AFRHIGH COURT OF CHHATTISGARH AT BILASPUR

------------------------------------------------------------------------------------------------- -----------------CORAM: HON’BLE SHRI YATINDRA SINGH, C.J.

HON’BLE SHRI SUNIL KUMAR SINHA, J.------------------------------------------------------------------------------------ ------------------------------

1. Writ Petition (PIL) No.35 of 2013

Petitioner : Centre for Public Interest LitigationVERSUS

Respondents : High Court of Chhattisgarh and others

2. Writ Petition (S) No.7039 of 2008Petitioner : Ku Rashmi Nanda

VERSUS Respondents : Registrar General, Chhattisgarh High Court

and others

Writ Petitions under Article 226 of the Constitution of India------------------------------------------------------------------------------------------- -----------------------Appearance in Writ Petition (PIL)- 35 of 2013:

Ms. Sudha Bharadwaj, counsel for the petitioner.Shri Ravindra Shrivastava, Senior Advocate with Shri Sanjay K Agrawal and Shri Anup Jain, Advocates and Shri Arun Sao, Govt. Advocate, for respondents- 1 and 2. Smt. Fouzia Mirza, Assistant Solicitor General and Shri Vivek Shrivastava for respondent- 3.

Appearance in Writ Petition (S)- 7039 of 2008:Petitioner Ms. Rashmi Nanda along with her husband Shri Arif Rokadiya are present in person. Shri BP Sharma, Advocate as friend of the Court on behalf of the petitioner.Shri Ravindra Shrivastava, Senior Advocate with Shri Sanjay K Agrawal and Shri Anup Jain, counsel for respondent- 1. Shri Praveen Das, counsel for respondents- 2 and 5.Shri Rajeev Shrivastava, counsel for respondent- 6.

ORDER(05 th September, 2013)

1. One cannot be blamed for any action, if one does not act: but inaction

may have serious consequences; it may cause harm without one realising

it. This is reflected in these two writ petitions that in substance challenge

the selection in the Civil Judge (Entry Level) Examination 2008 (the 2008-

Exam).

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THE FACTS2. The High Court published a notification dated 17.01.2008 for the

2008-Exam on 01.02.2008. Sixty posts of Civil Judge (Entry Level) were

advertised.

3. The 2008-Exam was held in three steps, namely, preliminary

examination, main examination and viva voce. It has been explained in

detail, while discussing the third point however, briefly the facts are as

follows.

4. The preliminary examination was objective type. 8869 candidates

appeared in the same. After the preliminary examination, candidates in

the ratio of 1:10 were selected for the main examination.

5. The main examination was held on 13.07.2008 and 652 candidates

appeared in the main examination. After the main examination, the

candidates in the ratio of 1:3, were called for the viva voce.

6. 185 candidates appeared in the viva voce. It was held from 25.08.2008

to 03.09.2008.

7. The results were declared on 08.09.2008. 60 candidates were

selected and the waiting list of 60 candidates was also declared. Out of

these 60 candidates, 31 were of the general category.

Regarding WP(S) 7039 of 20088. Ms. Rashmi Nanda (Ms. Nanda), the petitioner in Writ Petition (S)-

7039 of 2008 (the WP), was one of the candidates in the general

category. She is at serial number- 28 in the waiting list of that category.

9. Initially, apart from the High Court, Ms. Nanda had impleaded only Ms.

Vibha Pandey (Ms. Pandey) however, subsequently Ms. Jyoti Agrawal

(Ms. Agrawal), Ms. Kiran Shukla (Ms. Shukla), Shri Abhishek Sharma (Shri

Sharma), Ms. Deepa Katare (Ms. Katare) and Shri Shrinivas Tiwari (Shri

Tiwari) (all of them are referred to as the private-Respondents) were also

impleaded.

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10. The private-Respondents are successful candidates in the general

category of the 2008-Exam. Ms. Nanda claimed a relief that her answer

sheet as well as the answer sheets of the private-Respondents be

revalued and in case, she gets more marks than them, then, she may be

appointed as a Civil Judge.

11. Ms. Nanda filed a transfer petition number 1188 of 2009 before the

Supreme Court to transfer her writ petition from the Chhattisgarh High

Court to any other High Court. However, after considering the reply of

the High Court, the transfer petition was dismissed on 06.09.2010.

Regarding PIL 35 of 201312. A news item was published in Tehelka Magazine on 16.10.2010

alleging certain irregularities in the 2008-Exam. Centre for Public

Interest Litigation (CPIL) filed a Public Interest Litigation under article 32

of the Constitution before the Supreme Court for a direction that an

independent enquiry into the alleged irregularities in the 2008-Exam be

conducted and fresh examination be held after setting aside the

selection.

13. The aforesaid case was transferred to this court on 07.05.2013 with

a request that it may be treated as a writ petition under article 226 of

the Constitution and may be decided within three months by a bench

presided over by the Chief Justice.

14. After transfer, the case was registered before this court as Writ

Petition (PIL) 35 of 2013 (the PIL) and is being decided along with the WP

as both are against the 2008-Exam.

Words Defined15. In this judgement some words are used in a particular way. They are

defined below:

(i) 'Code number' means random numbers generated by computer

and allotted to the roll numbers before evaluating the answer

sheets in the 2008-Exam;

(ii) 'CPIL' means Centre for Public Interest Litigation, the petitioner in

Writ Petition (PIL)- 35 of 2013;

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(iii) 'Ms. Agrawal' means Ms. Jyoti Agrawal (roll number 374);

(iv) 'Ms. Baghel' means Ms. Chhaya Singh Baghel (roll number 363);

(v) 'Ms. Katare' means Ms. Deepa Katare (roll number 71);

(vi) 'Ms. Nanda' means Rashmi Nanda, the petitioner in Writ

Petition(S)- 7039 of 2008;

(vii) 'Ms. Pandey' means Ms. Vibha Pandey (roll number 59);

(viii) 'Ms. Parmar' means Ms. Uday Laxmi Parmar (roll number 384);

(ix) 'Ms. Thawait' means Ms. Kiran Thawait (roll number 23);

(x) 'Ms.Shukla' means Ms. Kiran Shukla (roll number 385);

(xi) 'Shri Bhadoriya' means Shri Krishna Pal Singh Bhadoriya (roll

number 251);

(xii) 'Shri Sharma' means Shri Abhishek Sharma (roll number 60);

(xiii) 'Shri Tiwari' means Shri Shrinivas Tiwari (roll number 584);

(xiv) 'The 2008-Exam' means the Civil Judge (Entry Level)

Examination, 2008;

(xv) 'The Checker' means the person who was checker in the 2008-

Exam, namely, Shri DP Singh, the then Deputy Registrar and at

present Additional Registrar;

(xvi) 'The head-Examiner' means the head examiner appointed in the

2008-Exam. He was the senior most district Judge and at

present a Judge of the Chhattisgarh High Court;

(xvii) 'The Petitioners' means Ms. Sudha Bhardwaj, counsel for the

petitioner in the PIL, Shri BP Sharma, friend of the court for Ms.

Nanda in the WP, Ms. Nanda and her husband;

(xviii) 'The PIL' means Writ Petition (PIL)- 35 of 2013;

(xix) 'The Present Incharge S&A Cell' means the present Incharge of

Selection and Appointment Cell, Shri RCS Samant, Director,

Chhattisgarh State Judicial Academy;

(xx) 'The private-Respondents' means respondents 3 to 7 in the WP;

(xxi) 'The RG' means the present Registrar General of the Chhattisgarh

High Court, Shri Ashok Panda. He was one of the valuers in the

2008-Exam;

(xxii) 'The Rules' means the Chhattisgarh Lower Judicial Service

(Recruitment and Conditions of Service) Rules 2006;

(xxiii) 'The then In-charge S&A Cell' means the then In-charge of

Selection and Appointment Cell, Shri G. Minhajuddin who was

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Director, Judicial Officers Training Institute, Bilaspur as well as

Incharge of Selection and Appointment Cell. He later retired as

High Court Judge;

(xxiv) 'The Valuers' means Shri Alok Jha, Shri TK Chakravarty, Shri

Surendra Kumar Tiwari, Shri AK Shrivastava and Shri Ashok

Kumar Panda, the five Valuers appointed in the 2008-Exam.

(xxv) 'The WP' means Writ Petition (S)- 7039 of 2008.

Procedure Adopted16. In the PIL, a relief is claimed for conducting an independent enquiry.

While deciding the second point, we have explained as to why we had

informed the Petitioners, that the case will not be relegated to separate

enquiry but it would be done on the judicial side in the open court. This

was done during the hearing.

17. In the PIL as well as in the WP certain allegations have been made.

The High Court has already filed a counter affidavit against the same.

The Petitioners were permitted to look into everything—answer sheets,

documents, administrative orders or whatever they wanted to see in

respect of the 2008-Exam and file their objections. The High Court was

also permitted to reply the same. The High Court has already done so

and has filed an affidavit.

18. All answer sheets, documents, and administrative orders relating to

the 2008-Exam were also available in the court for the Petitioners to

inspect and to point out irregularity or objection, if any, irrespective of

the fact whether it was earlier raised or not.

