Punjab-Haryana High Court
Amit Kumar vs State Of Haryana And Ors on 11 March, 2025
Neutral Citation No:=2025:PHHC:034631
CWP-13414-2011 (O&M) & connected cases -1-
138+303
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-13414-2011 (O&M)
Date of Decision:11.03.2025
AMIT KUMAR ......... Petitioner
Versus
STATE OF HARYANA AND ORS ..... Respondent
2) CWP-22884-2010 (O&M)
SANDEEP KUMAR .......Petitioner
Versus
STATE OF HARYANA AND ORS .....Respondents
3) CWP-2476-2011 (O&M)
JITENDER DAGAR .....Petitioner
Versus
STATE OF HARYANA & ORS .....Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: - Mr. Akshay Bhan, Senior Advocate with
Mr. Sushant Kareer, Advocate,
Mr. Akhilesh Barak, Advocate and
Mr. Jagtej Singh Kang, Advocate for the petitioner
(in CWP-22884-2010).
Mr. Lekhraj Sharma, Advocate and
Mr. Abhishek Sharma, Advocate for the petitioner
(in CWP-13414-2011).
Ms. Palika Monga, Deputy Advocate General, Haryana.
Mr. Gurminder Singh, Sr. Advocate with
Mr. J.S. Gill, Advocate,
Mr. G.S. Beniwal, Advocate and
Mr. Nitish Bansal, Advocate for respondent Nos.4, 5, 7, 10, 12
and 13 to 16 in CWP-13414-2011.
Mr. Ram Niwas, Advocate
for Mr. R.K. Doon, Advocate for respondent Nos.4 and 5
(in CWP-22884-2010).
Mr. Akshay Kumar Goel, Advocate for respondent No.11
(in CWP-22884-2010 & CWP-13414-2011).
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Mr. Dinesh Arora, Advocate and
Mr. Ashish Khatkar, Advocate for respondent Nos.13, 17, 18 &
19 in CWP-22884-2010 and for respondent No.18 in CWP-
13414-2011.
Mr. Amit Jhanji, Senior Advocate with
Mr. Abhishek Premi, Advocate,
Ms. Triyyambika Rao, Advocate
Ms. Nandita Verma, Advocate and
for respondent No.19
in CWP-13414-2011 & respondent No.12 in CWP-22884-2010.
Mr. Mahipal S. Yadav, Advocate
for respondent No.14 in CWP-22884-2010.
Mr. D.S. Patwalia, Senior Advocate with
Ms. Sehar Navjeet Singh, Advocate for respondent Nos.22
(in CWP-13414-2011).
Mr. Govind Mor, Advocate for respondent No.15
(in CWP-22884-2010).
Mr. J.S. Ahlawat, Advocate and
Mr. Navdeep Singh, Advocate for respondent No.21
in CWP-13414-2011, CWP-22884-2010
& CWP-2476-2011.
Mr. Ravinder Malik (Ravi), Advocate for respondent No.15
in CWP-22884-2010 & respondent No.22 in CWP-13414-2011.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order, the above-noted petitions are hereby
adjudicated as issues involved and prayer sought in all the petitions are
common. For the sake of convenience and with the consent of parties, the
facts are borrowed from CWP-13414-2011.
2. The petitioner through instant petition under Article 226 of
the Constitution of India is seeking setting aside of selection of private
respondents to the post of Inspector of Police (Male).
3. The petitioner pursuant to advertisement No.5/2008 dated
22.07.2008 applied for the post of Inspector of Police (Male). The said
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advertisement was issued by Haryana Staff Selection Commission (for
short, ‘HSSC’), Panchkula whereby 20 posts of Inspector of Police
(Male) were advertised. 09 posts were earmarked for General Category
and remaining were meant for reserved category. Essential qualification
for the post was graduation from a recognized University with Hindi and
Sanskrit up to matric level.
4. The respondent pursuant to aforesaid advertisement
conducted written test comprising of two papers of 100 marks each. The
exam was conducted in two sessions i.e. morning and evening. A
candidate was required to secure 45% marks in each paper and 50% in
aggregate to be eligible to participate in physical test and interview. The
petitioner secured minimum marks in the written test and successfully
passed physical test. He was called for interview on 02.07.2009. He
appeared for interview and was very hopeful to be selected. The
respondent declared final result on 08.09.2010. The name of petitioner
figured at serial No.1 in the waiting list. He secured 145 marks in the
written test and 7 marks in interview. In this way, he secured 152 marks
out of 225 marks (200 for written test + 25 for interview). The petitioner
was of the opinion that he has been awarded lesser marks in interview
and candidates who were close relatives of ruling political Party have
been awarded higher marks. Hence, this petition.
5. Learned counsel for the petitioner submits that pursuant to
direction of this Court, a three members Committee vide its report dated
24.02.2023 has cleared the mystery of selection of private respondents.
