Delhi High Court
Nitin Kumar vs Commissioner Of Police & Others on 8 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 11043/2016
Reserved on: 25th August, 2017
% Date of Decision: 8th September, 2017
NITIN KUMAR ....Petitioner
Through Mr. H.K. Chaturvedi, Advocate.
Versus
COMMISSIONER OF POLICE & OTHERS .....Respondents
Through Mr. Anuj Aggarwal, ASC for GNCTD.
WRIT PETITION (CIVIL) No. 11044/2016
AVINASH KUMAR ....Petitioner
Through Mr. H.K. Chaturvedi, Advocate.
Versus
COMMISSIONER OF POLICE & OTHERS .....Respondents
Through Mr. Anuj Aggarwal, ASC for GNCTD.
WRIT PETITION (CIVIL) No. 11045/2016
ASHISH KUMAR ....Petitioner
Through Mr. H.K. Chaturvedi, Advocate.
Versus
COMMISSIONER OF POLICE & OTHERS .....Respondents
Through Mr. Anuj Aggarwal, ASC for GNCTD.
W.P.(C)No.11043/2016+connected matters Page 1 of 25
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.
The three aforestated writ petitions impugn the order dated 16 th
July, 2016 passed by the Principal Bench of the Central
Administrative Tribunal (Tribunal, for short) in OA No. 1899/2016.
2. The dispute pertains to recruitment to the post of Head
Constable, Assistant Wireless Operator/Tele Printer Operator
(AWO/TPO) by way of direct recruitment vide two advertisements
published in February, 2013. Initially, 142 vacancies of Head
Constable, AWO/TPO were advertised, which figure was revised to
475 with the stipulation that the vacancies were subject to further
change.
3. The applicants were first required to undergo a Physical
Endurance Test, which was conducted in February, 2014 and those
qualifying had appeared in the written examination held in March,
2014. In May, 2014 results were announced and 2453 candidates i.e.
five times the number of vacancies advertised, were declared as
qualified. These candidates underwent a trade test in August, 2014 and
a typing test in October, 2014. The final result selecting 381
candidates with 15 candidates in waiting list was declared in
December, 2014. The petitioners herein, who were the applicants
before the Tribunal, were declared successful in the result declared in
December, 2014. Thereafter, police verification and medical
examination were conducted between February and April, 2015, but
appointment letters were not issued.
4. Another list of 247 candidates who had qualified in the written
test, was published on 30th September, 2015 and these candidates
thereafter had undertaken the trade test and typing test. On 16 th May,
2016, the revised list of selected candidates, 376 in number, was
published. As noticed above, in the first list published in December,
2014, 381 candidates had been selected and 15 others had been placed
on the waiting list against non-joining of selected candidates. In the
revised result declared on 16th May, 2016, 53 out of 381 of the earlier
selected candidates, including the three petitioners, did not figure.
5. Aggrieved, the petitioners made a representation dated 21st May,
2016 and thereafter filed the aforesaid OA praying for quashing and
setting aside the revised final result of selected candidates published
on 16th May, 2016 and for direction to the authorities to consider and
appoint them as Head Constable, AWO/TPO.
6. The respondents have explained the reason for the publication
of the revised or second list. On the basis of complaints received
pertaining to the questions, the answer key, and wrong evaluation, an
expert committee was constituted to look into the anomalies. The
expert committee found errors in nine questions, of which six were
deleted/cancelled and declared null. The answer key of three questions
was changed. On the basis of the recommendations of the expert
committee, answer sheets of each candidate were re-evaluated. In
respect of six deleted questions, each candidate was awarded one
mark. In view of the revised marks on revaluation, 247 new candidates
were selected to undergo the trade test and typing test.
7. The Tribunal has rejected the challenge to the findings of the
expert committee, revaluation, etc. observing that revaluation exercise
was warranted and justified once six questions were deleted, and the
answer key of three questions was changed. Preparation of the revised
merit list, in terms of the revaluation, was justified and mandated.
8. The petitioners have challenged grant of additional marks to
each candidate for the six deleted questions as arbitrary and contrary
to law. The contention is that the candidates who had „correctly‟
answered the questions have been equated and erroneously treated at
par with those who had not answered or had given incorrect answers.
