THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 10th March, 2021
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.45 of 2018
Petitioner : Arun Chettri
versus
Respondents : State of Sikkim and Others
Petition under Article 226 of the Constitution of India
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Appearance
Mr. Tashi Norbu Basi, Advocate for the Petitioner.
Mr. Vivek Kohli, Advocate General for Respondents No.1 and 3.
Mr. J. B. Pradhan, Senior Advocate with Mr. Bhusan Nepal,
Advocate for Respondent No.2.
Ms. Mon Maya Subba, Advocate for Respondent No.5.
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J U D G M E N T (ORAL)
Meenakshi Madan Rai, J.
1. The Petitioner is aggrieved by his non-selection as
Under Secretary in the Junior Grade of the Sikkim State Civil
Service for which written examinations were held in the month of
July, 2017, viva-voce examination held in November, 2017 and
result published in the month of December, 2017, the Petitioner is
before this Court.
2. The facts pertaining to the matter were detailed by this
Court in the Order dated 05-02-2021, nevertheless, for clarity in
the matter they are being reiterated herein.
3(i). The Petitioner's case, briefly is that, on 02-02-2017 the
Respondent No.2, Sikkim Public Service Commission (SPSC), WP(C) No.45 of 2018 2
Arun Chettri vs. State of Sikkim and Others
issued an advertisement inviting application from eligible local
candidates for filling up 12 (twelve) posts in the Junior Grade of
Sikkim State Civil Service through direct recruitment. The
Petitioner as an eligible OBC (State List) candidate appeared for
and was successful in the preliminary examination, consequently
he took the main examinations with General English, General
Knowledge, Public Administration & Management and Indian
History as his subjects. The Public Administration & Management
examination comprised of two papers of 150 marks each, i.e., a
total of 300 marks. Similarly, Indian History also comprised of two
papers with a total of 300 marks being 150 marks each in each
paper. Part I of both the aforementioned subjects comprised of
Objective/Multiple Choice Question (MCQ), while Paper II was
Subjective/Conventional paper. For the MCQ papers each correct
answer carried 2 marks while an incorrect answer was negatively
mark by deducting 0.66 marks. The Petitioner was successful in
the written examinations and shortlisted for the viva-voce
examination but eventually was not selected for the advertised
posts.
(ii) Aggrieved, the Petitioner filed an application on 08-01-
2018 before the Respondent No.2 under the Right to Information
Act, 2005 (RTI) seeking the merit list of selected candidates. The
required information was furnished to him on 24-01-2018. By a
second RTI application dated 02-02-2018 the Petitioner sought
information on marks obtained by all candidates in the viva-voce
examination, copies of all the subject papers, answer keys and
Optical Mark Recognition (OMR) sheets of objective papers, which
were made available to him on 15-05-2018. Thereafter, he WP(C) No.45 of 2018 3
Arun Chettri vs. State of Sikkim and Others
examined whether the answer keys provided by Respondent No.2
were correct.
(iii) In the meantime, on 18-04-2018 the Petitioner filed
WP(C) No.12 of 2018 before this Court challenging the selection of
the Respondent No.4 (herein) in the OBC (State List) category for
the advertised posts as he fell in the creamy layer. The Writ
Petition was withdrawn on 14-10-2020 by the Petitioner as
Respondent No.4 resigned from the post. The Respondent No.4
also came to be deleted from the array of Respondents vide Order
of this Court dated 26-08-2020 in I.A. No.02 of 2019 in the instant
Writ Petition.
