Dismissed

Anil Kumar v. The State Of Bihar and Ors.

Patna HC21 Sept 2022CWJC/2368/2018

Case brief

AI extract

What is this about?

The Patna High Court dismissed a writ petition challenging the final selection result for Assistant Prosecution Officers. The court held that the petitioner's claim was barred by delay and laches and found no malafide intent in the mark reduction by the Head Examiner. The evaluation procedure supported the Examiner's authority to modify marks.

What did the court decide?

The writ petition was dismissed.

Anil Kumar Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2368 of 2018

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Anil Kumar, Advocate, S/o Late Hira Prasad, resident of Ward No.12, At/ P.O-Mangalpura Via Narainpur (Bagaha-2), Police Station-Patkhauli O.P., District- West Champaran.

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... ... Petitioner/s

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Versus

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The State Of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna.

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The Principal Secretary, General Administration Department, Government of Bihar, Patna.

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The Principal Secretary, Home Department, Govt. of Bihar, Patna.

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The Bihar Public Service Commission through its Secretary, Bailey Road, Patna.

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The Chairman, Bihar Public Service Commission, Bailey Road, Patna.

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Mr. Kanhaiya Prasad (Roll No.105987), Son of not known to the petitioner, presently posted as Assistant Prosecution Officer, Darbhanga.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner : Mr. Kumar Brijnandan, Advocate Mr. Navnit Kumar, Advocate For the State : None For the Commission : Mr. Vikash Kumar, Advocate ======================================================

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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT

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Date : 21-09-2022

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Hard copy of the supplementary counter affidavit, copy of which has been served much earlier on the petitioner's counsel, is being taken on record.

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Heard learned counsel for the petitioner and the learned counsel for the respondent-Commission. None appears on behalf of the State.

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Patna High Court CWJC No.2368 of 2018 dt.21-09-2022 2/9

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The petitioner has approached this Court with the following prayers:

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"(i) Issuance of an order, direction or writ in the nature of Certiorari for quashing the final result of Assistant Prosecution Officer, pursuant to the advertisement no.39/2009 conducted by the Bihar Public Service Commission (herein referred as "The Commission") by which the name of the petitioner does not find in final select list.

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(ii) Issuance of an order, direction or writ in the nature of Certiorari for quashing the final result of the petitioner whereby and whereunder the petitioner has been awarded a total of 337 marks in the examination in question by the Commission.

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(iii) Issuance of an order, direction or writ in the nature of Mandamus commanding the respondent Commission to add the number a deducted by the examiner as well as direction to the respondent Commission to re-examine the answer sheet of Indian Penal Code of the petitioner for the reason that with respect to answer of question no.1(d), petitioner has been awarded zero marks.

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(iv) Issuance of an order, direction or writ in the nature of Mandamus commanding the respondent Commission to re-cast the final result of the petitioner after awarding more marks to him.

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(v) Any other relief or reliefs to which the petitioners may be found entitled to in the facts and circumstances of the case."

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The brief factual background is that the petitioner

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participated in the process of selection of Assistant Prosecution

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Officers pursuant to a requisition made by the Home (Police) Department, Government of Bihar. The petitioner cleared the Preliminary Test as well as Main Written Examination and was also called for interview. As a result of the process, final result was published on 16.11.2016. Thereafter, the Commission recommended the names of successful candidates on 08.12.2016.

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The above noted facts are not in dispute.

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The petitioner made an application on 27.09.2017 under Right to Information Act for supply of copy of the answerbooks to him. The answer-book copy was dispatched on 14.12.2017. Upon seeing the copy of answer-book, the writ application has been filed in February, 2018.

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The petitioner is aggrieved by the fact that the marks awarded to him in the Subject-"I.P.C." has been reduced from 88 to 87 in the answer-book by way of cutting resorted to by the Head Examiner.

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It is submitted that the cutting/reducing of marks by the Head Examiner was without jurisdiction. Once the answerbook had been evaluated and marks inscribed thereon, the Head Examiner became functus officio and had no jurisdiction to re-visit the marks, much less reduce the same.

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The submission is based on Clauses (3), (4) and (10) of the prescribed method of evaluation of answer sheets, obtained by the petitioner under RTI, which has been annexed to the supplementary affidavit as Annexure 7. The relevant clauses, relied upon by the petitioner, are being reproduced herein below :

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^^fcgkj yksd lsok vk;ksx] iVuk

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vk;ksx }kjk vk;ksftr fofHkUu fyf[kr izfr;ksfxrk ijh{kkvksa dh mÙkj iqfLrdkvksa ds ewY;kadu gsrq eq[; ijh{kdksa ,oe~ ijh{kdksa ds fy, egRoiw.kZ funsZ'k

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¼3½ eq[; ijh{kd 60% (lkB izfr'kr) ls vf/kd ,oe~ 30% (rhl izfr'kr ) ls de izkIrkadksa dh lHkh mÙkj iqfLrdkvksa dh tk¡p vo'; djsaxsA muds }kjk de&ls&de 20% ¼chl izfr'kr½ ewY;kafdr mÙkj iqfLrdkvksa dh tk¡p dh tk,xh rFkk vko';drkuqlkj vad esa la'kks/ku Hkh fd;k tk ldrk gSA mÙkjksa dh xq.koÙkk ds vuqlkj vko';drkuqlkj eq[; ijh{kd 'kr izfr'kr mÙkj iqfLrdkvksa dh tk¡p dj ldrs gSa rFkk vad esa la'kks/ku dj ldrs gSaA

