Fraud in evaluation nullifies the validity of the selection process, allowing for judicial intervention despite delays in challenging seniority.

JUDGMENT :

Rakesh Kainthla, J.

1. The present appeal is directed against the judgment dated 24^th August 2024 passed in CWP No. 4774 of 2015, titled Ashok Kumar vs. H.P. Vidhan Sabha & others, vide which writ petition filed by respondent No. 1 (original petitioner) was allowed, and the present respondent No.2 (original respondent No.1) was directed to re-calculate the marks of all the answers correctly provided by the petitioner and thereafter re-determine the seniority based on merit. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Single Judge for convenience).

2. Briefly stated, the facts giving rise to the present appeal are thatthe petitioner filed a writ petition seeking a writ of certiorari for setting aside the seniority list for the year 2001 onwards in which the petitioner was shown at serial No.5, writ of mandamus directing respondent No. 1 to correct the seniority list and take disciplinary action against the erring official. It was asserted that the petitioner and others were appointed as clerks by respondent No.1 on 20.02.2001. The petitioner was placed at Sr. No. 5 in the seniority list. He filed two representations regarding his seniority, which were rejected on the ground that seniority was assigned as per the merit obtained in the examination conducted for selecting the clerks. The petitioner was also told that the record of selection was not available.Ripon Kumar obtained the attested copies of the mark- sheet under the Right to Information Act on 19.10.2011. He informed the petitioner in July 2015 regarding the supply of information. The petitioner went through the marks and found that they were not correctly awarded for educational qualification. He filed an application to allow him to inspect the record regarding the recruitment. He also found a document containing the marks regarding the recruitment of clerks lying in the waste papers. The petitioner was awarded 109 marks. The person who was awarded less marks was shown higher in the merit. Two separate final lists were prepared on 18.02.2001; the petitioner was shown asthe topper in one list, having secured 109 marks, whereas he was shown to have been awarded 102 marks in the second list. The marks of the petitioner were lowered in the second list to give the benefit to the respondents. Therefore, a writ petition was filed to seek the relief.

3. The writ petition was opposed by the respondents by filing separate replies.

4. The record of the selection was requisitioned by the learned Single Judge,who found that the petitioner was not awarded the marks for all the answers correctly answered by him. It could be a bona fide error of calculation or a deliberate attempt to lower the merit of the petitioner. The claim of the petitioner could not be defeated on the grounds of delay and latches. The marks of the petitioner were lowered by practising fraud upon him. The fraud and illegality vitiated the entire process. The petitioner had no reason to approach the Court before detecting the foul play. Hence, the writ petition was allowed, and necessary direction was issued to respondent No.1 to re-calculate the marks of all the answers correctly provided by the petitioner and thereafter re-determine the seniority.

5 Aggrieved from the judgment, the private respondents have filed the present appeal, asserting that the learned Single Judge erred in issuing a direction to re-calculate the marks of all answers correctly provided by the petitioner and re-determine the seniority after the lapse of 24 years. Such directions are in violation of the judgments passed by this Court and Hon’ble the Supreme Court. The Secretary, Himachal Pradesh Vidhan Sabha, was the custodian of the record, who had handed over the entire record to the Establishment Branch of Vidhan Sabha on 11.12.2006. Petitioner was posted in the Establishment Branch. The private respondents cannot be faulted for the acts committed by the officials of the Vi