Madrasdated High Court · 2009

W.P.No.13130/2009:A Writ of mandamus directing the second respondent to acceptchoice A- as the correct answer for question No.44 falling under PartA in the written examination held for the year 2006-2007 for theselection of Sub-Inspector of Police, grant one additional mark tothe petitioner for the said written examination together with allfollow-up orders enabling the petitioner to be appointed for the postof Sub-Inspector of Police by the 3rd respondent on par with the2006-07 batch mates for all pruposes within the time frame.W.P.No.13367/2009:A writ of mandamus directing the respondents to rectify theerror committed in the written test Sub-Inspectors Recruitment 2006by awarding 2 additional marks to the petitioner and consequentlyselect and appoint the petitioner as Sub Inspector of Police underthe M.B.C category and impart training to the petitioner.W.P.No.21924/2008:Writ of Certiorarified Mandamus calling for the recordspertaining to the order dated 12.08.2008 made in No.M/Haj/1183/64/08passed by the 5th respondent and quash the same consequently directthe 2nd respondent herein to allot 100 Pilgrims quota to thepetitioner based on its application dated 04.04.2008.W.P.No.22976/2008:Writ of Mandamus directing the respondents herein to allotpilgrims quota to the members of the petitioner association for Haj2008 on par with the Old Private Tour Operators.For Petitioners in W.P.Nos.4509 to 4518/2009, 7411 to 7418/2009, 17196 to 17198/2009, 14463/2009,14487/2009, 10752 to 10764/2009, 20280 to 20285/2009, 20470/2009: M/s.S.SivakumarFor Petitioners in W.P.Nos.8874/2009, 8938/2009,9181/2009,15667/2009: M/s.G.Bala and DaisyFor Petitioners in W.P.No.12870/2009,14888/2009,18659/2009,18226 to 18232/2009: Mr.G.SrinivasanFor Petitioners in W.P.Nos.11807/2009& 13130/2009 : Mr.K.Ravi Anantha Padmanaban https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in W.P.No.13367/2009 : M/s.A.JenesenanFor Petitioners in W.P.Nos.13490 to 13497/2009 : Mr.J.SaravananFor Petitioners in W.P.No.15874/2009,19469 to 19473/2009,19510/2009 : Mr.K.Venkataramani Senior Counsel for M/s.Mr.MuthappanFor Petitioners in W.P.Nos.12032/2009,17472/2009,18538&18539/2009 : Mr.C.Selvaraju Senior Counsel for Mr.P.Athi Veera Rama PandianFor Petitioner in W.P.No.18351/2009: M/s.P.I.ThirumoorthyFor Petitioner in W.P.No.19587/2009: M/s.A.R.M.Arunachalam For Petitioner in W.P.No.19821/2009: M/s.V.ManoharFor Petitioners in W.P.Nos.21924&22976/2008: Mr.S.ThirumavalavanFor Respondents in all Writ Petitions: Mr.P.S.Raman Advocate General * * * * *C O M M O N O R D E RIn view of the common issues involved in all the writpetitions, they have been taken up together for disposal and a commonorder is passed. 2.The brief facts of the case in a nutshell are as follows:A notification was issued by the Tamil Nadu UniformedServices Recruitment Board as per the directions of the Government ofTamil Nadu in the newspapers on 18.07.2006 for the recruitment ofSub-Inspector of Police. The Tamil Nadu Uniformed ServicesRecruitment Board has been constituted by the Government of TamilNadu for the purpose of recruiting the eligible candidates forvarious posts in the police department. The notification has beenissued for the selection of 682 Sub-Inspector of Police. Theselection was for a large number of vacancies since over the yearsthe posts have not been filled up. Out of 682 posts, 517 vacancieshave been reserved for direct recruitment and out of the same 445were meant for men and 72 for women respectively. Two women STcandidates from the backlog vacancies in direct recruitment of https://hcservices.ecourts.gov.in/hcservices/ selection were also included in the list. Of the remaining 146vacancies which have been earmarked for departmental candidates withthe percentage of 20, 126 have been allotted for men and 20 forwomen. Even in the said category, 17 women candidates in the backlogvacancies coming under various reserved categories were also included.Recruitment process in the above said selection wasconducted at 12 Centres throughout the State. The recruitment processconsists of Certificate Verification, Physical Measurement Test,Endurance Test, Physical Efficiency Test, Written Test, Viva-voce. Acandidate who fails in any one of the above said process iseliminated then and there by issuing a disqualification slip. Afterthe completion of the Physical Efficiency Test, Written Test washeld on 20.05.2007. Thereafter, based upon the marks obtained in theViva-voce as well as the Written Test, candidates have been selected.The appointments have been made from 20.12.2007 onwards.Writ petitions have been filed in the year 2007 by theunsuccessful candidates before the Hon'ble High Court, challengingthe provisional selected list and also seeking consideration basedupon special sport category and special quota. In the said writpetitions, the grievances of the petitioners therein were that thequota fixed for each category has not been followed, Written Test notconducted properly, ST/SC quota has not been filled up, quotaearmarked for the wards of the police personnel not published, thereis a lack of transparency in the selection, marks have been awardedin the Sports Certificate and lesser marks have been given to thepetitioners in the Viva-voce. The writ petitions have been dismissedby the learned single Judge of the Hon'ble High Court in and by theorder dated 20.11.2007 and the writ appeal filed in Writ AppealNo.194 of 2007 etc. were also dismissed by the Hon'ble DivisionBench on 28.03.2008.Thereafter from the month of June 2008 onwards,applications have been made by the petitioners at different point oftime seeking the particulars of the marks awarded, key answers aswell as the copies of the answer sheets written by them. Accordingly,the Tamil Nadu Uniformed Services Recruitment Board has furnished allthe particulars required by the petitioners after taking some time.The petitioners after receiving the said particulars came tounderstand that marks have been wrongly awarded by selecting wrongkey answers as the correct key answers. In other words, the selectedcandidates who answer some of the questions wrongly have been givenmarks as against the non-selected candidates who have answeredcorrectly but given the marks wrongly in view of the mistakescommitted by the respondents in awarding marks by choosing in correctkey answers. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, further informations have been sought for bythe petitioners from the Tamil Nadu Uniformed Services RecruitmentBoard. A reply has been given by the Tamil Nadu Uniformed ServicesRecruitment Board stating that for question no.11, answer no.D is thecorrect answer, for question no.38, all the answers are right andquestion no.44, option-A is the correct answer. The Board has alsorequested the first respondent to look into the anomaly caused bycorrecting the answer papers with wrong key answers by providingappointment to the affected candidates. However, the said request wasrejected by the first respondent.As per the Written Test, the OMR answer sheets have beenevaluated by the computer instead of manual corrections. Thecandidates were given the choice of shading the correct answers inthe OMR answer sheets in pencil. Question No.11 is as follows:11.Greenhouse effect is caused byA) Oxygen depletionB) Ozone layer depletionC) Hydrogen reductionD) Greenery reductionQuestion No.38 is as follows:38.What percentage (%) of human body weight is water ?A) 55B) 65C) 70D) 80Question No.44 is as follows:44.Free India's first Governor-General wasA) MountbattenB) RajajiC) Dr.Zakir HussainD) Dr.RadhakrishnanThe evaluation was made by giving the key answer forquestion no.11 as Ozone Layer Depletion (B), for question no.38 as 70(C) and question no.44 as Rajaji (B) respectively. The correctanswers which are subsequently given by the Board for question no.11is (D), question no.38, all the answers and question no.44 is (A).Therefore, there is no dispute regarding the correct