Letters Patent Appeal No.178 of 2009 (Against the common judgment and order dated 30.1.2009, passed by learned single Judge in CWJC Nos.11858, 16015, 16056, 15479, 16993, 16462 of 2008) 1. THE BIHAR PUBLIC SERVICE COMMISSION, through its Secretary, 15, Jawaharlal Nehru Marg, Patna- 800001 2. The Chairman, Bihar Public Service Commission through its Secretary, 15, Jawaharlal Nehru Marg, Patna - 800001 3. The Deputy Secretary, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Patna – 800001 …………Appellants Versus 1. MUKESH KUMAR SINGH, son of Sher Bahadur Singh, resident of Village Alipur, PS Arrah (M), District Bhojpur …Petitioner-Respondent 1st set 2. The State of Bihar through Chief Secretary, Bihar, Patna 3. The Principal Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna …. Respondents -Respondents 2nd set with LPA No.182 of 2009 THE BIHAR PUBLIC SERVICE COMMISSION & Others ….. ……… Appellants Versus RAJKISHORE & ORS ……… Respondents with LPA No.180 of 2009 THE BIHAR PUBLIC SERVICE COMMISSION & Others …………………… …….Appellants Versus SATYENDRA KUMAR SINGH & ORS-------Respondents With - 2 - LPA No.179 of 2009 THE BIHAR PUBLIC SERVICE COMMISSION & Others ……….. Appellants Versus MRITUNJAY KUMAR & ORS ……Respondents with LPA No.184 of 2009 THE CHAIRMAN,B.P.S.C.& ORS …..Appellants Versus VAGISH CHANDRA JHA & ORS ….Respondents with LPA No.181 of 2009 THE BIHAR PUBLIC SERVICE COMMISSION & Others …… ……Appellants Versus VIKAS KUMAR & ANR …. ……Respondents ******* For the Appellants : Mr. P K Shahi Advocate General with Mr. Vikas Kumar, Advocate Mr. Lalit Kishore Addl. Advocate General III with Mr.Satyabir Bharti,Advocate For the Respondents : Mr. Dinesh Prasad Singh (In LPA No. 178 of 2009) Senior Advocate (In LPA No. 180 of 2009) : Mr. Mahesh Narain Parbat Advocate (In LPA No. 181 of 2009) : Mr. Ranjit Jha, Advocate (In LPA No. 182 of 2009) : Mr. Ganesh Prasad Singh Senior Advocate For the Intervenors : Mr. Chittaranjan Sinha (in all the cases) Senior Advocate ********* - 3 - P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE K MANDAL S K Katriar,J. The Bihar Public Service Commission (hereinafter referred to as `the Commission’) has preferred this batch of six appeals against a common judgment dated 30.1.2009, passed by a learned single Judge of this Court, whereby he has allowed the six writ petitions, has set aside the Preliminary Test (hereinafter referred to as `P.T.’) of the combined competitive examination for the 48th to 52nd batches for the reasons to be discussed hereinafter, and has directed the Commission to hold fresh P.T. The six writ petitions raised common issues of facts and law, were disposed of by a common judgment, and the appeals are being disposed of by a common judgment. The basic facts shall be drawn from CWJC No.11858 of 2008 (Mukesh Kumar Singh vs. State of Bihar & Others), as well as LPA No.178 of 2009, unless needed by specific reference to a particular writ petition or appeal. 2. The Commission issued advertisement no.4 of 2007, which was published in the local dailies on 6.11.2007, inviting applications from eligible candidates for the P.T. of the combined competitive examination for 48th to 52nd batches. The entire selection - 4 - process comprises of three phases. The first one comprises of the PT, the second one of written test, and the final phase of viva-voce test. The answer sheets of the PT in the Optical Marker Reader (OMR, in brief), was programmed to be deciphered by a computer software in an objective-type answer sheet. The Commission received a total number of 2,63,265 applications. Admit cards were issued to all the candidates, but 1,76,984 candidates appeared in the PT, at 530 centres, in 34 districts, spread all over the State of Bihar, and was held on 25.5.2008. 3. Before we proceed further, we would like to indicate the format of the PT. The candidates were required to answer all the 150 questions with multiple choice of answers. It was of objective type. The candidates were supplied the Question Booklets covering 40 pages, and the answer sheet of one sheet both sides of which were used. Question Booklets were marked A, B, C, and D series. The four series were expected to incorporate just the same 150 questions, with the same multiple choice of answers. The difference in the four series was that arrangement, i.e. serial number, of the questions were different in the four series to avoid copying in the halls. One candidate got one series which he could carry back home. Each candidate was also given one answer sheet both sides of which had to be used as per the instructions, the first page of which contained columns to be filled in the own handwriting of the candidate. The reverse page, namely, page no. 2 - 5 - provided the spaces for the candidates to indicate their preference of suggested answers in the Question Booklets. Only black/blue ink ball point pen could be used. There were different computer programming to decipher every answer sheet as per the series of the Question Booklet given to each candidate. As many as twelve important instructions were printed on the Question Booklets to be read and followed by the candidates. 