The report has made it clear that despite specific instructions of booklet
and answer sheet, many candidates used fluid/whitener still their papers
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were evaluated and they came to be selected. There are many candidates
whose OMR sheets are having scratch marks still their answer sheets
were evaluated and they came to be selected. Arjun Rathee and Deepak
are two candidates who actually did not appear in the written test still
they were selected. The Committee in its report has pointed out that truth
can be unearthed by forensic examination of signature/handwriting of
these candidates. There is need to compare actual signatures/handwriting
of these candidates with signature/handwriting on the OMR sheets.
Hardeep Singh is one of the selected candidate who did not mention date
of examination in OMR sheet of first session. Vijay Kumar, who is also a
selected candidate, did not put his signature on OMR sheet of first
session and he further mentioned wrong roll number/date of exam.
The report of Committee makes it clear that few candidates
used fluid or scratched OMR sheet still their answer-sheets were
evaluated and they came to be selected. As per instructions, the
respondent-Commission was bound to outrightly reject their answer-
sheets. Intention of the Commission was mala fide, thus, instead of
rejecting candidature of such candidates, the sheets were not only
evaluated but also candidates came to be selected. The action of
respondent is palpably mala fide and amounts to misuse of process of
law. Any appointment which is tainted cannot stand on the touchstone of
Articles 14 and 16 of the Constitution of India. The Supreme Court time
and again has held that every selection process which is tainted or
contrary to Articles 14 and 16 of the Constitution of India should be
declared null and void. From the report of the Committee constituted by
this Court, it is beyond the pale of doubt that selection process was
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tainted, thus, entire selection process needs to be rejected. In alternative,
selection of tainted candidates may be set aside and candidates in the
waiting list be offered appointment letter. The Supreme Court in plethora
of judgments has held that if selection is tainted, it should be set aside
irrespective of length of service. The courts are not supposed to legalize
illegalities of executive. The respondent did not maintain attendance
sheets of written test as well physical examination with intent to conceal
identity of candidates who had participated in the selection process which
led to impersonation and selection of ineligible candidates. The Interview
Board did not award marks separately for each criteria.
6. Per contra, learned counsel for the respondents submit that
in the instructions, there was nothing specific or categoric inhibiting the
candidates from using fluid or scratching OMR sheet. In the instructions,
it was mandated that ball point/gel pen be used to solve the questions. All
the questions were multiple choice questions. Question booklets and
OMR sheets were separate. The candidates were supposed to answer in
the OMR sheet. Incomplete answers and answers filled in inappropriate
manner were liable to be rejected. All the answer sheets were to be
evaluated by electronic means. The Commission simply fed OMR sheets
in the computer which evaluated the answers. As there was no specific
instruction with respect to scratch or use of fluid, the OMR sheets came
to be evaluated by computer. Had there been specific restriction, the
software must have been developed in the said manner. The Commission
in its subsequent exams specifically made it clear that fluid shall not be
used. There was no mala fide on the part of Commission. The petitioners
are unnecessarily raising the issue. Rohit Mann, one of unsuccessful
candidates, on the earlier occasion filed Civil Writ Petition No.1651 of
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2013 which was withdrawn with liberty to file civil suit before Court of
Competent Jurisdiction. The said candidate preferred civil suit tilted as
‘Rohit Mann Vs. State of Haryana and other’. In the said suit, the same
prayers were made which are made herein. Civil Judge (Jr. Divn.), Karnal
vide judgment dated 07.08.2018 dismissed suit of Rohit Mann with costs.
During the pendency of said suit, the Commission produced answer
sheets before the Court. The Commission retained colored copies of
answer sheets before sending original record to Civil Court. On receipt of
original record from Civil Court, it was found that answer sheets of two
candidates have been tampered. FIR in this regard was registered and
matter is pending before trial Court at Panchkula.
The petitioner has made false allegations of nepotism and
favoritism. There was no mala fide on the part of Commission as well as
selected candidates. The allegations of petitioner are false, fabricated and
self-created. There is no substance in their allegations. They are filing
multiple petitions just to detract and disturb the selected candidates. Their
entire action is out of frustration. There may be minor irregularities,
however, there is no illegality and it is settled law that selection process
cannot be set aside on the ground of irregularities if there are no
illegalities.
A candidate has not signed his one out of two OMR sheets.
It needs to be noticed that invigilator had signed both OMRs. There is no
allegation of use of fluid/scratch qua said candidate. The roll number and
sheet number were same and it was to be filled in words and figures and
at different places. On account of examination pressure, minor mistake
took place, however, there is neither allegation of impersonation nor use
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of fluid, scratch etc.
One candidate did not mention date of examination in the
OMR sheet of first session. The said mistake is also a minor mistake and
a curable defect. It cannot be treated as mala fide on the part of candidate
or Selection Commission. The similar irregularities were involved in the
case of unselected candidates still their OMR sheets were evaluated. The
petitioners have also used fluid still their OMR sheets were evaluated
which indicates that petitioners were not subjected to discrimination qua
evaluation. It further shows that use of fluid/scratch was not prohibited.
The petitioner-Sandeep (CWP-22884-2010) was awarded 23 marks in the
interview, thus, he has no right to allege mala fide against Interview
Board. The private respondents have already completed 15 years service.