answers as perthe subsequent communication sent by the Board. In other words, thereis an admission by the respondents about the mistakes committed incorrecting the answer sheets on the basis of wrong key answers.Thereafter, after obtaining the above said information fromthe Board under the Right to Information Act, the petitioners havefiled the present writ petition seeking a writ of mandamus directingthe respondents to include the marks which were wrongly awarded tothe petitioners in view of the wrong key answers resulting in wrong https://hcservices.ecourts.gov.in/hcservices/ evaluation. An application was filed under Rule 2-A of the Appellate-Side Rules and the said application filed in M.P.No.2 of 2009 inW.P.No.4509 of 2009 was ordered permitting to implead the fourthrespondent therein as the representative of the selected candidates.3.Heard Shri.K.Venkataramani, Shri.C.Selvaraj learnedsenior counsels and Mr.S.Sivakumar, M/s.G.Bala and Daisy,Mr.G.Srinivasan, Mr.K.Ravi Anantha Padmanaban, Mr.A.Jenesenan,Mr.J.Saravanan, Mr.P.I.Thirumoorthy, Mr. A.R.M.Arunachalam,Mr.V.Manohar, Mr.S.Thirumavalavan, learned counsels appearing for thepetitioners and Shri.P.S.Raman, learned Advocate General appearingfor the respondents.4.The submissions on behalf of the petitioners are asfollows:It is submitted by the learned counsels for the petitionersthat inasmuch as the respondents having admitted the mistakes in notawarding the marks correctly and awarding the marks wrongly to theselected candidates, as a consequent thereon the said marks should beadded to the marks obtained by the petitioners and with the addedmarks, they should be considered for the post of Sub-Inspector ofPolice. It is further submitted that the present situation is onlybecause of the respondents and therefore, they cannot take advantageof their own wrong. The petitioners were not aware of the awarding ofthe wrong marks earlier since they came to know about the facts onlyin pursuant to the application made by them under the Right toInformation Act. Even the question paper has been taken away from thepetitioners after the examination was over and therefore, thepetitioners were in dark not knowing about the mistakes committed bythe respondents. The said mistake having been admitted by therespondents as seen by the letter sent by the Board to the Governmentdated 30.01.2009 wherein there is an admission by the Board that thequestion papers were opened only in the printing press and neitherthe question paper nor the key has been verified, nothing preventedthe Board from verifying the same after the examination is over. TheBoard being a creation of the Government all the respondents areresponsible for the mistakes committed by the Board.The learned counsels further submitted that in a case wheremistakes were committed by the respondents and because of the samecandidates are made to suffer then the said mistakes will have to bemade good by rectifying the key answers by awarding marks to thepetitioners. It is further submitted that in such a caseSupernumerary Posts will have to be created by appointing such ofthose persons who otherwise would have been selected but for theawarding of the wrong marks. https://hcservices.ecourts.gov.in/hcservices/ In support of the contention that the marks will have to beawarded by creating the Supernumerary Post, the learned seniorcounsel Shri.C.Selvaraj has relied upon the judgments reported inW.P.NO.18714 OF 2008 etc. DATED 13.08.2008; (2005) 13 SCC 749 [GURUNANAK DEV UNIVERSITY v. SAUMIL GARG AND OTHERS]; (1996) 7 SCC 106[STATE OF ORISSA v. PRAJNAPARAMITA SAMANTHA]; (1984 ) 2 SCC 319[ABHIJIT SEN v. STATE OF U.P.]; (1996) 10 SCC 177 [D.K.REDDY v. UNIONOF INDIA]; (1997) 11 SCC 488 [DELHI ADMINISTRATION v. NAND LAL PANT];(1998) 4 SCC 107 [UNION OF INDIA v. AKHILESH CHANDRA AGRAWAL] ANDW.P.NO.12127 OF 2008 etc DATED 31.07.2008. Mr.K.Venkataramani,learned senior counsel further submitted that the vacancies have beentaken into account as available as on 31.12.2004. If the vacanciesavailable as on the date of the appointment are taken into account,then the contentions raised on behalf of the respondents will fall tothe ground since by adopting the said procedure all the persons whoare otherwise eligible would have a chance to get appointed. Insupport of his contention, the learned senior counsel has relied uponthe judgment reported in (2002) 10 SCC 549 [SANDEEP SINGH v. STATE OFHARYANA AND ANOTHER] wherein, the Hon'ble Apex Court was pleased toobserve that the vacancies available upto the date of interviewshould be filled up from among the candidate selected in thecompetitive test. The said judgment of the Hon'ble Apex Court hasalso been followed by the Hon'ble Division Bench in and by the orderDATED 27.04.2007 in W.P.NO.22770 of 2003 etc. Hence, the learnedsenior counsel submitted that the said procedure will have to befollowed in the present case as well.In so far as the contentions raised by the respondents onthe ground of constructive res judicata is concerned, it is submittedby the learned counsels for the petitioners that the issue raised inthe present writ petition has not been raised earlier and therefore,the question of constructive res judicata would not arise forconsideration. Further, the other objections regarding delay andlaches also liable to be rejected, since the petitioners were notaware of the marks earlier and immediately after getting theinformation from the respondents, they have filed the present writpetitions. Moreover the fact that the earlier writ petitions havebeen filed and adjudicated also will have to be taken intoconsideration in favour of the petitioners in so far as the delay andlaches are concerned. Hence, the learned counsels prayed for allowingof the writ petitions. All the learned counsels submitted that theyare not seeking to set aside the selection already made and thepetitioners are willing to forgo the seniority and they will besatisfied, if they are considered for the post of Sub-Inspector ofPolice based upon the correct marks being awarded to them.A counter affidavit has been filed on behalf of the secondrespondent namely, the Director General of Police who is the Chairman https://hcservices.ecourts.gov.in/hcservices/ of the Tamil Nadu Uniformed Services Recruitment Board. The variousaverments on merits made by the petitioners have not been denied.What is stated in the counter affidavit is the legal submissions onthe ground of constructive res judicata, delay and laches. It isfurther stated in the counter affidavit that the selected candidateshave not been made as parties and inasmuch as the impleadment made inone of the writ petition which pertains to 20% quota reserved forservice candidates, impleading the fourth respondent therein whichcomes under 80% direct recruitment cannot be construed as a properservice of notice and therefore, the writ petitions are liable to bedismissed for non-joinder of necessary parties.5.The submissions made by the learned Advocate General areas follows:The learned Advocate General submitted that it is no doubttrue that mistakes have crept in the key answers resulting in wrongevaluation of the answer sheets. The learned Advocate General furthersubmitted that inasmuch as specific vacancies having been notified bythe second respondent, the vacancies cannot be extended to thepetitioners. If any extension is made that would be affecting thefuture vacancies preventing new candidates from participating in theselection process. It is further submitted that the writ petitionsare liable to be dismissed on the ground of res judicata, since thepetitioners having raised the said plea earlier cannot re-adjudicatethe same in the present writ petitions. Further even assuming thesaid plea has not been specifically raised and considered and thesaid plea having been available earlier cannot be permitted to beraised at present. The learned Advocate General also submitted thathaving allowed the selected candidates to be selected and thereafterto