4. The writ proceedings were confined to two kinds of objections, some of the questions were incorrect or the suggested answers were incorrect and, secondly, the Question Booklets supplied to some candidates were defective in various ways. In so far as the first kind of objections are concerned, as per its set norms and established procedure, the Commission constituted an expert committee to evaluate the key answers given by question setters. The Committee which dealt with the first aspect of the matter comprised of the following members : (i) Dr. B K Jha Former Head of the Department of Political Science Magadh University (ii) Prof. Dr. Surendra Gopal Former Head of the Department, History Patna University (iii) Dr. Imtiyaz Ahmad Director, Khudabaksh Library, Patna (iv) Dr. Bhagwan Prasad Singh Professor, Economics Department - 6 - Patna University (v) Dr. Randhir Singh Head of Department, Public Administration A N College, Patna (vi) Dr. N P Sinha Retd. Head of Department Geography Department, Patna University, Patna (vii) Prof. Ram Vijay Singh Retd. Professor, Mathematics Department B R A Bihar University, Muzaffarpur (viii) Dr. Arun Kumar Sinha Professor & Head of Department Statistics Department, Patna University, Patna (ix) Dr. Ashok Kumar Gupta Professor & Head of Department Botany Department, Patna University, Patna (x) Padmashree Dr. Vijay Prakash Singh Professor & Head of Department of Medicine Patna Medical College, Patna (xi) Dr. N Laxmi Nath, Vice Chancellor Chanakya National Law University, Patna (xii) Dr. L M Rai Retd. Professor & Head of Department Magadh University, Bodh Gaya The Committee’s report was submitted on 7th July 2008, before publication of the PT results, and is on record (Annexure 5 to the Commission’s Supplementary Affidavit in LPA No. 178 of 2009). The Committee was of the view that some of the answers printed in the Question Booklets were incorrect and, therefore, recommended deletion of a few questions. The report was placed before the Commission on 31.7.2008 and 7.8.2008, and the Commission decided to delete 14 questions from the reckoning, and evaluated the answer sheets with respect to the remaining 136 questions leading to the PT - 7 - results published on 19.9.2008. This was before publication of the PT result. 5. In so far as the second kind of objections are concerned, before publication of the PT results, the Commission constituted another Committee on 14.8.2008, comprising of the following five members to examine the grievances of 94 candidates who had submitted their representations/complaints alleging duplication of questions, and mis- binding or mis-structuring of the Question Booklets:- (i) Prof. K P Sinha, Ex-Vice Chancellor B R Ambedkar Bihar University,Muzaffarpur (ii)Dr. V Mukunda Das Director, Chandragupta Institute of Management Patna (iii) Dr. L N Ram Ex Vice-Chancellor, Patna University, Patna (iv) Dr. Surendra Gopal Retd. Professor,Deptt. of History Patna University, Patna (v) Dr. Chakradhar Narain Sinha Retd. Professor, N.I.T. Patna The Committee submitted its report on 19.8.2008. Copies of the report are found at different places of the proceedings. It is marked Annexure-D to the Commission’s counter affidavit. The Committee had examined 94 applications regarding defective Booklets, and did not find any substance in their objections. The Commission accepted the report in its entirety. - 8 - 6. On 19.9.2008 the result of the PT was published. 19,318 candidates were declared to have passed the PT and were sent up for final examination. It is relevant to state in view of Clause 6 incorporated in the result of the PT (reproduced in Paragraph- 28 below), the aggrieved candidates were called upon to submit their objections/representations with respect to the selection process, and /or conduct of the PT, and the result. 7. The Commission received altogether 5713 representations till 17.10.2008, over and above 94 objections discussed hereinabove. Paragraph-20 of the Commission’s supplementary counter affidavit is reproduced hereinbelow :- “ 20. That it is submitted that in all 5713 candidates filed representations by 17.10.2008. The representations mainly relate to the following: (a) Re-totalling/Re-evaluation of Answer Sheets (b) Wrong answers © Mistake about the category (reservation) (d) Claim to obtain marks equal to cut-off marks or more (e) the roll no. and marks of the candidate not available on website.” We are not concerned with all the objections. 