(iv) The Petitioner on searching for the correct answer keys
found that the Respondent No.2 had provided wrong answer keys
to 6 (six) questions of Public Administration & Management paper
and 3 (three) questions in the Indian History, while one wrong
question had been set in the Indian History paper and one question
repeated. He avers that in the light of these errors, 11 (eleven) of
his answers which were correct have been marked as incorrect
thereby depriving him of 28.66 marks in the main(s) written
examination. On 09-08-2018, the Petitioner filed an application
before the Respondent No.2 for re-evaluation of the objective type
questions while also raising concerns about the modifications made
in the merit list of candidates wherein earlier he had ranked above
the Respondent No.5 herein, but subsequently was ranked below
him by the Respondent No.2 sans opportunity of being heard in the
matter. The Respondent No.2 informed him on 27-08-2018 that
the matter had been verified by the subject Experts and the WP(C) No.45 of 2018 4
Arun Chettri vs. State of Sikkim and Others
answers keys were found to be correct, hence there would be no
changes thereafter. The Petitioner on 01-09-2018 against the
reply of the Respondent No.2 reiterated the 11 (eleven) errors
made by the Respondent No.2 and prayed for proper re-evaluation
of his papers, but to no avail. Another application filed by the
Petitioner before the Respondent No.2 seeking a stay for any
further action with regard to the revised OBC (State List)
candidates was also stonewalled. His averment is that he should
be extended the same opportunity by the Respondent No.2 as
afforded to one Dipendra Adhikari, Respondent No.5 herein
[Petitioner in WP(C) No.27 of 2018], who had applied for re-
evaluation of 10 (ten) of his answers in the Philosophy paper
(objective type), upon which the Respondent No.2 had awarded
him 4 (four) extra marks and placed him higher in order of merit
than the Petitioner, who earlier had ranked above the Respondent
No.5.
(v) The Petitioner inter alia seeks a direction to the
Respondent Authorities to establish a fair and competent
Committee of Experts to examine the official answer keys for the
subjects of Public Administration & Management and Indian History
and thereafter evaluation of the Petitioner's papers by the
Committee constituted. He also seeks a direction to the
Respondent No.2 to quash the modified statement in order of merit
of candidates selected for the post of Under Secretary and modified
original statement of marks obtained by the candidates of OBC
(State List) category in the main(s) written examination and viva-
voce examination and to prepare fresh statement in order of merit
of candidates selected for viva-voce examination for the post of WP(C) No.45 of 2018 5
Arun Chettri vs. State of Sikkim and Others
Under Secretary and original statement of marks obtained by the
candidates OBC (State List) category in main(s) written
examination and viva-voce examination. A direction to the
Respondent No.2 to appoint the Petitioner in the post of Under
Secretary as per seniority, consequent upon the new rank attained
by the Petitioner.
4. The Respondent No.2 in Counter-Affidavit inter alia
submitted that the Petitioner seeks re-evaluation of his answer
scripts which is not permissible under the rules or the law and on
this ground the Writ Petition is liable to be dismissed. Besides, the
issue raised by the Petitioner has been examined by the subject
Experts and the allegations found to be wrong and mis-conceived.
That, the answer papers of the Respondent No.5 was not re-
evaluated, but only re-verified.
5. Respondent No.3 in its Counter-Affidavit averred that
for want of knowledge, the facts as set out by the Petitioner was
not being responded to, while Respondent No.1 adopted the
Counter-Affidavit filed by Respondent No.3.
6. The Respondent No.5 disputing the averments of the
Petitioner in his Counter-Affidavit stated that he had appeared in
the examination for the paper in Philosophy. On being dissatisfied
with the marks awarded to him, he verified the correctness of the
answer keys and on finding inconsistencies in them sought
verification by the Respondent No.2. On typographical errors being
detected in the questions by Respondent No.2 grace marks were
given to the candidates who took the Philosophy paper. WP(C) No.45 of 2018 6
Arun Chettri vs. State of Sikkim and Others
7. The Petitioner filed his Rejoinder to the Counter-
Affidavits denying their averments.