19. In view of this liberty, it was possible that new points might arise

during the hearing and in fact new points did arise. In order to sort them

out without wasting time, we requested Shri RCS Samant, the present

Director of the Chhattisgarh State Judicial Academy and In-charge of

Selection and Appointment Cell (the present Incharge S&A Cell), Shri

Ashok Panda, Registrar General (the RG) (he was one of the valuers in the

2008-Exam as well), and Shri DP Singh, Additional Registrar, who was

checker in the 2008-Exam (the Checker) to be present in the court.

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20. The Checker and the Present In-charge of S&A cell were present in

the court throughout the hearing to explain any objection that might be

raised during the hearing. The RG was not present throughout but was

called, whenever, he was needed.

21. The statements made and explanations offered by them are

mentioned at the different places in the judgement. These statements

were neither disputed by the Petitioners nor any material was brought

to our notice to doubt their correctness. Some alleged irregularities

were brought to our notice that we have separately dealt with, while

deciding the different points.

22. Some charts were submitted by the Present Incharge S&A Cell and

the Checker. They are appended as Appendices to this judgement. They

were neither disputed by the Petitioners nor have we any reasons to

doubt them. Yet, we had at random checked some information

contained in the charts and found it to be correct.

23. The aforesaid procedure was adopted to expedite the hearing of the

cases and to meet the time limit fixed by the Supreme Court.

Details of Appendices 24. Some appendices are appended along with this judgement. Their

details are as follows:

(i) Appendix-1: Roll number wise answer sheets evaluated by Shri

Surendra Tiwari, where marks awarded are circled and not circled;

(ii) Appendix-2: Date wise valuation chart of answer sheets examined

by the Valuers according to their seniority. Shri Alok Jha was the

senior most and Shri Ashok Panda was the junior most;

(iii) Appendix-3: Date wise answer sheets evaluated by Shri Surendra

Tiwari where marks awarded are circled and not circled;

(iv) Appendix-4: List of answer sheets having corrections in marks

awarded by Shri Alok Jha. It shows whether he has initialled them

or not.

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POINTS FOR DETERMINATION25. We have heard Ms. Sudha Bharadwaj, counsel in the PIL, Shri BP

Sharma, friend of the court for Ms. Nanda, Ms. Nanda and her husband

(All of them are jointly referred to as the Petitioners); Shri Ravindra

Shrivastava, senior counsel with Shri Sanjay K. Agarwal for the High

Court; Shri Arun Sao, Government Advocate for the State, Smt. Fouzia

Mirza, Assistant Solicitor General for Union of India; Shri Praveen Das and

Shri Rajeev Shrivastava, counsel for respondents-2, 5 and 6 in the WP.1

26. The following points arise for determination (some of them have

been suggested by the counsel for the parties):

(i) Whether the Public Interest Litigation should be dismissed

on the preliminary objections raised by the counsel for the

High Court;

(ii) Whether a committee should be appointed to submit a

report about the 2008-Exam or should we proceed to

hear the cases on merit;

(iii) Whether, in the absence of any provision of revaluation,

the court can order revaluation of the answer sheets on

the judicial side;

(iv) Whether the procedure for selection and valuation was

fair;

(v) Whether the camouflaging and coding of the roll numbers

were proper;

(vi) Whether marks were to be written in figures as well as in

words;

(vii) Whether any record of mistakes was kept;

(viii) Whether close relations of influential persons have been

selected because of extraneous consideration;

(ix) Whether the overwriting/ addition/ correction of marks

could be attributed to manipulation or favouritism;

1We are thankful to Ms. Sudha Bharadwaj counsel for the Petitioner, Mr. BPSharma, friend of the court for Ms. Nanda, Shri Ravindra Shrivastava and ShriSanjay K. Agarwal for the assistance rendered by them.We are also thankful to Shri RCS Samant, present In-charge of Selection &Appointment Cell, Shri Ashok Panda, Registrar General, and Shri DP Singh,Additional Registrar who was the checker in the 2008-Exam for supplyingrequired information and assisting the court.

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(x) Whether the answer sheets of the candidates securing

50% or more were presented before the head-examiner;

(xi) Whether strict adherence to the model answers was

necessary in evaluation;

(xii) Whether in view of the different approaches of the

examiners, it would be in the interest of justice that scaling

method be adopted;

(xiii) Whether the Valuers have adopted different yardstick in

examining the answer sheets and they should be revalued.

1 st POINT : PIL SHOULD BE DECIDED ON MERITS 27. The counsel for the High Court raised three preliminary objections

regarding the maintainability of the PIL. He submits that:

• The PIL is not maintainable as the successful candidates have not

been impleaded (see below for the rulings relied by him for this

submission)2 ;

• There cannot be Public Interest Litigation in service matter and

only an unsuccessful candidate can file the writ petition

challenging the selection (see below for rulings relied by him for

this submission)3 ;

• No particulars of corruption or mala fides have been alleged in the

PIL. The allegations are vague. It is not maintainable (see below

for rulings relied by him for this submission)4.

28. The Petitioners submit that:

• In the PIL, the main relief is that an independent enquiry be

conducted regarding the 2008- Exam. In view of this,

2 Girjesh Shrivastava Vs State of MP (2010) 10 SCC 707; Ishwar Singh Vs KuldipSingh and Ors 1995 Supp (1) SCC 179; Bhagwanti and Ors Vs SubordinateServices Selection Board, Haryana and Another 1995 Supp (2) SCC 663; BRamanjini and Ors Vs State of AP and Ors (2002) 5 SCC 533; Chhattisgarh PublicService Commission Vs State of CG and Ors 2010 (2) CGLJ 234.

3 Charanjit Singh Vs Harinder Sharma (2002) 9 SCC 732; B Srinivasa Reddy VsKarnataka Urban Water Supply & Drainage Board Employees' Assn. (2006) 11SCC 731 (2); Girjesh Shrivastava Vs State of MP (2010) 10 SCC 707.

4 Mutha Associates Vs State of Maharashtra (2013) 8 scales 411; State of BiharVs PP Sharma 1992 Supp (1) SCC 222; State of MP and Ors Vs Nandlal Jaiswaland Ors (1986) 4 SCC 566; Smt Swaran Lata Vs Union of India and Ors (1974) 4SCC 3.

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impleadment of any successful candidate is not necessary at this

stage;

• It is only if in the enquiry some illegality is prima facie found and

the result of any specific candidate is required to be cancelled

then at that stage, the successful candidate may be required to

be heard and not at this stage;

• The mala fides are to be inferred from the circumstances, and

apparent irregularities in the 2008-Exam. It is for the High Court

to explain them;

• The PIL came to be filed as the writ petition filed by Ms Nanda

was not being decided. Had it been decided, there was no

necessity to file the PIL;

• The PIL is about fairness and impartiality of the selection. It is

about the reputation and image of the High Court. It should be

decided on merits rather than dismissing it, without considering

the merits of the case;

• The successful candidates are civil judges. If necessary, they can

always be impleaded and they can be heard.

29. There is substance in the submissions raised by the Petitioners. Our

reasons for saying so, are as follows:

(i) Ms. Nanda has already filed the WP challenging the selection; she

has already impleaded some of the successful candidates. In that

WP, the question of fairness in the 2008- Exam is to be gone into;

(ii) There was a news item published in Tehelka magazine that

relations of influential persons were selected on extraneous

considerations. There are other newspaper reports alleging

unfairness in conducting the examination. In light of these

circumstances, it is not a service matter but is a question of

fairness on the part of the High Court in conducting the 2008-

Exam. It is about image and reputation of the High Court;

(iii) In the PIL, there is no necessity of specifically alleging the mala

fides as only an independent enquiry is sought for. The corruption

and mala fides can be inferred from the facts and circumstances as

well as irregularities, if any, committed in the selection. The PIL

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cannot and should not be dismissed at this stage, even if there are

no specific allegations of mala fide or corruption;

(iv) In this case, there are some allegations against the High Court. If

we do not decide this matter on merit, then we will be doing

disservice to the Institution. It is not a matter that we should we

sweep under the carpet, nor can it be so swept.

In view of above, we overrule the preliminary objections and proceed to

decide the cases on merit.

2ND POINT: ENQUIRY IN OPEN COURT30. The PIL was initially filed before the Supreme Court in the year 2011.

Shri Ravindra Shrivastava, Senior Advocate for the High Court states that:

• The PIL was heard in the Supreme Court about 9-10 times and on

most of the occasions, he was present in the court;

• On 7th May, 2013, he was also present before the Court and a

request was made on behalf of the CPIL (petitioner in the PIL)

that an administrative report be called for;

• This was not accepted by the Supreme Court and the matter has

been sent to this Court to be decided expeditiously on judicial

side by a bench presided over by the Chief Justice, if possible

within three months.

31. These cases were taken up on 13.06.2013 but no one appeared on

behalf of the CPIL or Ms. Nanda. Therefore, registered notices were sent

to them to engage a counsel.

32. The next important date, on which the cases were taken up, was

16.07.2013. On that day, Ms. Sudha Bharadwaj appeared on behalf of

the CPIL and the question of setting up an independent committee

came up.

33. The Court on that day did not pass any order, but ordered the case

to be listed after one week for finalising the further modality in the case

as well as fixing a date for final hearing.

