashish

Saldi is concerned, he appeared in the written examination

against 10% quota reserved for in­service officers and he had

participated in the selection process initiated under Punjab

Superior Judicial Services in terms of Rule 7(3)(b) of the Punjab

Superior Judicial Services Rules, 2007 and who has no lis with

the present process, at least the final fate of participation of the

officer be declared by the respondents and may be processed

further in accordance with the Rules.

35. The appeal accordingly succeeds and the impugned

judgment of the High Court dated 23 rd January, 2020 is hereby

set aside and we direct the respondents to valuate the marks

obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law)

(out of total 160 marks) and after undertaking the process, a

fresh result of the written examination be declared of the

candidates in reference to Punjab/Haryana Superior Judicial

Service Examination, 2019 and those who qualify and fall in the

zone of three times the number of vacancies may be called for

viva­voce and result of the selection process, thereafter be finally

declared in accordance with the scheme of Rules, 2007.

22 | P a g e

36. We further direct that the result of the intervenor (Aashish

Saldi), who had participated as an in­service officer in the

selection process initiated under Punjab Superior Judicial

Services shall be declared and further action may be taken in

accordance with Rules, 2007.

37. The directions be complied with within a period of two

months.

38. Pending application(s), if any, shall stand disposed of.

…………..…………J. (Ajay Rastogi)

…………..………… J. (C.T. Ravikumar) New Delhi August 29, 2022.

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