RAJESH KUMAR & ORS. ETC.versusSTATE OF BIHAR & ORS. ETC.

                   (2013] 4 S.C.R. 753


              RAJESH KUMAR & ORS. ETC.                           A
                             v.
               STATE OF BIHAR & ORS. ETC.
        (Civil Appeal Nos. 2515-2516 of 2013 etc.)
                     MARCH 13, 2013
                                                                 B
     [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

    Service Law:

     Selection/Appointment - On the basis of competitive         c
examination - Evaluation of answer scripts challenged -
Defect found in 'Model Answer Key' to one of the papers -
High Court directed to conduct fresh examination in the paper
having defective 'Model Answer Key' - Held: The entire
selection process was vitiated by use of defective 'Model        D
Answer Key' and appointments made on the basis of such
examination would also be rendered unsustainable -
However, in the facts of the case, instead of directing fresh
examination, correcting the defect by evaluation of answer
scripts with correct key was better option - The re-evaluation
                                                                 E
would affect only inter-se seniority among the candidates -
The already appointed candidates, after re-evaluation, if did
not make the grade, would not be ousted from service, but
would figure at the bottom of the select list.

     Respondent Nos. 6 to 18, who were unsuccessful              F
candidates in the written objective type examination,
conducted by State Staff Selection Commission for
appointment to the post of Junior Engineer, filed writ
petition in the High Court challenging the evaluation of
the answer scripts. The successful candidates i.e. the           G
appellants were not impleaded as parties. During
pendency of the petition, the successful candidates were
appointed in the different Departments of the State.
Single Judge of the High Court referred the "Model
                            753                                  H
    754     SUPREME COURT REPORTS               (2013] 4 S.C.R.


A Answer Key" to experts. The experts gave their report
  that in Civil Engineering paper, answer to 45 questions
  were wrong, two questions were repeated and one
  question was defective. Single judge of the High Court
  cancelled the entire examination as well as the
B appointments made on its basis. Division Bench of the
  High Court partly allowed the writ appeal, holding that
  entire examination was not required to be cancelled as
  there was no allegation of any corrupt motive or
  malpractice with regard to other question papers. The
c Court directed to rectify the defect by conducting fresh
  examination in Civil Engineering paper only.

        During pendency of the writ appeal fresh selection
    process was initiated, wherein 6 of the respondents were
    appointed while the rest opted not to join.
D
       In appeal to this Court, the appellants contended that
  High Court committed an error in quashing the entire
  selection process, even when the petitioners-
  respondents had not prayed to that effect; and that even
E if the result of the first selection process was vitiated by
  the use of erroneous 'Model Answer Key', the court could
  have rectified the defect by directing re-evaluation of
  answer scripts. The appellants also prayed for a suitable
  direction that after re-evaluation, if they fell below the cut-
F off line, they should not be ousted from service and the
  re-evaluation would determine only inter-se seniority.

          Allowing the appeals, the Court

       HELD: 1. The Division Bench of the High Court was
G justified in holding that the result of the examination in
  so far as the same pertained to 'A' series question paper
  was vitiated. This was bound to affect the result of the
  entire examination qua every candidate whether or not he
  was a party to the proceedings. If the result was vitiated
H by the application of a wrong key, any appointment made
        RAJESH KUMAR v. STATE OF BIHAR                   755

on the basis thereof would also be rendered                     A
unsustainable. The High Court was, in that view, entitled
to mould the relief prayed for in the writ petition and issue
directions considered necessary not only to maintain the
purity of the selection process but also to ensure that no
candidate earned an undeserved advantag_e over others           B
by application of an erroneous key. [Para 12] [762-A-D]

     Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234:
2009 (15) SCR 662; State of Orissa and Anr. v. Mamata
Mohanty (2011) 3 SCC 436: 2011 (2) SCR 704 -                    C
distinguished.