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34. The cases were next taken up again on 30.07.2013. On that day a

request was made by Ms. Sudha Bharadwaj to send the matter to an

expert committee. She was informed by the court that:

• The Supreme Court has chosen not to set up a expert committee

or call for the administrative report but has send the PIL to be

decided on judicial side expeditiously, if possible within a period

of three months;

• In case, the matter is sent to any expert committee, then the

matter may go well beyond three months;

• Even after the report, the matter will not be final as irrespective

of the report of the expert committee, the aggrieved party

would file its objections against the same and ultimately, this

Court has to decide the question on the judicial side;

• The enquiry will be done in the open court, instead of sending

the matter to any committee.

35. In view of above,

• Ms. Sudha Bharadwaj was granted liberty to inspect all the answer

sheets, documents, as well as administrative orders regarding the

2008-Exam and file her objections. Thereafter, the counsel for

the High Court was also requested to reply the same;

• The counsel for the High Court was also instructed to make

everything regarding 2008-Exam available for inspection.

36. At this stage, we would like to clarify that the answer sheets of

successful or unsuccessful candidates, documents, administrative orders

relating to the 2008-Exam were available in the court during the

arguments. And whatever, the Petitioners wanted to see, was shown to

them; we also saw some answer sheets at random; and arguments were

heard.

37. Some answer sheets were shown to us by the Petitioners. Some

answer sheets of the successful candidates as well as of unsuccessful

candidates were randomly picked up by the advocates, who were sitting

in the court and were not connected with this case. These answer sheets

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were also seen by us to judge the correctness of the assertion of the

parties.

38. In our opinion, there is no point in appointing any committee and we

proceed to decide the case on merits.

3 rd POINT: REVALUATION CAN BE ORDERED39. The counsel for the respondents placed reliance on decisions (for

details, see below)5 and submit that:

• The petitioners are in substance seeking revaluation of the

answer sheets and the same cannot be done as there is no

provision for revaluation;

• In absence of provision for revaluation, it cannot be ordered on

the judicial side.

40. Malice vitiates everything. In case, the selection is held on

extraneous considerations, and not on the relevant considerations,

namely, merit of the candidates, then, to say that the court is powerless,

is to negate the purpose of the court as well as article 226 of the

Constitution: the courts are temple of justice and not the ruins standing

on the foundation of laws.

41. Apart from above, the High Court, while making the selection of Civil

Judges, acts as a State within the meaning of Article 12 of the

Constitution. It is bound by fundamental rights. In case, the selection is

arbitrary, capricious or unreasonable then such a selection is always

liable to be struck down under Articles 14 and 16 of the Constitution.

42. In our opinion, in an appropriate case, even if there is no provision

for revaluation, it can be ordered on the judicial side and, if the need be,

and selection can be set aside. This may be done, if the court is

satisfied that:

• There is a malice in fact;

• The selection is made on extraneous considerations; or

5 HP Public Service Commission Vs Mukesh Thakur (2010) 6 SCC 759; WB council of Higher Secondary Education Vs Ayan Das ((2007) 8 SCC 242

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• The selection is unfair, arbitrary, capricious, or against any

statutory provision of law.

However, the question is, whether, in this case, the selection is vitiated

by any of the aforesaid factors or not. This will be considered, while

discussing the remaining points.

4TH POINT: SELECTION PROCEDURE—FAIR43. The selection of Civil Judge (Entry Level) is held under the

Chhattisgarh Lower Judicial Service (Recruitment and Conditions of

Service) Rules 2006 (the Rules). Under the Rules, the selection of the

Civil Judges in the State is held in three stages. First preliminary

examination, then main examination, and thereafter, viva voce.

44. All eligible candidates are required to sit in the preliminary

examination and then, the candidates in the ratio of 1:10 to the available

posts are selected on merit. They are permitted to appear in the main

examination. The main examination is one paper of 100 marks.

45. After the main examination, candidates in the ratio of 1:3 to the

available posts are called for viva voce. At the time of advertisement, the

Rules provided 50 marks for the viva voce but they were amended by

notification number 4687/D-1449/21-B/C.G./08, dated 07.05.2008. This

was after the advertisement but before the preliminary examination.

The marks for the viva voce were reduced to 15 and in the 2008-Exam,

viva voce carried 15 marks.

46. The select list is prepared on the basis of marks obtained in the main

examination and viva voce. The marks obtained in the preliminary

examination do not count towards merit list of the selected candidates.

47. The syllabus of the main examination of the 2008-Exam was also

disclosed in the advertisement. It included four questions:

• The first question related to framing of issues (first part) and

writing a judgement in a civil case (second part) on the facts given;

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• The second question related to framing of charge (first part),

points for consideration (second part) and writing of a judgement

(third part) in a criminal case on the facts given;

• The third question was translation from English to Hindi; and

• The fourth question was translation from Hindi to English.

48. The marks allotted to the four question were as follows:

• The first two questions relating to writing of judgements, were

of 40 marks each. They were further sub-divided as follows:

(a) The first and second part of the first question carried

15 and 25 marks respectively;

(b) The first, second, and third part of the second question

carried 10, 10, and 20 marks respectively.

• The third and fourth questions, relating to translation, were of

10 marks each.

49. The selection committee consisted of three judges of this Court. It

appointed one head-examiner (the head-Examiner), five valuers (Shri

Alok Jha, Shri TK Chakravarty, Shri Surendra Kumar Tiwari, Shri AK

Shrivastava and Shri Ashok Kumar Panda) (the Valuers), and a checker

(Shri DP Singh) (the Checker).

50. The head-Examiner, the Valuers and the Checker were not given

answer sheets with roll numbers. The original roll numbers were

camouflaged and only thing visible was code numbers. In the packets in

which the answer sheets were sealed had code numbers and not roll

numbers.

51. The directions were also issued to the Valuers, Checker and

head-Examiner. In the directions, their duties were separately assigned.

52. The answer sheets were examined in the central hall of the erstwhile

old High Court building. One room was made the strong room. The

answer sheets were kept there. Coding, camouflaging, and sealing of

packets, containing 25 answer sheets each, was done in the strong room.

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53. The head-Examiner was given packets containing 25 answer sheets

with code number along with foil and counterfoil containing code

numbers of answer sheets in a packet. The head-Examiner, the Checker,

and the Valuers were to know only code numbers of the answer sheets

and not roll numbers. This is how the secrecy was to be maintained.

54. The procedure and method as detailed in the preceding paragraphs

was fair and reasonable. But the question is,

• Whether the procedure and method as indicated in the

preceding paragraphs were followed or not; and

• If they were not followed then what would be the consequence

of the same.

This will be considered, while discussing the subsequent points.

5 th POINT: CODING, CAMOUFLAGING —NOT DEFECTIVE55. The High Court filed its counter affidavit before the Supreme Court

in which the procedure of coding and camouflaging of roll numbers was

described. However, it is not in detail. It is proper to consider it.

Regarding Coding56. The Checker explained the procedure for coding and camouflaging.

He states that:

• This was for the first time that the High Court was conducting the

examination and it had little idea how the examination should be

conducted;

• In order to assist the selection committee, Dr. Ashok Kumar

Pandey, the then Head of the Department, Government Science

College, Raipur was requested to guide the selection committee

in this regard. He came here on deputation;

• Coding, camouflaging, and procedure was done under his

guidance.

57. He further states that on advice of Shri Pandey, the following

procedure was provided:

• The candidates were allotted roll numbers. It was to be written at

the right hand side of the index page of the answer-sheet;

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• Each roll number was allotted a randomly generated computer

number namely the code number and was affixed on the left hand

corner of the index page;

• The roll number was camouflaged by folding the index page—

where the original roll number was written—three times and it

was duly stapled at five places;

• After camouflaging, roll number was not visible and only code

number was visible;

• 25 answer sheets were kept in packet that was sealed. The only

information available on the top of packet was the code numbers

of the answer sheets in that packet;

• Foils and counterfoils containing code numbers of the answer

sheets in a packet were generated and were given to the Valuers

along with answer sheets in that packet. The Valuers were

required to write marks allotted in the answer sheet against the

code numbers in figures and words in foils and counter foils;

• Shri Vinay Singh, the computer programmer from the Guru Ghasi

Das University had come over. He had generated random

numbers in the strong room. He was the only person having

access to the procedure of allotment of code numbers against the

roll numbers;

• The code numbers were affixed on the answer sheets, thereafter,

camouflaging and sealing of answer sheets in the packet was

done in the strong room. This exercise was undertaken under the

supervision of the then Incharge S&A Cell;

• The answer sheets sealed in the packets were given to the head-

Examiner, who used to give a packet for valuation to the Valuers.

A foil and counterfoil containing code numbers only was given to

the Valuers for writing marks awarded in figures and words;

• The members of selection committee, the head-examiner, the

Valuers and the Checker had no knowledge of the relationship

between the roll number and randomly generated number

allotted to it or which packet contained answer sheets of which

roll numbers. The only thing they knew was that randomly

generated numbers of the answer sheets sealed in the packet;

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• The Valuers were given packet with the answer sheets with the

index page folded by which the roll number was completely

hidden and stapled. Only their new code numbers were visible;

• The answer sheets after being checked were sealed again on the

same day.