There were ninety multiple choice questions in total and each question
was assigned one mark. Candidates had four options to choose from
and there was no negative marking. Even if there were two correct
answers to a question, a candidate who had marked either of the two
correct answers was entitled to one mark. It was unjust and unfair to
give an additional mark to all candidates, whether or not they had
attempted to answer the six deleted questions.
9. The Tribunal in the impugned order has elaborately dealt with
the said contention making reference to each question and the anomaly
noticed. We are entirely in agreement with the findings of the
Tribunal on the said aspects, and for the sake of clarity and as the
reasoning is sound and acceptable, we would reproduce the relevant
portion of the order of the Tribunal, which reads:-
"6. The applicants have stated that Question No. 55 in
Set-C reads as follows:-
"Who among the following was 10th President of India?
A) Giani Zail Singh
B) Pranab Mukherjee
C) Neelam Sanjeeva Reddy
D) R. Venkataraman"
They had answered „A‟ as the correct option. In the pre-
revised answer key, the respondents had also taken this as
the right answer since Giani Zail Singh was actually the 10 th
President although he was Acting President. However, now
the Expert Committee has cancelled this question on the
ground that 10th President of India was Sh. K.R. Narayanan
and since this option was not available in any of the 04
choices given to the candidates, the question deserves to be
cancelled. Learned counsel for the applicants argued that
the candidates were required to choose the correct option
only from the choices given. Since Sh. K.R. Narayanan was
not an option, candidates had rightly assumed that the
correct answer would be Sh. Giani Zail Singh even though
he was only Acting President. It would, therefore, be unfair
to cancel this question and not give any benefit to the
applicants, who had rightly answered the questions on the
basis of options given.
7. Next, the applicants have challenged the findings of the
Committee regarding Question No. 59 of Set-C, which
reads as follows:-
"In which year was the land acquisition act passed?
A) 2000
B) 2013
C) 2014
D) 1894"
7.1 The respondents had initially taken option „C‟ as
the right answer but later on revised it to option „D‟. The
reasons recorded by the Expert Committee are as follows:-
"Land Acquisition Act was passed in the year 1894.
Another Act was passed in the year 2013, which was
named "The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. Hence, the correct answer is
1894."
7.2 The applicants have submitted that the 2013 Act
was popularly called the Land Acquisition Act. Moreover,
the Land Acquisition Act was first passed in 1870 as Act
No. X of 1870 passed by the Governor General of India.
They have even attached a copy of this. The applicants
have submitted that the Land Acquisition Act, 1870 was
repealed by an Act of 1894. It was further repealed by the
2013 Act. As such, this question deserves to be cancelled.
8. Next, the applicants have challenged the Committee‟s
findings regarding Question No. 65 in Set-C. The aforesaid
question reads as follows:-
"Find the odd one out
A) Pear
B) Apple
C) Litchi
D) Orange"
The Expert Committee has cancelled this question because
they felt that more than one character answer was possible.
Thus, orange was possible as correct answer because it was
the only citrus fruit whereas litchi was also possible as
correct answer because it was the only fruit with a single
seed. The applicants‟ contention is that in various other
competitive examinations, such as Allahabad Bank Clerical
Examination, 2009 (Question No. 7), Bank PO Exam 2003
and Bank of PO Exam, 2004 the correct answer to this
question has been taken to be „orange‟ being the only citrus
fruit. Thus, the respondents herein should also have
followed the same instead of cancelling the question.
8.1 Further, the applicants have challenged the
findings of the Expert Committee on Question No. 22 of
Set-C. It reads as follows:-
"If two pieces of ice are mutually pressed against each other
then these pieces stick because
A) at higher pressure the melting point of ice
decreases.
B) at higher pressure the melting point of ice
increases.
C) at higher pressure the melting point of ice firstly
decreases and then increases.
D) there exists no relation between the pressure and
melting point of the ice."
