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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2525-2516 OF 2013 (Arising out of S.L.P. (C) Nos.5752-53 of 2008

Rajesh Kumar & Ors. etc. …Appellants

Versus

State of Bihar & Ors. etc. …Respondents

With

CIVIL APPEAL NO. 2517 OF 2013 (Arising out of SLP (C) No.6456 of 2008)

Abhishek Kumar & Ors. …Appellants

Versus

State of Bihar & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. Application of an erroneous “Model Answer Key” for evaluation  

of  answer  scripts  of  candidates  appearing  in  a  competitive  

examination is bound to lead to erroneous results and an equally  

erroneous inter-se merit list of such candidates. That is precisely  

what appears to have happened in the present appeals which arise  

out of a common judgment delivered by the High Court of Judicature  

at  Patna  whereby  the  High  Court  has  directed  the  Bihar  Staff  

Selection Commission to conduct a fresh examination and re-draw the  

merit list on that basis. For those who have already been appointed  

on the basis of the earlier examination, a fresh examination has  

been directed by the High Court before they are finally ousted from  

the  posts  held  by  them.  The  appellants  who  happen  to  be  the  

beneficiaries  of the  erroneous evaluation  of the  answer scripts  

have assailed the order passed by the High Court in these appeals

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which arise in the following backdrop:

3. By an advertisement dated 14th August 2006, applications were  

invited by the Bihar State Staff Selection Commission from eligible  

candidates for appointment against 2268 posts of Junior Engineer  

(Civil) out of which 1057 posts were in the open merit category.  

The selection process, it appears, comprised a written objective  

type examination, held by the Staff Selection Commission who drew  

up  a  Select  List  of  210  successful  candidates  including  143  

appellants  in  these  appeals  based  on  the  performance  of  the  

candidates in the examination. The evaluation of the answer scripts  

was, however, assailed by 13 unsuccessful candidates, respondents 6  

to  18  in  these  appeals,  in  CWJC  No.885  of  2007.  The  writ  

petitioners  did  not  implead  the  selected  candidates  as  party  

respondents ostensibly because the petitioners prayed for a limited  

relief of a writ of mandamus to the Staff Selection Commission to  

produce the answer-sheets in the Court and to get the same re-

evaluated manually by an independent body.   

4. While the above writ petition was still pending, 35 candidates  

were appointed as Junior Engineers in Road Construction Department  

of the Government of Bihar while 144 others were appointed in Water  

Resources  Department.   Nine  of  the  selected  candidates  were  

appointed in the Public Health Engineering Department taking the  

total  number  of  those  appointed  to  188  out  of  210  candidates  

included in the merit list. Posting orders were also issued to all  

those appointed. Needless to say that since only 210 candidates had  

qualified  for  appointment  in  terms  of  the  relevant  Rules,  the  

selection  process  left  nearly  2080  posts  of  Junior  Engineers  

unfilled in the State.

5. In  the writ  petition filed  by the  aggrieved candidates,  a

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Single Judge of the High Court referred the “Model Answer Key” to  

experts.  The  model  answers  were  examined  by  two  experts,  Dr.  

(Prof.)  C.N.  Sinha,  and  Prof.  KSP  Singh,  associated  with  NIT,  

Patna, who found several such answers to be wrong.  In addition,  

two questions were also found to be wrong while two others were  

found to have been repeated.  Question No.100 was also found to be  

defective as the choices in the answer key were printed but only  

partially.  

6. Based on the report of the said two experts, a Single Judge of  

the High Court held that 41 model answers out of 100 were wrong.  

It was also held that two questions were wrong while two others  

were repeated. The Single Judge on that basis held that the entire  

examination was liable to be cancelled and so also the appointments  

made  on  the  basis  thereof.  Certain  further  and  consequential  

directions  were  also  issued  by  the  Single  Judge  asking  the  

Commission to identify and proceed against persons responsible for  

the errors in the question paper and the “Model Answer Key”.

7. Aggrieved by the order of the Single Judge, the appellants  

filed LPA No.70 of 2008 before the Division Bench of that High  

Court.  By the order impugned in these appeals, the High Court has  

partly allowed the appeal holding that model answers in respect of  

45 questions out of 100 were wrong. The Division Bench modified the  

order passed by the learned Single Judge and declared that the  

entire examination need not be cancelled as there was no allegation  

of  any  corrupt  motive  or  malpractice  in  regard  to  the  other  

question  papers. A  fresh examination  in Civil  Engineering Paper  

only was, according to the Division Bench, sufficient to rectify  

the defect and prevent injustice to any candidate. The Division  

Bench further held that while those appointed on the basis of the

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impugned selection shall be allowed to continue until publication  

of the fresh result, anyone of them who failed to make the grade on  

the  basis  of  the  fresh  examination  shall  be  given  a  chance  to  

appear  in  another  examination  to  be  conducted  by  the  Staff  

Selection Commission. The present appeals assail the correctness of  

the said judgment and order of the High Court as already noticed  

earlier.