8. Learned Counsel for the Petitioner while advancing his
arguments before this Court on 01-12-2020 submitted that
although the Respondent No.2 has stated that re-evaluation is
barred by rules and law, the relevant provisions were not furnished
for perusal of this Court. That, contrary to the submission of
Respondent No.2 Rule 38(3) of the Rules of Procedure and Conduct
of Business of the Sikkim Public Service Commission provides for
such re-evaluation. That, the Respondent No.5, also an OBC (State
List) candidate had filed WP(C) No.27 of 2018 having applied for
re-evaluation of 10 (ten) of his answers in the Philosophy paper to
the Respondent No.2. His request was acceded to by Respondent
No.2 thereby awarding him extra marks and the Writ Petition
(supra) came to be withdrawn on 05-11-2019. That, the Petitioner
herein had also filed WP(C) No.12 of 2018 (challenging the
selection of Respondent No.4 herein) wherein the Respondent No.2
herein was arrayed as Respondent No.3. In the said Writ Petition,
the Respondent No.2 filed a modified statement in order of merit of
candidates selected for viva-voce examination for the post of Under
Secretary along with modified original statement of marks obtained
by the candidates of OBC (State List) category in main(s) written
examinations and viva-voce respectively. In the modified
statement the Petitioner was ranked below the Respondent No.5,
whereas, in the original statement of marks the Petitioner had
ranked above the Respondent No.5. That, such modifications in
the statement of marks was made with no opportunity given to the WP(C) No.45 of 2018 7
Arun Chettri vs. State of Sikkim and Others
Petitioner to place his submissions before Respondent No.2. That,
the opportunity afforded to the Respondent No.5 with regard to re-
evaluation ought to be also extended to the Petitioner both being
similarly situated, although the re-evaluation for the Respondent
No.5 was disguised as re-verification by Respondent No.2. That,
consequent upon the exercise, the marks of the Respondent No.5
increased by 4 (four) marks, viz., from 525.1 to 529.1. The
Respondent No.2 also failed to give any proof that the answer keys
to the objected questions raised by the Petitioner had been shown
to Experts and merely responded tersely that it had been done. It
is contended that the same Experts who set the question papers
cannot be asked to verify the answer keys as it would be in the
nature of things for them to deny any error and hence, new
Experts ought to be requested to make such verification. That,
had the Petitioner not been deprived of 28.66 marks on account of
the wrong answer keys he would have ranked first in the merit list
of OBC (State List) candidates and been eligible for selection as
Under Secretary. To fortify his submissions, Learned Counsel
placed reliance on Uttar Pradesh Public Service Commission through
its Chairman and Another vs. Rahul Singh and Another1; Rajesh Kumar
and Others vs. State of Bihar and Others2 and Bihar Staff Selection
Commission and Others vs. Arun Kumar and Others3. Hence, the
prayers as enumerated in the Writ Petition be allowed in the
interest of justice.
9. Learned Senior Counsel appearing for Respondent No.2
while vehemently denying and disputing the allegations firstly
1 (2018) 7 SCC 254 2 (2013) 4 SCC 690 3 (2020) 6 SCC 362 WP(C) No.45 of 2018 8
Arun Chettri vs. State of Sikkim and Others
would invite the attention of this Court to the ration in Pranav
Verma and Others vs. The Registrar General of the High Court of Punjab 4 and Haryana at Chandigarh and Another and contended that the
Court should not order a re-evaluation. Learned Senior Counsel
further submitted that the Court itself cannot look into the
correctness of the answers as was held in Kanpur University through
Vice-Chancellor and Others vs. Samir Gupta and Others5. That, this
Judgment has been consistently referred to by the Hon'ble
Supreme Court in matters such as the present dispute till 2020.
Reliance was also placed on Ran Vijay Singh and Others vs. State of 6 Uttar Pradesh and Others . That, while examining whether the
Petitioner has a right to re-evaluation, this Court is to consider that
although the Respondent No.2 had informed him that his concerns
had been raised before the Expert and no error had been found in
the answer keys, he did not challenge the response but chose to
accept it. That, the instant Petition is merely a chance Petition
undeserving of any consideration while placing the ratio in Uttar
Pradesh Public Service Commission (supra) Learned Senior Counsel
canvassed the contention that the scope of judicial review in such
matters has been elucidated therein. That, in view of the
submissions put forth, the Petition deserves a dismissal.
10. Learned Advocate General appearing for Respondents
No.1 and 3 contended that in fact no vacancy exists presently for
the post for which the Petitioner is agitating his case. That,
although Respondent No.4 has resigned from his post, once
appointments have been made to a post and the person concerned
4 (2019) SCC OnLine 1610 5 (1983) 4 SCC 309 6 (2018) 2 SCC 357 WP(C) No.45 of 2018 9
Arun Chettri vs. State of Sikkim and Others
resigns, then the post is deemed to have been utilized. In such a
circumstance either the post is required to be re-advertised or the
appointment has to be quashed upon which a vacancy will arise,
both having not been done, the Petitioner cannot claim
appointment in the post which Respondent No.4 tendered his
resignation. Besides, the Court is to examine whether the right of
the Petitioner is substantive right or only procedural right and the
Writ Petition merits no consideration in view of the aforestated
circumstances.
11. The rival submissions put forth by the Learned Counsel
were heard in extenso, the pleadings, documents and citations
made at the Bar carefully perused.