8.2 The respondents had initially taken option „C‟ as
the correct answer but later on decided to cancel it on the
recommendations of the Expert Committee. The Expert
Committee has given the following reasons for cancelling
the question:-
"The correct answer would be "with higher pressure the
melting point of ice would decrease. As a result, some
ice at the joint would melt. The re-adjustment of water
molecules would momentarily cause lowering of
pressure due to which melting-point would increase and
the water at the joint would convert to ice again, thus,
making the two pieces of ice stick." Options „A‟ & „C‟
are both nearly correct options, but, not entirely correct
either. Hence, the question needs to be cancelled."
8.3 The applicants have submitted that the Expert
Committee has gone wrong in arriving at the aforesaid
conclusion. They have relied on the text authored by Dr.
K.L. Gomber and K.L. Gogia-Pradeep‟s Fundamental
Physics (Class XI) as also on Wikipedia to say that this
process is called „Regelation‟ and, therefore, option-C
should be regarded as the correct answer.
9. Next, the applicants have challenged the findings of the
Expert Committee regarding Questions No. 14 and 68 of
set-C. The same is reproduced as hereunder:-
9.1 The Expert Committee has recommended that
English and Hindi versions of these questions do not match.
Hence, they deserve to be cancelled. The applicants have
submitted that in the instructions given to the candidates on
the first page of the question booklet itself following is
mentioned:-
"Note: In case of variation of any kind in the English and
Hindi versions of any question(s), English version will be
considered as final.
XXXXX
11. The respondents have disputed the
assertions of the applicant regarding composition and the
findings of the Committee. They argued that the entire
selection process had been conducted departmentally. Even
the question paper setter was a police officer. The
Committee comprised of officers, who were not only senior
to the paper setter but were also distinguished officers.
Further, they asserted that it was not necessary for them to
form a Committee comprising of academicians or special
experts as this was no where prescribed in the rules. In a
similar case regarding recruitment of Constable Executives,
on the directions of this Tribunal they had constituted
Committee of police officers only.
11.1 As regards the findings of the Committee the
respondents have stated that as far as question No. 55 of
Set-C is concerned, the question asked was who was the
10th President of India. The candidates were required to
name the 10th President of India. A simple google search
would reveal that the 10th President of India was Sh. K.R.
Narayan (sic. Narayanan). However, since his name did not
figure in the 04 options given to the applicants, the
Committee had rightly recommended that this question
should be cancelled.
11.2 Regarding Question No. 59 of Set-C the
Committee has opined that the Land Acquisition Act was
passed in the year 1894. The Act passed in 2013 was for
fair compensation, Transparency in Land Acquisition,
Rehabilitation and Resettlement of affected parties. Hence,
the correct answer to the question was 1894. The
respondents have also produced at the time of hearing a
document to show that the 1894 Act was called Act No. 1 of
1894. Hence, according to them, the Committee has rightly
recommended that the correct answer was 1894. Hence,
option-D should be taken to be correct.
11.3 Regarding Question No. 65 the Committee has
given reasons why both orange and litchi can be regarded as
correct answers, one being the only citrus fruit in the lot and
the other being the only single seed fruit in the lot. The
applicants‟ counsel argument that orange be regarded as
correct answer as has been done in some other competitive
examinations cannot be accepted.
11.4 As far as Question No. 22 of Set-C was concerned,
the Committee found that two answers were nearly correct
and hence recommended cancellation of the question.
Detailed reasons have been given for doing so, which have
been reproduced in the earlier part of the order.
11.5 As far as Question No. 68 and 14 are concerned in
which the Committee had found mismatch in the English
and Hindi versions, the respondents argued that a mere
reading of these questions would reveal that question asked
in English versions was different from the question asked in
the Hindi version. The applicants have not disputed that
there was variation. They have, however, stated that as per
instructions given in the first page of the booklet itself,
English version should have been relied upon. By not doing
so, the respondents have changed the rules of the game
midway and were, therefore, hit by directions of Hon‟ble
Supreme Court in the case of K. Manjusree (supra). The
respondents argued that they have not changed the Scheme
of the Examination, which was the issue in K. Manjusree‟s
case (supra). Hence, it cannot be said that they were going
against the directions of Hon‟ble Supreme Court as given in
the aforesaid case. In their support, they relied on a
judgment of Hon‟ble High Court of Madras in the case of
D. Shylaja Vs. The Secretary to Government (Writ Petition
No. 14587/2004) dated 15.06.2004 in which finding a
difference in English and Tamil versions, the Hon‟ble High
Court had upheld the decision of the university to cancel the
questions after noting that from the answer sheets, it would
not have been possible to decipher as to which candidate
had attempted the English version of the question and which
candidate had attempted Tamil version. The respondents
contended that the instant case was squarely covered by the
aforesaid judgment.
