Civil Writ Petition No.136 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: October 22, 2009 Poonam Rani & Poonam ...Petitioner VERSUS State of Haryana & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.J.S.Saneta, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. The petitioner has filed this writ petition seeking direction for her appointment to the post of Lecturer in Hindi. The petition took a different turn when it came up for first hearing on 8.1.2009. Highlighting her previous brilliant academic record, the counsel for the petitioner pleaded that it is inconceivable that she had secured only 94 marks. The counsel pleaded that the petitioner suspects that either her paper has been changed or marks obtained by her have Civil Writ Petition No.136 of 2009 (O&M) : 2 : not been totalled correctly. He accordingly prayed for summoning the answer sheet of the petitioner to verify these facts. The court though did not see any justification for this but upon insistence by the counsel, summoned the answer sheet to verify the above facts on a condition that the petitioner would deposit Rs.10,000/- with the Registrar of this court. The amount was deposited and directions were issued to summon the answer sheet of the petitioner. On 22.1.2009, it was revealed that the papers were destroyed on 25.10.2008, i.e., after 11 days of the final result. This was on expiry of four months from the declaration of result of the written test. It was claimed that this was as per the rules. In support of his plea, the State counsel relied upon the decision in the case of Pritpal Singh Vs. State of Haryana, 1994 (5) SCC 695. Additional affidavit was also filed on 18/23.9.2009 to justify this destruction of the answer sheets. As per this affidavit, the date of declaration of the result of written examination in this case was 20.6.2008. The record was destroyed on 25.10.2008. As per this, answer sheets were destroyed after four months. Marks of the written examination are available in the result sheet. Final result was declared on 13.10.2008 and the record was destroyed on 30.5.2009. Thus, Member sheet, Adviser sheet, Attendance sheet and application forms have been destroyed after 7 months and 17 days. Reference is made to the case of Maharastra State Board of Secondary and Higher Education and another Vs. Paritosh Bhupeshkumar Sheth & anr. AIR 1984 SC 1543 and in Civil Appeal No.4926 of 2006 decided on 14.11.2006 to urge that disclosures of evaluated answer Civil Writ Petition No.136 of 2009 (O&M) : 3 : sheets cannot be made to the petitioner. It is accordingly pleaded that the petitioner would not have a legal right or an access to the answer sheet in view of the law laid down by the Hon'ble Supreme Court. When this case came up for hearing before the court on 10.8.2009, the counsel for the petitioner was requested to assist the court as to what could be done in a situation like this, when it is not possible to have access to answer sheets. Concededly, the answer sheets had been destroyed and so there was no way to provide these to the petitioner for inspection. Counsel for the petitioner in turn submitted that the court cannot be helpless in such a situation and pleaded that the entire selection should be set-aside. In support, the counsel referred to the case of Sunder Singh Vs. D.G.of Police and others, 1996 (3) S.C.T. 517, Krishan Yadav and another Vs. State of Haryana and others, 1994(3) S.C.T. 581. Reference is also made to Pritpal Singh's case (supra). I have considered the rival submissions made before me. It is first required to be seen if the answer sheets are being withheld from the court with any malice, motive or design. One may urge so if it is found or is shown that the answer sheets have been destroyed in violation of any rule or that these were destroyed when summoned. The respondents have placed on record material to show that as per the rules, they could destroy the answer sheets but have preserved the relevant documents indicating the assessment and the result of the candidates. The petitioner has not been able to show if the answer sheets have been destroyed in Civil Writ Petition No.136 of 2009 (O&M) : 4 : violation of any rule. Thus, the possibility of any motive or malice to destroy the answer sheets is neither alleged nor shown nor is made out. In this background, her right to have an access to the answer sheets may now need to be considered. Some relevant observations are made by the Hon'ble Supreme Court in this regard in the case of Maharastra State Board of Secondary and Higher Education (supra). Observations regarding right to see answer sheets have been made while testing the validity of Regulation 104 (3) of Maharashtra Secondary and Higher Secondary Education Boards Regulations in the light of the plea of violation of rules of natural justice. It is observed that the principle of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that