work in the various places, the writ petitions will have to bedismissed for delay and laches. The learned Advocate General relied upon the judgmentsreported in (2006) 3 SCC 330 [STATE OF U.P. v. RAJKUMAR SHARMA];(2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALA STATE PUBLIC SERVICECOMMISSION]; AIR 2002 SC 1523 [S.RENUKA v. STATE OF A.P.]; (1998) 8SCC 59 [ROSHNI DEVI v. STATE OF HARYANA]; AND AIR 2001 SC 1851 [ALLINDIA SC & ST EMPLOYEES ASSOCIATION v. A.ARTHUR JEEN] and submittedthat when the selected list expires, a selected candidate cannotinsist that he should be appointed in pursuant to the said list. Itis also submitted that a candidate in the selected list does not havea vested right to be selected and such a case, a writ of mandamuscannot be issued. Therefore, the learned Advocate General prayed forthe dismissal of the writ petitions.6.In the present case on hand, there is no dispute on factsinasmuch as question no.11, 38 and 44 have been wrongly evaluated. Areading of the reply given by the second respondent subsequently to https://hcservices.ecourts.gov.in/hcservices/ one of the petitioners under the Right to Information Act would showthat the right answer for question no.11 is option (D), for questionno.38, all the answers and question no.44 is option (A). It is alsoadmitted by the respondents that question no.11, a wrong answer hasbeen given in the key answer by indicating that option (B) as thecorrect answer and for question no.38, the wrong answer of (C) hasbeen given and for question no.44, wrong answer of (B) has beengiven. Even in the counter affidavit, the said fact that wronganswers have been given for question nos.11, 38 and 44 has not beendenied and it is further not denied that the correct answer toquestion no.11 is (D), 38 – all answers and 44 – (A) respectively.Therefore, this Court finds that there is no dispute on fact. Hence,this Court will have to proceed that wrong key answers have beengiven as indicated above and the correct answers are subsequentlygiven by the second respondent.7.Mr.C.Selvaraj, learned senior counsel submitted that eventhe answers given by the second respondent subsequently for questionno.11 is not correct, since for question no.11, answer (D) cannot bethe correct answer as per the text book of the 10th Standard. ThisCourt finds that the subsequent evaluation has been done by thesecond respondent on consulting the experts and therefore, thecontention of the learned senior counsel for the petitioners cannotbe accepted by this Court. However inasmuch as the key answer givenfor question no.11 is also wrong and the correct answer being optionno.(D), the same will have to be taken as the correct answer. ThisCourt while exercising the power under Article 226 of theConstitution of India cannot act as a supervising body or an expertin evaluating the key answers given by the respondents which wasgiven subsequently based upon consultation of the experts. Therefore,this Court is of the opinion that the said decision of the secondrespondent cannot be reviewed by this Hon'ble Court. The Hon'ble ApexCourt in the judgment reported in (2005) 13 SCC 749 [GURU NANAK DEVUNIVERSITY v. SAUMIL GARG AND OTHERS] has held that until and unlessit is demonstratively erroneous and clear, the Court should notsubstitute its own opinion on the decision made by an authority whois competent to say so. The Hon'ble Apex Court was pleased to observethat when there is a benefit of doubt, the same will have to go infavour of examining the body. Therefore, on a consideration of theabove said legal position, this Court is of the opinion that questionno.11 will have to be evaluated by awarding the correct key answer asoption no.(D).8.In so far as the power of this Hon'ble Court in directingthe respondents to award the marks to the petitioners is concerned,the said issue has been settled by various decisions of the Hon'bleHigh Court as well as the Hon'ble Apex Court. When there is a patenterror and illegality or total arbitrariness on the part of therespondents, then this Court can very well exercise the power under https://hcservices.ecourts.gov.in/hcservices/ Article 226 of the Constitution of India.9.This Hon'ble Court in W.P.NO.12127 of 2008 etc. DATED31.07.2008 has considered the similar matter in extenstio andobserved as follows:"15.The scope of interference, underArticle 226 of Constitution of India, when thereis violation of statutory duties and injusticecaused to any person was considered by theHonourable Supreme Court in the following cases:(a)In Dwarka Nath v. I.T.Officer, AIR 1966SC 81 = (1965) 3 SCR 536 = 57 I.T.R. 349, athree-Judges Bench of the Supreme Court has heldas follows:"Art.226 is couched in comprehensive phraseologyand it ex facie confers a wide power on the HighCourts to reach injustice wherever it is found.The Constitution designedly used a wide languagein describing the nature of the power, thepurpose for which and the person or authorityagainst whom it can be exercised. It can issuewrits in the nature of prerogative writs asunderstood in England; but the scope of thosewrits also is widened by the use of theexpression “nature”, for the said expression doesnot equate the writs that can be issued in Indiawith those in England, but only draws an analogyfrom them. That apart, High Courts can also issuedirections, orders or writs other than theprerogative writs. It enables the High Courts tomould the reliefs to meet the peculiar andcomplicated requirements of this country. Anyattempt to equate the scope of the power of theHigh Court under Article 226 of the Constitutionwith that of the English Courts to issueprerogative writs is to introduce the unnecessaryprocedural restrictions grown over the years in acomparatively small country like England with aunitary form of government to a vast country likeIndia functioning under a federal structure. Sucha construction defeats the purpose of the articleitself. To say this is not to say that the HighCourts can function arbitrarily under thisArticle. Some limitations are implicit in thearticle and others may be evolved to direct thearticle through defined channels. ...." https://hcservices.ecourts.gov.in/hcservices/ (b) In Rohtas Industries v. Its Union, AIR1976 SC 425 = 1976 Labour and Industrial Cases,303 (3J), the Supreme Court held that theexpansive and extraordinary power of the HighCourts under Art.226 is as wide as the amplitudeof the language used indicates and so can affectany person even a private individual - and beavailable for any (other) purpose - even one forwhich another may exist.(c)In Shri Anadi Mukta SadguriS.M.V.S.J.M.S. Trust v. V.R.Rudani, AIR 1989 SC1607 = (1989) 2 SCC 691, it has been held asfollows:"17. ............. Under Article 226,writs can be issued to “any person or authority”.It can be issued “for the enforcement of any ofthe fundamental rights and for any other purpose”.18...............19...............20. The term “authority” used in Article 226, inthe context, must receive a liberal meaningunlike the term in Article 12. Article 12 isrelevant only for the purpose of enforcement offundamental rights under Article 32. Article 226confers power on the High Courts to issue writsfor enforcement of the fundamental rights as wellas non-fundamental rights. The words “any personor authority” used in Article 226 are, therefore,not to be confined only to statutory authoritiesand instrumentalities of the State. They maycover any other person or body performing publicduty. The form of the body concerned is not verymuch relevant. What is relevant is the nature ofthe duty imposed on the body. The duty must bejudged in the light of positive obligation owedby the person or authority to the affected party.No matter by what means the duty is imposed, if apositive obligation exists, mandamus cannot bedenied."