12. On 05-02-2021, this Court vide an Order of the same
date, issued the following directions to the Respondent No.2;
"11. ............................................................
(i) The Respondent No.2 shall appoint an Expert Committee consisting of 3 (three) Experts in the subject of Indian History and Public Administration & Management as Members to determine whether the allegations of the Petitioner are justified;
(ii) To rule out any further grievances of the Petitioner, the Committee is to comprise of Experts excluding the examiners who set the relevant question papers;
(iii) The Committee shall also exclude Experts who corrected the answer scripts of the Petitioner;
(iv) The Expert Committee shall examine as to whether the answers to the questions raised by the Petitioner detailed hereinbelow are correct or otherwise
(v) The Expert Committee shall be appointed within a period of two weeks from today, i.e., on or before 19-02-2021.
(vi) The Expert Committee shall submit its report in a sealed cover to this Court within a period of two weeks, i.e., on 05-03-2021, from the date on which the Committee is formed.
WP(C) No.45 of 2018 10
Arun Chettri vs. State of Sikkim and Others
12. The questions which the Petitioner has raised concerns about and require examination by the Expert Committee are as follows;
A. Public Administration & Management
Sl. No. Questions with four options
1. 1. Which one of the following is not a type of informal
Communication Network?
a) Gossip
b) Email
c) Probability
d) Cluster
Answer by Respondent No.2 - (a)
Correct answer as per Petitioner - (b)
2. 4. Which of the following enjoys the Constitutions status?
(1) Finance Commission
(2) Planning Commission
(3) National Development Council
(4) Election Commission
a) 2 and 3
b) 1 and 4
c) 1, 2, 3
d) 1, 3 and 4
Answer by Respondent No.2 - (a)
Correct answer as per Petitioner - (b)
3. 10. Who is the Vice Chairperson of Niti Ayog?
a) Bibek Debroy
b) Amitabh Kant
c) Raj Nath Singh
d) Arvind Panagariya Answer by Respondent No.2 - (a) Correct answer as per Petitioner - (d)
4. 11. Comptroller and Auditor General of India (CAG) is known as 'friend, philosopher and guide' to which committee?
a) Estimates Committee
b) Committee of Economic Affairs
c) Public Accounts Committee
d) Committee on Public Undertakings Answer by Respondent No.2 - (d) Correct answer as per Petitioner - (c)
5. 29. The posting of an IAS probationer is decided by:
a) Chief Minister of the State
b) Central Ministry of Personnel
c) Director of LBS National Academy of Administration
d) Chief Secretary of state Answer by Respondent No.2 - (d) Correct answer as per Petitioner - (b) WP(C) No.45 of 2018 11
Arun Chettri vs. State of Sikkim and Others
6. 74. Arrange the committees which examined the different aspects of the functioning of Panchayati Raj in a chronological order in their years of appointment?
(i) G.V.K. Rao Committee
(ii) Study Team on Panchayat Raj Finances
(iii) Ashok Mehta Committee
(iv) Balwantrai Mehta Committee Codes :
a) (ii), (i), (iii) and (iv)
b) (iv), (i), (ii) and (iii)
c) (iii), (ii), (iv) and (i)
d) (i), (iii), (ii) and (iv) Answer by Respondent No.2 - (b) Correct answer as per Petitioner - (d)
B. Indian History
Sl. No. Questions with four options
1. 12. The word gotra is mentioned for the first time in a. Atharva Veda b. Rig Veda c. Yajur Veda d. Sama Veda Answer by Respondent No.2 - (a) Correct answer as per Petitioner - (b)
2. 28. Who among the following Englishmen was the first to visit the court of Jahangir?
a. George Barlow
b. Thomas Roe
c. Hawkins
d. William Edwards
Answer by Respondent No.2 - (b)
Correct answer as per Petitioner - (c)
3. 50. Who was the immediate successor of Ranjit Singh?