     2. Given the nature of the defect in the answer key,
the most natural and logical way of correcting the
evaluation of the scripts was to correct the key and get
the answer scripts re-evaluated on the basis thereof.           D
There was no compelling reason for directing a fresh
examination to be held by the Commission especially
when there was no allegation about any malpractice,
fraud or corrupt motives that could possibly vitiate the
 earlier examination to call for a fresh attempt by all         E
concerned. The process of re-evaluation of the answer
scripts with reference to the correct key will, in addition,
be less expensive apart from being quicker. The process
would also not give any unfair advantage to anyone of
the candidates on account of the time lag between the           F
examination earlier held and the one that may have been
held pursuant to the direction of the High Court. The re-
evaluation, thus was and is a better option, in the facts
and circumstances of the case. [Para 16] [763~E-H]

     3; The appellants were innocent parties who have           G
not, in any manner, contributed to the preparation of the
erroneous key or the distorted result. There is no mention
of any fraud or malpractice against the appellants who
have served the State for nearly seven years now. In the
circumstances, while inter-se merit position may be             H
    756      SUPREME COURT REPORTS              [2013] 4 S.C.R.


A relevant for the appellants, the ouster of the latter need
  not be an inevitable and inexorable consequence of such
  a re-evaluation. Such of those candidates as may b~
  ultimately found to be entitled to issue of appointment
  letters on the basis of their merit shall benefit by such re-
B evaluation and shall pick up their appointments on that
  basis according to their inter-se position on the merit list.
  Such candidates would earn their seniority from the date
  the appellants were first appointed in accordance with
  their merit position but without any back wages or other
c benefit whatsoever. Such of the appellants as do not
  make the grade after re-evaluation shall not be ousted
  from service, but shall figure at the bottom of the list of
  selected candidates based on the first selection and the
  second selection. [Paras 18 and 19(2),(4)) [764-H; 765-A-
D C, F; 766-A-B]
                        Case Law Reference:
          2009 (15) SCR 662     distinguished        Para 13
          2011 (2) SCR 704      distinguished        Para 13
E
        CIVIL APPELLATE JURISDICTION: CIVIL APPEAL Nos.
    2515-2516 of 2013.
      From the Judgment & Order dated 01.02.2008 of the
  High Court of Judicature at Patna in LP.A. Nos. 70 and 72 of
F 2008.
        P.P. Rao, Rajeev Kumar, Dr. Kailash Chand, Ashutosh
    Kumar, Sanjay Kumar Mishra, Manish Kumar Choudhary, S.K.
    Verma for the Appellants.
G      Nagendra Rai, Gopal Singh, Anshuman Sinha, Ajay
  Vikram Singh. Vijay Kumar Pandey, Priyanka, Naresh Kumar,
  Smarhar Singh, Shantanu Sagar, Abhishek Kr. Singh, Aabhas
  Parimal, Gaurav Agrawal, Susmita Lal, Malabika Sarkar,
  Ashesh Lal, Amit Pawan, Vivek Singh, Prashant Kumar, T.
H Mahipal for the Respondents.
        RAJESH KUMAR v. STATE OF BIHAR                      757


    The Judgment of the Court was delivered by                      A

    T.S. THAKUR, J. 1. Leave granted.

     2. Application of an erroneous "Model Answer Key" for
evaluation of answer scripts of candidates appearing in a
competitive examination is bound to lead to erroneous results       B
and an equally erroneous inter-se merit list of such candidates.
That is precisely what appears to have happened in the present
appeals which arise out of a common judgment delivered by
the High Court of Judicature at Patna whereby the High Court
has directed the Bihar Staff Selection Commission to conduct        C
a fresh examination and re-draw the merit list on that basis. For
those who have already been appointed on the basis of the
earlier examination, a fresh examination has been directed by
the High Court before they are finally ousted from the posts held
by them. The appellants who happen to be the beneficiaries of       D
the erroneous evaluation of the answer scripts have assailed
the order passed by the High Court in these appeals which arise
in the following backdrop:

