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2009 Supreme(Mad) 4629
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M.M. SUNDRESH
A. Eswaramoorthy
Versus
The Secretary to Government Home (Police IV) Department Chennai & Others
W.P.Nos. 4509, 4510, 4511, 4512, 4513, 4514, 4515, 4516, 4517, 4518, 7411, 7412, 7413, 7414, 7415, 7416, 7417, 7418, 8874, 8938, 9181, 10752, 10753, 10754, 10755, 10756,10757, 10758, 10759, 10760, 10761, 15667, 17196, 17197, 17198, 7472, 18226, 18227, 18228, 18229, 18230, 18231, 18232, 18351, 18538, 18539, 18659, 19469, 19470, 19471, 19472, 19473, 19510, 19587, 19821, 20280, 20281, 0282, 20283, 20284, 20285 of 2009, 20470, 22924, 22976 of 2008 & Connected Miscellaneous Petitions
Decided on: 04-11-2009
For the Petitioner:S. Sivakumar, G. Bala and Daisy, G. Srinivasan, K. Ravi Anantha Padmanaban, A. Jenesenan, J. Saravanan, Advocates, K. Venkataramani, Senior Counsel, for Muthappan, C. Selvaraju, Senior Counsel, for P. Athi Veera Rama Pandian, P.I. Thirumoorthy, A.R. M. Arunachalam, V. Manohar, S. Thirumavalavan, Advocates.
For the Respondents:P.S. Raman, Advocate General.
A selection process would requires transparency and fairness. When the said process is found to be demonstratively wrong and in view of the same candidates who are otherwise eligible are not selected then the power under Article 226 of the Constitution of India will have to be necessarily exercised by this Hon'ble Court.
Headnote:
WRIT - SELECTION OF SUB-INSPECTOR OF POLICE - WRONG KEY ANSWERS - AWARDING MARKS TO WRONG CANDIDATES - RELIEF - DIRECTIONS TO AWARD MARKS TO CANDIDATES WHO ANSWERED CORRECTLY - CREATION OF SUPER-NUMERARY POSTS - DELAY AND LACHES - CONSTRUCTIVE RES JUDICATA - NON-JOINDER OF PARTIES.
Fact of the Case:
Notification was issued by Tamil Nadu Uniformed Services Recruitment Board for recruitment of Sub-Inspector of Police. Selection was conducted at 12 Centres throughout the State. Recruitment process consisted of Certificate Verification, Physical Measurement Test, Endurance Test, Physical Efficiency Test, Written Test, Viva-voce. Candidates who failed in any one of the above said process were eliminated then and there by issuing a disqualification slip. After completion of Physical Efficiency Test, Written Test was held on 20.05.2007. Thereafter, based upon the marks obtained in the Viva-voce as well as the Written Test, candidates were selected. Appointments were made from 20.12.2007 onwards. Unsuccessful candidates filed writ petitions challenging the provisional selected list and also seeking consideration based upon special sport category and special quota. Petitions were dismissed by the High Court. Petitioners made applications seeking particulars of the marks awarded, key answers as well as the copies of the answer sheets written by them. Tamil Nadu Uniformed Services Recruitment Board furnished all the particulars required by the petitioners after taking some time. Petitioners came to understand that marks have been wrongly awarded by selecting wrong key answers as the correct key answers. Petitioners filed the present writ petition seeking a writ of mandamus directing the respondents to include the marks which were wrongly awarded to the petitioners in view of the wrong key answers resulting in wrong evaluation.
Finding of the Court:
1. There is no dispute on facts inasmuch as question No.11, 38 and 44 have been wrongly evaluated. 2. The power of this Hon'ble Court in directing the respondents to award the marks to the petitioners is settled by various decisions of the Hon'ble High Court as well as the Hon'ble Apex Court. 3. A selection process would requires transparency and fairness. When the said process is found to be demonstratively wrong and in view of the same candidates who are otherwise eligible are not selected then the power under Article 226 of the Constitution of India will have to be necessarily exercised by this Hon'ble Court. 4. Each one has got a right to be considered for a post. The right to be considered would also include the right to be considered properly. Hence when facts are not in dispute and the admitted position is that the respondents have committed the mistakes and due to the same the eligible candidates have lost their chances then they are entitled to be considered based upon the same. 5. The vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. 6. The contention of the learned Advocate General that other persons namely new candidates will be affected, in the opinion of this Court cannot be accepted, since it is a well settled principle of law that no one has got a vested right to be appointed to a particular post. Moreover new candidates may or may not be selected and therefore, this Court cannot go into the said question which is in the realm of speculation. Further between such candidates and unsuccessful candidates who have answered correctly but got wrong marks the latter have the better right. 7. The question of constructive res judicata would arise only when a question is susceptible of being raised earlier. A reading of the judgment rendered in W.P.No.14482 of 2007 etc Dated 20.11.2007 would show that the question involved in the present case has not been specifically raised and considered by the Hon'ble Court. 8. A mere delay in itself cannot be a ground for non suiting a party who comes before the Court. The delay is suitably explained by the circumstances under which the petitioners have approached this Hon'ble Court. 9. The respondents having committed a mistake affecting the valuable rights of the non-selected candidates cannot be allowed to contend that the writ petitions are liable to be dismissed for delay, constructive res judicata, laches and nonjoinder of necessary parties.