the candidates who had taken a public examination should be allowed to participate in the process of evaluation of their performance or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners. Non-disclosure or disallowing a right of inspection of the answer books or denial of right to ask for a revaluation to examinees, who are dissatisfied with the result, certainly cannot be said to be such which will visit them with adverse civil consequences. In Union of India Vs. M.L.Capoor, AIR 1974 SC 87, it was held that it is not expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the Civil Writ Petition No.136 of 2009 (O&M) : 5 : twilight zone of mere expectations, however, great they might be. It is, thus, possible to view that the petitioner would not have any right to examine the answer sheets. In fact, the petitioner has not laid much basis even to seek checking of the answer sheets. Expect for expressing apprehension, no material has been placed before the court in this regard to seek inspection. It was only on account of insistence by the counsel, representing the petitioner, that direction was issued to produce the answer sheets. The answer sheets have statedly been destroyed in terms of the rule position. There is no allegation of malice either urged or coming out from the record so far as destruction of the answer sheets is concerned. The ratio of law as laid down in the case of Pritpal Singh (supra) was entirely in different context. In this case, there were serious allegations against the constitution, procedure and functioning of the Board. The answer sheets of the written examination in the said case were destroyed even before the result of selection had been declared. There was no tabulation of the final marks awarded to the candidates at the interview. The selection made by the Board was not objective and fair and so was quashed. This situation does not exist in the present case. The answer sheets here have been destroyed in terms of the rules and after the declaration of final result that too after the expiry of the period prescribed in the rules. The marks of the written examination are available in the result sheet, which was not so in the case of Pritpal Singh's case (supra). Ratio of law laid down in Sunder Singh's case (supra) again apparently would also not apply here. In this case, record was not produced despite direction of the court which Civil Writ Petition No.136 of 2009 (O&M) : 6 : was required to be preserved for five years. The plea was that the petitioner did not pass the examination as per the record and that record had been destroyed. It was, thus, found that record was deliberately destroyed or suppressed to hide the real facts. In the present case, the record has been destroyed in terms of the rules. Though in Krishan Yadav's case (supra) it was observed that the courts are not helpless and that law is not powerless in a case where records are destroyed and the whole selection was set-aside but it was not simply on the ground of destruction of record. The court had directed CBI investigation into the irregularities, fabrication of record and forgery made in the selection on the ministerial interference and for favouritism. These allegations were found to be correct. The fraud was at the instance of high ups. The appointees through such selection were held to have no right to hold the post. The entire selection was set aside. It was to meet the stand taken by the Government that the record of the selection has already been destroyed and that the Hon'ble Supreme Court had observed that the court is not powerless and the petition could not be dismissed merely for that reason. Such is not the situation in the instant case. The selection is even not under challenge or would get affected. Here the petitioner apprehends that her assessment has not been proper. Merely because the petitioner apprehends that her answer sheets were changed would not be a ground to interfere in the entire selection, when even no allegation of malice or malafides or of fraud etc. is either alleged or made out. Thus, there are no basis made out to set-aside the selection. Selection cannot be set-aside merely on the ground that the answer sheets have been destroyed, when the Civil Writ Petition No.136 of 2009 (O&M) : 7 : destruction is found to be as per rule. I am, thus, clear in my mind that no interference in exercise of writ jurisdiction is called for. The writ petition is accordingly dismissed. In fairness, however, the amount of Rs.10,000/- deposited by the petitioner needs to be returned to her since she has not been able to have access to the answer sheets for which purpose she was required to deposit this amount. Let the petitioner make an application in this regard before the Registrar General to seek refund of this amount and the same shall accordingly be refunded to her. October 22, 2009 ( RANJIT SINGH ) ramesh JUDGE