8. It is noteworthy that while the challenge to the selection  

process referred to above was still pending before the High Court,  

a fresh selection process was initiated to fill up the available  

vacancies in which those eligible appeared for a written test on  

29th July 2007. This test was held pursuant to advertisement No.1906  

of 2006 issued on 29th November 2006.  The result of the examination  

was,  however,  stayed  by  the  High  Court  while  disposing  of  the  

appeal filed before it with a direction to the effect that the same  

shall be declared only after selection in pursuance of the first  

examination was completed. With the filing of the present appeals  

the restraint order against the declaration of the result pursuant  

to the second advertisement was vacated by this Court by an order  

dated 30th August 2011 with a direction that those qualified shall  

be  given  appointments  without  prejudice  to  the  rights  of  the  

appellants and subject to the outcome of these appeals.   

9. It is common ground that pursuant to the above direction, a  

list of 392 selected candidates was sent to the State Government by  

the Staff Selection Commission for issuing appointment orders in  

their favour. What is significant is that the writ petitioners,  

respondents 6 to 18 in these appeals were also declared successful  

in the second selection and included in the list of 392 successful  

candidates.  That  six  out  of  the  said  respondents  have  been

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appointed  while  the  remaining  have  not  chosen  to  join  is  also  

admitted.  They have apparently found better avenues of employment.  

10. When the matter came up before us on 2nd July 2012, it was  

argued on behalf of the writ petitioners – respondents 6 to 18 by  

Mr. Gaurav Agrawal that they have no objection to the continuance  

in  office  of  the  appellants  in  these  appeals  subject  to  the  

condition that the answer scripts of the writ petitioners are re-

evaluated with the help of a correct answer key and if they are  

found to have made the grade, the benefit of appointment earned by  

them in terms of the 2nd selection process related back to the date  

when  the  appellants  in  these  appeals  were  first  appointed,  and  

their  seniority  determined  according  to  their  placement  in  the  

merit list. It was in that background that we directed an affidavit  

to be filed by the Government of Bihar whether it was agreeable to  

the re-evaluation of the answer scripts of respondents 6 to 18 on  

the basis of a correct key and their placement in the merit list  

depending upon the inter-se merit of the candidates.  The Staff  

Selection Commission was also similarly directed to respond to the  

proposal made by the writ petitioners – respondents 6 to 18 and  

file an affidavit.   

11. An affidavit has, pursuant to the above directions, been filed  

by the Commission as also by the Chief Secretary of the Government  

of  Bihar  in  which  the  Staff  Selection  Commission  as  also  the  

Government  appear  to  be  opposing  the  prayer  made  by  the  writ  

petitioners  for  re-evaluation  of  their  answer  scripts  for  the  

purpose of re-casting of the merit list which will eventually be  

the  basis  for  their  inter-se  seniority  also.   The  affidavits  

primarily do so on the premise that any re-evaluation limited to  

the answer scripts of respondents 6 to 18, writ petitioners before

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the High Court would lead to multiplicity of legal proceedings as  

similar requests for re-evaluation are bound to be made by other  

candidates who may also have been similarly prejudiced on account  

of the use of erroneous “Model Answer Key”.

12. We have in the above backdrop heard learned counsel for the  

parties  at  some  length  who  have  taken  us  through  the  impugned  

orders and other material placed on record.  Appearing for the  

appellants, Mr. P.P. Rao, learned senior counsel, argued that the  

High Court had committed an error in quashing the entire selection  

process even when the petitioners had not made any prayer to that  

effect.  Mr. Rao was at pains to argue that a relief which was not  

even prayed for by the writ petitioners could not be granted by the  

Court whatever may have been the compulsion of equity, justice and  

good conscience. Reliance in support of that proposition was placed  

by him upon  Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234  

and  State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC 436.  

There is, in our view, no merit in that contention. The reasons are  

not far to seek. It is true that the writ petitioners had not  

impleaded the selected candidates as party respondents to the case.  