(d)In Union of India and others v.R.Reddappa and another, (1993) 4 SCC 269, theSupreme Court has observed that once the Court issatisfied of injustice or arbitrariness, then the https://hcservices.ecourts.gov.in/hcservices/ restriction, self-imposed or statutory, standsremoved and no rule or technicality on exerciseof power, can stand in way of rendering justice.(e)In B.C.Chaturvedi v. Union of India,(1995) 6 SCC 749, the Supreme Court approving thedecision of the Orissa High Court in KrishnaChandra Pallai v. Union of India, (AIR 1992Orissa 261)(FB) held as follows:"High Court being a Court of plenary jurisdictionhas inherent power to do complete justice betweenparties similar to Supreme Court's power underArt.142."(f)In Air India Statutory Corporation v.United Labour Union, (1997) 9 SCC 377 = AIR 1997SC 645 = 1997 Lab.L.C. 365: (1997) 1 LNN 75, theSupreme Court has reiterated the Court's powerunder Art.226 as follows:"No limitation except self imposed - the arm ofCourt long enough to reach injustice wherever itis found. The Court as sentinel on the qui viveis to mete out justice in given facts."(g)Following the said decisions,K.Sampath, J. in the decision reported in (2001)1 MLJ 180 (Sudarshan Kumar v. University ofMadras) ordered re-scrutiny/proper valuation ofB.E.degree paper (Electrical and ElectronicsEngineering) conducted by the Anna Universitywherein the candidate was originally given 30% ofthe marks and after re-assessment one Examinerawarded 78% and another examiner awarded 69% andthis Court ordered to take average of the saidtwo i.e., 75% and by virtue of that re-assessmenta brilliant candidate who was declared fail inthe B.E.degree was declared pass withdistinction. The examination regulations of AnnaUniversity prohibits re-assessment/re-scrutiny.The learned Judge further observed in paragraph12 as follows:"....... The amendment to Art.226 in 1963inserting Art.226 (1-A) reiterate the targets ofthe writ power as inclusive of any person by theexpressive reference to the 'residence of suchperson'. The Supreme Court has spelt out wiseand clear restraints on the use of this https://hcservices.ecourts.gov.in/hcservices/ extraordinary remedy and High Courts will not gobeyond those wholesome inhibitions except wherethe monstrosity of the situation or otherexceptional circumstances cry for timely judicialinterdict or mandate. The mentor of law isjustice and a potent drug should be judiciouslyadministered. Speaking in critical retrospectand portentous prospect, the writ power has, byand large, been the people's sentinel on the quivive and to cut back on or liquidate that powermay cast a peril to human rights. ......"(Emphasis Supplied)(h)When allegations of large scalemalpractice was made re-valuation was ordered tobe done by the Bangalore University, Departmentof Commerce and Management. Even though it wasnot found in the scheme of examination the samewas upheld by the Supreme Court in the decisionreported in (2007) 9 SCC 558 (Karnataka PowerCorporation Ltd., v. A.T.Chandrashekar).(i)The question of not submittingobjection in time is also considered by theSupreme Court in the decision reported in AIR1999 SC 199 (C.Tulasi Priya v. A.P.State Councilof Higher Education), wherein in the MedicalEntrance Examination the candidate was initiallysupplied with wrong paper and only after 20minutes, on discovery of the mistake, Invigilatorsupplied correct question paper, that is after 30minutes of commencing of the examination. Thenon-submitting of protest was not found favourwith the Supreme Court in granting relief to thesaid candidate and the Supreme Court in paragraph10 observed as follows:"............ The refusal of the High Court tointerfere on this ground has, regretably,compounded the injustice done to the appellant.............."(j)In the decision reported in AIR 1984 SC1402 = (1984) 2 SCC 319 (Abhijit Sen v. State ofU.P.) in paragraph 2, the Supreme Courtconsidered the implications of supplying wrongkey answers, which reads thus, https://hcservices.ecourts.gov.in/hcservices/ "2. At the outset it may be stated thatCivil Appeal No.4116/83 (filed by appellantAbhijit Sen) and Civil Appeal No. 4118/83 (filedby appellant Satyendra Vikram Singh) were notpressed before us and have to be dismissed.Kumari Shivani Aggarwal and Kumari Sunita Khare(the appellants in Civil Appeal Nos.4117 and 4119of 1983) have challenged the University’sdecision (which decision has been upheld by theAllahabad High Court) of refusing them admissionto the MBBS course in any of the seven MedicalColleges. Learned Counsel appearing for themcontended that the “key-answer” supplied by thepaper-setter to Question 31 in Zoology paper(being alternative No.2) was wrong or incorrectand the answer given by both the appellants (byticking alternative No.4) was the correct answeraccording to recognized text-books and thereforeeach one of these appellants was entitled to anaddition of four marks (three marks for givingcorrect answer plus one mark which had beenwrongly deducted by treating their answers aswrong) and if such addition of four marks wasmade each one was entitled to get admission. Inthe case of Kumari Sunita Khare (appellant inCivil Appeal No.4119/83) her counsel raised afurther similar contention with regard toQuestion 100 in Zoology paper, as according tohim the “key-answer” supplied by the paper-setter(being alternative No.3) was clearly wrong orincorrect while the answer given by thatappellant (by ticking alternative No.4) was thecorrect answer according to recognized text-booksand therefore so far as she was concerned even ifher contention with regard to Question 31 was notaccepted she was entitled to addition of fourmarks (three for giving correct answer plus onemark which was wrongly deducted by treating heranswer as incorrect) in regard to Question 100and even on this basis she would be entitled toget admission. Counsel for the respondents didnot dispute before us that if the two appellantsor either of them is found entitled to anaddition of four marks as suggested on theirbehalf they will have to be given admission toMBBS course but counsel disputed the validity ofthe contention urged on behalf of the appellantsthat “key-answer” supplied by the paper-setter toeither Question 31 or Question 100 in Zoology https://hcservices.ecourts.gov.in/hcservices/ paper was wrong or that the answers furnished bythe appellants were correct. Counsel urged thatsince the Court was embarking upon a course offinding out and determining the correct answerhaving regard to the recognized text-books orauthoritative books on the subject it would beimmaterial whether the “key-answer” supplied bythe paper-setter was found to be wrong, not beingin conformity with the correct answer determinedby the Court but the appellants would not beentitled to addition of four marks unless theiranswers were in conformity with the correctanswers found by the Court. In other wordsaccording to counsel for the respondents if asituation was reached where both the answers,namely, the one given by the appellants as wellas the “key-answer” supplied by the paper-setter,were found to be wrong with reference to thecorrect answer as determined by the Court theappellants should not succeed. We think there isconsiderable force in this last submission madeby the counsel for the respondents."In the said decision the Supreme Court grantedrelief to one candidate.(k)Ordering re-valuation of answer booksonly to the candidates approaching the High Courttill the date of the decision is also upheld bythe Supreme Court in the decision reported in(1996) 7 SCC 106 (State of Orissa v.Prajnaparamita Samanta) wherein at para 8 theSupreme Court held thus,"8. Admittedly, the petitioners and theappellants in question had approached either theHigh Court or this Court after the decision ofthe High Court on 27-3-1992. The High Court hasrightly set down the said date as a cut-off limitand directed consideration of the answer booksonly of those examinees who had approached theHigh Court till that date. It is only those whoare diligent and approach the court in time whocan be given such relief. The academic yearcannot be extended for any length of time for thebenefit of those who choose to approach the courtat their sweet will. The consideration on thebasis of which relief is granted in such cases isalways circumscribed by the tenure of theacademic year(s) concerned. We, therefore, do not https://hcservices.ecourts.gov.in/hcservices/ see anything wrong if the High Court has laiddown the said date as the cut-off date for thepurpose. In the circumstances, there is no meritin these writ petitions and the civil appeals,and they are dismissed with no order as to costs."