      3. By an advertisement dated 14th August 2006,
                                                                    E
applications were invited by the Bihar State Staff Selection
Commission from eligible candidates for appointment against
2268 posts of Junior Engineer (Civil) out of which 1057 pests
were in the open merit category. The selection process, it
appears, comprised a written objective type examination, held
                                                                    F
by the Staff Selection Commission who drew up a Select List
of 210 successful candidates including 143 appellants in these
appeals based on the performance of the candidates in the
examination. The evaluation of the answer scripts was,
however, assailed by 13 unsuccessful candidates, respondents
6 to 18 in these appeals, in CWJC No.885 of 2007. The writ          G
petitioners did not implead the selected candidates as party
respondents ostensibly because the petitioners prayed for a
limited relief of a writ of mandamus to the Staff Selection
Commission to produce the answer-sheets in the Court and to
get the same re-evaluated manually by an independent body.          H
    758    SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A       4. While the above writ petition was still pending, 35
  candidates were appointed as Junior Engineers in Road
  Construction Department of the Government of Bihar while 144
  others were appointed in Water Resources Department. Nine
  of the selected candidates were appointed in the Public Health
B Engineering Department taking the total number of those
  appointed to 188 out of 210 candidates included in the merit
  list. Posting orders were also issued to all those appointed.
  Needless to say that since only 210 candidates had qualified
  for appointment in terms of the relevant Rules, the selection
c process left nearly 2080 posts of Junior Engineers unfilled in
  the State.

       5. In the writ petition filed by the aggrieved candidates, a
  Single Judge of the High Court referred the "Model Answer
  Key" to experts. The model answers were examined by two
D experts, Dr. (Prof.) C.N. Sinha, and Prof. KSP Singh,
  associated with NIT, Patna, who found several such answers
  to be wrong. In addition, two questions were also found to be
  wrong while two others were found to have been repeated.
  Question No.100 was also found to be defective as the choices
E in the answer key were printed but only partially.

       6. Based on the report of the said two experts, a Single
  Judge of the High Court held that 41 model answers out of 100
  were wrong. It was also held that two questions were wrong
F while two others were repeated. The Single Judge on that basis
  held that the entire examination was liable to be cancelled and
  so also the appointments made on the basis thereof. Certain
  further and consequential directions were also issued by the
  Single Judge asking the Commission to identify and proceed
G against persons responsible for the errors in the question paper
  and the "Model Answer Key".

       7. Aggrieved by the order of the Single Judge, the
  appellants filed LPA No.70 of 2008 before the Division Bench
  of that High Court. By the order impugned in these appeals,
H the High Court has partly allowed the appeal holding that model
         RAJESH KUMAR v. STATE OF BIHAR                       759
                 [T.S. THAKUR, J.]
answers in respect of 45 questions out of 100 were wrong. The A
Division Bench modified the order passed by the learned Single
Judge and declared that the entire examination need not be.
cancelled as there was no allegation of any corrupt motive or
malpractice in regard to the other question papers. A fresh
examination in Civil Engineering Paper only was, according to B
the Division Bench, sufficient to rectify the defect and prevent
injustice to any candidate. The Division Bench further held that
while those appointed on the basis of the impugned selection
shall be allowed to continue until publication of the fresh result,
anyone of them who failed to make the grade on the basis of c
the fresh examination shall be given a chance to appear in
another examination to be conducted by the Staff Selection
Commission. The present appeals assail the correctness of the
said judgment and order of the High Court as already noticed
earlier.
                                                                    D
      8. It is noteworthy that while the challenge to the selection
process referred to above was still pending before the High
Court, a fresh selection process was initiated to fill up the
 available vacancies in which those eligible appeared for a
written test on 29th July 2007. This test was held pursuant to        E
advertisement No.1906 of 2006 issued on 29th November
2006. The result of the examination was, however, stayed by
the High Court while disposing of the appeal filed before it with
a direction to the effect that the same shall be declared only
after selection in pursuance of the first examination was             F
completed. With the filing of the present appeals the restraint
order against the declaration of the result pursuant to the
second advertisement was vacated by this Court by an order
dated 30th August 2011 with a direction that those qualified
shall be given appointments without prejudice to the rights of        G
the appellants and subject to the outcome of these appeals.