58. At present, a different procedure is adopted for camouflaging. Now

the portion with the roll number is torn off and only randomly generated

code is there.

59. The Checker further explained that:

• At that time, camouflaging was done in the Universities by folding

the index page and this procedure was adopted in this

examination;

• When—the practise of tearing off portion of index came in

vogue—it was also adopted by the High Court in the subsequent

examinations.

60. We examined some answer sheets taken out by the advocates—

sitting in court but not connected with the case—as well as the answer

sheets that were brought to our notice by the Petitioners. If the index

page of the answer sheets was seen against the light then, small holes of

staple were visible; the impression of the folds could also be seen

though in some answer sheets they were soft and in some places they

were strong.

61. The holes were so small that they were not ordinarily visible but were

visible only if they were seen against the light. This indicates that, no

effort was made to see the roll number clandestinely.

62. We also tried to see, after thrice folding the index page of the

answer-sheet, whether the roll number could be seen or not, it could not

be seen against the light as well. The roll number could be seen only

after the staple was removed and in case the staple was forcefully

removed or one tried to lift the fold then the holes would have become

bigger. But this was not the case: the holes were tiny and not big.

18

63. The evaluation was also being done in the central hall of the

erstwhile High Court building under the supervision of three High Court

judges. The head-Examiner was the senior most district judge and now a

judge of this High Court. All the Valuers were senior members of the

HJS. The checker was a Deputy Registrar in the registry at that time and

now an Additional Registrar. It is also inconceivable that the persons

would try to find out the roll number of any answer sheet.

64. Shri Surendra Kumar Tiwari was one of the Valuers. While deciding

ninth point, we had requested the counsel for the High Court to produce

a chart showing as to when he had circled the marks awarded by him and

when not. This chart is Appendix-1. At that time, the last column of

dates mentioned therein was not there. This shows that the Valuers

were given answer sheets that had at random code number however,

the roll numbers were in seriatim for the copies in a packet.

65. The Petitioners had brought to our notice direction number- 13 to

the Valuers (see below)6 and submit that:

• Direction number- 13 shows that the Valuers were supposed to

return the answer sheets in the same sequence as was given to

them;

• Appendix-1 indicates that the answer sheets given to the Valuers

are seriatim of the roll number; and

• From the sequence, it was possible to find out the roll number of

any code number if the roll number of the first answer sheet in

that packet was known.

66. It is common knowledge that after coding, the answer sheets are

given in the seriatim of the roll numbers to the examiners for evaluation.

This is done so that in case, any answer sheet is missing, there should not

be any difficulty in tracing that. However, the examiners are not

informed whether all persons were present or not and from which roll

6The direction number- 13 to the Valuers is as follows: 13. Answer sheets should be returned back in the same sequence in which those were accepted.

19

number, the answer sheets are given to them for valuation. This is how

secrecy of roll numbers is maintained. This is what was done in this case.

67. While starting discussion on this point, we have mentioned the

detailed procedure adopted for coding and camouflaging. The head-

examiner was given sealed packets containing 25 answer sheets as well

as foil and counterfoil containing code numbers of the answer sheets

contained in that packet for distribution amongst all the Valuers. No one

knew the starting roll number of the answer sheet in the packet.

68. A date wise chart containing the roll numbers of the answer sheets

examined by the Valuers according to their seniority is appended as

Appendix-2 (Shri Jha being senior most and Shri Panda being junior

most). It shows that the Valuers were not given answer sheets to

examine in seriatim of the roll numbers but were at random and no one

could find out the roll numbers.

69. We had requested the Checker and the Present Incharge S&A Cell to

add one more column regarding dates on which answer sheet of that roll

number was examined in Appendix-1. This was done. Appendix-1 shows

the date on which answer sheet of that roll number was examined.

70. A look at the aforesaid Appendix-1 and 2 shows that the answer

sheets were examined at random and no one could know what was the

roll number of the first answer sheet.

71. The chart Appendix-1 was prepared roll number wise and not date

wise and it was for different purpose. It is for this reason that a doubt

arose in the mind of the Petitioners. Had the chart being date wise as in

Appendix-2 or the date was provided as it is done, the doubt would not

have arisen.

72. In our opinion,

• The coding and camouflaging was proper and was not defective;

20

• The head-Examiner, the Valuers and the Checker neither knew the

roll numbers of the answer sheets that they were examining, nor

they could have found out;

• The Valuers examined the answer sheets only in reference to the

code number allotted; and

• It was not possible to find out the roll number of any answer

sheet.

6TH POINT: NOT REQUIRED TO BE WRITTEN IN WORDS73. The Petitioners have brought to our notice the directions number 1

to 5 (see below)7 issued to the checker and submit that:

• Under direction number 5, the marks were to be written in words

and figures by the Valuers and the Checker was only supposed to

see whether it was done or not;

• Shri TK Chakravarty was one of the Valuers. He is the only valuer,

who has written the marks of the individual questions in words as

well as figures. The remaining valuers have not done so;

• On the index of the title page of the answer book, in some

answer sheets marks are written in figures as well as in words,

but, in many answer sheets the marks are not written in words;

• These directions were issued so that there may not be any

bungling. They have not been followed; and

• This has made bungling easy and marks have been changed.

74. The directions to the checker show that he was to point out the

calculation mistake or any mistake in totalling or any omission in

examining the answers to the head-examiner or any direction not being

followed by the Valuers. He was not supposed to write anything on the

answer sheet.

7 Directions number 1 to 5 to the checker were as follows: (1) In the answer sheet no question should be left unevaluated. (2) In the answer sheet question-wise marks should be entered on the first

page. (3) In the answer sheet there should not be any difference in the total of

internal marks and in the total marks entered on the first page. (4) There should not be any mistake in total, please check. (5) The marks obtained should be written in words and figures. There

should not be any difference in between them.

21

75. Considering the aforesaid aspect, the submission of the Petitioners

appears to be correct that under direction number-5, the checker was to

check, whether the marks were written in the words and figures and the

checker was not supposed to write it. But the question is, where the

marks were to be written in figures and words: on the answer sheets, or

somewhere else.

76. In the directions issued to the Valuers, there is no direction that the

marks should be written in figures as well as in words. The Checker

states that:

• Foil (proforma VI) and counterfoil (proforma VII) were also

prepared. These foils and counterfoils had packet wise code

numbers of the answer sheets printed on them;

• One foil and counterfoil contained code numbers of all answer

sheets in a given sealed packet;

• The Valuers were given foil and counterfoil containing code

numbers of the answer sheets inside the packet along with the

answer sheets in that packet. They were supposed to write down

the marks in both words and figures in foil (proforma VI) and

counterfoil (proforma-VII) after checking the answer sheets and

give them to the Checker for checking;

• Under direction number 5 to the Checker, he was only to ensure

that the marks were written in words as well as in figures in foil

and counterfoil (proforma VI & VII);

• This is how the Checker and the Valuers were instructed and it

was followed.

77. The Checker has also produced the original foils and counterfoils

before the Court. They are signed by the Checker, particular valuer, as

well as by the head-examiner and the date, when it was filled, is also

mentioned. This is in tune with direction number 5 to the checker.

78. We have also perused the above proformas. There is no suspicion so

far as proformas VI & VII are concerned. There is no reason to disbelieve

the statement made by the Checker.

22

79. There was no direction to the Valuers to write down the marks given

to any answer or on the index page in words as well as in figures. The

fact that one of the valuer had written the marks in figure as well as in

words does not mean that it was required to be done. The four other

Valuers did not do it. In case there was any such instructions then four

others would have also written the same.

80. The directions issued to the Valuers and the Checker could have

been better framed; they could be more comprehensive. But, as

indicated earlier, this was first time that the examination was conducted

by the High Court. Perhaps, it was due to inexperience that the direction

could not better framed.

81. In our opinion, direction-5 was not violated; they were rather

obeyed.

7TH POINT: RECORD OF MISTAKE WAS KEPT82. The Petitioners brought to our notice direction number-78 issued to

the Checker and submit that:

• Under this direction, a record of mistakes was to be kept in a

prescribed form;

• Apparently, there are mistakes but no such record has been kept;

• This direction has not been followed.

83. The checker has produced checker's diary. According to him, this was

the proforma for recording mistakes. It is in a tabular form for

mentioning the mistakes.

84. The original Checker's diary has also been produced before us.

The following information is recorded therein:

8 The direction number 7 to Checker is as follows: (7) The mistake found by the Checker shall be rectified/ modified by the

Deputy Chief/ Chief Examiner. Record of mistake should be kept in a prescribed form. Checker will give its information to the valuer for drawing his attention towards it, so that such mistakes should not be repeated. The mistake found by the Checker should not be get rectifiedfrom the Valuer in any condition.

23

• The date, code number, mistakes are indicated and signed along

with date by the Checker and the head-Examiner;

• The total number of mistakes detected and number of answer

sheets in which those mistakes were detected. This again was

signed along with date at the bottom by the Checker as well as by

the head-Examiner.

85. There is nothing to doubt the correctness or genuineness of the

checker's diary or the entries. In our opinion, direction number-7 was not

violated.