During this period, they have been further promoted to the rank of DSP.
As per Supreme Court judgment in Sivanandan C.T. and others Vs.
High Court of Kerala and others, 2023 SCC OnLine SC 994, they ought
not to be dismissed at this belated stage.
The report of Committee is flawed. The Committee has
failed to consider that unsuccessful candidates had also used fluid and
their OMR sheets were evaluated. Record of Deepak indicates that fluid
has been used in six questions. After using fluid, he has opted incorrect
answers whereas prior to fluid, he was able to give correct answers.
Actually, fluid was never used which is evident from the coloured copy
retained by Commission before sending the record to Civil Court. There
was no sense for Deepak Kumar to opt for incorrect answers had he
connived with Recruitment Board. In the case of Varun Kumar Dahiya,
the coloured scanned copy retained by the Commission is disclosing use
of fluid qua five questions whereas original copy which has been
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tampered with while matter was pending before Civil Court is indicating
use of fluid qua seven questions. In case of five fluided options, he was
awarded marks qua four because answer to one question still remained
incorrect.
7. I have heard the arguments of learned counsel for the parties
and perused the record with their able assistance.
8. The conceded position emerging from the pleadings and
arguments of both sides is that the respondent-Commission vide
Advertisement No.5/2008 dated 22.07.2008 invited applications for the
post of Inspector of Police (Male). There were 20 posts and 9 were
earmarked for General Category. There was written test comprising of
two papers of 100 marks each. The exam was conducted in two sessions
i.e. morning and evening. In the advertisement, terms and conditions
which are source of instant litigation, were not jotted down, however, in
the answer sheets and question booklet, there were few instructions.
There were many candidates who used fluid as well as scratched options
of OMR sheet. The entire exam was of multiple choice questions. There
were 100 questions in each paper. 25 marks were ear-marked for
interview. The petitioners could not be selected, however, private
respondents were selected and even as on day are working with
respondent-State.
9. The petitioners, on the basis of report of a Committee
constituted on the direction of this Court, are claiming that OMR sheets
of selected candidates were evaluated despite use of fluid and scratch
marks. The respondent was supposed to reject answer sheets where there
was use of fluid or scratch mark. The Committee in its report has found
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that there were 360 candidates who qualified written examination. There
are many candidates either selected or unselected who had used fluid or
scratched OMR sheet. There are four candidates out of selected
candidates who have used fluid/whitener and there are two selected
candidates who have scratched their OMR sheets. There are two
candidates whose signatures/handwriting are doubtful. The Committee
has opined that opinion of Forensic Science Laboratory be obtained and
for the said purpose, handwriting/signature of those candidates need to be
obtained and thereafter, compared with signatures/handwriting available
on OMR sheets. As per Committee, there is one candidate who did not
mention date of examination in OMR sheet of first session. There is
another candidate who mentioned wrong roll number/date of exam and
did not put signature on OMR sheet of first session. He also mentioned
wrong date of exam on OMR sheet of second session.
10. The Committee has prepared report on the directions of this
Court. The findings of the committee are necessary for the adjudication
of instant petitions, thus, relevant extracts of the report are reproduced as
below: –
“Findings:
8. After hearing all the concerned and having gone through the
relevant record including the representations / written
submissions submitted by the petitioners and the respondents and
also the reply and record produced by the HSSC, the findings of
the Committee are as under:-
i) Record of the recruitment process:
At the very outset, the Committee observed that the complete
record of the recruitment process has not been provided by the
HSSC. As per the reply of HSSC, the attendance sheet of the
candidates against Advt. No. 5/2008, Category No. 3 for the post9 of 27
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of Inspector (Male) is not traceable in the office record. Further,
it was replied that the seating Plan prepared by the Centre
Superintendent concerned and details of invigilator to whom
duties were assigned in specific room, along with their signatures
is also not traceable. From the information provided by HSSC,
analysis of information in Format A (List of candidates qualifying
the written test) would reveal as under:-
Total number of candidates who were declared
qualified in written examination : 360
Number of Candidates, whose OMR sheets are not
available in the office of HSSC :93
Number of Candidates, whose only one OMR sheets
is available in the office of HSSC :245
Number of Candidates, whose both OMR sheets are
available in the office of HSSC. :22
Thus, the OMR sheets of both sessions have been provided
by the HSSC in respect of 22 candidates only i.e. 18 selected
candidates (respondents No. 3 to 22) and 04 petitioner.
ii) Allegations of impersonation:
The petitioners have levelled allegations of impersonation
alleging that there is difference in the signature on OMR sheets
in both sessions of a candidates namely Sh. Arjun Rathi and that
the handwriting of another candidate namely Deepak is different
in both sessions. The appearance of the candidates in the
examination could have been ascertained from the attendance
sheet of candidates and by examining the invigilators, who were
on duty. However, as mentioned above the relevant record in
respect of the attendant sheet and the details of invigilators have
not been provided by the HSSC stating that the same were not
traceable in the office record.
