DBCWP12735/2009 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Writ Petition No.12735/2009 Bhagwati Singh Bareth Vs. State of Rajasthan and Another Date of Order ::: 13th August, 2010 Present Hon'ble Mr. Justice Prem Shanker Asopa Hon'ble Mr. Justice Mohammad Rafiq Shri S.P. Sharma, Counsel for petitioner Shri S.N. Kumawat, Additional Advocate General for respondents #### //Reportable// By the Court (Per Hon'ble Rafiq, J.):- This writ petition has been filed by petitioner Bhagwati Singh Bareth, who appeared in the RJS Competitive Examination of 2008 conducted by the respondent No.2 Rajasthan Public Service Commission (for short, 'the RPSC'). The petitioner, in the writ petition, has prayed that his answer copies of Law Paper I and Law Paper II may be called for and got reexamined by this Court or the respondent RPSC be directed to get the same reevaluated and the petitioner should in the meantime be allowed to be provisionally interviewed. Shri Sanjeev Prakash Sharma, learned counsel appearing for the petitioner, argued that performance of the petitioner in the DBCWP12735/2009 // 2 // examination of Law Paper I and Law Paper II was very good and therefore he was expecting his selection. When, however, he received mark-sheet he was astonished to know that he has been awarded only 56 marks in Law Paper I and 38 marks in Law Paper II. Apprehension of the petitioner was that his answer copies have not been properly evaluated. The petitioner was confident of getting higher marks because he has been a very meritorious student throughout. Learned counsel submitted that the petitioner has always secured first division in Secondary, Senior Secondary, B.A. and LL.M. Examinations. The learned counsel referred to the marks secured by the petitioner in those examinations. If the answer copies of the petitioner are reexamined, he has every hope of getting 20 or more marks extra in both the Law Paper I and Law Paper II. It is contended that the case now set up by the RPSC before this Court that the petitioners' answer copies of above two papers were found having identification marks and therefore they were got reevaluated by expert committee, cannot be accepted as valid. As per the relevant Rules, the respondents could only reduce the marks awarded by the examiner to the extent of 2% and no more. There is no provision for reexamination of the answer copies. Action DBCWP12735/2009 // 3 // of the respondents is thus wholly illegal being incompetent. The so-called report of the Special Division of the RPSC, on the basis of which respondent-RPSC decided to get the answer copies of the petitioner reexamined by the committee of experts, was never supplied to the petitioner inasmuch as there is no such procedure prescribed in any of the rules including Rule 19A of the Rajasthan Judicial Service Rules. Per contra, Shri S.N. Kumawat, learned Additional Advocate General, appearing on behalf of the respondents, opposed the writ petition and submitted that reevaluation of the answer copies of the petitioner was correctly made. After reevaluation the petitioner was awarded 58 marks in Law Paper I and in Law Paper II he was awarded 40 marks, and 2 marks in each paper was reduced as per Rules. Even then the petitioner was not selected. The learned counsel submitted that allegation that answer copies of the petitioner were not correctly evaluated, is totally baseless. Special Division of the RPSC pointed out to the authorities that some of the answer copies of Law Paper I and Law Paper II were having marks of identification thereby candidates could easily have access to the examiner; and therefore the answer copies of all such candidates having identification marks were DBCWP12735/2009 // 4 // ordered to be identified. In such exercise, total seven candidates were found to have put such identification marks in their answer copies of certain papers. An Expert committee consisting of three members was set up by the RPSC which was supplied 6+6=12 copies including seven copies bearing marks of identification after concealing marks awarded by the examiners and also by concealing/hiding the actual roll numbers and by putting fictitious roll numbers. The seven answer copies which were having identification marks, also included two answer copies of the petitioner respectively of Law Paper I and Law Paper II, wherein he was originally awarded 77 and 74 marks respectively. The expert committee evaluated the answer copies afresh and then awarded the correct marks to such candidates. It then transpired that award of marks in the identified copies were inflated which were on higher side. The learned counsel referred to Rule 19A of the Rajasthan Judicial Service Rules, 1955 to argue that said Rule confers upon the RPSC power to order scrutiny of the marks obtained by a candidate and this can be done by the RPSC on the request of the candidate concerned and also in its own discretion. The Commission is a constitutional body constituted under Article 320 of the DBCWP12735/2009 // 5 // Constitution of India. It was necessary to do so in order to ensure sanctity and confidentiality of the examination system. Shri S.N. Kumawat, the learned counsel relied the judgment of the Supreme Court in Union Public Service Commission Vs. Jagannath Mishra – (2003) 9 SCC 237 and argued that in that case a candidate was guilty of using malpractice to secure higher marks. The Supreme Court held that the High Court would not be justified to interfere in the matter, if the examination of the candidate was considered to be unfair and action of the respondent of debarring him to appear in competitive examinations for a period of ten years, was held to be justified. Although the respondent RPSC in the present case, according to its Rules, if wanted, could have disqualified the petitioner to appear in any future examination on having been found guilty of connivance or attempted to, by direct or indirect means affecting fairness of the examination