8TH POINT: ALLEGATION INCORRECT86. There is no allegation in the WP regarding any close relation of

influential person being selected. However, there are vague allegations

in the PIL. In the PIL, the report of Tehelka dated 16.10.2010 has also

been annexed, which gives some reference to the alleged influential

persons.

87. At the time of the argument, the Petitioners also pointed out some

newspaper reports regarding some other persons, who are said to be

close relatives of the influential persons. These persons as well as the

private-Respondents are as follows:

• Ms. Jyoti Agrawal (Ms. Agarwal), Roll No-374: She is said to be the

niece of Shri Brij Mohan Agrawal, a minister in the State of

Chhattisgarh at that time as well as at present;

• Ms. Uday Laxmi Parmar (Ms. Parmar), Roll No-384: She is said to be

a close relative of then sitting BJP Rajya Sabha Member;

• Ms. Kiran Shukla (Ms. Shukla), Roll No-385: She is said to be the

daughter of an Additional District Judge of Madhya Pradesh;

• Ms. Vibha Pandey (Ms. Pandey), Roll No- 59: She is said to be

Junior of the Chairman of the selection committee and daughter

of the Law Secretary at that time;

• Shri Abhishek Sharma (Shri Sharma), Roll No- 60: He is said to be

the son of the Law Secretary at that time and brother of

Ms. Pandey.

24

Ms. Jyoti Agrawal88. There is allegation that Ms. Agrawal is niece of Shri Brij Mohan

Agrawal. He was Minister at that time as well as at present. However,

the details how she is related to the minister, is not mentioned.

89. The RG was requested to talk to Ms. Agrawal and make a statement,

whether she is related to the minister or not. The RG stated that he had

spoken to Ms. Agrawal and she informed him that:

• Ms. Agarwal is Chhattisgarhi and Shri Brij Mohan Agarwal, the

Minister is Rajasthani;

• She is not related to Shri Brij Mohan Agrawal, the minister.

90. There is nothing to show that Ms. Agrawal is related to the minister.

Merely because their surname are common, it does not mean that they

are related to each other.

Ms. Uday Laxmi Parmar91. Ms. Uday Laxmi Parmar (Ms. Parmar), is said to be close relative of

late Shri Dilip Singh Judev (Shri Judev), who was Rajya Sabha member of

BJP at the relevant time.

92. The RG states that he had spoken to Ms. Parmar and she informed

him that:

• Maharaj Moti Singh (Bhatkhera) was her great-great-grandfather;

• Maharaj Moti Singh had two sons Maharaj Ram Singh and Maharaj

Arjun Singh;

• She is from the branch of Maharaj Ram Singh;

• Shri Rajyavardhan Singh is from the branch of Maharaj Arjun Singh

and great-great-grand son of Maharaj Moti Singh;

• Shri Rajyavardhan Singh was married to sister of Shri Judev.

93. There is no blood relationship between the two. There is no direct

relationship. Shri Judev was brother-in-law (Sala) of Shri Rajyavardhan

Singh, who in turn is many generations away from Ms. Parmar. The

25

relationship is so distant that it took us some time to understand it. To

call this relationship, a close relationship is beyond our understanding.

94. In any case, the Valuers did not know whether such person, so

distantly related to Shri Judev was appearing or which answer sheet was

her answer sheet. We also do not expect a committee of judges to be

influenced by a Member of Parliament. There is also no material to

create any doubt.

Ms. Kiran Shukla95. Ms. Shukla is said to be the daughter of the Additional District Judge

(ADJ) of Madhya Pradesh cadre.

96. The RG had also contacted Ms. Shukla. He states that Ms. Shukla has

informed him that her father was a judicial officer in Madhya Pradesh

cadre and had retired in the year 2003.

97. The 2008-Exam was held in the year 2008. A person retired in

another State, five years ago, is not likely to have any influence over

three judges of another High Court, or the Valuers therein.

Ms. Vibha Pandey and Shri Abhishek Sharma98. The RG states that he had spoken to Ms. Pandey and she informed

him that:

• She was never junior of the Chairman of the selection committee.

(This was also stated by the High Court in the counter affidavit

filed before the Supreme Court);

• She and Shri Sharma are real sister and brother;

• They are children of the then Law Secretary.

No Extraneous Consideration99. Ms. Agrawal is not related to the minister; Ms. Parmar is too distant

relative of the Rajya Sabha member; Ms. Shukla is daughter of retired

ADJ (in 2003) of MP cadre: no influence can be exercised on their behalf.

There is no material or evidence or anything to suggest that they

exercised any influence.

26

100. Ms. Pandey and Shri Sharma are children of the then Law Secretary,

who may be acquainted with the Valuers as they are from the same

service in this State. But the question is whether any influence was

exercised or not.

101. The selection committee consisted of the High Court judges. It is

difficult to believe that a Law Secretary would have courage to influence

such a committee. There is nothing on record to show that the then Law

Secretary exercised any influence.

102. The Valuers did not examine the answer sheets in accordance with

the roll numbers but in reference to the code numbers; they did not

know that they were examining the answer sheets of any particular

candidate; they cannot favour anyone unless—the three High Court

Judges, senior most District Judge (now a judge of this court), the then

Incharge S&A Cell (who retired as the High Court judge) five senior most

judges of HJS, Shri Vinay Singh, the computer expert from Guru Ghasi

Das University, the Checker—colluded to select the children of the then

Law Secretary or a daughter of five years ago retired HJS officer of

another State or any other candidate. To accept such allegation merely

on ipse dixit, or just because they are selected, without any basis or iota

of evidence, is disservice to the Institution.

103. In our opinion, neither any undue influence was exercised nor

could it be exercised.

9 th POINT: OVERWRITING AND ADDITION ARE MERELYCORRECTIONS

104. The Petitioners have pointed out some cutting and changing of

marks in some answer sheets. According to them, this shows

favouritism. These answer sheets are of the following persons:

(i) Ms. Kiran Thawait (roll number 23) (Ms. Thawait);

(ii) Shri Sharma (roll number 60);

(iii) Ms. Deepa Katare (roll number 71) (Ms. Katare);

(iv) Shri Krishna Pal Singh Bhadoriya (Shri Bhadoriya)(roll number 251);

(v) Ms. Agrawal (roll number 374);

27

Ms. Thawait (Roll number 23)105. In the objection filed by the Petitioners it is mentioned that there is

correction in the first page of the answer sheet of Ms. Thawait (roll

number 23) but it is not initialled. However, at the time of argument

nothing was pointed out.

106. On the first page of her answer sheet, part-1 of the first question is

attempted and the candidate has been awarded 8 marks. There does

not appear to be any correction but it appears that pen has gone over

the mark twice, it is for this reason that some impression is created. No

adverse inference can be drawn. In any case, it was not raised at the time

of argument.

Shri Sharma (Roll number 60)107. In the answer sheet of Shri Sharma, it is pointed out that in the first

part of the first question, the marks have been increased from 6 to 9 and

there is no initial and according to the Petitioners it was done as Shri

Sharma was son of the then Law Secretary.

108. Question No.1 is in two parts and the first part related to framing

of issues in a civil case. The marks given to Shri Sharma are in the fashion

of 6+3/9 and thereafter these marks are encircled. All marks given in

this answer sheet were encircled.

109. In the second part of the first question, Shri Sharma received 18

marks. Thus, he received 9 + 18 or 27 marks in the first question. On the

index of the answer sheet, his marks for the first question number are

written as 27 and not as 24 + 3. This shows that marks were awarded at

the time when the answer sheet was being examined.

110. The answer sheet is signed by the valuer as well as by the head-

examiner on the date the answer sheet was examined, namely,

22.07.2008. This overrules any possibility of adding three marks

subsequently and indicates that 6+3 was written at the time when

answer sheet was being examined. It is relevant to point out that answer

28

sheets were again sealed on the date they were valued. This has been

stated by the Checker.

111. The marks 6+3/9 is totally encircled. No part of the marks is over

the circle or beyond the circle. This indicates that the marks were

awarded in that manner and thereafter were encircled.

112. The counsel for the High Court has also produced a chart of the

total answer sheets examined by Shri Surendra Tiwari. It is appended as

Appendix-1. At that time, the last column showing the date, when the

answer sheet was corrected was not indicated. The same chart showing

date wise is appended as Appendix-3.

113. In order to test the veracity of the chart produced by the High

Court we also requested the advocates, who were sitting in the court

and not connected with this case to randomly choose some answer

sheets. They were according to the chart.

114. It shows that on the first day in the five answer sheets the marks

were not encircled but then in the remaining answer sheets they were

encircled.

115. The marks awarded by Shri Tiwari are small in appearance. It

appears that to make them more prominent, he was asked to encircle

them so that they may not be missed and he started encircling them on

19th itself.

116. The answer sheet of Shri Sharma was examined on the next day

and the marks were encircled in due course as in the rest of the copies.

117. In our opinion, Shri Sharma was awarded the marks that he

ultimately obtained only at the time when answer sheets were examined

and not subsequently. Perhaps, after checking the other answers, the

valuer realised that he should get three marks more.

