Harkirat Singh Ghuman vs Punjab & Haryana High Court & Ors.

Allowing the appeal, the Court

HELD: 1.1 So far as Paper VI (General Knowledge) is concerned, it is a multiple-choice 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. 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 multiple--choice 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. It is made 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 fairness and transparency which is a sine qua non in the public employment can be resorted to. [Paras 25, 26][136-A-F]

1.2 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. [Para 27][136-FG]

1.3 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 viva-voce is conducted, would be against the principles of transparency, rather it will invite criticism of bias or favouritism. To clarify further, in such cases, where the written examination is followed with vivavoce, declaration of result of the written examination before conducting viva-voce may not be valid 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/viva-voce 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 viva-voce and it may always be avoided. [Paras 28, 29][136-G-H; 137-A-C]

1.4 So far as the objection in reference to Paper V (Criminal Law) is concerned, there is 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 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. 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 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 a judicial notice is taken 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 cancelled or other option is possible. 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. At this stage, the Court cannot be oblivious of the fact that the Punjab/Haryana Superior Judicial Service Examination, 2019 has been held after 4-5 years and since the fate of the examination 2019 is still sub-judice 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 it is made 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 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. The impugned judgment of the High Court is set aside and the respondents are directed 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 viva-voce and result of the selection process, thereafter be finally declared in accordance with the scheme of Rules, 2007. The result of the intervenor, who had participated as an in--service 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. [Paras 30-32, 35][137-D-H; 138A-F; 139-C-E]