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2009 Supreme(Mad) 4648
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.
The court has the power under Article 226 of the Constitution of India to direct the respondents to award marks to the petitioners who answered correctly but were given wrong marks due to incorrect key answers, even if there is a delay in approaching the court and the contention of constructive res judicata, and the respondents cannot take advantage of their own wrong and contend that the writ petitions are liable to be dismissed for delay, constructive res judicata, laches, and non-joinder of necessary parties.
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 - NOT APPLICABLE - SELECTION PROCESS - TRANSPARENCY AND FAIRNESS - RIGHT TO BE CONSIDERED FOR A POST - RIGHT TO BE CONSIDERED PROPERLY - POWER OF COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA - MISTAKE BY RESPONDENTS - RELIEF TO BE MOULDED - FILLING UP OF VACANCIES TILL THE DATE OF INTERVIEW - NO VESTED RIGHT TO BE APPOINTED TO A PARTICULAR POST - DELAY IN APPROACHING COURT - SUITABLY EXPLAINED - RESPONDENTS CANNOT TAKE ADVANTAGE OF THEIR OWN WRONG - DIRECTIONS TO RESPONDENTS TO PREPARE A LIST OF CANDIDATES WHO ANSWERED CORRECTLY AND GRANT MARKS ACCORDINGLY - CONDUCT VIVA-VOCE TEST FOR ELIGIBLE CANDIDATES - CONSIDER SENIORITY OF PETITIONER BASED ON REVISED MARKS.
Fact of the Case:
Notification was issued by the Tamil Nadu Uniformed Services Recruitment Board for the recruitment of Sub-Inspector of Police. A total of 682 posts were to be filled, out of which 517 were for direct recruitment. The selection process consisted of Certificate Verification, Physical Measurement Test, Endurance Test, Physical Efficiency Test, Written Test, and Viva-voce. After the completion of the Physical Efficiency Test, a Written Test was held on 20.05.2007. Based on the marks obtained in the Viva-voce and the Written Test, candidates were selected. Appointments were made from 20.12.2007 onwards. Several writ petitions were filed by unsuccessful candidates challenging the provisional selected list and seeking consideration based on special sport category and special quota. The High Court dismissed the writ petitions and the writ appeals filed by the petitioners were also dismissed by the Division Bench. Subsequently, the petitioners obtained particulars of the marks awarded, key answers, and copies of the answer sheets written by them through Right to Information Act applications. Upon receiving the information, the petitioners realized that marks had been wrongly awarded due to incorrect key answers. The Board admitted the mistakes and stated that the correct answers were different from those initially provided. The petitioners filed the present writ petitions seeking a writ of mandamus directing the respondents to include the marks wrongly awarded to them in view of the wrong key answers.
Finding of the Court:
The court found that there was an admission by the respondents about the mistakes committed in correcting the answer sheets on the basis of wrong key answers. The court also found that the petitioners were not aware of the awarding of the wrong marks earlier and that they came to know about the facts only in pursuance of the application made by them under the Right to Information Act. The court further found that the respondents had not verified the question paper or the key answers either before or after the examination, which constituted a serious lapse on their part.
Issues: 1. Whether the court can exercise its power under Article 226 of the Constitution of India to direct the respondents to award marks to the petitioners who answered correctly but were given wrong marks due to incorrect key answers? 2. Whether the petitioners are entitled to relief despite the delay in approaching the court and the contention of constructive res judicata? 3. Whether the respondents can take advantage of their own wrong and contend that the writ petitions are liable to be dismissed for delay, constructive res judicata, laches, and non-joinder of necessary parties?
Ratio Decidendi: 1. The court held that it has the power under Article 226 of the Constitution of India to direct the respondents to award marks to the petitioners who answered correctly but were given wrong marks due to incorrect key answers. The court relied on several judgments of the Supreme Court and various High Courts which have held that when there is a patent error, illegality, or total arbitrariness on the part of the respondents, the court can exercise its power under Article 226 to ensure justice. 2. The court held that the petitioners are entitled to relief despite the delay in approaching the court and the contention of constructive res judicata. The court found that the petitioners had suitably explained the delay in approaching the court and that the question of constructive res judicata did not arise as the issue raised in the present writ petitions had not been specifically raised and considered earlier. 3. The court held that the respondents cannot take advantage of their own wrong and contend that the writ petitions are liable to be dismissed for delay, constructive res judicata, laches, and non-joinder of necessary parties. The court observed that the respondents had committed a mistake affecting the valuable rights of the non-selected candidates and that they cannot be allowed to take advantage of the same on a technical plea.
Final Decision: The court allowed the writ petitions and directed the respondents to prepare a list of all the unselected candidates who had answered the questions correctly and grant marks accordingly. The court also directed the respondents to conduct a Viva-voce Test for those candidates who come within the cut-off marks in pursuance of the granting of higher marks in the written examination. The court further directed the respondents to take into consideration the marks obtained in the interview for those unsuccessful candidates who had already attended the interview and who would be getting additional marks. The court also directed the respondents to consider the candidates who would become eligible to be selected in view of the directions of the 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. The court also directed the respondents to publish the results within a period of three months from the date of receipt of a copy of the order.
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