29

Ms. Katare (Roll number 71)118. The petitioners have brought to our notice the answer to the

second question of Ms. Deepa Katare (Ms. Katare) and submit that:

• In the answer to the second question, section 326 has been

changed to section 324;

• This is clear from seeing the formation of the number '4' that it is

corrected from '6';

• There is no initial showing that correction was done by

Ms. Katare. It was done at the time of examining the answer

sheet by the valuer and this shows corruption;

119. The answer sheet shows that the figure 326 has been changed to

324. But there is nothing on record to show that this was done by the

valuer and not by the candidate herself.

120. The answer to second question also required mention of another

section. In the answer sheet, section 456 is mentioned, however, the

correct section is 447. At one place it is also overwritten as 456.

121. In case, 326 was corrected to 324 by the valuer, then he would have

corrected the other section as well. The fact that other section was not

corrected and at one place wrongly overwritten shows that the

candidate herself has corrected from 326 to 324.

122. A candidate while correcting answer sheet cannot initial it as this

will indicate identity of the candidate. The fact that the correction was

not initialled by the candidate does not mean that it was not done by the

candidate. Generally the answer sheets are revised by the candidates

and at that time, if the mistakes are detected; they are corrected. This

appears to be the case here. The correction was done by the candidate

herself and not by the valuer.

123. There is nothing to show that it was done by the valuer, especially,

when the valuer had no knowledge as to whose answer-sheet was that

and the candidate is not influential person. And why would a person of

HJS rank do that.

30

124. In our opinion, the correction from 326 to 324 was done by the

candidate herself and no one else.

Shri Bhadoriya (Roll number 251)125. The total marks on the top of page of the answer-sheet of

Shri Bhadoriya have been increased from 54 to 57. This was because of

the fact that initially on the index page 13 marks were wrongly entered

for the second question; whereas, in fact he was awarded 16 marks for

this question.

126. The second question was divided into three parts, Shri Bhadoriya

has received 4 + 3 + 9 (total 16 marks) for question number- 2. This was

wrongly written as 13 on the index page. This aforesaid mistake was

pointed out by the Checker as mentioned in the directions, and

thereafter it was corrected by the head-examiner to 16.

127. After correction, it was not only mentioned in figures but was also

mentioned in words. This was signed by the valuer as well as the head-

Examiner. Thereafter the total marks were corrected to 57 and the same

is also signed by the head-examiner. There is no question of any adverse

inference.

Ms. Agrawal (Roll number 374)128. The Petitioners submit that:

• In the answer-sheet of Ms. Agrawal, there are corrections in marks

at four places;

• Out of these corrections, at one place, there is an initial and at the

remaining three places, there is no initial;

• The fact that there is initial at one place and not at other three

places shows that these corrections were subsequently made for

extraneous purpose.

129. The original answer sheet of Ms. Agrawal was produced before us.

There is no correction at two places. However, there are corrections at

31

four places. Out of these four places, at one place there is initial and in

the remaining three places, there is no initial.

130. Nevertheless, there is difference between the two situations:

• At the place, where there is initial the original marks are scored

out and thereafter marks are written separately and this is

initialled by the valuer;

• Whereas, at the other three places, where there is no initial, the

marks have been corrected;

131. Thus, there is difference in both situations. There is reason for

initialling and not initialling. The place where the marks are written at

different place, there is initial but where same marks are corrected there

is no initial; perhaps for the reason that marks were corrected at the

same place. Apart from this difference, it is also relevant as to what is

the correction. In all four cases marks have been reduced and not

increased.

132. The first correction is in the first part of question number- 1

relating to framing of issues. Here, the marks have been reduced from

12 to 10.

133. The second correction is in the second part of the first question

where marks have been reduced from 22 to 20.

134. The Petitioners point out that in the affidavit filed by the RG before

the Supreme Court it is mentioned that the marks have been reduced

from 27 to 20. However, we have perused the same and have also seen

it along with the counsel for the Petitioner in the PIL as well as the friend

of the court for Ms. Nanda. All agreed that the marks have been reduced

from 22 to 20 and not from 27 to 20.

135. The RG cannot have personal knowledge. It appears that he filed

the affidavit before the Supreme Court under wrong impression.

32

136. The third correction is of the marks allotted in the third part of the

second question relating to writing of judgement in criminal case. Here

the marks have been reduced from 18 to 15.

137. The fourth correction is in the third question relating to translation

from English to Hindi. In this case also, marks have been reduced from 8

to 6.

138. In all these cases, the marks have been reduced. This shows the

bona fide of the valuer rather than any malice. Had there been any

malice, the marks would have been increased.

139. It is common knowledge that an examiner gets proper assessment

after examining some answer sheets; he then gets feel of the standard

of the candidates. His assessment of answer sheets initially examined is

tentative. This appears to be the case here.

140. The answer sheet of Ms. Agrawal (roll number 374) was examined

on 19.07.2008, the day when examining of the answer sheets started.

The answer sheets were not examined by the teachers of law. They were

examined by the judges of HJS, who are not used to examine the answer

sheets.

141. It appears that initially, the valuer had given more marks to Ms.

Agrawal and thereafter he realised his mistake and corrected the same.

In these circumstances, no adverse inference can be drawn.

142. The answer sheet of Ms. Agarwal was examined by Shri Alok Jha.

The High Court has produced a chart of the answer sheets examined by

him, where the marks were changed. It is appended as Appendix-4. It

shows that he has not initialled change in marks at any place except one,

where the marks were not corrected at the same place but were

separately written.

143. Shri Jha has not initialled the corrections made at the same place in

any answer sheet; irrespective whether they were increased or

33

decreased. In case of Ms. Agarwal, the marks were reduced. There was

no direction or instruction by the committee that all corrections were to

be initialled. In these circumstances, no adverse inference can be drawn

on the ground that there was no initial.

10 th POINT: ANSWER SHEETS WERE PRODUCED144. The Petitioners have brought to our notice direction number- 11

(see below)9 issued to the valuers and submit that:

• There is nothing to show that answer sheets of the candidates

securing more than 50% were produced before the head-

examiner; and

• This direction was not followed.

145. The above direction provides that the answer-sheets of getting 50

percent or higher marks should be placed before the head examiner and

on its return the same should be given to the checker and its total be

compared.

146. There is no record to show that such answer sheets were

presented before the head-Examiner. However, the Checker states that

the answer sheets were presented for perusal of the head-Examiner and

the needful was done. This is also stated in the affidavit filed before this

court on 22.08.2013.

147. The directions issued to the valuers and the checker also indicate as

to when an information was to be kept in a prescribed format. One of

these formats is regarding mistakes; it was also produced in original by

the Checker. However, there was no such direction to keep any record

of the answer sheets that were presented to the head-examiner as more

than 50% marks awarded.

9 The direction number 11 is as follows:11. The answer sheets of getting 50 percent or higher marks should bepresented before Deputy Chief or Chief Examiner. And on its return back bythe Deputy Chief/ Chief Examiner the same should be given to the Checker andits total should be compared.

34

148. The counsel for the High Court states that as there was no direction

to maintain record of such answer sheets that the records were not kept.

149. In some directions it is mentioned that the record will be kept in

the prescribed format. In direction number- 11, there is no such

requirement. In our opinion, there was no necessity to keep record of

the same and if it was not kept, then no adverse inference can be drawn.

11 th to 13 th POINT: DIFFERENCE IS NATURAL— NOREVALUATION

150. The Petitioners submit that:

(i) The model answers were also circulated but there was no strict

adherence to the model answers;

(ii) The same valuer has adopted different yardsticks in examining

the answer sheets. This is clear if the answer sheets of Ms.

Chhaya Singh Baghel (roll number 363) (Ms. Baghel) and Ms.

Shukla (roll number 385) are compared;

(iii) Different valuers have applied different yardsticks. It is clear

from the answer sheet of Ms. Deepa Katare (roll number 71). In

her answer sheet in answer to the first question, she has written

Judicial Magistrate instead of Civil Judge yet she has been

awarded 20 out of 25 marks;

(iv) The answer sheets may be examined again or atleast scaling be

applied in the marks allotted.

First Submission151. The model answers are merely guidelines. They are neither perfect

nor best answers. Normally, they are provided to ensure greater

uniformity among the valuers. But it does not mean that in case the

answer is not in the same terms then marks are not to be given or less

marks are to be given.

152. In question number one itself, the model answer frames six issues.

Perhaps, five would have been sufficient and they could be better

framed as well. In case a candidate has framed the issues differently but

in a better manner, then it would be unfair not to give good marks to

35

that candidate or marks, less than the person who had framed the issues

as given in the model answer.

153. Despite the model answers, it is relevant to know, how the answer

is attempted. It is not a case of an objective paper. It is a case of

subjective paper and in such a paper despite the model answer the

subjectivity is relevant.

154. In descriptive paper, there cannot be one answer. The marks in law

are given on how the answers are written, on the language used,

reasoning provided, as well as how evidence is appreciated. There

cannot be fixed yardstick.

Second Submission155. The answer sheets of Ms. Baghel and Ms. Shukla have been

examined by the same valuer. Both of them wrongly answered the issue

regarding valuation of the suit in the second part of the first question.

However, Ms. Baghel has been given 22 marks and Ms. Shukla has been

given 18 marks.