8. The selection process generated lot of grievances amongst the candidates leading to six writ petitions. The same are as follows :- (a) CWJC No. 11858 of 2008 (Mukesh Kumar Singh vs. State of Bihar & Ors.), giving rise to present LPA No. 178 of 2009 (b) CWJC No. 16015 of 2008 - 9 - (Rajkishore & Ors. vs. BPSC & Ors.), giving rise to LPA No.182 of 2009 © CWJC No. 16056 of 2008 (Satyendra Kumar Singh vs.BPSC), giving rise to LPA No.180 of 2009 (d) CWJC No. 15479 of 2008 (Mrityunjay Kumar & Ors. vs. BPSC), giving rise to LPA No.179 of 2009 (e) CWJC No. 16993 of 2008 (Vagish Chandra Jha & Ors. vs. BPSC), giving rise to LPA No.184 of 2009 (f) CWJC No. 16462 of 2008 (Vikas Kumar & another vs. BPSC), giving rise to LPA No.181 of 2009 All the 37 writ petitioners are unsuccessful candidates. Out of these 37 writ petitioners, 6 of them allege supply of defective Question Booklets which were misbound and were not replaced. The contest before the learned single Judge was between the unsuccessful candidates and the Commission. After consideration of the matter, the six writ petitions have been allowed by a common judgment dated 30.1.2009, whereby the PT has been set aside on the ground that some of the booklets contained more than 150 questions. The questions were not printed in the same sequence in all the Question Booklets of one series. Some of the questions were repetitive, or incorrectly formulated, or the suggested answers of some of them were incorrect. In the estimation of the learned single Judge, the defects are so all-pervasive that it would be unsafe to depend on the PT. It has, therefore, been - 10 - further directed to hold fresh PT. Aggrieved by the judgment, the Commission has preferred the aforesaid six appeals. 9. Learned Advocate general has appeared in support of the appeals and submits that as many as “12 important instructions” were printed on page 1 of the Question Booklet, and the more important ones were highlighted in bold print. He further submits that the materials on record clearly state that a large number of candidates had taken aid of the instructions, and had the defective Question Booklets replaced. Those who failed to take advantage of the situation in the examination hall will have to blame themselves. He submits that there is a duty on the Commission to hold a fair selection process, but there is an equally corresponding duty on the candidates to appear at the examination as per the instructions and the code of discipline formulated by the Commission for uniform application. He relies on the judgment of the Supreme Court in the case of Karnataka Public Service Commission vs. B M Vijaya Shankar [ 1992(2) SCC 206, Para 3]. He submits in the same vein that condition no.4 of the question booklet clearly provided for replacement of the defective Question Booklet. Apart from those who asked for replacement and got the same in the examination hall, 94 of the candidates represented before the Commission which have been examined by the five- member Committee from amongst whom only six have approached - 11 - this Court with the grievance. Learned Advocate General further submits that no mala fides have been attributed to the Commission. On the contrary, its fairness in identifying the defects in the selection process and the further effort to rectify the same is writ large on the proceedings. Even before publication of the result, the Commission constituted two Committees and remedial measures as suggested were taken. After publication of the result, the Commission invited representations/objections from aggrieved candidates. The matter was examined in depth and remedial measures were taken. He relies on the judgment of the Supreme Court in the case of Sadanand Halo vs. Momtaj Ali Sheikh [2008(4) SCC 619). 9.1 He also submits that enormity of holding such a test conducted by human agencies may bring about some grievances. In view of the bonafide attempts on the part of the Commission to rectify the defects in the selection process, hardly any grievance survives except those of the unsuccessful candidates who were unable to measure up to the minimum requirements of PT. 9.2 He next submits that a large number of vacancies exist in the State of Bihar. According to the Rules, the selection process has to take place once every year after taking into account the anticipated vacancies till December of the year following, which, for historical reasons, could not take place as a result of which the State - 12 - Government amended the Rules enabling it to conduct the selection process for more than one batch at a time. The net result is that examinations of the 48th to 52nd batches are being held together. In other words, no examination has taken place since 2001. The PT has taken more than the needed time as a result of which the examination for the 53rd to 55th batches are now due. He, therefore, submits that in the larger interest of the State, minor defects, if any, may be ignored. 