But it is wholly incorrect to say that the relief prayed for by the  

petitioners could not be granted to them simply because there was  

no prayer for the same.  The writ petitioners, it is evident, on a  

plain reading of the writ petition questioned not only the process  

of  evaluation  of  the  answer  scripts  by  the  Commission  but  

specifically averred that the “Model Answer Key” which formed the  

basis for such evaluation was erroneous. One of the questions that,  

therefore, fell for consideration by the High Court directly was  

whether the “Model Answer Key” was correct. The High Court had  

aptly  referred  that  question  to  experts  in  the  field  who,  as

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already noticed above, found the “Model Answer Key” to be erroneous  

in  regard  to  as  many  as  45  questions  out  of  a  total  of  100  

questions contained in ‘A’ series question paper. Other errors were  

also found to which we have referred earlier. If the key which was  

used  for  evaluating  the  answer  sheets  was  itself  defective  the  

result prepared on the basis of the same could be no different.  

The  Division  Bench  of  the  High  Court  was,  therefore,  perfectly  

justified in holding that the result of the examination in so far  

as the same pertained to ‘A’ series question paper was vitiated.  

This was bound to affect the result of the entire examination qua  

every candidate whether or not he was a party to the proceedings.  

It also goes without saying that if the result was vitiated by the  

application  of  a  wrong  key,  any  appointment  made  on  the  basis  

thereof would also be rendered unsustainable. The High Court was,  

in that view, entitled to mould the relief prayed for in the writ  

petition  and  issue  directions  considered  necessary  not  only  to  

maintain the purity of the selection process but also to ensure  

that no candidate earned an undeserved advantage over others by  

application of an erroneous key.   

13. The decisions of this Court in  Bharat Amritlal Kothari v.  

Dosukhan (2010) 1 SCC 234  and  State of Orissa & anr. v. Mamata  

Mohanty  (2011)  3  SCC  436, relied  upon  by  Mr.  Rao  are  clearly  

distinguishable.  The  power  of  the  Court  to  mould  the  relief,  

according to the demands of the situation, was never the subject  

matter of dispute in those cases.   That power is well-recognised  

and is available to a writ Court to do complete justice between the  

parties.  The first limb of the argument advanced by Mr. Rao fails  

and is accordingly rejected.

14. Mr. Rao next argued that even if the result of the first

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selection  process  was  vitiated  by  the  use  of  erroneous  “Model  

Answer  Key”  the  Court  had  the  option  of  either  directing  re-

evaluation of the answer scripts on the basis of a correct key or a  

fresh  examination.   Out  of  the  two  options  the  former  was,  

according to Mr. Rao, better and ought to have served the purpose  

by not only saving considerable time but money and effort also. He  

urged that the Court could have removed the traces of any injustice  

or distortions in the selection process by directing re-evaluation  

of the answer scripts which would not only present the true picture  

of the merit of the candidates concerned but prevent any further  

litigation or prejudice to candidates on account of long lapse of  

time.   

15. Appearing for respondents 6 to 18 Mr. Agrawal submitted that  

he had no objection to the order of the High Court being modified  

so  as  to  replace  “a  fresh  examination”  by  “revaluation  of  the  

answer scripts” on the basis of a correct key.  Counsel for the  

Staff Selection Commission also submitted, on instructions, that  

the answer scripts had been preserved and could be subjected to a  

fresh evaluation.  Learned counsel for the parties were further  

agreeable to the key as proposed by Dr. (Prof.) C.N. Sinha and  

Prof. KSP Singh of NIT, Patna forming the basis of any such re-

evaluation  by  a  suitable  modification  and  deletion  of  question  

Nos.6 and 46 which were found to be absurd and question No.34 and  

63 which were repeated as Nos.74 and 93. They further agreed to the  

deletion of question No.100 the answer to which was not correctly  

printed.

16. The submissions made by Mr. Rao are not without merit.  Given  

the nature of the defect in the answer key the most natural and  

logical way of correcting the evaluation of the scripts was to

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correct the key and get the answer scripts re-evaluated on the  

basis  thereof.   There  was,  in  the  circumstances,  no  compelling  

reason  for  directing  a  fresh  examination  to  be  held  by  the  

Commission  especially  when  there  was  no  allegation  about  any  

malpractice, fraud or corrupt motives that could possibly vitiate  

the  earlier  examination  to  call  for  a  fresh  attempt  by  all  

concerned. The process of re-evaluation of the answer scripts with  

reference to the correct key will in addition be less expensive  

apart  from  being  quicker.  The  process  would  also  not  give  any  

unfair advantage to anyone of the candidates on account of the time  

lag between the examination earlier held and the one that may have  

been held pursuant to the direction of the High Court.  Suffice it  

to say that the re-evaluation was and is a better option, in the  

facts and circumstances of the case.