156. The valuer, while correcting the answer sheet of Ms. Baghel has put

the tick mark regarding the issue of the valuation (though it was wrongly

answered) however in the answer sheet of Ms. Shukla, he has rightly put

a cross mark for the answer about this issue. We have also looked into

the other answer sheets examined by the same valuer as well as others

that were randomly taken out by the advocates sitting in court, who

were not connected with the case. Similar exercise was done in respect

of answer sheets examined by other valuers. But this mistake is not

there.

157. Generally, the valuers while awarding the marks look into how

many tick marks has been put and how many have been crossed or

circled. As in the answer sheet of Ms. Baghel tick mark was put, 22 marks

were awarded but in answer sheet of Ms. Shukla, there was cross and 18

marks were awarded. It is bona fide mistake.

36

158. Apart from above, total marks of Ms. Baghel was 67. Out of this,

she is given 22 marks for the first question. Even if the same standard as

was applied to Ms. Shukla is adopted then this will not make any

difference in her selection. If Ms. Baghel is given same marks, namely, 18

as was given to Ms. Shukla, then in that event, Ms. Baghel's total will be

67- 4 or 63 marks. The last candidate selected has received 62 marks.

She still remains selected.

159. Ms. Baghel is not even alleged by in any newspaper report or

anywhere that she is connected with any influential person. This appears

to be a bona fide mistake at the time of correcting the answer sheets. If

there is one bona fide mistake in 652 answer sheets that does not effect

her selection then, the entire selection cannot be set aside or answer

sheets cannot be ordered to be revalued.

Third Submission160. In answer to the second part of the first question, Ms. Katare (roll

number 71) has used the word Judicial Magistrate, Second Class. This

part related to writing of a judgement in a civil case. She should have

used the word Civil Judge, Class II. However, the relevant thing to note is

that the valuer has encircled the word Judicial Magistrate, wherever it is

used. This shows that the valuer was aware of the fact that this mistake

was there.

161. We have also read the answer written by Ms. Katare. It is written in

good English. She has been awarded 20 out of 25 marks and not full

marks. In case the valuer is aware of a mistake, yet awards good, marks

as it is nicely attempted, then it cannot be termed as arbitrary. We have

already explained while discussing under sub-heading 'First Submission'

of this heading that the relevant thing is how the question is answered.

162. We have also perused the answer sheets, pointed out by the

Petitioners as well as some answer sheets, that were taken at random by

the advocates sitting in the court, who were not connected with the

case. There is some difference but that is natural: the valuers are not

37

computers; they are human beings: there is difference in their approach.

But to say that the difference in marking the answer sheets was unfair,

or arbitrary, or capricious, or unreasonable is not correct.

163. In our opinion, it cannot be said that the difference in marking is

unfair, or arbitrary, or capricious, or unreasonable. In view of the same,

there is no justification for revaluation of the answer sheets.

Fourth Submission164. The scaling system is normally applied in case of IAS and PCS

examinations, where the candidates appear for different subjects. This is

done in order to give some kind of uniformity in the marks given in

different subjects. It was for this reason that the scaling system was

upheld in UP Public Service Commission vs Subhash Chandra Dixit and

Others {(2003) 12 SCC 701}.

165. Nevertheless, the scaling system is not applied when the

examination is held for one subject, like in the Civil Judges examination.

This is the reason why the scaling system was partly not accepted in

Sanjay Singh and Another vs UP Public Service Commission, Allahabad

and Another {(2007) 3 SCC 720}.

166. The question, whether the scaling system should be made

applicable or not and if it is made applicable, to what extent it should be

made applicable—should be decided at the initial stage and before the

examination begins. This may be done according to the contents of the

examination. However, issuing directions to apply the scaling system

under article 226 of the Constitution for different valuers in the same

subject after everything is over, is not a correct approach.

SOME SUGGESTIONS167. The judges spend their life in resolving disputes or managing their

courts, lawyers and in doing so, they become experts in the same. They

are not experts in conducting examinations or in recruitment.

38

168. The High Court does many kinds of recruitments and promotions.

The promotions are done on the basis of record of an officer and

interview. These promotions do not require expertise needed in

conducting the direct recruitment that is generally by a competitive

examination. The High Court is not an expert in this: it is a job for

specialised body. And should be so left to them.

169. The matter may be placed before the High Court on the

administrative side to consider whether the High Court should continue

to conduct the direct recruitment or to leave it to an expert body to do

selection.

170. There is another aspect of the matter. Whenever this case was

listed before this court or the Supreme Court, it attracted attention of

the media and allegations have been reported that we have found to be

incorrect. Nonetheless, reporting does have impact.

171. The newspapers and media should have exercised restraint or

atleast taken care: yellow journalism may get them circulation but it

harms the institution that is difficult to repair. However, the High Court

should have also taken care.

172. Ms. Nanda had filed writ petition in the year 2008. The counsel for

the Petitioners in the PIL stated that the PIL would not have been filed if

the WP filed by Ms. Nanda was decided in time.

173. It is true that the courts are overburdened and there are many

competing matters that require attention of the court, but some matters

are more urgent than the others. It is an old saying,

'A stitch in time saves nine'.

The court should have taken some special steps to decide the WP

expeditiously. Had this been done, the unnecessary negative attention

would have been avoided.

174. We leave the matter here for media to introspect as well as to the

court to take care in future.

39

CONCLUSIONS

175. Our conclusions are as follows:

(a) The PIL cannot be dismissed on the preliminary objections raised

by the counsel for the High Court;

(b) The procedure for selection and evaluation was fair and proper;

(c) The camouflaging and coding of the roll numbers were proper.

They were not defective;

(d) The Selection Committee, the head-Examiner, the Valuers and the

Checker had no knowledge about roll numbers of the answer

sheets that were examined;

(e) The marks were not required to be written in words and figures in

the answer sheets. They were required to be written in words and

figures on the foil and counterfoil. This was done;

(f) All directions to the Valuers and the Checker were followed and

there was no violation;

(g) Corrections in the marks were made at the time of examining the

answer sheets in normal course of examining them. They are not

attributable to manipulation or favouritism;

(h) There is no justification for ordering revaluation, or to apply

scaling system for the Valuers in this examination, or to cancel the

select list as,

• The marking by the Valuers was not unfair, or arbitrary, or

unreasonable, or capricious;

• There is no violation of any statutory or non-statutory

directions in marking the answer sheets or selecting a

candidate.

176. In view of our conclusions, the writ petitions have no merit and are

dismissed.