     9. It is common ground that pursuant to the above direction,
a list of 392 selected candidates was sent to the State
Government by the Staff Selection Commission for issuing
                                                                      H
    760     SUPREME COURT REPORTS                  (2013] 4 S.C.R.


A appointment orders in their favour. What is significant is that
  the writ petitioners, respondents 6 to 18 in these appeals were
  also declared successful in the second selection and included
  in the list of 392 successful candidates. That six out of the said
  respondents have been appointed while the remaining have not
s chosen to join is also admitted. They have apparently found
  better avenues of employment.

         10. When the matter came up before us on 2nd July 2012,
    it was argued on behalf of the writ petitioners - respondents 6
    to 18 by Mr. Gaurav Agrawal that they have no objection to the
C   continuance in office of the appellants in these appeals subject
    to the condition that the answer scripts of the writ petitioners
    are re-evaluated with the help of a correct answer key and if
    they are found to have made the grade, the benefit of
    appointment earned by them in terms of the 2nd selection
D   process related back to the date when the appellants in these
    appeals were first appointed, and their seniority determined
    according to their placement in the merit list. It was in that
    background that we directed an affidavit to be filed by the
    Government of Bihar whether it was agreeable to the re-
E   evaluation of the answer scripts of respondents 6 to 18 on the
    basis of a correct key and their placement in the merit list
    depending upon the inter-se merit of the candidates. The Staff
    Selection Commission was also similarly directed to respond
    to the proposal made by the writ petitioners - respondents 6 to
F   18 and file an affidavit.