In the given circumstances, the fact about actual
appearance/non-appearance of above said candidates in the
examination can be ascertained by forensic/scientific
examination of the signature/handwriting of the said candidates
by obtaining the samples of their signature/handwriting and
comparison of the same with their signature/handwriting on the
OMR sheets, which is a matter of investigation by specialized10 of 27
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investigation agency. Therefore, the Hon’ble Court may form a
view and may take final decision in this behalf.
iii) Instructions regarding written examination and use of
fluid/whitener:
It is evident from the record submitted by HSSC that there
were instructions for the candidates on the question booklets as
well as OMR sheets. The relevant instructions on the Question
Booklets and the OMR sheets are as under:-
Question Booklets:-
“4. इस पृ के ऊपर िनधा रत ान पर आप अपना रोल न र अव
िलख । िनरी क ारा आपको उ र पु”#का अलग से दी जाएगी। ()ों
के उ र शु, करने से पहले आप उ र पु”#का के ऊपर की ओर
अपना रोल न र तथा अ0 1ौरे भी अव िलख और अपने ह#ा र
कर अ0था अपको उ र पु”#का को जां चा नहीं जाएगा और शु0 अं क
िदए जाएग ।
5. उ र पु “#का म सभी उ रों को केवल बाल 8ाइं ट/ जै
ल पै
न से भर ।
उ र पु”#का म िदए गए िनद; श भी दे ख ।
OMR Sheets:-
1. उ र पि<का को इले=>ोिनक मा?म से सं सािधत िकया जाएगा।
अपूण अथवा गलत तरीके से भरा गया उ र प< आमा0 होगा और
इसका उ रदाियC पूण तया प र ाथD का होगा।
3. अपने उ र अंिकत करे के िलए बाल 8ाईंट / जै
ल पै
न को ही (योग
कर ।
8. इस उ र पि<का को ?ान से इ#ेमाल कर । इसको मोडना, फाड़ना,
कोई खरोच या िनशान लगाना मना है
।”
The response of HSSC with respect to the query raised by the
committee time and again with regard to specific guidelines
issued by the Commission for the use of fluid/Whitener remained
un-replied. The HSSC merely stated that no specific instructions
were issued with regard to use of fluid/whitener in the exam for
the post of Inspector of Police against Advt. No. 05/2008,
Category No. 03 by the office of using the fluid/whitener or
having scratch marks on the OMR sheets, as information
provided by HSSC, is as under:-
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(A) Candidates whose both OMR sheets are available
i) Total number of candidates : 22
ii) Number of Candidates using Fluid/Whitener from (i) above :
05
iii) Number of Candidates, whose OMR sheet having scratch
marks from (i) above :04
iv) Number of selected candidates using fluid/whitener from (ii)
above :04
v) Number of selected candidates having scratch marks on OMR
sheet from (iii) above: 02
vi) Number of candidates who were not selected having used
fluid/whitener from (ii) above : 01
vii) Number of candidates who were not selected but having
scratch marks on the OMR sheets from (iii) above : 02
(B) Candidates whose single OMR sheets is available
(i) Total number of candidates : 245
(ii) Number of candidates who used fluid out of (i) above : 17
(iii) Number of candidates having scratch marks on OMR sheets
from (i) above :34
Further, the Committee also analyzed the information of
380 candidates as supplied in Format-B by HSSC. These were the
candidates, who were just below the candidates who qualified the
written examination in the order of merit. The analysis revealed
that:-
i) Number of candidates whose OMR sheets are not
available in the HSSC :43
ii) Number of Candidates whose both OMR sheets
are available with HSSC :00
iii) Number of Candidates, whose single OMR
sheets are available with HSSC :337
iv) Number candidates using fluid/whitener from
(iii) above : 18
v) Number of candidates having scratch marks on
OMR sheet from (iii) above :47
In spite of scratch marks on the OMR sheets, these were
evaluated, which is contrary to the instructions No. 8 recorded on
the OMR sheets. Scratch marks were reflected on the OMR sheets
of selected as well as not selected candidates.
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iv) Other Omissions and Commissions on OMR sheets:-
As per the record, some of selected candidates did not
follow the instructions mentioned on the Question Booklets and
the OMR sheets during the written examination. As per
instruction No. 4 above, the candidates were required to fill up
their Roll No. and all other details in the upper portion of the
OMR sheet and affix their signatures, failing which, the OMR
sheet was not to be evaluated and zero marks were to be
awarded. However, the copies of OMR sheets as provided by the
Commission revealed that in spite of leaving column of personal
details blank or mentioning wrong details in the OMR sheets,
these were evaluated. The details of two candidates are as
under:-
➤ 01 selected candidate namely Hardeep Singh did not
mention the date of Examination in OMR sheet of first
session.
