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NON-REPORTABLE

     IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4128       OF 2012 (Arising out of SLP(C) No. 31804 of 2010).

Poonam Rani @ Poonam … Appellant

Versus

State of Haryana and another                     … Respondents

J U D G M E N T

G.S. SINGHVI,  J.

1. Leave granted.

2. Whether  the  Haryana  Staff  Selection  Commission  (for  short,  ‘the  

Commission’)  could  destroy  the  answer  sheets/papers  of  the  written  

examination  in  violation  of  the  policy  decision  taken  vide  resolution  dated  

1.10.1994 and whether the High Court committed an error by dismissing the  

writ  petition  filed  by  the  appellant  questioning  the  selection  made  by  the  

Commission for recruitment of Lecturers in Hindi (Education Department) are

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the questions which arise for consideration in this appeal filed against judgment  

dated 29.6.2010 of the Division Bench of the Punjab and Haryana High Court.

3. In response to an advertisement issued by the Commission on 20.7.2006,  

the Appellant,  who belongs to Scheduled Caste (SC) applied for the post of  

Lecturer  in  Hindi.  At  that  time,  she  was  having the  qualifications  of  M.A.  

(Hindi),  M.Phil.  (Hindi)  and  Ph.D.  in  Hindi.  She  appeared  in  written  

examination conducted by the Commission, the result whereof was declared on  

21.6.2008. She was interviewed along with other candidates who had cleared  

the written examination. The result of the selection was notified on 14.10.2008.  

The appellant’s name did not figure in the list of the successful candidates.  

4. Immediately after declaration of  the result  of written examination,  the  

appellant  submitted  an  application to  the Commission  through her  advocate  

under the Right to Information Act, 2005 (for short, ‘the Act’) for supply of the  

details of the marks secured by the female candidates belonging to Scheduled  

Caste, who had qualified the written examination. She repeated this request vide  

letter dated 28.7.2008. After three days the State Public Information Officer  

sent communication dated 31.7.2008 to the appellant’s advocate informing her  

that the marks of the candidates cannot be disclosed because final result of the  

selection  was  yet  to  be  declared.   The appellant  filed  an  appeal  before  the  

Information Commissioner, Haryana, who advised her to file an appeal before  

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the 1st Appellate Authority-cum-Secretary of the Commission.  Thereupon, the  

appellant filed an appeal through her advocate, but the same was not decided.  

She then filed CWP No. 18946 of 2008 in the Punjab and Haryana High Court,  

which was disposed of by the learned Single Judge on 5.11.2008 and a direction  

was given to the Secretary of the Commission to decide the writ petition by  

treating it  to  be  a  representation  and pass  a  speaking order.  Thereafter,  the  

Secretary of  the Commission passed order dated 5.12.2008 and rejected the  

appellant’s representation on the ground that she had secured 117 marks out of  

225 as against 119 marks secured by the last selected candidate of Scheduled  

Caste female category.  

5. The appellant challenged the rejection of representation in CWP No. 136  

of 2009 and prayed that the selection made by the Commission may be quashed  

and a direction be issued to the respondents to appoint her as Lecturer in Hindi  

against one of the posts reserved for Scheduled Caste (Female). The learned  

Single  Judge  took  cognizance  of  the  statement  contained  in  the  additional  

affidavit  dated 18/23.9.2009 filed on behalf  of  the Commission that  answer  

sheets  of  the  written  examination had been destroyed and observed that  no  

mandamus can be issued for the appellant’s appointment because the marks of  

the written examination are available in the result sheet and she had not secured  

marks sufficient for her inclusion in the select list and no malafides had been  

alleged against the functionaries of the Commission. The Division Bench of the  

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High  Court  dismissed  the  Letters  Patent  Appeal  by  reiterating  the  reasons  

assigned by the learned Single Judge.

6. Before  this  Court,  Shri  P.D.  Verma,  Secretary,  the  Commission  filed  

affidavit dated 20.1.2011, the relevant portion of which is extracted below:  

“REPLY ON MERITS”  