10. Mr. Dinesh Kumar Singh, learned counsel for the petitioners has, in his elaborate submissions, pointed out a large number of defects in the conduct of the PT. The selection process is afflicted by as many as 30 defects. He has pointed out that a large number of questions were wrongly formulated, and many of the suggested answers were also wholly incorrect. He next submits that out of the 14 questions which have been deleted from consideration, seven were erroneously deleted. He next submits that a number of questions were repeated as a result of which many of them got more than 150 questions to be answered. He also pointed out that there was variation in the English version and the Hindi version in the same series. He next submits that the instructions clearly stated that a wrong Question Booklet had to be replaced by another Booklet of the same series which was not followed. In other words, for example, the candidates who were given A or C series were replaced by Booklet B - 13 - series, as a result of which the computer format evaluated the answer sheets erroneously. He also submits that the instructions were very onerous and unreasonable, incapable of being followed within the time fixed for the examination. Matching/extra time was not allowed to the candidates whose Question Booklets were replaced. The two enquiry reports were eye-wash, were as per the dictates of the Commission, to save its own skin. The reports are so superficial that the same do not inspire confidence. He submits in the same vein that the reasons assigned by the two Committees are contrary to the materials on record. The Commission has not come with clean hands. He relies on the following reported judgments : (i) 2007 (8) SCC 449 (para 33) (Prestige Light Ltd. vs. State Bank of India) (ii) 2007(10) SCC 635 (Rajkumar Soni vs. State of U.P.) He wrapped up his elaborate submissions by submitting that, in the interest of justice to the entire body of candidates, the PT as a whole should be scrapped. He relies on the following reported judgments :- (i) 2002 (3) SCC 146 (para 8) (Union of India vs. Chakradhar) (ii) 2008 (1) PLJR 357 (Ajay Kumar vs. State of Bihar) which was affirmed by a Division Bench of this Court (reported in 2008(2) PLJR 310) - 14 - 11. Mr. Ganesh Prasad Singh, appearing for the writ petitioner of CWJC No. 16015 of 2008 (LPA No. 182 of 2009), submitted that the amended Rules permitting examination of five batches at a time is illegal. He next submits that it is a case of wide-spread malaise and, therefore, the PT as a whole has to be set aside. Any relief short of that will do injustice to a large number of candidates. He lastly submits that powers of this Court to do justice is unlimited. In a case like the present one, the relief should not be confined to the writ petitioners alone, and should be extended to each and every sufferer. He relies on the judgment of the Supreme Court in the case of Inder Pal Yadav vs. Union of India (1985 PLJR (SC) 36 (page 39). 12. Mr. Mahesh Narain Parbat for the writ petitioner of CWJC No.16056 of 2008 (LPA No. 180 of 2009), submits that the petitioners were not supplied the replacement Question Booklets inspite of persistent requests. He submitted his complaint/representation dated 2.6.2008 (Annexure 5). He has also expressed lack of confidence in the two Committees. The booklets of many of the candidates had more than 150 questions. He has also relied on the Commission’s instructions to the Centre Superintendents which did not contain instructions to supply replacement Question Booklets in appropriate cases. - 15 - 13. The remaining writ petitioners in the other three appeals adopted the arguments advanced by the learned counsel for the petitioners in CWJC No. 11858 of 2008. 14. Learned Advocate General as well as the Additional Advocate General III in their separate sets of submissions in reply attempted to counter the submissions advanced by learned counsel for the writ petitioners. 15. We have perused the materials on record and considered the submissions of learned counsel for the parties. We shall first deal with the question relating to the grievance in respect of the defective questions and answers suggested in the Question Booklet. As stated hereinabove, the PT was held on 25.5.2008, the Commission soon thereafter as per its norms and on its motion, constituted a Committee of twelve distinguished academicians of the State to evaluate the key answers given by question setters. The Committee in its report dated 7.7.2008 (Annexure 5 in LPA No. 178 of 2009), suggested that 14 out of 150 questions were either wrongly formulated or the suggested answers were erroneous. The Commission considered the report and deleted 14 questions from the reckoning, as a result of which each and every candidate was evaluated for the remaining 136 questions. This takes care of the grievance raised on behalf of the writ petitioners that - 16 - the Question Booklets contained defective questions and defective answers. 