➤ 01 selected candidate namely Vijay Kumar mentioned
wrong Roll Number/wrong date of exam and did not put
signature on OMR sheet of first session. He also
mentioned wrong date of exam on OMR sheet of second
session.
v) Evaluation of OMR sheets:
After conducting the written examination, the OMR sheets
were got duly evaluated and while doing so, the instructions as
mentioned above were not duly followed as the unfilled/wrongly
filled OMR sheets were also evaluated. Marks were awarded to
the candidates, who filled up the OMR sheets by using
fluid/whitener. As far as use of Fluid/Whitener is concerned,
there could have been only two possibilities i.e. either the use of
Fluid/Whitener was allowed or use of Fluid/Whitener was not
allowed at all.
First of all, there were no specific instructions with regard
to use of Fluid/Whitener. Secondly, there is nothing on record to
show that all the candidates were made aware about use of
Fluid/Whitener. Therefore, some candidates used the
Fluid/Whitener and even some resorted to scratching of OMR
sheets. Had the use of Fluid/Whitener been allowed, all the
candidates could have used the same which was not done in the
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present case. Moreover, the instruction regarding “Use of only
Ball pen/Gel pen” itself indicate that there was no intention to
allow any correction to be made by using Fluid/Whitener,
otherwise, all the candidates could be allowed use of pencils and
eraser for the purpose of corrections. It is also evident that
lateron, HSSC issue clear instructions regarding non-use of
Fluid/Whitener in the written examinations.
Otherwise also use of Whitener/Fluid in the written exam
was not appropriate for the simple reason that the possibility of
tempering of OMR sheets by using Fluid/Whitener at any
subsequent stage like at the examination centre after submission
of OMR sheet to invigilator or at the office of HSSC or even after
interview cannot be ruled out. This fact is supported with the
reply of the HSSC to the fact that in compliance of order of Civil
Court, Karnal, the Commission sent the requisite record
regarding original OMR sheets and retained coloured copies of
OMR sheets for Commission’s record. Thereafter, it came to the
notice of Commission that original OMR sheets of the candidates
namely Varun Kumar Dahiya and Deepak were tempered by
using white fluid and the Commission lodged FIR No. 372 dated
10.10.2015 in Police Station, Sector -5, Panchkula in this behalf.
The matter is still pending before the Trial Court at Panchkula.
Thus, the impression which can be gathered from the
overall circumstances, including the instructions mentioned
above, is that use of Fluid/Whitener was not allowed. Still, the
OMR sheets having Fluid/Whitener and scratch marks, having
wrong dates, Roll Numbers and blank columns of personal details
were accepted and evaluated by the Commission, which is
contrary to the instructions mentioned on the Question Booklet
and OMR sheets.
9. That in view of the above findings i.e. evaluating the OMR
sheets having wrong Roll Number or wrong date of exam or
without signature of the candidate or having scratching marks on
it, was willful omission on Commission’s part. Further, not
maintaining the record properly and allowing the use of
fluid/whitener to change the answers, causes serious dent on the
fairness of recruitment process and grant of equity to all the
candidates.
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10. That the above report is based on the scrutiny of the
documents submitted by the petitioners and the respondents No. 3
to 20 and the record of recruitment produced by the HSSC, in
order to assist the Hon’ble Court.”
11. The Supreme Court in plethora of judgments has held that
before setting aside any selection process, the Court is bound to see: –
i. Whether there is sufficient material on record to
establish that selection process was tainted;
ii. Whether any independent agency has sifted the
available evidence;
iii. Whether record of selected and unsuccessful
candidates is available;
iv. Whether illegalities committed by the Commission go
to the root of the matter;
v. Whether tainted candidates can be separated from total
selected candidates;
vi. Whether entire or partial selection is void;
vii. Length of service of selected candidates; and
viii. Role of selected candidates.
12. In Maneka Gandhi v. Union of India, (1978) 1 SCC
248, a Constitution Bench elaborated and expounded the relationship
between different Articles guaranteeing fundamental rights and
enunciated every action of the State is violative of Article 14 which is
arbitrary. The procedure established by law must be just, fair and right.
Justice Bhagwati speaking for the Bench has held:
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“7…..Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test
of reasonableness in order to be in conformity with Article
14. It must be “right and just and fair” and not arbitrary,
fanciful or oppressive; otherwise, it would be no procedure
at all and the requirement of Article 21 would not be
satisfied.”
From the above referred judgment, it is evident that absence
of arbitrariness is essential for the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law,
discretion, when conferred upon executive authorities, must be confined
within clearly defined limits. The rule of law from this point of view
means that decisions should be made by the application of known
principles and rules and, in general, such decisions should be predictable
and the citizen should know where he is. If a decision is taken without
any principle or without any rule, it is unpredictable and such a decision
is antithesis of a decision taken in accordance with the Rule of law.
Where discretion is absolute, man has always suffered. It is in this sense
that the rule of law may be said to be the sworn enemy of caprice.
Discretion must be governed by Rule. It must not be arbitrary, vague, and
fanciful.