but it has, in the circumstances, not taken that harsh decision and has rather decided to merely declare the result on the basis of marks awarded by the committee of experts. Upon hearing the learned counsel for the parties and perusing the material on record we DBCWP12735/2009 // 6 // find that this Court, by its order dated 29.04.2010, directed the respondent RPSC to take note of original marks awarded to the petitioner by the first examiner and after applying scaling and reducing 2% marks as per rules, and inform the court. The learned counsel for the respondent RPSC has produced for our perusal the statement of marks awarded to the petitioner in Law Paper I and Law Paper II by the first examiner and also by the expert committee on reevaluation. Now, when the marks previously awarded to the petitioner are compared with latter marks, we find that in the originally evaluated answer copies by the first examiner, the petitioner was awarded 77 marks in Law Paper I which, after reevaluation, has been reduced to 58, and in Law Paper II he was originally awarded 74 marks, which were reduced to only 40. Respondents further reduced 2 marks each in these two papers. There was thus variation of 19 marks so far as law Paper I is concerned and huge variation of 34 marks in Law Paper II. It is very disturbing to note that there were not only two answer copies of the petitioner but in all seven such answer copies were selected by the RPSC for reevaluation. The petitioner left, presumably deliberately, the identification marks on his two answer copies relating to Law DBCWP12735/2009 // 7 // Paper I and Law Paper II; and according to the respondent RPSC, those identification marks could have easily made it possible for every one to identify such particular answer copies and connect the same with the candidate. This fact alone would not have been of much significance but for the huge difference that was ultimately found in the assessment made and the marks awarded by the original examiner vis-a-vis those given by the committee of experts. The argument of non-adherence to the principle of natural justice and fairness in action of the respondent in the matters like the present one, cannot be straightway accepted because the courts have been very slow to interfere in such matters where the very sanctity of examination system is at stake. The Supreme Court in UPSC Vs. Jagannath Mishra (Supra) upheld the case set up by the UPSC to the effect that one candidate had copied of the answer copies of respondent Jagannath Mishra and such copying would not be possible but for the connivance/help of the latter. The argument that since there had been no report from the Invigilator indicating any malpractice of the person, who was sitting behind him was also brushed aside by the Supreme Court merely because such report was not sufficient to DBCWP12735/2009 // 8 // exonerate the delinquency, if otherwise a conclusion could be arrived at that but for the assistance of the respondent the candidate sitting behind him could not have copied in the manner he did. Argument that there was no direct evidence to prove the copying, was not also accepted by the Supreme Court which held that where findings are based on probabilities and circumstantial evidence, such findings cannot be said to have been based on no evidence. In a matter like this, it would be difficult to get direct evidence and so long as an inquiry is held to be fair and it affords the candidate adequate opportunity to defend himself, the matter should not ordinarily be examined by courts with the same strictness as applicable to criminal charges. In the present case too, there is considerable variation between the marks awarded by the original examiner and those awarded by the committee of experts, not only in respect of the petitioner alone but also other five persons, who also were found guilty of putting visible marks of identification on their answer copies and in their cases too the respondent RPSC has accepted the marks awarded by the committee of experts as valid and declared their result on that basis. DBCWP12735/2009 // 9 // Having noticed so, we come back to the disturbing feature that how could it be possible for the petitioner to secure so high marks at the time of first evaluation but for connivance and collaboration of the examiner. Although identity of examiner/examiners has not been disclosed nor are they before us and it may not be necessary for this court to call upon them because it is obviously for the respondent-RPSC to deal with them in a suitable manner, which may also include debarring them to act as examiner/examiners in any future examination. However, we are anguished to notice that if what the respondent RPSC is contending is correct, then it is indeed a matter of great concern as to what extent the confidentiality of the examinations conducted by RPSC is compromised. And this is because of the stand of the Commission which implies that it was not the petitioner alone but several other candidates, who were able to have access to the examiner/examiners and were in a position to influence evaluation of their answer copies. In fact, stand taken by the RPSC has serious implications which is that if what it states is accepted as correct, and which for the present purpose we are accepting as correct, DBCWP12735/2009 // 10 // then the very confidentiality of its working on which is based its credibility is at serious peril. The RPSC would do well to itself and lakhs of unemployed youths who look upon it as their saviour, that it sets its house in order. This in fact should serve as a mirror to show to the RPSC its own real face that a rot has set in its system which needs to be immediately checked and suitable corrective measures taken, before it is too late to retrieve the situation. With those observations, the present writ petition is dismissed with no order as to costs. (Mohammad Rafiq) J. (Prem Shanker Asopa) J. //Jaiman//