12. We have heard both sides and have perused the
material on record. In our opinion, following two issues
arise for our consideration:-
(i) Whether the respondents were justified in ordering
re-evaluation of answer sheets of the written test?
(ii) Whether the findings of the Expert Committee and
the re-evaluation done on the basis of the same leading to
preparation of revised merit list are acceptable or not?
12.1 As far as the first issue is concerned, it is clear
from the records of the respondents that they received
representation from certain candidates that there were
discrepancies in the answer key as well as evaluation of
certain questions in the written test. Finding some
substance in the complaint, they sought comments from the
paper setter and thereafter examined the issue in details.
They then decided to constitute a Committee of Senior
Police Officers to examine whether there were
discrepancies in certain questions asked from the candidates
in the written test. The Committee found that 06 of the
questions needed to be cancelled and in 03 questions the
answer given in the answer key needed to be changed. We
find that the applicants have disputed findings of the
Committee regarding 06 of the 09 questions. They have not
questioned the findings of the Committee in other 03
questions. In one such questions (Question No. 52 of the
Set-C) the paper setter answer according to which the model
answer key was set was option-B whereas the Committee
found the correct answer to be option-C. Similarly, for
Question No. 19, the Committee found the correct answer to
be option-B instead option-A given in the model answer key
by the paper setter. Again for Question No. 29 while the
model key had suggested option-D as the answer whereas
the Committee had recommended cancellation of the
question finding none of the options given to be correct.
These findings have not been questioned by the applicants,
meaning thereby that the applicants have themselves
accepted that atleast in these three question there were
discrepancies. It cannot be disputed that even if there was
deficiency in one question then re-evaluation would alter
the merit list. Herein discrepancies in at least 03 questions
have been accepted by the applicants themselves leading to
the conclusion that re-evaluation was definitely warranted.
Hence, the respondents cannot be faulted for not acting on
the earlier merit list and ordering re-evaluation of the
answer sheets of the written test to prepare a revised merit
list. This is irrespective of the findings given by the
Committee in the remaining 06 questions.
12.2 As far as the findings of the Committee are
concerned, we are not convinced by the arguments
advanced by the applicants to dispute the same. Thus, for
Question No. 55, the applicants have contended that Sh.
Giani Zail Singh was the right answer as he was the 10 th
President of India even though he was only "Acting". We
do not know when Sh. Giani Zail Singh acted as President
of India as he was the Home Minister of India and it is the
Vice-President who acts as President in absence of the
President. In any case, we agree with the respondents that
the 10th President of India was Sh. K.R. Narayanan and,
therefore, the findings of the Committee are, in our opinion,
correct. Similarly, for Question No. 59, we are not
convinced by the argument of the applicants that 2013 be
taken as the right answer. It is common knowledge that the
Land Acquisition Act was passed in 1894. The applicants‟
contention that an Act was also passed in 1870 cannot be
accepted because 1870 was not one of the options given in
the question. Hence, Committee is right when it has opined
that Option-D i.e. 1894 be taken as the right answer. Again,
we agree with the logic advanced by the Committee that for
Question No. 65 both orange and litchi can be regarded as
correct answer. We are not convinced by the argument of
the applicants that since in several other competitive
examinations orange has been taken as the right answer in
this question, the same should be followed here. Candidates
appearing in this test may or may not be aware of what was
done in other competitive examinations. They were not
expected to answer the question on the basis of practice
followed in other selections.
12.3 Next the applicants have questioned the findings of
the Committee regarding Question No. 22. They have
relied on the text authored by Dr. K.L. Gomber and K.L.
Gogia, the extracts of which they have annexed with their
annexures. We have perused the material presented.
According to this, the process of melting under pressure and
then reprocessing is called regelation. However, the
material presented does not in any way lead us to conclude
what the right answer out of the 04 options given in
Question No. 22 would be. The finding of the Committee
that two answers were nearly correct appears to be justified
and is backed by sound reasoning reproduced in earlier part
of the judgment.