(Emphasis Supplied)(l)In the recent decision of the SupremeCourt reported in AIR 2007 SC 3098 = (2007) 8 SCC242 (Secretary, W.B.Council of Higher SecondaryEducation v. Ayan Das) the Supreme Court gave acaution to entertain writ petition seeking re-valuation and direction to produce answer papers.In paragraph 10 (SCC) it is held as follows:"10. The courts normally should not directthe production of answer scripts to be inspectedby the writ petitioners unless a case is made outto show that either some question has not beenevaluated or that the evaluation has been donecontrary to the norms fixed by the examiningbody. For example, in certain cases examiningbody can provide model answers to the questions.In such cases the examinees satisfy the courtthat model answer is different from what has beenadopted by the Board. Then only can the court askfor the production of answer scripts to allowinspection of the answer scripts by the examinee............"(m)In (2005) 13 SCC 749 (Guru Nanak DevUniversity v. Saumil Garg) in paragraph 6 theSupreme Court held that paper setters and thosewho finalise the key answers must see that onlyone correct answer out of four options given andif none of the answer is correct, it is theirduty to say so. Paragraph 6 reads as follows:"6. The University is in appeal on grant ofleave. We have also before us both sets ofstudents — one, students who support theUniversity in their challenge to the directionscontained in the impugned judgment, and two, thestudents who support the impugned directions forre-examination of the key answers in respect ofall 200 questions. The High Court has also issueddirections for appropriate action to be takenagainst those who are responsible for the entireconfusion and the mess. The High Court has also https://hcservices.ecourts.gov.in/hcservices/ issued directions for fixing responsibility onthe paper-setters and those who have been vestedwith the responsibility to finalise the keyanswers and consequential steps to be taken. Thesaid direction of the High Court does not callfor any interference. Those who set the papersand those who finalise the key answers have tobear in mind that what is at stake is the careerof the young students at the very threshold oftheir attempt to get entry into professionalcourses where there is cut-throat competition.The questions posed must have only one correctanswer out of the four options given. Likewise,there is responsibility on those who finalise thekey answers. If none of the answers is correct,it becomes their duty to say that none of theanswers is correct, so that if any remedialaction is to be taken, it should be taken beforethe answers are valuated. It is evident that onboth these aspects, there was serious lapse whichresulted in litigation which is otherwiseavoidable."(Emphasis Supplied)Again in para 12, if the questions are vague orincapable of having a correct answer the personswho attended the said questions alone can beawarded marks. The same is held in paragraph 12of the said judgment thus,"12. There is yet another problem, namely,that of seven questions which are so vague thatthey are incapable of having a correct answer.The appellant University, in respect of thoseseven questions, has given the credit to all thestudents who had participated in the entrancetest irrespective of whether someone had answeredthe questions or not. We do not think that thatis the proper course to follow. It is whollyunjust to give marks to a student who did noteven attempt to answer those questions. Thiscourse would mean that a student who did notanswer say all the seven questions would stillget 28 marks, each correct answer having fourmarks. The reasonable procedure to be followed,in our opinion, would be to give credit only tothose who attempted the said questions or some ofthem. Having regard to the circumstances of the https://hcservices.ecourts.gov.in/hcservices/ case, we direct that for the students whoattempted those questions or some of thosequestions, insofar as they are concerned, thesaid questions should not be treated to be partof the question paper. To illustrate, if astudent answered all the said seven vaguequestions, insofar as that student is concerned,total marks would be counted out of 772 i.e. 800less 28 and likewise depending upon number ofsuch questions, if any, answered by the student.The seven vague questions are Question 4 inPhysics, Questions 76 and 89 in Chemistry,Questions 147 and 148 in Botany and Questions 156and 163 in Zoology of Question Paper Code A."(Emphasis Supplied)(n)While preparing the key answers howmuch care should be taken by the Examiner/personsetting the question paper and the consequencesarising out of the said wrong key answers wasconsidered by the Supreme Court in the decisionreported in (2005) 13 SCC 744 (Manish Ujwal v.Maharishi Dayanand Saraswati University) (para10).(o)The same is the view taken by theSupreme Court in the decision reported in AIR1983 SC 1230 = (1983) 4 SCC 309 (KanpurUniversity v. Samir Gupta). In paragraphs 16 and17 the Supreme Court held as follows:"16. Shri Kacker, who appears on behalf ofthe University, contended that no challengeshould be allowed to be made to the correctnessof a key answer unless, on the face of it, it iswrong. We agree that the key answer should beassumed to be correct unless it is proved to bewrong and that it should not be held to be wrongby an inferential process of reasoning or by aprocess of rationalisation. It must be clearlydemonstrated to be wrong, that is to say, it mustbe such as no reasonable body of men well-versedin the particular subject would regard ascorrect. The contention of the University isfalsified in this case by a large number ofacknowledged textbooks, which are commonly readby students in U.P. Those textbooks leave no roomfor doubt that the answer given by the students https://hcservices.ecourts.gov.in/hcservices/ is correct and the key answer is incorrect.17. Students who have passed theirIntermediate Board Examination are eligible toappear for the entrance Test for admission to themedical colleges in U.P. Certain books areprescribed for the Intermediate Board Examinationand such knowledge of the subjects as thestudents have is derived from what is containedin those textbooks. Those textbooks support thecase of the students fully. If this were a caseof doubt, we would have unquestionably preferredthe key answer. But if the matter is beyond therealm of doubt, it would be unfair to penalisethe students for not giving an answer whichaccords with the key answer, that is to say, withan answer which is demonstrated to be wrong."