“2.  That  no  question  of  law  is  involved  in  the  present  writ  petition  which  requires  adjudication  by  this  Hon’ble  Apex  Court.  It  is  respectfully  submitted  that  the  Respondent- Commission vide Advt. No.6/2006, Cat. No. 6 advertised 251  posts,  out  of  which  17  posts  were  meant  for  SC  (Female)  category  and  after  holding  written  test  and  interview as  per  published  criteria,  the  Respondent-Commission  finalized  the  selection and declared the result on 14.10.2008 (Annexure P- 11). The petitioner belongs to SC (Female) category and she  obtained 117 marks  (written test=94 and 23 in  interview) as  against  119 marks of  last  selected candidate  in her  category.  Therefore,  due to lesser  marks the petitioner could not make  grade in the main selection list. Furthermore, the petitioner has  appeared in  the  interview and as  per  well  settled  law of  the  Hon’ble  Supreme  Court  reported  as  2002  (3)  RSJ  507  SC  Chander  Parkash  Tiwari  Vs.  Shakuntala  Shukla,  and  this  Hon’ble Court reported as Devki Nandan Sharma Vs. State of  Haryana & ors., 2002(I) RSJ 64, if a candidate appears at the  interview and participate therein then only because the result of  the interview is not palatable to him, he cannot turn round and  subsequently contend that the process of interview was unfair  or there was some lacuna in the process. It is further submitted  that in CWP No. 136 of 2009 the petitioner had prayed before  the Hon’ble High Court to show his answer sheet for the written  examination held for the said post. It is respectfully submitted  that in reply to Para No. 3 of the writ petition the deponent has  already stated  that  the  result  of  the written  examination  was  declared on 20.6.2008 and that the answer sheet pertaining to  said examination was destroyed on 25.10.2008 and at that time  

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no writ petition on the subject was pending in the Hon’ble High  Court. It is further submitted that in view of the judgments of  the Hon’ble Supreme Court in the case of Maharashtra State  Board  of  Secondary  and  Higher  Education  Vs.  Paritosh  Bhupeshkumar  Sheth  &  anr.  (AIR  1984  SC  1543)  and  President,  Board  of  Secondary  Education,  Orissa  Vs.  D.Suvankar (Civil  Appeal  No. 4926 of 2006-Judgment  dated  14.11.2006), the disclosures of evaluated answer sheets cannot  be  made  to  the  petitioner.  However,  it  is  submitted  that  the  marks of the written examination of the candidates including  the petitioner are kept in the result sheet. Furthermore, while  declaring the result of the written examination the unsuccessful  candidates are given the liberty to apply within one month for  knowing their marks in the written examination and thereafter  within one month the Commission conveys the marks to such  candidates. Therefore, the petitioner has no legal right to have  access to the answer sheet as per well settled law of the Hon’ble  Apex Court. It is further submitted that the final result for the  post  of  Lecturer  Hindi  was  declared  on  13.10.2008  by  the  Respondent-Commission  and  rest  of  the  selection  record  (except answer sheets) such as Member sheet, Advisor Sheet,  attendance sheet and application forms were destroyed by the  Commission on 30.5.2009 in view of judgment of the Hon’ble  Apex Court in Prit Pal case AIR 1995 SC 414 and Commission  resolution  dated  27.7.1992  read  with  resolution  dated  1.10.1994.  The  Hon’ble  High  Court  in  the  impugned  order  dated 29.6.2010 in LPA No. 1390 of 2010 has rightly held that  before  the  learned  Single  Judge  it  was  successfully  demonstrated by the Respondent-Commission that there was no  malafide in destroying the answer sheets and the same has been  done as per rules/resolution passed by the Commission and also  in  terms  of  judgments  of  the  Hon’ble  Supreme  Court.  Therefore, in the present SLP, no cause of action subsists to the  petitioner.”

7. During the pendency of the special leave petition, an application dated  

14.3.2012  was  filed  on  behalf  of  the  Commission  for  placing  on  record  

additional facts and xerox copy of OMR Sheet marked Annexure R-A/1 to show  

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that the appellant had secured 94 marks in the written examination. Paragraph  

12 of the application, which is supported by an affidavit of Shri P.D. Verma,  

reads as under:

“12. That at the cost of repetition, it is humbly stated here that  there was no mala-fide on part of the respondents in destroying  the answer sheets etc. of the written test.  As per Resolution of  the  Commission  dated  27.7.1992  the  answer  sheets  record  (except written examination, result, award list, key book) will  be destroyed after six months of the declaration of the written  test  result  and as per  Resolution  dated 1.10.1994 the answer  paper  i.e.  Answer  sheets  (except  written  examination,  result,  award list, key book) will be destroyed after 3 months from the  date  of  declaration  of  the  result  of  selection.  It  appears  and  rightly so that there was some bona-fide mistake on part of the  concerned  officer/staff  of  the  respondent  in  interpreting  the  Resolutions of the Commission with respect to destroying the  records of the written test and result etc., especially after the  amendment of 1.10.1994.”