12.1. A Constitutional Bench in ‘Secretary, State of Karnataka
Vs. Uma Devi‘, (2006) 4 SCC 1, while adverting to question of
regularization of temporary, ad hoc, part-time employees has held that
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adherence to the rule of equality in public employment is a basic feature
of our Constitution. The Court has held:-
“43. Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and
since the rule of law is the core of our Constitution, a court would
certainly be disabled from passing an order upholding a violation
of Article 14 or in ordering the overlooking of the need to comply
with the requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified
persons, the same would not confer any right on the appointee”.
12.2. A five Judge Constitution Bench in Sivanandan C.T.
(supra) adverted to validity of appointment of District and Sessions
Judges. High Court of Kerala in 2015 invited applications for
appointment as District and Sessions Judges in the Kerala State Higher
Judicial Services by direct recruitment from the Bar. The notification
stipulated that the selection would be on the basis of a competitive
examination consisting of a written examination and viva-voce. The total
marks assigned for the written examination were 300 comprising of two
papers, each carrying 150 marks. Paragraph 5 of the notification
stipulated that “the merit list of successful candidates will be prepared on
the basis of the total marks obtained in the written examination and viva
voce.” After the viva-voce was conducted, the Administrative Committee
of the High Court passed a resolution by which it decided to apply the
same minimum cut-off marks which were prescribed for the written
examination as qualifying criteria in the viva-voce. In coming to this
conclusion, the Administrative Committee was of the view that since
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appointments were being made to the Higher Judicial Service, it was
necessary to select candidates with a requisite personality and knowledge
which could be ensured by prescribing a cut-off for the viva-voce in
terms similar to the cut-off which was prescribed for the written
examination. The Full Court of the High Court of Kerala approved the
resolution of the Administrative Committee. The final merit list of the
successful candidates was also published on the same day. The decision
of the Full Court to apply minimum cut-off marks for the viva voce and
the resultant promulgation of the list of successful candidates came to be
challenged before Apex Court under Article 32 of the Constitution. On
account of application of cut off marks in the viva-voce, many candidates
were ousted though they secured higher marks than many of the
candidates who were selected on the consideration of the aggregate of
marks in the written examination and the viva-voce. Hon’ble Court while
adverting to the principle of legitimate expectation concluded that
consistency and predictability are part of rule of law. The Court noticed
its earlier judgments including judgment in State of Bihar v. Shyama
Nandan Mishra, 2022 SCC OnLine SC 554 wherein it was held that
regularity, predictability, certainty and fairness are important facets of
governance. These are necessary concomitants of government gestures.
In a constitutional system rooted in the rule of law, the discretion
available with public authorities is confined within clearly defined limits.
The primary principle underpinning the concept of rule of law is
consistency and predictability in decision making. A decision of a public
authority taken without any basis in principle or rule is unpredictable and
is therefore, arbitrary and antithetical to the rule of law. The rule of law
promotes fairness by stabilizing expectation of citizens from public
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authorities. Since, the citizens repose their trust in the State, the actions
and policies of the State give rise to legitimate expectations that the State
will adhere to its assurance or past practice by acting in a consistent,
transparent and predictable manner. The principles of good
administration require that the decisions of public authorities must
withstand the test of consistency, transparency and predictability to avoid
being regarded as arbitrary and therefore violative of Article 14.
12.3. Constitutional Bench of Supreme Court in ‘Tej Prakash
Pathak v. High Court of Rajasthan’, 2024 SCC OnLine SC 3184, has
approved opinion in K Manjusree (supra) and held that eligibility criteria
cannot be altered after commencement of the selection process. The
Court has held:
“65. We, therefore, answer the reference in the following
terms:
65.1. Recruitment process commences from the issuance of
the advertisement calling for applications and ends with
filling up of vacancies;
65.2. Eligibility criteria for being placed in the select list,
notified at the commencement of the recruitment process,
cannot be changed midway through the recruitment process
unless the extant Rules so permit, or the advertisement,
which is not contrary to the extant Rules, so permit. Even if
such change is permissible under the extant Rules or the
advertisement, the change would have to meet the
requirement of Article 14 of the Constitution and satisfy the
test of non-arbitrariness;
65.3. The decision in K. Manjusree K. Manjusree v. State of
A.P., (2008) 3 SCC 512 lays down good law and is not in
conflict with the decision in Subash Chander Marwaha
[State of Haryana v. Subash Chander Marwaha, (1974) 3
SCC 220 Subash Chander Marwaha [State of Haryana v.
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Subash Chander Marwaha, (1974) 3 SCC 220] deals with
the right to be appointed from the select list whereas K.
Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC
512] deals with the right to be placed in the select list. The
two cases therefore deal with altogether different issues;
65.4. Recruiting bodies, subject to the extant Rules, may
devise appropriate procedure for bringing the recruitment
process to its logical end provided the procedure so adopted
is transparent, non-discriminatory/non-arbitrary and has a
rational nexus to the object sought to be achieved;
65.5. Extant Rules having statutory force are binding on the
recruiting body both in terms of procedure and eligibility.
However, where the rules are non-existent or silent,
administrative instructions may fill in the gaps;
65.6. Placement in the select list gives no indefeasible right
to appointment. The State or its instrumentality for bona fide
reasons may choose not to fill up the vacancies. However, if
vacancies exist, the State or its instrumentality cannot
arbitrarily deny appointment to a person within the zone of
consideration in the select list.