12.4 Lastly, the applicants have disputed the findings of
the Committee regarding Question Nos. 68 and 14 in which
there was mis-match in English and Hindi versions. The
applicants have argued that in terms of the instructions
given in the question booklet English version should have
prevailed in the event of variation between two versions.
However, on examining this issue, we find that this was not
a case of variation. Rather the question asked in English
version was entirely different from the question asked in
Hindi version. Thus, in Question No. 68 in the English
version, the relationship of the boy to the Veena has been
asked for whereas in the Hindi version relationship of
Veena to the boy has been asked. Similar is the situation in
Question No. 14 which becomes obvious by mere reading
of the same. Under these circumstances, we are of the
opinion that the Committee has rightly recommended that
these 02 questions be cancelled. If applicants‟ contention is
accepted and English version is allowed to prevail, it would
be grossly unfair to those applicants who attempted
questions in Hindi. This is because they were not expected
to read the English version and their answer would have
been marked wrong even if they had answered the question
correctly as per the Hindi version.
XXXX "
10. On the aforesaid aspect, we do not think the finding of the
Tribunal upholding the findings of the expert committee could be
faulted. These findings are cogent and refer to specific and relevant
facets necessary to answer the question. The findings of the committee
are not perverse or absurd, which would merit interference. The
submission that the expert committee consisted of three police
officers, and that the respondent authorities have not relied on or
sought the opinion from academicians, has to be rejected once we
accept that the reasoning given by the committee was compelling,
rational, and objective.
11. Objective type multiple choice questions must be carefully
selected to ensure that the question does not have more than one
correct suggested answer. In case of more than one correct suggested
answer, confusion is bound to arise and candidates may falter, either
by marking a wrong option or by not attempting to answer the said
question. In the present case there was no negative marking, but
regardless and nevertheless, it would be unfair to expect a candidate to
dwell and spend time on a question when options or suggested
answers are confusing and faulty. A sharp candidate would, more than
likely, skip the question and go on to the next question. In such cases,
the benefit of doubt or error should normally be granted to candidates
who have either marked the incorrect option or not attempted to
answer the question. When benefit in such circumstances is given by
the authorities themselves, others should not protest unless the action
of the authorities is mala fide or was illogical and could be categorized
as arbitrary. The choice exercised should not affect sanctity of the
examination. We would hesitate to hold that sanctity has been
compromised in the present case. It is no doubt possible that the
questions could have been treated as zero mark questions, however in
such event as well, the final result declared in December, 2014, would
have required recompilation. Possibly, many included in the first list
of 2453 candidates who had qualified in the written examination,
would not have made it in the revised list. The respondents, in the
present case, had applied the criteria of giving one mark to each
candidate whether or not the candidate had attempted the question. In
this manner, each candidate has been treated alike.
12. At times, two or more options are available to the authorities to
deal with the situation which has arisen. Each option can be just and
proper. As long as the choice adopted by the authorities, in their
wisdom, is fair, just, has taken into account relevant facets, and has
ignored inconsequential and irrelevant aspects, a Writ Court or a
Tribunal would not interfere. The Court or the Tribunal does not
exercise the right of choice but exercises the power of judicial review,
which focuses on the decision making process and not the decision
itself. This view has been applied and noted by this Court in Writ
Petition (C) No. 8055/2015, Prabha Devi and Others versus
Government of NCT of Delhi and Others, decided on 12th May, 2016,
where reference was made to several judgments of the Supreme Court
and the Delhi High Court and it was observed as under:-
"19. A reading of the aforesaid judgments would reflect
that there are four possible options available to the
authorities, when they are confronted with the situation
where the question(s) included in the multiple choice
objective type tests is found to be incorrect, ambiguous or
the answers themselves are found to be incorrect,
ambiguous or capable of dual answers. The options are; (i)
the question can be deleted and treated as a zero mark
question; (ii) the question though deleted, each candidate is
awarded marks as if the answer was correct and without
negative marking; (iii) the question is not deleted and the
candidates who have given the right answer are awarded
marks, but there is no negative marking; and (iv) if there are
two correct suggested answers, candidates who have given
any of the two answers are awarded full marks. In the latter
case, possibly negative marking may not be mandated. The
aforesaid options can be divided into two categories, where
the question is deleted, and the question is not deleted but
option Nos. (iii) or (iv) are exercised. Which of the two
categories would be applicable would depend upon the
question and the suggested answers. The option to be
selected has to be question-wise, i.e., with reference to each
question. Lastly, while selecting the option, the authorities
must take into consideration two factors, first, the sanctity
of the selection process should be maintained and second,
the students/candidates who have appeared should not
suffer objectionable prejudice and disadvantage. In the
present case, the authorities have exercised the first option,
the question has been deleted and treated as zero mark
question. It is possible to urge that award of additional
marks, i.e., the second option is the most suited and
preferred option, for least possible prejudice is caused to the
students/candidates when an additional mark is awarded.