Issues: 1. Whether the Court can direct the respondents to award marks to the petitioners who answered correctly but were given wrong marks due to wrong key answers? 2. Whether the Court can order creation of supernumerary posts to accommodate the petitioners who would have been selected but for the wrong evaluation? 3. Whether the writ petitions are barred by delay and laches? 4. Whether the writ petitions are barred by constructive res judicata? 5. Whether the writ petitions are liable to be dismissed for non-joinder of necessary parties?
Ratio Decidendi: 1. The Court has the power to direct the respondents to award marks to the petitioners who answered correctly but were given wrong marks due to wrong key answers, as it is a patent error and illegality or total arbitrariness on the part of the respondents. 2. The Court can order creation of supernumerary posts to accommodate the petitioners who would have been selected but for the wrong evaluation, as it is a fit case to do so. 3. The writ petitions are not barred by delay and laches, as the delay is suitably explained by the circumstances under which the petitioners have approached the Court. 4. The writ petitions are not barred by constructive res judicata, as the question involved in the present case has not been specifically raised and considered by the Court earlier. 5. The writ petitions are not liable to be dismissed for non-joinder of necessary parties, as the selected candidates are not sought to be disturbed by the petitioners.
Final Decision: The writ petitions are allowed. The respondents are directed to prepare a list of all the unselected candidates who have answered question No.11 with option No.(D), question No.38 with all the answers and question No.44 with option no.(A) and grant marks accordingly. The respondents are directed to take the cut-off marks fixed for the selection made in the written examination as the basis for respective categories for the consideration of the non-selected candidates who would get higher marks in pursuant to the directions given by this Hon'ble Court. The respondents are directed to conduct Viva-voce Test for those candidates who come within the cut-off marks in pursuant to the granting of higher marks in the written examination. The respondents are directed to take into consideration of the marks obtained in the interview for those unsuccessful candidates who have already attended the interview and who would be getting additional marks. The respondents are directed to consider the candidates who would become eligible to be selected in view of the directions of this Hon'ble Court by adding the marks due to them in the available vacancies, in the respective categories, as on the last date of the interview conducted. For the future examinations, the second respondent is directed to verify the key answers immediately after the written examination is over and publish the same in the website of the second respondent as well as in anyone of the newspapers. The second respondent is also directed to publish the marks obtained by the candidates in the written examination after the evaluation of the written examination in the website of the second respondent. In so far as the petitioner in W.P.No.9189 of 2009 is concerned, the respondents are directed to consider the seniority of the petitioner based upon the revised mark by taking into consideration of the marks to be awarded for the right answers in accordance with law.
In view of the common issues involved in all the writ petitions, they have been taken up together for disposal and a common order is passed.
2. The brief facts of the case in a nutshell are as follows:
A notification was issued by the Tamil Nadu Uniformed Services Recruitment Board as per the directions of the Government of Tamil Nadu in the newspapers on 18.07.2006 for the recruitment of Sub-Inspector of Police. The Tamil Nadu Uniformed Services Recruitment Board has been constituted by the Government of Tamil Nadu for the purpose of recruiting the eligible candidates for various posts in the police department. The notification has been issued for the selection of 682 Sub-Inspector of Police. The selection was for a large number of vacancies since over the years the posts have not been filled up. Out of 682 posts, 517 vacancies have been reserved for direct recruitment and out of the same 445 were meant for men and 72 for women respectively. Two women ST candidates from the backlog vacancies in direct recruitment of selection were also included in the list. Of the remaining 146 vacancies which have been earmarked for departmental candidates with the percentage of 20, 126 have been allotted for men and 20 for women. Even in the said category, 17 women candidates in the backlog vacancies coming under various reserved categories were also included.
Recruitment process in the above said selection was conducted at 12 Centres throughout the State. The recruitment process consists of Certificate Verification, Physical Measurement Test, Endurance Test, Physical Efficiency Test, Written Test, Viva-voce. A candidate who fails in any one of the above said process is eliminated then and there by issuing a disqualification slip. After the completion of the Physical Efficiency Test, Written Test was held on 20.05.2007. Thereafter, based upon the marks obtained in the Viva-voce as well as the Written Test, candidates have been selected. The appointments have been made from 20.12.2007 onwards.
Writ petitions have been filed in the year 2007 by the unsuccessful candidates before the Honble High Court, challenging the provisional selected list and also seeking consideration based upon special sport category and special quota. In the said writ petitions, the grievances of the petitioners therein were that the quota fixed for each category has not been followed, Written Test not conducted properly, ST/SC quota has not been filled up, quota earmarked for the wards of the police personnel not published, there is a lack of transparency in the selection, marks have been awarded in the Sports Certificate and lesser marks have been given to the petitioners in the Viva-voce. The writ petitions have been dismissed by the learned single Judge of the Honble High Court in and by the order dated 20.11.2007 and the writ appeal filed in Writ Appeal No.194 of 2007 etc. were also dismissed by the Honble Division Bench on 28.03.2008.
Thereafter from the month of June 2008 onwards, applications have been made by the petitioners at different point of time seeking the particulars of the marks awarded, key answers as well as the copies of the answer sheets written by them. Accordingly, the Tamil Nadu Uniformed Services Recruitment Board has furnished all the particulars required by the petitioners after taking some time. The petitioners after receiving the said particulars came to understand that marks have been wrongly awarded by selecting wrong key answers as the correct key answers. In other words, the selected candidates who answer some of the questions wrongly have been given marks as against the non-selected candidates who have answered correctly but given the marks wrongly in view of the mistakes committed by the respondents in awarding marks by choosing in correct key answers.
Thereafter, further informations have been sought for by the petitioners from the Tamil Nadu Uniformed Services Recruitment Board. A reply has been given by the Tamil Nadu U