13. A conspectus of the afore-cited judgments reveals that
recruitment agency after commencement of selection process cannot
change eligibility criteria other than immaterial terms and conditions of
the advertisement unless and until rules/advertisement permit and all the
affected parties are informed well in advance. The terms and conditions
of advertisement cannot be contrary to applicable rules. Amendment in
advertisement or change in criteria after commencement of selection
process is bad in the eye of law. Qualification other than jotted down in
the advertisement or rules cannot be considered irrespective of higher or
equivalent. Selection made on the basis of changed criteria needs to be
set aside. In case selected candidates are working for quite a long time,
their selection may not be disturbed.
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If the selection can be set aside on the ground of change of
rules after commencement of selection process, there is no doubt that
selection should be set aside if it was tainted.
14. In the case in hand, the allegation against the selected
candidates is that they have used fluid or scratched answer sheets. There
are two candidates against whom there is allegation of impersonation and
two candidates have not properly mentioned their roll number/date of
exam.
15. During the course of hearing, the State counsel produced
OMR sheets of all the candidates whose answers sheets are in question.
From the perusal of answer sheets, it is evident that one candidate namely
Gaurav Sharma scratched four questions. He changed his mind and
circled options other than scratched. Particulars of said candidate are
reproduced as below:-
Name Question No. Scratched Option Correct
option finally answer
Circled
Gaurav Sharma 6 D A D
32 C A C
85 C A C
93 C A C
From the perusal of afore-stated table, it is evident that
Gaurav Sharma initially selected correct answers whereas he finally
selected incorrect answers. It conclusively indicates that it was not a case
of connivance between Recruitment Board and the said candidate. One
can understand if incorrect answers are substituted by correct answers by
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scratching or use of fluid. However, it is highly improbable and difficult
to believe that a candidate having connivance with Recruitment Board or
access to illegal means would circle incorrect answers though he initially
opted correct answers. It is also apt to notice that he has not completely
circled the option which was later on scratched.
Another selected candidate namely Jai Prakash belongs to
BC Category. He scratched two questions. After scratching, he circled
other options which were correct as per answer key. He secured two
marks on account those two questions. His total marks were 152 and if
two marks are deleted, his remaining marks would be 150 and cut-off
marks in his category was 138.
In the case of Deepak, who belongs to General Category,
there are five questions where he used fluid. From the original answer
sheet produced during the course of hearing and photocopy which was
retained by the Commission before sending original record to Civil
Court, it appears that Deepak had never used fluid. Another important
aspect is that he has not secured any mark qua option marked by him. All
the options marked by him qua five questions are incorrect.
16. From the above discussion of status of three candidates, it is
evident that they have either not secured any benefit by using fluid or the
marks awarded qua answers in questions are insignificant in view of total
marks obtained by them and cut-off marks.
17. The next question arises whether answer sheets of six
candidates who had used fluid or scratch mark could be evaluated or not.
The petitioners are heavily placing reliance on instruction of question
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booklet and OMR sheet. The Committee in its report has also relied upon
Instructions No.4 and 5 of question booklet and Instructions No.1, 3, and
8 of OMR sheet. As per the petitioners and opinion of the Committee, as
soon as any candidate used fluid or scratched OMR sheet, he became
ineligible to participate. His OMR sheet could not be evaluated. The
respondent-Commission concededly evaluated the sheets. The
Commission before the aforesaid Committee as well as this Court has
taken categoric stand that there was no specific instruction with respect to
use of fluid. There was no human intervention in the evaluation of answer
sheets. The sheets were fed in the computer and marks were generated.
Not only selected but also many unselected candidates used fluid or
scratched their answer sheets. From the perusal of instructions, it is
evident that candidate was duty bound to use ball point/ink pen to fill the
circle of the OMR Sheet. It means use of any writing instrument other
than ball point/ink pen to circle the correct option was not permissible.
The instructions further mandate that no candidate would tear, fold,
scratch or use any sign on the answer sheet. In the normal course, it may
be inferred that scratching of any option in the OMR sheet amounts to
violation of instructions. In the case in hand, firstly the said instruction
does not say that entire answer sheet would be outrightly rejected nor it
particularly talks of multiple options of OMR sheets. The answer sheets
were evaluated by electronic mode. The software used by respondent for
evaluating the answer sheets did not object to use of fluid and scratch
marks. The Commission is claiming that there was no restriction to use
fluid or scratch a particular circle of the OMR sheet. It appears that
intention of the said instruction was to keep the answer sheet intact so
that it may be fed in the computer and optimal result may be obtained.
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The respondent in subsequent exams has clarified that use of fluid is not
permissible. Evaluation of OMR sheets of all the candidates irrespective
of use fluid or scratch mark, absence of specific instruction prohibiting
use of fluid and stand of Commission that there was no prohibition to use
fluid, make it clear that OMR sheets of selected candidates despite use of
fluid and having scratch mark were rightly evaluated.