        11. An affidavit has, pursuant to the above directions, been
  filed by the Commission as also by the Chief Secretary of the
  Government of Bihar in which the Staff Selection Commission
G as also the Government appear to be opposing the prayer
  made by the writ petitioners for re-evaluation of their answer
  scripts for the purpose of re-casting of the merit list which will
  eventually be the basis for their inter-se seniority also. The
  affidavits primarily do so on the premise that any re-evaluation
  limited to the answer scripts of respondents 6 to 18, writ
H
        RAJESH KUMAR v. STATE OF BIHAR                      761
                [T.S. THAKUR, J.]
petitioners before the High Court would lead to multiplicity of     A
legal proceedings as similar requests for re-evaluation are
bound to be made by other candidates who may also have
been similarly prejudiced on account of the use of erroneous
"Model Answer Key".
                                                                    B
      12. We have in the above backdrop heard learned counsel
for the parties at some length who have taken us through the
impugned orders and other material placed on record.
Appearing for the appellants, Mr. P.P. Rao, learned senior
counsel, argued that the High Court had committed an error in       C
quashing the entire selection process even when the
petitioners had not made any prayer to that effect. Mr. Rao was
at pains to argue that a relief which was not even prayed for
by the writ petitioners could not be granted by the Court
whatever may have been the compulsion of equity, justice and
good conscience. Reliance in support of that proposition was        D
placed by him upon Bharat Amritlal Kothari v. Dosukhan
(2010) 1 SCC 234 and State of Orissa & Anr. v. Mamata
 Mohanty (2011) 3 sec 436. There is, in our view, no merit in
that contention. The reasons are not far to seek. It is true that
the writ petitioners had not impleaded the selected candidates      E
as party respondents to the case. But it is wholly incorrect to
say that the relief prayed for by the petitioners could not be
granted to them simply because there was no prayer for the
same. The writ petitioners, it is evident, on a plain reading of
the writ petition questioned not only the process of evaluation     F
of the answer scripts by the Commission but specifically averred
that the "Model Answer Key" which formed the basis for such
evaluation was erroneous. One of the questions that, therefore,
fell for consideration by the High Court directly was whether the
"Model Answer Key" was correct. The High Court had aptly            G
referred that question to experts in the field who, as already
noticed above, found the "Model Answer Key" to be erroneous
in regard to as many as 45 questions out of a total of 100
questions contained in 'A' series question paper. Other errors
were also found to which we have referred earlier. If the key       H
    762     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A which was used for evaluating the answer sheets was itself
  defective the result prepared on the basis of the same could
  be no different. The Division Bench of the High Court was,
  therefore, perfectly justified in holding that the result of the
  examination in so far as the same pertained to 'A' serit:s
B question paper was vitiated. This was bound to affect the result
  of the entire examination qua every candidate whether or not
  he was a party to the proceedings. It also goes without saying
  that if the result was vitiated by the application of a wrong key,
  any appointment made on the basis thereof would also be
c rendered unsustainable. The High Court was, in that view,
  entitled to mould the relief prayed for in the writ petition and
  issue directions considered necessary not only to maintain the
  purity of the selection process but also to ensure that no
  candidate earned an undeserved advantage over others by
  application of an erroneous key.
0
        13. The decisions of this Court in Bharat Amritfal Kothari
  v. Dosukhan (2010) 1 SCC 234 and State of Orissa & anr. v.
  Mamata Mohanty (2011) 3 SCC 436, relied upon by Mr. Rao
  are clearly distinguishable. The power of the Court to mould the
E relief, according to the demands of the situation, was never the
  subject matter of dispute in those cases. That power is well-
  recognised and is available to a writ Court to do complete
  justice between the parties. The first limb of the argument
  advanced by Mr. Rao fails and is accordingly rejected.
F
        14. Mr. Rao next argued that even if the result of the first
  selection process was vitiated by the use of erroneous "Model
  Answer Key" the Court had the option of either directing re-
  evaluation of the answer scripts on the basis of a correct key
G or a fresh examination. Out of the two options the former was,
  according to Mr. Rao, better and ought to have served the
  purpose by not only saving considerable time but money and
  effort also. He urged that the Court could have removed the
  traces of any injustice or distortions in the selection process
  by directing re-evaluation of the answer scripts which would not
H
         RAJESH KUMAR v. STATE OF BIHAR                        763
                 [T.S. THAKUR, J.)
only present the true picture of the merit of the candidates           A
concerned but prevent any further litigation or prejudice to
candidates on account of long lapse of time.
     15. Appearing for respondents 6 to 18 Mr. Agrawal
submitted that he had no objection to the order of the High
                                                                       B
Court being modified so as to replace "a fresh examination"
by "revaluation of the answer scripts" on the basis of a correct
key. Counsel for the Staff Selection Commission also
submitted, on instructions, that the answer scripts had been
preserved and could be subjected to a fresh evaluation.
Learned counsel for the parties were further agreeable to the          C
key as proposed by Dr. (Prof.) C.N. Sinha and Prof. KSP Singh
                                                ..
of NIT, Patna forming the basis of any such re-evaluation by a
suitable modification and deletion of question Nos.6 and 46
which were .found to be absurd and question No.34 and 63
which were repeated as Nos.74 and 93. They further agreed              D
to the deletion of question No.100 the answer to which was not
correctly printed.
     16 .. The submissions made by Mr. Rao are not without
merit. Given the nature of the defect in the answer key the most       E
natural and logical way of correcting the evaluation of the scripts
was to correct the key and get the answer scripts re-evaluated
on the basis thereof. There was, in the circumstances, no
compelling reason for directing a fresh examination to be held
by the Commission especially when there was no allegation
                                                                       F
about any malpractice, fraud or corrupt motives that could
possibly vitiate the earlier examination to call for a fresh attempt
by all concerned. The process of re-evaluation of the answer
scripts with reference to the correct key will in addition be fess
expensive apart from being quicker. The process would also
not give any unfair advantage to anyone of the candidates on           G
account of the time fag between the examination earlier held
and the one that may have been held pursuant to the direction
of the High Court. Suffice it to say that the re-evaluation was
and is a better option, in the facts and circumstances of the
case.                                                                  H
    764      SUPREME COURT REPORTS                   (2013] 4 S.C.R.