However, it cannot be said that the said option is the only
valid and acceptable option or when the said option is
adopted, no prejudice is caused to any students/candidates.
Prejudice may still be caused because students who have
correctly answered the question in spite of ambiguity, etc.,
are denied the benefit of the correct answer. As held in
Abhijit Sen (supra), all the students/candidates were placed
in a similar position and had felt and faced the same
difficulty. In Kanpur University (supra) and Gunjan Sinha
Jain (supra), the Supreme Court and High Court have
preferred to adopt the first option, i.e., to delete the question
and treat the question as a no mark question. Hence, the
exercise of the first option per se would not be wrong or
contrary to law. The onus in such cases would be on the
candidate to show that deleting the question and exercise of
the first option has caused prejudice. To establish the
prejudice, the question and suggested answers, the model
key and the answer given by the candidate have to be
adverted to and examined. Only when the answer given it is
observed, is correct or should be accepted, that additional
mark(s) can be awarded. In the present case, the petitioners
have alleged prejudice, but have not been able to
demonstrate and show how and in what manner the method
adopted, i.e., treating the two questions as zero mark
questions, is required to be interfered. It would not be
appropriate to reject and overturn the criteria/option
exercised, by referring and relying on the general perception
that the second option is the most fair and just criteria. The
power of judicial review is not an alternative or an appellate
power. It is only when there is an error in the decision
making process, which has to be shown and established by
the petitioner, that the power is exercised."
13. Read in this light, we do not think the first contention of the
petitioner has any merit and, therefore, to this extent we are not
inclined to interfere with the impugned order.
14. In the present case, five times the number of candidates against
the vacancies were to be called for trade and typing tests. In case of
candidates securing same cut-off marks in the written test, all of them
were treated as eligible. While publishing the first list of eligible
candidates and the second list after the written examination, the
respondents did not breach the said mandate as stipulated by the
Standing Order No. Rec.-6, Standing Order for Recruitment of
Assistant Wireless Operator/Tele-Printer Operator (Head Constable)
in Delhi Police. Breach of this mandate would have possibly invited
objections for it would have meant a change in the terms of selection.
In view of the aforesaid position, we would reject the contention of the
petitioners that the revised list of 2382 candidates, based on
revaluation of answer sheets, could have or rather should have
exceeded the stipulation of five times the number of candidates against
vacancies should be called for trade and typing test. If the contention
of the petitioners is accepted, it would be in breach and violation of
the aforesaid stipulation of the standing order for recruitment. This
would amount to change in terms of selection during the course of the
selection process. Others prejudicially affected would have protested
and objected to the same.
15. As there were 71 open Scheduled Castes vacancies, the number
of candidates required to be called for the trade and the typing tests in
the said category was to be restricted to 355 in the result declared in
May, 2014. The cut-off marks, by default, in the written test, in the
Scheduled Caste category, was fixed at 59. 388 candidates had secured
59 marks or more and in terms of the advertisment were eligible to
participate in the trade and typing test. The petitioners had secured 59,
60, and 62 marks, respectively, in the written test and were, therefore,
called for trade test alongwith 2450 other candidates. 1581 candidates
had qualified the trade test and were asked to appear for the typing
test, which carried 10 marks. The final list published in December,
2014 was based on the marks obtained in the written test, which
carried 90 marks, and the marks obtained in the typing test, which
carried 10 marks. The list comprised of 381 successful candidates.