18. The petitioners are further claiming that there are few
candidates who have not filled their correct roll number and their answer
sheets were liable to be rejected. From the report of the Committee, it is
evident that there are two candidates who have made mistake with
respect to their particulars to be filled in OMR sheet. Hardeep Singh did
not mention date of examination in OMR sheet of first session. Vijay
Kumar mentioned wrong roll number/date of exam and did not put
signature on OMR sheet of first session. Indubitably, Vijay Kumar did
not put his signature on OMR sheet of first session, however, Invigilator
signed the OMR sheet of the said session. There is no use of fluid or
scratch marks in the OMR sheet of said candidate. Hardeep Singh did not
mention date of examination in OMR sheet of first session. Roll Number
was to be filled in numerical form as well as circle form. There are minor
mistakes though primarily particulars are correctly filled. The answer
sheets of both the candidates were evaluated. The computer system did
not raise objection. There is no fudging of record on their part. There is
no evidence disclosing that they have connived with Recruitment Board.
They have neither used fluid nor scratched OMR sheets. In these
circumstances, it can be concluded that there were procedural
irregularities or infirmities on the part of Hardeep Singh and Vijay
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Kumar but there was neither fraud on their part nor connivance with
Recruitment Board.
19. As per report of the Committee, there are two candidates
against whom there are allegations of impersonation. The Committee has
opined that appearance of the candidates in the examination could have
been ascertained from the attendance sheet of the candidates and by
examining the Invigilators who were on duty. Record of attendance
sheets is not available as per opinion of the respondent-Commission. The
Committee has formed an opinion that factum of actual appearance of
candidates may be ascertained by forensic/scientific examination of
signatures/handwriting of the selected candidates by obtaining their
samples and comparing with their signatures/handwriting on OMR
sheets. It means the Committee has not formed conclusive opinion. The
Committee has not even prima facie formed an opinion that there is
difference in handwriting/signatures of the candidates in both sessions.
This Court cannot act as an Investigating Agency. The Commission was
always free to ascertain the said fact by way of referring the matter to a
Specialised Agency. The respondent-Commission has not chosen the said
option. A period of 16 years from the date of exam has passed away. At
this stage, this Court does not find it appropriate to refer the matter for
forensic examination of handwriting/signature of these candidates.
20. From the above discussion, it can be gleaned that there was
procedural infirmity or irregularity on the part of Commission, however,
there is nothing on record to establish that there was fraud, suppression of
facts or connivance on the part of candidates or Selection Commission.
The report of the Committee does not disclose that there was either fraud
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or the entire selection was tainted. From the perusal of opinion of the
Committee and answer sheets, this Court concludes that there were
irregularities but no illegality was committed which goes to roots of the
selection process. In the absence of illegalities, this Court cannot set aside
selection of candidates who are working with State Police for last 15
years and they have been promoted from the post of Inspector to Deputy
Superintendent of Police. The respondent by promoting the private
respondents from the post of Inspector to Deputy Superintendent of
Police has made it clear that selected candidates are not involved in any
criminal activity, are having good ACRs and are free from allegation of
misconduct. In any case, on account of pendency of litigation before this
Court, natural instincts and human tendency must have inhibited them
from committing any misconduct. Cancellation of their selection would
be worse than alleged irregularities. It is well-known that solution cannot
be worse than problem.
The judgment of Supreme Court in Sivanandan C.T. (supra)
is directly applicable to instant case. In the case in hand, the private
respondents are working for last 15 years and they must have achieved
good experience of maintenance of law & order. Substitution of their
appointment by petitioners would not be in the interest of public at large.
The petitioners, at present, are more than 40 years. Physical/mental
fitness is of paramount consideration in the Police Force. The petitioners
cannot be expected of having fitness as postulated for an Inspector of
Police at the time of initial appointment.
21. Rohit Mann one of unsuccessful candidates on the earlier
occasion filed Civil Writ Petition No.1651 of 2013 which was withdrawn
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with liberty to file civil suit before Court of Competent Jurisdiction. The
said candidate preferred civil suit tilted as ‘Rohit Mann Vs. State of
Haryana and other’. In the said suit, the same prayers were made which
are made herein. Civil Judge (Jr. Divn.), Karnal vide judgment dated
07.08.2018 dismissed suit of Rohit Mann with costs. The said candidate
by way of CM No.11558 of 2019 in CWP No.13414 of 2011 became
party to instant litigation. The Civil Court after examining evidence has
turned down his prayer. The judgment of Civil Court has remained un-
assailed. Principle of constructive res-judicata needs to be taken care of
as earlier writ as well as suit of said candidate stands dismissed. The
Court is not oblivious of the fact that instant petitions were filed by
candidates other than Rohit Mann.
22. In the wake of above discussion and findings, this Court is of
the considered option that instant petitions deserve to be dismissed and
accordingly dismissed.
23. Pending misc. application(s), if any, shall also stand
disposed of.
( JAGMOHAN BANSAL )
JUDGE
11.03.2025
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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