a. Dalip Singh b. Gulab Singh c. Teja Singh d. Kharak Singh Answer by Respondent No.2 - (a) Correct answer as per Petitioner - (d)
C. The alleged wrong question in question No.54 of Indian History
Sl. No. Questions with four options
1. 54. The Archaeological Survey of India was established during the period of a. William Bentick b. Lord Curzon c. Warren Hasting d. Lord Ripon Answer by Respondent No.2 - (b) Correct answer as per Petitioner - None of the above
D. Question No.14 of Indian History allegedly repeated as Question No.15.
WP(C) No.45 of 2018 12
Arun Chettri vs. State of Sikkim and Others
Sl. No. Questions with four options
1. 14. The 'Harappan Civilisation' was named after the Indus site of Harrapa by
a) Dr. Sankhalia
b) Dr. S. R. Rao
c) Sir MEM Wheeler
d) Sir John Marshall Answer by Respondent No.2 - (d) Correct answer as per Petitioner - (d)
2. 15. The 'Harappan Civilisation' was named after the Indus site of Harrapa by
a) Dr. Sankhalia
b) Dr. S. R. Rao
c) Sir MEM Wheeler
d) Sir John Marshall Answer by Respondent No.2 - (d) Correct answer as per Petitioner - (d)
13. ......................."
13. In compliance to the Order of this Court, the
Respondent No.2 submitted the report of the Expert Committee on
05-03-2021 in sealed cover which was opened by the Court on 09-
03-2021 and the responses as found correct by the Expert
Committee read over to the parties present. The Respondent No.2
vide its Counter-Affidavit dated 08-03-2019 had in Paragraph 31
(page 129 of the Paper Book) submitted that grace marks were
given for Questions No.14 and 15.
14. In view of the report of the Expert Committee, it was
ordered on 09-03-2021 inter alia as follows;
"............................................................. ............................................................. In view of the circumstance pertaining to the Answer Keys that has arisen today, let the Respondent No.2 take necessary steps to reveal the names and qualifications of the persons who comprised the Expert Committee, under sealed cover.
..........................................................."
15. The Respondent No.2, in compliance of the Order dated
09-03-2021 supra, submitted today in sealed cover the names and WP(C) No.45 of 2018 13
Arun Chettri vs. State of Sikkim and Others
qualifications of the persons who comprised the Expert Committee.
The Affidavit and the qualifications of the concerned Expert
Committee have been perused and taken on record.
16. Today, it is submitted by Learned Counsel for the
Petitioner that in view of the Report of the Expert Committee
submitted on 08-03-2021, necessary orders be issued directing the
Respondents No.1, 2 and 3 to appoint the Petitioner from the date
on which the other candidates who had appeared for the same
examination as him were given appointment, viz., 13-01-2018.
Learned Counsel concedes that in view of the fact that the
candidates who were so appointed have not all been impleaded as
Respondents in this matter thereby depriving them of the
opportunity of placing their submissions before this Court, he will
be satisfied if the Seniority awarded to him is as the last candidate
in the sequence of the list of selected candidates.
17. Learned Counsel for the Petitioner also submits that he
is willing to forego arrears of salary which may have accrued to
him from the date of his deemed appointment, however, prays that
the incremental benefits as computed in the salaries of other
candidates, already appointed as Under Secretaries, also be
computed and granted to him to maintain his salary at par with
and equivalent to them from the date of appointment, i.e., 13-01-
2018.
18. Considered.
19. In view of the submissions of Learned Counsel for the
parties, this Writ Petition is being disposed of with the following
directions;
WP(C) No.45 of 2018 14
Arun Chettri vs. State of Sikkim and Others
(i) The State Respondents No.1 and 3 shall appoint the Petitioner in the post of Under Secretary for which all necessary process shall be completed by them on or before 22-03-2021;
(ii) The date of appointment of the Petitioner shall be deemed to be from 13-01-2018;
(iii) The seniority of the Petitioner for all purposes of his service shall be computed from 13-01-2018;
(iv) In view of the circumstance that the selected candidates who are likely to be affected by the outcome of this Writ Petition have not been made party to the Petition, as conceded by the Petitioner, he shall rank last in the sequence of seniority in the list of candidates selected and appointed on 13-01-2018;
(v) The Petitioner shall be extended the benefits of increments to his salary. The incremental benefits thereof that would have accrued to the Petitioner shall be computed from 13-01-2018 to place his salary at par with and equivalent to all other selected candidates; and
(vi) As the Petitioner voluntarily forgoes his claims for arrears of salary, hence there is no necessity for the State Respondents No.1 and 3 to pay the arrears of salary to the Petitioner from 13-01- 2018 retrospectively, till the day before his date of joining.
20. No order as to costs.
( Justice Meenakshi Madan Rai ) Judge 10-03-2021
Approved for reporting : Yes ds /ml