16. Learned counsel for the petitioners have taken us through the Question Booklet in detail to point out the anomalies. For example, question no.1 of Booklet A series reads as follows :- “1. What is the sequence number of Ms. Pratibha Patil as President of the Republic of India? (A) 10th (B) 11th © 12th (D) 13th The writ petitioner has produced before us a document issued by the Election Commission of India to show that Smt. Pratibha Patil is the 13th President of India. On the other hand, the learned Advocate General has produced before us a copy of the document released by the Rashtrapati Bhawan showing that she is the 12th President of India. In this connection, instruction no.9 printed on the Question Booklet may be reproduced hereinbelow:- “9. Questions and their responses are printed in English and Hindi versions in this booklet. Each question comprises four responses – (A),(B),(C) and (D). You are to select ONLY ONE correct response and mark in your Answer Sheet. In case you feel that there are more than one correct answer, mark the response which you consider the best. In any case choose ONLY ONE response for each question. Your total marks will depend on the number of correct responses marked by you in the Answer Sheet.” (Emphasis added) - 17 - The instructions itself stated that “…….in case you feel that there are more than one correct answer, mark the response which you consider the best…….” In such a situation, evaluation of the answer to this question will entirely depend on the correct answer determined by the Chief Examiner, whether she is the 12th or the 13th President of the Republic of India. Both the documents supplied by learned counsel for the parties indicate the correct position, but from different angles. Both are equally correct answers and, therefore, this instruction takes care of the situation. Dr. Rajendra Prasad, the first President of India, had occupied the office for two consecutive terms. From this angle, she is the 12th President of India, and in that situation the communiqué of the Rashtrapati Bhawan is correct. However, the other document supplied by the Election Commission of India, which is charged with the duty of conducting the election of the President of India, is equally correct, but from a different angle. The Election Commission conducted the thirteenth election. This is apart from the position that a Committee of twelve distinguished academicians examined the entire Question Booklets and have deleted 14 incorrect questions. Questions in such objective type tests are intelligently formulated, and the answer has to be selected in relation to the preciosity of language used in formulating the question. 16.1) Question no.70 of Booklet no. A series reads as follows:- - 18 - “70. The serial number of Mr. Mohammad Ansari as Vice President of India is (A) 10th (B) 11th © 12th (D) 13th The explanation is comparable to the previous one. 16.2) Question no.149 of the Booklet no. A series reads as follows:- “149. Which one of the following is correct about the permanent settlement introduced in Bihar (A) The Zaminders were deprived of the ownership of the land. (B) The right of ownership of land was made hereditary and transferable for the Zaminders. © Land revenue was constitutionalised (D) Abolition of Zamindari” The definition of `permanent settlement’ as found in the Historical Dictionary of India by Surjit Mansing, is as follows :- PERMANENT SETTLEMENT : A term applied to the form of revenue settlement introduced by the British Governor General Lord Cornwallis (q.v.) in 1793 to areas controlled by the East India Company (q.v.) in Bengal, Bihar, and Orissa (qq.v.). One objective of the new settlement was to end the rapacious system of annual reassessments and contracts to tax collectors introduced when the East India Company took over the rights of dewani in 1765. Another declared objective of Lord Cornwallis was to create in Bengal a body of hereditary landlords who might extend cultivation, maximize production, and generally function with a sense of public purpose espoused by the eighteenth-century enlightened aristocracy in England. The distinguishing feature of the Permanent Settlement, therefore, was that tax collecting agents were confirmed in their positions for perpetuity in return for a - 19 - fixed annual payment of dues to the government. They were forbidden to