17. That brings us to the submission by Mr. Rao that while re-

evaluation is a good option not only to do justice to those who may  

have suffered on account of an erroneous key being applied to the  

process but also to writ petitioners-respondents 6 to 18 in the  

matter of allocating to them their rightful place in the merit  

list. Such evaluation need not necessarily result in the ouster of  

the appellants should they be found to fall below the ‘cut off’  

mark in the merit list. Mr. Rao gave two reasons in support of that  

submission.  Firstly,  he  contended  that  the  appellants  are  not  

responsible for the error committed by the parties in the matter of  

evaluation  of  the  answer  scripts.   The  position  may  have  been  

different  if  the  appellants  were  guilty  of  any  fraud,  

misrepresentation or malpractice that would have deprived them of  

any sympathy from the Court or justified their ouster. Secondly, he  

contended that the appellants have served the State efficiently and

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without any complaint for nearly seven years now and most of them,  

if not all, may have become overage for fresh recruitment within  

the  State  or  outside  the  State.   They  have  also  lost  the  

opportunity to appear in the subsequent examination held in the  

year 2007.  Their ouster from service after their employment on the  

basis of a properly conducted competitive examination not itself  

affected by any malpractice or other extraneous consideration or  

misrepresentation   will  cause  hardship  to  them  and  ruin  their  

careers and lives. The experience gained by these appellants over  

the years would also, according to Mr. Rao, go waste as the State  

will not have the advantage of using valuable human resource which  

was found useful in the service of the people of the State of Bihar  

for  a  long  time.   Mr.  Rao,  therefore,  prayed  for  a  suitable  

direction  that  while  re-evaluation  can  determine  the  inter-se  

position  of  the  writ  petitioners  and  the  appellants  in  these  

appeals, the result of such re-evaluation may not lead to their  

ouster from service, if they fell below the cut off line.   

18. There is considerable merit in the submission of Mr. Rao. It  

goes without saying that the appellants were innocent parties who  

have not, in any manner, contributed to the preparation of the  

erroneous key or the distorted result. There is no mention of any  

fraud or malpractice against the appellants who have served the  

State  for  nearly  seven  years  now.  In  the  circumstances,  while  

inter-se merit position may be relevant for the appellants, the  

ouster  of  the  latter  need  not  be  an  inevitable  and  inexorable  

consequence of such a re-evaluation. The re-evaluation process may  

additionally benefit those who have lost the hope of an appointment  

on  the  basis  of  a  wrong  key  applied  for  evaluating  the  answer  

scripts.  Such of those candidates as may be ultimately found to be

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entitled to issue of appointment letters on the basis of their  

merit shall benefit by such re-evaluation and shall pick up their  

appointments on that basis according to their inter se position on  

the merit list.  

19. In the result, we allow these appeals, set aside the order  

passed by the High Court and direct that -

(1) answer scripts of candidates appearing in 'A' series of  

competition examination held pursuant to advertisement No.  

1406 of 2006 shall be got re-evaluated on the basis of a  

correct key prepared on the basis of the report of Dr.  

(Prof.) CN Sinha and Prof. KSP Singh and the observations  

made in the body of this order and a fresh merit list  

drawn up on that basis.  

(2) Candidates who figure in the merit list but have not been  

appointed shall be offered appointments in their favour.  

Such candidates would earn their seniority from the date  

the  appellants were  first appointed  in accordance  with  

their merit position but without any back wages or other  

benefit whatsoever.

(3) In  case  writ  petitioners-respondent  nos.  6  to  18  also  

figure in the merit list after re-evaluation of the answer  

scripts, their appointments shall relate back to the date  

when the appellants were first appointed with continuity  

of service to them for purpose of seniority but without  

any back wages or other incidental benefits.  

(4) Such of the appellants as do not make the grade after re-

evaluation shall not be ousted from service, but shall  

figure at the bottom of the list of selected candidates  

based on the first selection in terms of advertisement

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No.1406 of 2006 and the second selection held pursuant to  

advertisement No.1906 of 2006.   

(5) Needful shall be done by the respondents – State and the  

Staff  Selection  Commission  expeditiously  but  not  later  

than three months from the date a copy of this order is  

made available to them.  

20. Parties are directed to bear their own costs.  

   …........………..……J.     (T.S. THAKUR)

...…......…………..……J. (GYAN SUDHA MISRA)  

New Delhi March 13, 2013