(Underlining is ours)

8. The arguments in the case were heard on 13.4.2012 and the matter was  

adjourned with a direction that on the next date of hearing, the Secretary of the  

Commission shall appear along with the relevant records and the file containing  

the resolutions passed by the Commission on the issue of destruction of the  

records of the examinations. On the next date of hearing, i.e., 20.4.2012, Shri  

P.D. Verma, Secretary of the Commission appeared and produced the file in  

which  various  decisions  were  taken  to  destroy  the  records  of  different  

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examinations  including  the  examination  held  in  2008  for  recruitment  of  

Lecturers in Hindi.    

9.  Shri V. K. Jhanji, learned senior counsel for the appellant argued that the  

decision taken by the Commission to destroy the answer sheets of the written  

examination is ex-facie contrary to Resolutions dated 27.7.1992 and 1.10.1994  

and,  this  by  itself,  is  sufficient  to  draw  an  inference  that  the  concerned  

functionaries  of  the  Commission  had  acted  with  ulterior  motive  to  deprive  

meritorious candidates like the appellant of their legitimate right to be appointed  

against  the  advertised  posts.  Learned  senior  counsel  pointed  out  that  

immediately after declaration of the result of written examination, the appellant  

had made a request for supply of the details of the marks secured by the female  

candidates  belonging  to  Scheduled  Caste  category  but  the  Commission  

stubbornly refused to accept her request and the relevant records were destroyed  

within few days of declaration of the result of selection which comprised of  

written test and interview. Shri Jhanji emphasised that the exercise undertaken  

by the functionaries  of  the Commission  to  destroy the relevant  records was  

intended to frustrate any possibility of judicial scrutiny of the answer scripts.  

Learned senior counsel submitted that if the answer scripts has been preserved,  

the  appellant  could have  demonstrated  that  the  same had not  been properly  

evaluated or that the marks had not been properly calculated or transposed in  

the result sheet but she was deprived of this opportunity on account of wholly  

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arbitrary and illegal action taken by the officers / officials of the Commission to  

destroy the answer  sheets  /  papers.   Learned senior  counsel  relied upon the  

judgment of this Court in Pritpal Singh v. State of Haryana (1994) 5 SCC 695  

and argued that the High Court committed grave error by refusing to entertain  

the  appellant’s  prayer  for  issue  of  a  mandamus  to  appoint  her  only  on  the  

ground that the relevant records had been destroyed by the Commission.

10. Shri Kamal Mohan Gupta, learned counsel for the Commission supported  

the impugned order and argued that in the absence of any allegation of malice in  

fact, the Court cannot make a detailed probe into the assessment of the answer  

scripts  or  calculation  of  marks  and  issue  mandamus  for  the  appellant’s  

appointment.

11. We have considered the respective submissions and are satisfied that the  

learned Single  Judge  and the  Division Bench  of  the  High Court  committed  

serious error by non-suiting the appellant.  In Pritpal Singh v. State of Haryana  

(supra), this Court considered the question whether the selection made by the  

Commission  which  was  then  known  as  the  Haryana  Subordinate  Services  

Selection Board for the appointment of 40 Assistant Sub-Inspectors of Police  

was vitiated due to manipulations and fraud.  The Court noted that in garb of  

implementing the resolution passed by the Board to create space, the answer  

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papers of the written examinations were destroyed even before the result of the  

selection was declared and proceeded to observe:  

“The  answer  papers  having  been  destroyed,  it  becomes  impossible to ascertain what marks each candidate had secured  from  the  examiners  upon  the  answer  papers  themselves.  Ordinarily, the examiners would have themselves tabulated the  marks given by them against the serial numbers or names of  the candidates whose answer papers they had examined. No  such tabulation has been produced by the Board. There were  four written papers. The Board would, in any event, have had  to tabulate the marks obtained by each candidate in each of the  four  papers  and  aggregate  the  same  for  the  purposes  of  ascertaining  which  of  the  candidates  had  obtained  the  qualifying  marks  or  more.  No  such  tabulation  has  been  produced  by  the  Board.  The  resolution  of  the  Board  authorising payment to the examiners shows that there were 13  of  them.  There  were  four  written  papers.  In  each  subject,  therefore, there were more than one examiner and the answer  papers  of  the  candidates  were  distributed  amongst  them.  Ordinarily, there would be a moderation of the marks given by  two or more examiners in the same subject so as to ensure that  one had not been too strict and other too lenient. No papers in  this behalf have been produced by the Board.