(p)Similar issue with regard to the wrongquestions or wrong key answers or more than oneanswer is correct for one question with regard tothe entrance examination conducted for MBBS andBDS course for the academic year 2004-2005 wasconsidered by this Court in the decision reportedin 2004 WLR 639 (D.Shylaja v. The Secretary toGovernment & Others). In paragraph 52 this Courtdirected the Anna University to re-value theanswer papers for certain questions, though underthe scheme revaluation was not permitted, whichreads as follows:"52.In the result, the writ petitions areallowed in part. The University is directed torevalue all the answer papers. Question Nos.27and 33 in Biology question paper in version codeMA-7, question Nos.11, 64 and 77 of version codeBS6 relating to physical science shall not bedeleted and mark should be awarded to any studentwho has indicated any of the correct choices. Itis further directed question No.76 in versioncode BS6 should be evaluated and credit should begiven to the students who have given the correctoption as per the key answer provided by thepaper setter. Question No.105 in version codeMA-7 is to be revalued and option No.4 should betaken as the correct answer and not option No.3as indicated by the committee. Question No.117in version code BS6 should be deleted fromconsideration. The necessary revaluation may be https://hcservices.ecourts.gov.in/hcservices/ done within a period of three days from the dateof receipt of a copy of this Judgment and revisedmarks may be furnished to the selection committeeimmediately to enable the selection committee tofinalise the selection. The selection committeemay fix suitable dates for counselling. There isno order as to costs. Consequently, theconnected miscellaneous petitions are closed."The said decision was confirmed by a DivisionBench of this Court in W.A.No.2476 of 2004 etc.,batch by Judgment dated 2.8.2004 (G.Nanthini v.The Registrar, Anna University, Chennai-25) withslight modification with regard to the number ofquestion. While disposing of the writ appeals,in paragraph 6 the Division Bench held as follows:"6.Before parting with the case, we wantto address the respondents something in theinterest of students and their parents in thecontext of quality of examination. The veryobject of bypassing the descriptive typeexamination and choosing the objective typemultiple choices examination is to enhance thestandard of education so that the student is madeready to answer more questions just by tickingthe correct answer out of four alternativeanswers. For that purpose, he is made to readcomprehensively, absorb the contents and thencome to a quick decision. When quick decisionwith such precision is the objective, among thealternative answers provided, one should be thecorrect answer while the remaining three shouldnot be correct. Only then the correct answer canbe called as the key answer. There cannot be aconcept of more than one key answer. Key answershall be only one. The courts have been doingthis exercise and sometimes, in the interest ofthe career of the students, direct the awardingof marks for more than one question. But thatshould be only an exception and not the rule.But, unfortunately, the exception has become arule and the rule an exception because of thefalling standards in the conduct of examinations.We do not understand as to why there should be anappellate forum, even at the threshold, bysetting up an expert committee. The paper setterchooses questions from question bank where thekey answers are already provided. By setting upthe expert committee, the paper setter is reduced https://hcservices.ecourts.gov.in/hcservices/ to just a clerk, as the key answer which isindicated has got absolutely no weightage asagainst the opinion of the expert committee asthe University conducting the examination onlytakes note of the views of the expert committeefor awarding marks. This practice has to bediscontinued. When the papers are set, choosingquestions from the question bank already carryingthe key answers, experts in the variousdisciplines have to be chosen to form thequestion bank and that should be a step beforeconducting the examination and not like theinstant one in setting up the expert committee expost facto. All the questions should be definiteand so also the answers provided. All effortsshould be taken that there should not be morethan one correct answer as a key answer and noroom is given for creating any confusion."10.Therefore on a consideration of the above said judgmentsrelied on by this Court earlier, this Court is of the opinion that aselection process would requires transparency and fairness. When thesaid process is found to be demonstratively wrong and in view of thesame candidates who are otherwise eligible are not selected then thepower under Article 226 of the Constitution of India will have to benecessarily exercised by this Hon'ble Court. It is also to be seenthat each one has got a right to be considered for a post. The rightto be considered would also include the right to be consideredproperly. Hence when facts are not in dispute and the admittedposition is that the respondents have committed the mistakes and dueto the same the eligible candidates have lost their chances then theyare entitled to be considered based upon the same.11.As contended by Mr.K.Venkataramani, learned seniorcounsel for the petitioners in a case where admittedly mistakes havebeen committed by the respondents and due to which the meritoriouscandidates could not be considered, this Court will have to passappropriate orders by moulding the relief. A reading of the judgmentrelied upon by the learned senior counsel for the petitionersreported in (2002) 10 SCC 549 [SANDEEP SINGH v. STATE OF HARYANA ANDANOTHER] would show that there is no bar for filling up the vacanciestill the date of interview. The Hon'ble Apex Court has observed asfollows:"3. It is contended on behalf of theappellants that not only the judgment of the HighCourt in Hooda Case has already been reversed bythis Court in Hooda, but also several circularsof the Government support the contentions that https://hcservices.ecourts.gov.in/hcservices/ the vacancies available up to the date ofinterview should be filled up from amongst thesaid competitive test rather than to have carriedforward in respect of those vacancies for thenext test. In respect of this contention thecirculars of the years 1957 and 1972 had beenplaced before us. Mr.Mahabir Singh, however,appearing for the State of Haryana vehementlyurged that these circulars will have noapplication in cases where appointment is madethrough written competitive examination andtherefore the Public Service Commission would beentitled only to send the list of selectedcandidates in respect of vacancies for which therequisition had been made and advertisement wasissued and not any further future vacancies.According to him, the judgment of this Court inHooda did not consider the subsequent circular ofthe Government in the year 1993. It is no doubttrue that the reported decision of this Court inHooda does not refer to the aforesaid circular ofthe year 1993. But it was stated to us that theState of Haryana had filed a review applicationand appended the said circular of 1993 and thesaid review application stood rejected by thisCourt. That apart, even on first principle, itappeals to us to commend that the vacanciesavailable in any particular service till the dateof interview at least should be filled up fromthe very same examination unless there is anystatutory embargo for the same. In the case inhand, no statutory embargo has been pointed outto us. In this view of the matter, the judgmentof this Court in Hooda should apply to the factsand circumstances. Be it stated that we havebeen shown the government circular of the year1993 in Hindi and going through the same, we arepersuaded to hold that the circular says the samething that we have indicated earlier in thisjudgment. In the aforesaid premises, we setaside the impugned judgments of the Punjab andHaryana High Court and allow these appeals andwrit petitions and direct that these fourpersons, who had appeared at the competitive testin the year 1993 pursuant to the advertisementdated 24.12.1992 should be considered for beingappointed to the Haryana Civil Services(Executive Branch). We make it clear that if anyother persons, who had appeared at the said https://hcservices.ecourts.gov.in/hcservices/ examination and who had not approached the Courttill today, will not be entitled to file any suchapplication for getting this relief in questionso far as the examination of the year 1993 isconcerned. It is also made clear that theappellants will get the benefit of this orderprospectively i.e. from the date of appointment.The Government may decide the matter within threemonths."12.The said judgment of the Hon'ble Apex Court