There were 71 vacancies in the open Scheduled Castes category. 55
candidates had qualified in the said category and were selected. 16
vacancies were to be carried forward on account of non-availability of
scheduled caste candidates.
16. In view of the re-calculation the second revised list, on the basis
of written examination, was published on 30th September, 2015. The
revised list was restricted to five times the number of vacancies. Post
re-valuation, 2382 candidates were found qualified. 247 candidates,
who were earlier disqualified and had secured lower ranks, had moved
up, and 318 candidates, who had earlier qualified the written test, were
found disqualified and had moved down. 318 candidates, therefore,
were treated as disqualified despite having appeared in the trade and
typing test. Of these 318 candidates, 145 candidates, including the
petitioners, belonged to the Scheduled Caste category. On the basis of
the re-valuation, the revised cut-off marks in the written test was
increased from 59 to 63 marks in the Scheduled Caste category. Nitin
Kumar, Ashish Kumar, and Avinash Kumar, upon re-valuation, had
secured 62 marks, whereas the cut-off was 63 and therefore the
petitioners had not made it to the cut off list. After conducting the
trade and typing tests and on the basis of marks obtained by the
qualified candidates, a revised selection list was published. As per the
said list, for 71 open vacancies in the Scheduled Castes category, 51
candidates were selected. The unfilled vacancies, 20 in number, were
carried forward.
17. Learned counsel for the petitioners has drawn our attention to
the decision of the Supreme Court in Civil Appeal No. 4794/2012,
Pallav Mongia versus Registrar General, Delhi High Court and
Another and Division Bench decision of this Court in Gunjan Sinha
Jain and others versus Registrar General, High Court of Delhi, 188
(2012) DLT 627 (DB). In Gunjan Sinha Jain (supra), the Delhi High
Court held that legitimately the top candidates after re-valuation
should be declared as having qualified even if there was an earlier
merit list of top candidates. However, in the said case, it was observed
that the requirement and stipulation relating to the number of
candidates should be moderated keeping in view the requirements of
justice, fairness, and equity. In this manner, those who were declared
qualified would retain their declared status even if they were lower
down and had not qualified after re-valuation. The Court declared that
the final number of qualified candidates may, therefore, exceed the
figure, but this should be accepted. However, the case of Pallav
Mongia (supra) is slightly different. The Supreme Court noticed that
the candidates in the first eligible list had not been excluded from the
list of eligible candidates for appearing in the main examination, even
if the candidate had come down in rank in view of deletion of some
question or change in the model answer key. In these circumstances, it
was directed that other candidates, who pursuant to re-valuation, had
secured more marks than the last candidate should be allowed to
appear in the main examination vide revised list. These candidates
would be treated as qualified and included in the list. The decision in
Pallav Mongia (supra) has no relevance to the present case. In Sumit
Kumar versus High Court of Delhi and Another, W.P. (C) No.
3453/2016, decided on 9th May, 2016, after referring to these two
decisions, it was left to the High Court Administration to adopt an
appropriate and proper method after deleting certain questions and
issue of the corrigendum. However, the decisions passed in Pallav
Mongia (supra) and Gunjan Sinha Jain (supra) would be kept in
mind.
18. When we turn to the order passed by the Tribunal, in the present
case, we find the Tribunal was conscious and aware of the problem
and, therefore, had issued the following directions:-
"15. At the same time, we cannot over look the fact that
the applicants had been subjected to a long and drawn out
process of selection lasting 2 ½ years and were on the verge
of being appointed when the respondents decided to prepare
a revised merit list. As per respondents‟ own submission 53
persons, who figured in the earlier merit list, have been
ousted in the revised list. Learned counsel for the
applicants stated that many of the applicants have suffered
as they had resigned from their previous jobs in preparation
to join their new assignments. Many others have become
over age to be appointed elsewhere.