From the record produced by the Board it appears that very  large sheets  of  paper  with the names of  the candidates  and  their qualifications, etc., typed thereon were placed before the  members  of  the  Board  who  interviewed  them.  Upon  these  sheets of paper there are large blanks, in that no notation has  been made with regard to many candidates one after the other  in serial order. Such notations as there are in pencil and they  do not always indicate how the candidates had fared. Along  with these very large sheets of paper there is a small strip of  paper relating to the only candidate who, for some reason, was  interviewed on 3-9-1989. This strip of paper shows the final  assessment  of  the  candidate  at  the  interview.  There  is  no  corresponding tabulation produced in respect of the candidates  who  appeared  on  the  earlier  dates  of  interviews.  In  other  

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words,  there  is  no tabulation of  the final  marks awarded to  these candidates at the interview.”

12. The Court  further  held that  the selection  made by the Board was not  

objective and fair and deserves to be quashed.  While doing so, the Court gave  

the following direction:

“The Board is  directed to  preserve  the  answer  papers  of  the  candidates and the tabulations of marks made by the examiners  for at least three months after the declaration of the results of  the selection. All records of the Board itself pertaining to the  selection  shall  be  maintained  in  files  or  registers  chronologically  and  these  shall  also  be  preserved  for  the  aforesaid period.”

13. In view of the direction contained in the aforesaid judgment, the Board  

passed Resolution dated 1.10.1994, the relevant portions of which are extracted  

below:

“In view of the Hon'ble High Court order passed on 10-9-90 in  C.W.P. No. 7748 of 1990 Suresh Kumar Taneja v/s State of  Haryana & others the Board laid down the policy (vide the  resolution  dated  27-7-1992)  to  be  adopted  in  future  for  destroying the old record.

In view of the orders passed by the Hon'ble Supreme Court of  India dated 27-7-1994 in SLP No.7798-807/92(Civil  Appeal  No.5027-36  of  1994  Prit  Pal  Singh  &  other  v/s  State  of  Haryana)  the  Board  resolves  to  modify  part  (ii)  of  the  resolution dated 27-7-1992 to the extent that the answer papers  i.e., Answer Sheets( except Written Examination result, Award  List, Key Book) will be destroyed after three months from the  date of declaration of the result of the selection”

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14. At this stage, it will be useful to notice the contents of statement dated  

12.1.2007  filed  by  the  Ist  Appellate  Authority-cum-Secretary  of  the  

Commission before the Chief Information Commissioner, Haryana in Appeal  

Nos.1118  & 1119/2006  titled  Satish  Kumar  v.  Secretary/Public  Information  

Officer, Haryana Staff Commission, Panchkula. The same reads as under:

“That the present appeal came up for hearing before Hon'ble  Commission on 10-1-2007 and Hon'ble Commission directed  the Secretary, Haryana Staff Selection Commission to apprise  the commission with regard to destruction of the record relating  to  examination  conducted  by  the  Haryana  Staff  Selection  Commission.

In this connection it is respectfully submitted that in view of the order passed by the Hon'ble Supreme Court of India dated 27-7- 1994 in S.LP No 7798-807/92 (Civil Appeal No.5027-36 of 94  Prit Pal Singh & others Vs State of Haryana and in accordance  with the resolution dated 27-2-1992 read with resolution dated  1-10-1994 the answer papers i.e., Answer sheet (Except written  examination  Result,  Award  Lists,  Key  Book)  are  destroyed  after three months from the date of declaration of the result of  selection (copy of the resolution dated 1-10-1994 is enclosed) .  This practice is being followed regularly and uniformly, it  is  however  submitted  that  in  case  the  court  case  is  pending  relating to the particular examination, challenging the validity  of the examination,  in that  event the Answer sheets  are kept  preserved by the commission till the final decision of the writ  petition.  Further more there is no provision for re-evaluation of  OMR sheet in the examination conducted by the Haryana staff  selection Commission.  

Pursuant to the above resolution of the commission and in view  of the fact  that  no court  case  challenging the validity of  the  present examinations were pending, the Haryana Staff Selection  Commission decided to destroy the OMR sheets of the present  and  other  examination  after  three  months  from  the  date  of  declaration of results and accordingly same were destroyed on  30-10-2006.”     

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15. The record produced by learned counsel for the Commission shows that  

on 17.10.2008 (the figure 10 has been interpolated) a note was submitted by the  

staff for destruction of the records of the written examinations held for various  

Group  ‘B’  and  Group  ‘C’  posts  including  the  post  of  Lecturer  in  Hindi  

(Education  Department).  The  Secretary  and  other  functionaries  of  the  

Commission accorded their approval on 24.10.2008. The prefatory portion of  

noting dated 17.10.2008 is extracted below:  

“Subject:  -  Destruction  of  Record  pertaining  to  various  categories of Group “B” and Group “C” posts.