was alsoconsidered and followed by the Hon'ble Division Bench in W.P.NO.22770of 2003 etc. DATED 27.04.2007 wherein, the Hon'ble Division Bench hasobserved as follows:"20.The learned senior counsel appearing onbehalf of the petitioners would rely on ajudgment of the Apex Court in SANDEEP SINGH vs.STATE OF HARYANA AND ANOTHER [(2002) 10 SC 549].In the said case, like in the case on hand, thenumber of Haryana Civil Services (ExecutiveBranch) posts had been indicated in theadvertisement but it was stipulated that thevacancy position may change. From the date ofthe advertisement and till the date of holdingthe interview, several other posts in theservices fell vacant, but Public ServiceCommission ultimately gave only a list of thosenumber of vacancies for which initial requisitionhad been made. In such circumstances, the ApexCourt had, in no uncertain terms, had held that"vacancies available upto the date of interviewshould be filled up from amongst the candidatesselected in the said competitive test."21.In this case, the notification was issuedon 7.1.1998, written test was conducted on7.6.1998, interview was conducted on 1.12.1999and the results were announced on 5.12.1999.Immediately thereafter, the Government tabled a"White Paper on the Reservation in GovernmentEmployment" on 11.5.200 before the Tamil NaduLegislative Assembly wherein in para 6, thedetails of backlog vacancies regarding S.C.Candidates which arose from 1.4.1989 onwards inrespect of Group – A are mentioned as 168 andGroup – B posts as 1545 and in para No.7 of thesaid Report, it has been stated that theGovernment took the decision on 11.5.1999 to https://hcservices.ecourts.gov.in/hcservices/ compute the backlogs by creating equal number ofposts in the entry levels. Therefore, thenotification dated 7.1.1998 issued by the 1strespondent is subject to all incidence ofrevision and re-determination of backlogvacancies in the category of Deputy Collector andDeputy Superintendent of Police, which areindisputably entry-level posts by directrecruitment, as has been rightly argued on behalfof the learned senior counsel for the petitionerssince it cannot be said that such huge number ofvacancies fell vacant only after the interviewconducted on 1.12.1999, so as to distinguish thesaid ruling of the Apex Court. Therefore,following the dictum laid down by the Apex Courtin the said judgment, it should be held that thePublic Service Commission and the Governmentshould have included such vacancies, which werevacant on the date of interview, also to befilled up by virtue of the Notification issued on7.1.1998, in which event, not only thepetitioners but also many other such similarlyplaced candidates should have been benefitedwithout undergoing the ordeal of anotherselection process. Therefore, we are unable toappreciate the stand taken by the Government thatno vacancy reserved for the Scheduled Castes hasbeen kept unfilled either in the recruitmentrelating to the year 1998 or in the recruitmentsfinalised subsequently. As has already beenadverted to supra, if the entire vacancies lyingvacant on the date of interview were alsoincluded in the selection, definitely thepetitioners would have got their chance of beingselected to Group – I services, for which theyhave applied for".13.Therefore considering the above said judgments, thisCourt is of the opinion that the relief will have to be moulded so asto enable the candidates including the petitioners to be consideredfor the posts of the Sub-Inspector of Police till the dateof interview conducted by the respondents while selecting theselected candidates. The contention of the learned Advocate Generalthat other persons namely new candidates will be affected, in theopinion of this Court cannot be accepted, since it is a well settledprinciple of law that no one has got a vested right to be appointedto a particular post. Moreover new candidates may or may not beselected and therefore, this Court cannot go into the said questionwhich is in the realm of speculation. Further between such candidates https://hcservices.ecourts.gov.in/hcservices/ and unsuccessful candidates who have answered correctly but got wrongmarks the latter have the better right.14.The learned Advocate General has relied upon thejudgments reported in (2006) 3 SCC 330 [STATE OF U.P. v. RAJKUMARSHARMA]; (2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALA STATE PUBLICSERVICE COMMISSION]; AIR 2002 SC 1523 [S.RENUKA v. STATE OF A.P.];(1998) 8 SCC 59 [ROSHNI DEVI v. STATE OF HARYANA] and submitted thata selectee cannot claim appointment as a matter of right and a mereinclusion in the selected list does not confer any right. A readingof the judgments would show that they do not apply to the presentcase on hand. In the present case, the petitioners are not selectedpersons and they are also not included in the selected list. Areading of the judgments relied upon by the learned Advocate Generalwould show that all those cases, the candidates have been included inthe selected list but they have not been selected in view of the factthat posts were either not available or abolished. The facts in thepresent case are totally different from the earlier case. In thepresent case on hand, the petitioners have not been selected andtheir case is that they have not been selected wrongly due to themistakes committed by the respondents.15.In the judgment reported in (2006) 3 SCC 330 [STATE OFU.P. v. RAJKUMAR SHARMA], the posts involved therein have beenabolished in view of the creation of a New State of Uttaranchal,since the posts were earmarked for the hill areas. Similarly in thejudgment reported in (2007) 6 SCC 190 [K.THULASEEDHARAN v. KERALASTATE PUBLIC SERVICE COMMISSION], the validity of the list gotexpired and therefore, the Hon'ble Apex Court was pleased to holdthat the same cannot be extended at the instance of the persons whoare in the reserved and selected list. However in the judgmentreported in (1998) 8 SCC 59 [ROSHNI DEVI v. STATE OF HARYANA], therecruitment process through which the appointments were made werecancelled subsequently, since it was found invalid and the factsinvolved in the judgment reported in AIR 2002 SC 1523 [S.RENUKA v.STATE OF A.P.] pertaining to the empanelled candidate seekingappointment where it was found that the selection was against therules and reservation policy. Therefore, this Court is of the opinionthat the contention of the learned Advocate General placing relianceof the above said judgments cannot be accepted, since in the presentcase admittedly mistakes have been done by the respondents inawarding marks.16.The submissions made by the learned Advocate General onthe question of constructive res judicata also cannot be accepted bythis Hon'ble Court. A question of res judicata would arise only whena question is susceptible of being raised earlier. A reading of thejudgment rendered in W.P.NO.14482 of 2007 etc DATED 20.11.2007 wouldshow that the question involved in the present case has not been https://hcservices.ecourts.gov.in/hcservices/ specifically raised and considered by the Hon'ble Court. The saidquestion was also not raised before the Hon'ble Division Bench whichconfirmed the judgment of the learned single Judge. Therefore, thisCourt is of the opinion that the said question having not raised anddecided earlier would not amount to constructive res judicata moreso, when the said question is not susceptible of being raisedearlier. Admittedly, the petitioners have got the information basedupon their applications made under the Right to Information Act andafter getting the information only they have filed the present writpetitions. It is nobody's case that the petitioners got theinformation during the pendency of the earlier proceedings sinceadmittedly the petitioners have got the information only thereafter. 