16. We also notice that earlier respondents had
advertised 142 vacancies of the post of Head Constable
(AWO/TPO). Subsequently, this number was increased to
475 with further stipulation that number of vacancies may
undergo a change. Under these circumstances, we dispose
of this O.A. with a direction to the respondents to consider
whether additional vacancies are available to appoint the
applicants as well in addition to those figuring in the revised
merit list. We are conscious of the fact that there may be
some other candidates in between those figuring in the
revised merit list and the applicants herein. That number is
not known to us. Such candidates would also have to be
appointed. Let the respondents examine and see whether
without violating the merit of the selection process the
applicants can be accommodated. This will, of course, be
subject to availability of vacancies. The respondents may
do so within next 08 weeks from the date of receipt of a
certified copy of this order. No costs."
The directions given in paragraphs 15 and 16 were challenged
before us in Writ Petition (C) No. 10748/2016, Raj Kumar Vaswan
and Others versus Commissioner of Police and Others, decided on
27th January, 2017 and the following directions were issued:-
"8. The respondents have filed affidavit dated 2 nd
December, 2016 wherein they have stated that 137 open
unreserved category and 204 open OBC category vacancies
for the posts were advertised. The number of vacancies for
the open unreserved category and open OBC category was,
as per paragraph 8 of the affidavit, subsequently revised to
123 and 184, respectively. However, the total number of
posts advertised remained the same. Accordingly, on the
basis of the second merit or final list, 123 open unreserved
category and 184 open OBC category candidates were
selected. In addition, six candidates belonging to the open
unreserved category and nine candidates belonging to open
OBC category were kept in the additional or waiting list.
Candidates in the additional list are to be accommodated in
case the open unreserved category or open OBC category
candidates do not join or for some other reason not
appointed.
9. The petitioners on the other hand have referred to the
reply dated 24th August, 2016 received by them under the
Right to Information Act as per which some of the selected
open unreserved category candidates or open OBC
candidates have not joined.
10. Counsel for the respondents has obtained instructions
and accepts that 246 selected candidates have joined the
training course. Some of the selected candidates were
declared unfit in the medical examination or have not been
issued appointment letters due to adverse police verification
reports. Petitioners submit that there have been self
cancellation also.
11. Learned counsel for the respondents, on instructions,
accepts that they have not challenged the directions given in
paragraph 16 of the order dated 16th July, 2016 and would
abide and comply with the same. We take the said statement
on record and would dispose of the present writ petition on
the basis of the said statement and reiterating the directions
given in paragraph 16 of the Tribunal‟s order dated 16th
July, 2016.
12. We do acknowledge and would accept that the
completion of the exercise in terms of paragraph 16 quoted
above may take a little time as some of the rejected
candidates can challenge their rejection and may also obtain
stay orders. This would require a policy decision, by the
respondents in accordance with the guidelines issued by
Department of Personnel and Training. However, an
expeditious and early decision in such matters and in terms
of the directions given in paragraph 16 is desirable and
always appreciated. It would curtail and prevent another
round of litigation.
13. With the aforesaid observations, the writ petition is
disposed of."
The aforesaid writ petition related to the open unreserved
category and the open OBC category. In the two categories, vacant
posts had been filled up. In the present case, however, the petitioners
belong to the open Scheduled Caste category and, as noticed above,
there were 20 vacancies, which have been carried forward. The
respondents have to accordingly, in terms of the directions issued in
paragraph 16 of the order dated 16th July, 2016, examine the issue
keeping in mind different perspectives, including the contention of the
petitioners as well as others in the same position as petitioners. It does
appear that the respondents have decided not to accept the claim of the
petitioners. However, due to the pendency of the present petition, it is
apparent that no orders have been communicated and informed to the
petitioners.
19. As the respondents have not challenged the directions given in
paragraph 16 of the order dated 16th July, 2016, we dispose of the writ
petition in terms of directions given in paragraphs 11 and 12 of the
order dated 27th January, 2017 passed in Raj Kumar Vaswan and
Others (supra). We would not like to comment or give any further
directions in this regard as this is a complex issue, which will require
examination of not one facet, but several competing and different
aspects. Whatever decision is taken by the respondents, the same
would be communicated to the petitioners, who, if aggrieved, can take
action as per law.
20. With the aforesaid observations and findings, the writ petition is
disposed of. There will be no order as to costs.
(SANJIV KHANNA)
JUDGE
(CHANDER SHEKHAR)
JUDGE
September 8th, 2017
VKR