CHIEF JUSTICE JUDGE

subbu

40

Appendix-1

CIVIL JUDGE (ENTRY LEVEL) EXAMINATION – 2008

Answer Sheets Evaluated by Shri Surendra Tiwari,

Where Awarded Marks are Circled and Not Circled

1 2 3 4 5

Code Number

Roll Number

Circled Not Circled Valued On

593274 51 Yes 20th July 2008

860135 52 Yes 20th July 2008

123373 53 (S) Yes 20th July 2008

142645 54(S) Yes 20th July 2008

805919 55 Yes 20th July 2008

713837 56 Yes 20th July 2008

940281 57 Yes 20th July 2008

376411 58 Yes 21st July 2008

123324 59(S) Yes 21st July 2008

381622 60(S) Yes 21st July 2008

57649 61 Yes 21st July 2008

422446 62 Yes 21st July 2008

552206 63 Yes 21st July 2008

262228 64 Yes 21st July 2008

220858 65 Yes 21st July 2008

473578 66 Yes 21st July 2008

932620 67 Yes 21st July 2008

451860 68 Yes 21st July 2008

209372 69 Yes 21st July 2008

777517 70(S) Yes 21st July 2008

538088 71(S) Yes 21st July 2008

434409 72 Yes 21st July 2008

756361 73 Yes 21st July 2008

830114 74 Yes 21st July 2008

114104 75 Yes 21st July 2008

985878 251 Yes 19th July 2008

456448 252 only page no. 4 Page No.7,10,14,

15,16

19th July 2008

710747 253 only page no. 23 PageNo.1,4,10

21,22

19th July 2008

4226 254 only page no.19 Page No.3,7,10,

12,16,18

19th July 2008

41

Code Number

Roll Number

Circled Not Circled Valued On

713654 255 Yes 19th July 2008

387486 256 Only page no. 22 Page No. 4,810,14,19,21

19th July 2008

498236 257 Yes 19th July 2008

307024 258 Yes 19th July 2008

970278 259 Yes 19th July 2008

327742 260(S) Yes 19th July 2008

529897 261 Yes 19th July 2008

483995 262 Yes 19th July 2008

886292 263 Yes 19th July 2008

668229 264 Yes 19th July 2008

224769 265 Yes 19th July 2008

935242 266 Yes 20th July 2008

697457 267 Yes 20th July 2008

360298 268(S) Yes 20th July 2008

269743 269 Yes 20th July 2008

404242 270 Yes 20th July 2008

797800 271 Yes 20th July 2008

158699 272(S) Yes 20th July 2008

601563 273 Yes 20th July 2008

71010 274 Yes 20th July 2008

745836 275 Yes 20th July 2008

544646 426 Yes 22nd July 2008

401521 427 Yes 22nd July 2008

233295 428(S) Yes 22nd July 2008

959171 429 Yes 22nd July 2008

586778 430 Yes 22nd July 2008

119578 431 Yes 22nd July 2008

285399 432 Yes 22nd July 2008

70672 433 Yes 22nd July 2008

705006 434 Yes 22nd July 2008

217951 435 Yes 22nd July 2008

475309 436 Yes 22nd July 2008

465356 437 Yes 22nd July 2008

366078 438 Yes 22nd July 2008

376759 439 Yes 22nd July 2008

510861 440 Yes 22nd July 2008

988932 441 Yes 22nd July 2008

530881 442 Yes 23rd July 2008

42

Code Number

Roll Number

Circled Not Circled Valued On

183415 443 Yes 23rd July 2008

112918 444 Yes 23rd July 2008

830150 445 Yes 23rd July 2008

644295 446 Yes 23rd July 2008

745895 447(S) Yes 23rd July 2008

523728 448 Yes 23rd July 2008

507108 449 Yes 23rd July 2008

321891 450 Yes 23rd July 2008

2514 476 Yes 23rd July 2008

330800 477 Yes 23rd July 2008

348653 478 Yes 23rd July 2008

276666 479 Yes 23rd July 2008

745246 480(S) Yes 23rd July 2008

523524 481(S) Yes 23rd July 2008

409461 482 Yes 23rd July 2008

900234 483 Yes 23rd July 2008

227949 484 Yes 23rd July 2008

587315 485 Yes 23rd July 2008

379022 486 Yes 23rd July 2008

498642 487 Yes 23rd July 2008

246847 488 Yes 24th July 2008

810512 489 Yes 24th July 2008

507647 490 Yes 24th July 2008

212839 491 Yes 24th July 2008

151105 492 Yes 24th July 2008

931875 493 Yes 24th July 2008

550526 494 Yes 24th July 2008

764010 495 Yes 24th July 2008

792338 496 Yes 24th July 2008

268464 497 Yes 24th July 2008

422162 498 Yes 24th July 2008

476857 499 Yes 24th July 2008

140950 500 Yes 24th July 2008

43

Appendix - 2

Civil Judge (Entry Level) Examination-2008

(Date wise Valuation Chart of Answer Sheets Examined by the Valuers according totheir seniority. Shri Alok Jha was Senior most and Shri Ashok Panda was Junior most)

Evaluators

1 2 3 4 5 6

Date on whichcopies were

examined

Shri Alok Jha

Shri T.K.Chakrav-

arty

Shri Surendra

Tiwari

Shri A.K.Shrivast-

ava

Shri AshokPanda

Roll Numbers

Roll Numbers

Roll Numbers

Roll Numbers

Roll Num-bers

19.07.2008 351 to 375 301 to 319 251 to 265 326 to 336 226 to 240

20.07.2008 1 to 25 320 to 325 266 to 275 337 to 350 241 to 250

101 to 110 51 to 57 126 to 130 76 to 90

21.07.2008 111 to 125 26 to 50 58 to 75 131 to 150 91 to 100

376 to 400 176 to 200 201 to 215

501 to 505

22.07.2008 506 to 525 526 to 550 426 to 441 151 to 173 216 to 225

551 to 570 276 to 282

23.07.2008 571 to 575 601 to 626 442 to 450 174 & 175 283 to 300

451 to 475 476 to 487 628 to 650 576 to 587

401 to 410

24.07.2008 411 to 425 627 488 to 500 651 & 652 588 to 600

653 & 654

Total Numbersof Answer

Sheets Valued

200 127 100 100 125

44

Appendix 3CIVIL JUDGE (ENTRY LEVEL) EXAMINATION - 2008

Answer Sheets Evaluated by Shri Surendra Tiwari Where Awarded Marks are Circled and Not Circled

1 2 3 4 5

CodeNumber

Roll Number

Circled Not Circled Valued On

985878 251 YES 19th July 2008

456448 252 only page no. 4 Page No.7,10,14,

15,16

19th July 2008

710747 253 only page no. 23 Page No.1,4,1021,22

19th July 2008

4226 254 only page no.19 Page No.3,7,10,

12,16,18

19th July 2008

713654 255 Yes 19th July 2008

387486 256 only page no. 22 Page No. 4,810,14,19,21

19th July 2008

498236 257 Yes 19th July 2008

307024 258 Yes 19th July 2008

970278 259 Yes 19th July 2008

327742 260(S) Yes 19th July 2008

529897 261 Yes 19th July 2008

483995 262 Yes 19th July 2008

886292 263 Yes 19th July 2008

668229 264 Yes 19th July 2008

224769 265 Yes 19th July 2008

935242 266 Yes 20th July 2008

697457 267 Yes 20th July 2008

360298 268 (S) Yes 20th July 2008

269743 269 Yes 20th July 2008

404242 270 Yes 20th July 2008

797800 271 Yes 20th July 2008

158699 272(S) Yes 20th July 2008

601563 273 Yes 20th July 2008

71010 274 Yes 20th July 2008

745836 275 Yes 20th July 2008

593274 51 Yes 20th July 2008

860135 52 Yes 20th July 2008

123373 53(S) Yes 20th July 2008

142645 54(S) Yes 20th July 2008

805919 55 Yes 20th July 2008

45

CodeNumber

Roll Number

Circled Not Circled Valued On

713837 56 Yes 20th July 2008

940281 57 Yes 20th July 2008

376411 58 Yes 21st July 2008

123324 59(S) Yes 21st July 2008

381622 60(S) Yes 21st July 2008

57649 61 Yes 21st July 2008

422446 62 Yes 21st July 2008

552206 63 Yes 21st July 2008

262228 64 Yes 21st July 2008

220858 65 Yes 21st July 2008

473578 66 Yes 21st July 2008

932620 67 Yes 21st July 2008

451860 68 Yes 21st July 2008

209372 69 Yes 21st July 2008

777517 70(S) Yes 21st July 2008

538088 71(S) Yes 21st July 2008

434409 72 Yes 21st July 2008

756361 73 Yes 21st July 2008

830114 74 Yes 21st July 2008

114104 75 Yes 21st July 2008

544646 426 Yes 22nd July 2008

401521 427 Yes 22nd July 2008

233295 428(S) Yes 22nd July 2008

959171 429 Yes 22nd July 2008

586778 430 Yes 22nd July 2008

119578 431 Yes 22nd July 2008

285399 432 Yes 22nd July 2008

70672 433 Yes 22nd July 2008

705006 434 Yes 22nd July 2008

217951 435 Yes 22nd July 2008

475309 436 Yes 22nd July 2008

465356 437 Yes 22nd July 2008

366078 438 Yes 22nd July 2008

376759 439 Yes 22nd July 2008

510861 440 Yes 22nd July 2008

988932 441 Yes 22nd July 2008

530881 442 Yes 23rd July 2008

183415 443 Yes 23rd July 2008

112918 444 Yes 23rd July 2008

46

CodeNumber

Roll Number

Circled Not Circled Valued On

830150 445 Yes 23rd July 2008

644295 446 Yes 23rd July 2008

745895 447(S) Yes 23rd July 2008

523728 448 Yes 23rd July 2008

507108 449 Yes 23rd July 2008

321891 450 Yes 23rd July 2008

2514 476 Yes 23rd July 2008

330800 477 Yes 23rd July 2008

348653 478 Yes 23rd July 2008

276666 479 Yes 23rd July 2008

745246 480(S) Yes 23rd July 2008

523524 481(S) Yes 23rd July 2008

409461 482 Yes 23rd July 2008

900234 483 Yes 23rd July 2008

227949 484 Yes 23rd July 2008

587315 485 Yes 23rd July 2008

379022 486 Yes 23rd July 2008

498642 487 Yes 23rd July 2008

246847 488 Yes 24th July 2008

810512 489 Yes 24th July 2008

507647 490 Yes 24th July 2008

212839 491 Yes 24th July 2008

151105 492 Yes 24th July 2008

931875 493 Yes 24th July 2008

550526 494 Yes 24th July 2008

764010 495 Yes 24th July 2008

792338 496 Yes 24th July 2008

268464 497 Yes 24th July 2008

422162 498 Yes 24th July 2008

476857 499 Yes 24th July 2008

140950 500 Yes 24th July 2008

47

Appendix 4

Civil Judge (Entry Level) Examination-2008

List of Answer Sheets having correction in marks awardedName of Valuer: Shri Alok Jha

Serial Num-ber

Roll Num-ber

Page Num-ber

Marks Increased

Marks Decreased Initial

Yes No

1 3 4 3 - - No

2 5(S) 15 - 6 - No

3 359 15 - 2 - No

4 361 4 3 - - No

5 371(S) 19 - 2 - No

6 374(S)2,6,17& 19 - 2, 2, 3 & 2

(Yes-P19)

(No-P2,P6,P17)

7 375 18 - 2 - No

8 414 6 - 2 - No

9 417 11 - 3 - No

10 454 1 2 - - No

11 458 7 1 - - No

12 472 21 - 2 - No

13 522 3 2 - - No

14 554 10 5 - - No

15 574 20 - 2 - No

Note :1. Only in one answer of roll no.374, on page no.19 marks are separately written and it isinitialled . However in the rest of the cases marks are not separately written but merelyoverwritten and are not initialled.

2. (S) in second column means that the candidate was successful in the 2008-Exam.

48

HEADLINES

Civil Judge 2008 examination is valid.