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¼4½ ijh{kd }kjk mÙkj iqfLrdk esa vad vafdr djus ds mijkar] ;fn mUgsa vko';drk eglwl gksrh gks rks os vad vkoaVu dh iqulZeh{kk djrs gq, vad esa Lo;a la'kks/ku dj ldrs gSaA

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¼10½ izR;sd iz'uksÙkj ds fy, fu/kkZfjr vf/kdre vad ds vuq:i izkIrkad ik'oZ ¼gkf'k;s½ esa vafdr djsaA fdlh Hkh dfVax ;k lq/kkj dks vius y?kq (Initial) gLrk{kjksa ls izekf.kr vo'; dj nsaA **

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The petitioner has also asserted that as a result of

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the recommendations made on 08.12.2016, one post in the Economically Backward Class (EBC) category has remained vacant and therefore, if the petitioner's grievance regarding reducing of his marks from 88 to 87 is redressed by the Court, then

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based on 88 marks, he would come within the zone of consideration for being recommended as he was at Serial No.152 in merit whereas recommendations have been made up to Serial No.151.

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The learned counsel for the respondentCommission, on the other hand, has raised a preliminary objection regarding the writ petition being barred by delay and laches. It is submitted that nearly 10 months after the result was published on 16.11.2016, the petitioner has made an application under the RTI. The respondent-Commission has forwarded copy of the answerbook in response to the said query. The Ten months' delay in making application under the RTI is fatal to the petitioner's claim as it constitutes laches giving rise to third party rights as in between recommendation of the selected candidates had already been made on 08.12.2016. The petitioner's claim therefore is barred by delay and laches and the fact of information being made under RTI would not enable the petitioner to get over the delay and laches and form the basis of approaching this Court. In this connection, he has placed reliance on a decision of this Court in CWJC No.3699 of 2012.

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On merits of the matter, it is submitted that the petitioner cannot be aggrieved by the cutting of marks as the same

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has bonafidely been done in the process of evaluation of the answer-books.

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Bare perusal of Clauses (3) and (4) of the Procedure for Evaluation, relied upon by the petitioner, shows that the Examiner as well as the Head Examiner is well within their jurisdiction to re-examine the marks in the process of evaluation. Bona fide of the action is also evident from the fact that corrections in the marks awarded on the front page of the answerbooks correspond to corrections made in the relevant answer. At both the places, the Head Examiner has put his signatures and initials. The petitioner therefore on merits also has no claim.

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The learned counsel for the petitioner has referred to three judgments of the Apex Court on the issue of delay. The three judgments are in the case of M/s Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and Others, reported in (1992) 2 SCC 598 (Para 13), in the case of K.B. Ramachandra Raje Urs (Dead) by Legal Representatives Vs. State of Karnataka and Others, reported in (2016) 3 SCC 422 (Para 28) and in the case of Royal Orchid Hotels Limited and Another Vs. G. Jayarama Reddy and Others, reported in (2011) 10 SCC 608 (Para 25).

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Relying upon these judgments, it is submitted that mere lapse of time does not constitute the delay. If the action is found to be illegal and unsustainable and due diligence is manifest from the record as in this case, the Court should not reject the case on the ground of delay and laches. It is also submitted that the cause of action has arisen in the instant case by supply of copy of the answer-book in December, 2017. Therefore the petitioner having approached this Court within three months thereafter, has demonstrated due diligence in the matter and the case of the petitioner cannot be said to be barred by delay and laches.

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The Court would consider the rival submissions of the parties and the judgments cited by the parties. The issue of delay in the instant case is a preliminary issue and therefore is being adverted to.

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The admitted fact is that the recommendation was made by the respondent-Commission in December, 2016. The selected candidates had already been recommended and third party right accrued by way of such recommendation in favour of successful candidates. The petitioner has not taken any steps after having seen the result declaring him to be unsuccessful on 16.11.2016. Ten months after the result and nearly nine months

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after the recommendation made, he has filed an application under RTI.

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The petitioner's counsel has submitted that even such application was made on suggestion from some persons that there may be a chance of some illegality having been committed in the process of selection. Clearly the petitioner has not approached the authorities under RTI based on any subsisting grievance with reference to evaluation in the process of selection, that too in the opinion of the Court, having regard to the nature of rights accruing in favour of third party would constitutes delay and laches disentitling the petitioner to seek quashing of the entire final result, as has been done in the instant writ petition. Having said so, this Court would also consider the merit of the matter, based on submissions advanced with reference to Clauses (3), (4) and (10) of the Procedure for Evaluation. The procedure itself is clear and has been taken note of above. Clauses (3) and (4) provide enough discretion in the Examiner as well as Head Examiner for modifying the marks awarded in the answer-books. The intent of the clause is clear from bare reading.

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This fact, coupled with the fact that no mala fide has alleged against anyone in the process of evaluation is sufficient to conclude against the petitioner in so far as the issue raised

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regarding cutting of marks is concerned. The process of evaluation appears to be bona fide from bare perusal of the copy of answersheet supplied under the RTI, as the same bears the signatures of Examiner as well as Head Examiner not only at the relevant question where the marking has been done, but also on the face of the answer-books, all of which are contemporaneous.

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