----

It is submitted that record of various categories of posts  of  Group  “B”  and  Group  “C”  where  the  result  of  Written  Examination has been declared more than three months ago and  some other categories of Group “B” and Group “C” where only  interviews were conducted and the result of such categories has  been declared more than six months ago, has occupied a large  space in record rooms of Confidential Branch which is required  to  be  destroyed  so  as  to  make  space  for  keeping  record  pertaining  to  other  categories  of  posts  where  interviews  are  being conducted by the Commission. The detail of such record  which is to be destroyed is given as under:”

However,  the  member  sheet/advisor  sheet/attendance  sheet  and  application  

forms of the examination held in 2008 were destroyed pursuant to the decision  

taken sometime in February, 2010.

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16. The affidavit filed by the Secretary of the Commission before this Court  

clearly shows that within few days of declaration of the result of the selection,  

the  officers  of  the  Commission  destroyed  the  answer  sheets  of  the  written  

examination  held  in  June,  2008.  This  was  done  in  blatant  violation  of  

Resolution  dated  1.10.1994,  in  terms  of  which  the  answer  sheets  could  be  

destroyed after three months from the date of declaration of the result of the  

selection.  The  statement  contained  in  paragraph  12  of  application  dated  

14.3.2012 filed on behalf of the Commission is reflective of the casualness with  

which the officers of the Commission have treated the issue of destruction of  

the  most  important  record,  i.e.,  the  answer  sheets  of  the  candidates  which  

constituted  foundation  of  the  final  selection.   The  explanation  given by the  

Secretary for not preserving the answer sheets for three months is frivolous and  

wholly unacceptable because it is neither the pleaded case of the Commission  

nor the counsel appearing on its behalf argued that the concerned officers were  

not aware of Resolution dated 1.10.1994.  Therefore, the action of the officers  

of  the  Commission  to  destroy  the  record  cannot  but  be  termed  as  wholly  

arbitrary and unjustified. The sole object of this exercise appears to be to ensure  

that in the event of challenge to the result of the selection, the Court may not be  

able to scrutinize the record for the purpose of finding out whether the selection  

was  fair  and  objective  or  the  candidates  had  been  subjected  to  invidious  

discrimination.  

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17. The learned Single Judge and the Division Bench of the High Court did  

not pay serious attention to the blatant violation of the resolutions passed by the  

Commission  on  the  issue  of  destruction  of  the  record  of  the  selection  and  

erroneously assumed that in the absence of allegations of malafides against the  

particular officials / officers of the Commission, the Court was not required to  

go into the legality of their action to destroy the answer sheets within few days  

of declaration of the result of the selection.

18. The OMR sheets produced for the first time before this Court cannot be  

relied  upon  for  recording  a  finding  that  the  assessment  of  the  candidates’  

performance  in  the  written  examination  was  transparent  and  fair.  If  the  

functionaries  of  the  Commission  were  confident  that  the  selection  was  not  

vitiated by any illegality, favouritism or nepotism then they should not have  

destroyed the answer sheets within few days of the declaration of the result of  

the selection.

19. The question which remains to be considered is as to what relief, if any,  

can be given to the appellant. Since the record of selection has been destroyed,  

it is not possible for this Court to consider and decide the appellant’s plea that  

the assessment of her performance in the written examination was vitiated due  

to arbitrariness and lack of objectivity. In this scenario, the only possible course  

could be to direct the Commission to conduct fresh written test and interview.  

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However, it will not be fair to confine the fresh selection to the appellant alone.  

The other unsuccessful candidates, who could not approach the High Court or  

this Court on account of ignorance or financial constraints cannot be deprived of  

their legitimate right to be again considered along with the appellant and any  

direction by the Court to consider the case of the appellant alone would result in  

the violation of the doctrine of equality.  

20. In the result, the appeal is allowed and the impugned judgment as also the  

order  passed by the  learned Single  Judge are  set  aside.  The Commission  is  

directed to hold fresh written test and interview for considering the candidature  

of  the  appellant  and  other  unsuccessful  candidates  after  giving  them  due  

intimation about  the date,  time and place  of  the  examination and interview.  

This exercise should be completed within a period of four months from the date  

of receipt/production of this order.  The candidates who are selected on the basis  

of the exercise undertaken pursuant to this direction shall become entitled to be  

appointed  against  the  vacancies  which  may  be  available  on  the  date  of  

finalisation of the selection.  The parties are left to bear their own costs.      

…..……….....……..….………………….…J.               [G.S. SINGHVI]

…………..………..….………………….…J.

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             [SUDHANSU JYOTI MUKHOPADHAYA] New Delhi, May 1, 2012.          

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