A        17. That brings us to the submission by Mr. Rao that while
    re-evaluation is a good option not only to do justice to those
    who may have suffered on account of an erroneous key being
    applied to the process but also to writ petitioners-respondents
    6 to 18 in the matter of allocating to them their rightful place in
B   the merit list. Such evaluation need not necessarily result in the
    ouster of the appellants should they be found to fall below the
    'cut off mark in the merit list. Mr. Rao gave two reasons in
    support of that submission. Firstly, he contended that the
    appellants are not responsible for the error committed by the
c   parties in the matter of evaluation of the answer scripts. The
    position may have been different if the appellants were guilty
    of any fraud, misrepresentation or malpractice that would have
    deprived them of any sympathy from the Court or justified their
    ouster. Secondly, he contended that the appellants have served
    the State efficiently and without any complaint for nearly seven
0
    years now and most of them, if not all, may have become
    overage for fresh recruitment within the State or outside the
    State. They have also lost the opportunity to appear in the
    subsequent examination held in the year 2007. Their ouster
    from service after their employment on the basis of a properly
E   conducted competitive examination not itself affected by any
    malpractice or other extraneous consideration or
    misrepresentation will cause hardship to them and ruin their
    careers and lives. The experience gained by these appellants
    over the years would also, according to Mr. Rao, go waste as
F   the State will not have the advantage of using valuable human
    resource which was found useful in the service of the people
    of the State of Bihar for a long time. Mr. Rao, therefore, prayed
    for a suitable direction that while re-evaluation can determine
    the inter-se position of the writ petitioners and the appellants
G   in these appeals, the result of such re-evaluation may not lead
    to their ouster from service, if they fell below the cut off line.

       18. There is considerable merit in the submission of Mr.
  Rao. It goes without saying that the appellants were innocent
H parties who have not, in any manner, contributed to the
         RAJESH KUMAR v. STATE OF BIHAR                       765
                 [T.S. THAKUR, J.]
preparation of the erroneous key or the distorted result. There       A
is no mention of any fraud or malpractice against the appellants
who have served the State for nearly seven years now. In the
circumstances, while inter-se merit position may be relevant for
the appellants, the ouster of the latter need not be an inevitable
and inexorable consequence of such a re-evaluation. The re-           B
evaluation process may additionally benefit those who have lost
the hope of an appointment on the basis of a wrong key applied
for evaluating the answer scripts. Such of those candidates as
may be ultimately found to be entitled to issue of appointment
 letters on the basis of their merit shall benefit by such re-        c
evaluation and shall pick up their appointments on that basis
according to their inter se position on the merit list.

    19. In the result, we allow these appeals, set aside the
order passed by the High Court and direct that -
                                                                      D
     (1) answer scripts of candidates appearing in a series of
competition examination held pursuant to advertisement No.
1406 of 2006 shall be got re-evaluated on the basis of a correct
key prepared on the basis of the report of Dr. (Prof.) CN Sinha
and Prof. KSP Singh and the observations made in the body             E
of this order and a fresh merit list drawn up on that basis.

    (2) Candidates who figure in the merit list but have not been
appointed shall be offered appointments in their favour. Such
candidates would earn their seniority from the date the
                                                                      F
appellants were first appointed in accordance with their merit
position but without any back wages or other benefit
whatsoever.

     (3) In case writ petitioners-respondent nos. 6 to 18 also
figure in the merit list after re-evaluation of the answer scripts,   G
their appointments shall relate back to the date when the
appellants were first appointed with continuity of service to them
for purpose of seniority but without any back wages or other
incidental benefits.
                                                                      H
    766      SUPREME COURT REPORTS                 [2013] 4 S.C.R


A       (4) Such of the appellants as do not make the grade after
  re-evaluation shall not be ousted from service, but shall figure
  at the bottom of the list of selected candidates based on the
  first selection in terms of advertisement No.1406 of 2006 and
  the second selection held pursuant to advertisement No.1906
B of 2006.

         (5) Needful shall be done by the respondents - State and
    the Staff Selection Commission expeditiously but not later than
    three months from the date a copy of this order is made
    available to them.
c
          20. Parties are directed to bear their own costs.

    K.K.T.                                       Appeals allowed.