17.In so far as the submissions made by the learnedAdvocate General on the ground of delay and laches are concerned, thesaid contention also deserves to be rejected. A mere delay in itselfcannot be a ground for non suiting a party who comes before theCourt. This Court is also of the opinion that the delay is suitablyexplained by the circumstances under which the petitioners haveapproached this Hon'ble Court. A reading of the letter sent by thesecond respondent to the first respondent dated 30.01.2009 itselfwould show that the second respondent has not verified the answerseven after the examination. Therefore, the delay cannot be attributedto the petitioners and the fact that the petitioners have beenagitated from rights earlier itself would show that they are notlethargic in their efforts. It is also to be seen that the secondrespondent has not allowed the candidates to take the question paperswhich would have helped them to verify the correct answers. Moreoverthe petitioners are entitled to presume that their answers have beenevaluated properly and immediately after coming to know that mistakeshave been committed by the second respondent in the process ofevaluation, they have approached this Court and this Court also is ofthe opinion that inasmuch as the selected candidates are not soughtto be disturbed by the petitioners the reliefs sought for cannot berejected.18.In this connection, it is useful to refer the judgmentof the Hon'ble Apex Court reported in (2001) 2 SCC 259 [K.THIMMAPPAv. CHAIRMAN, CENTRAL BOARD OF DIRECTORS, SBI] wherein, the Hon'bleSupreme Court has pleased to hold that a petition cannot be rejectedsolely on the basis of laches alone. In the present case on hand, thepetitioners have got a right to be considered for the post and someof the non-selected candidates would have been selected but for themistakes committed by the respondents. In other words, this Court isof the opinion that for the mistakes some of the non-selectedcandidates would have been selected and some of the selectedcandidates would not have been selected and therefore, in such acircumstances the mistakes committed by the respondents would amountto taking away the rights of the candidates which is fundamental in https://hcservices.ecourts.gov.in/hcservices/ nature who would have otherwise got selected.19.The contentions of the learned Advocate General alsocannot be accepted for one other reason, since the respondents havingcommitted a mistake affecting the valuable rights of the non-selectedcandidates cannot be allowed to contend that the writ petitions areliable to be dismissed for delay, constructive res judicata, lachesand non-joinder of necessary parties. The second respondent Board isa creature of the first respondent and it acts as per the directionsof the first respondent. Therefore, when admittedly mistakes havebeen committed resulting in the selection of some of the non-suitablecandidates and non-selection of suitable candidates, the respondentscannot take advantage if the same on a technical plea. A duty is castupon the respondents to act fairly. A considerations of the procedureadopted by the second respondent would show that the secondrespondent has never verified the question paper of the key answerseither before the examination or thereafter. The said fact would showthat there is a serious lapse on the part of the second respondent.This Court is also of the view that the entire scenario has beencaused only by the mistakes committed by the respondents. A duty isimposed upon the second respondent to verify the key answers as wellas the question papers before the examination and after the same.When the second respondent has got no objection in furnishing thecopies of the answer sheets, key answers, and the marks obtained,nothing prevents the second respondent from publishing the sameeither in the newspaper or in its website after the completion of theexamination.20.The Hon'ble Supreme Court in the judgment reported in(2007) 11 SCC 447 [KUSHESHWAR PRASAD SINGH v. STATE OF BIHAR] hasobserved as follows:"13. The appellant is also right incontending before this Court that the power underSection 32-B of the Act to initiate freshproceedings could not have been exercised.Admittedly, Section 32-B came on the statute bookby Bihar Act 55 of 1982. The case of theappellant was over much prior to the amendment ofthe Act and insertion of Section 32-B. Theappellant, therefore, is right in contending thatthe authorities cannot be allowed to take undueadvantage of their own default in failure to actin accordance with law and initiate freshproceedings. 14. In this connection, our attention hasbeen invited by the learned counsel for theappellant to a decision of this Court in https://hcservices.ecourts.gov.in/hcservices/ Mrutunjay Pani v. Narmada Bala Sasmal wherein itwas held by this Court that where an obligationis cast on a party and he commits a breach ofsuch obligation, he cannot be permitted to takeadvantage of such situation. This is based onthe Latin maxim commodum ex injuria sua nemohabere debet (no party can take undue advantageof his own wrong)".21.Therefore, this Court is of the opinion that therespondents cannot take advantage of its own wrong and say that thepetitioners have not approached this Court earlier and the selectionprocess has not been challenged. In fact, this Court finds that it isthe respondents who should have taken action at the appropriate timeby rectifying the mistakes by removing the candidates who were nototherwise qualified by replacing the same with the suitablecandidates.22.As observed by Pandit Jawaharlal Nehru, the mostimportant thing about an administration is the belief in its fairplayand integrity. Transparency is one of the basic foundation of thedemocratic system. By following the transparent and open system theconfidence of the public in the system will be enhanced and in factthe same would reduce the litigation because a person will be in aposition to know about his position based upon the factualinformation furnished by an authority concerned. This Court is alsoof the opinion that in view of the admitted factual position thatmarks have been wrongly given for the right answers, suitable orderswill have to be passed. 23.Inasmuch as the petitioners have not challenged theselection of the selected candidates, this Court is not inclined togo into the selection made already. However, this Court finds thatthe relief sought for cannot be restricted to the petitioners alonesince merely because the others have not approached this Court theirrights cannot be taken away. In view of the admitted position thatthe correct answers, marks have been given wrongly. This Court alsocannot prevent such persons from approaching this Court which wouldonly complicate the issue further. Moreover the petitioners will haveto get the selection based upon their own merits and not to theexclusion of others who did not even know that they have answeredcorrectly but given wrong marks. Hence, this Court is of the opinionthat even those candidates who have not approached this Court whohave answered correctly also will have to be considered by therespondents.24.Hence after taking into consideration of the above saidfactual and legal position, this Court is of the opinion that it is afit case where the following directions will have to be issued: https://hcservices.ecourts.gov.in/hcservices/ (i)The respondents are directed to prepare a list of allthe unselected candidates who have answered question no.11 withoption no.(D), question no.38 with all the answers and question no.44with option no.(A) and grant marks accordingly.(ii)The respondents are directed to take the cut-off marksfixed for the selection made in the written examination as the basisfor respective categories for the consideration of the non-selectedcandidates who would get higher marks in pursuant to the directionsgiven by this Hon'ble Court.(iii)The respondents are directed to conduct Viva-voce Testfor those candidates who come within the cut-off marks in pursuant tothe granting of higher marks in the written examination.(iv)The respondents are directed to take into considerationof the marks obtained in the interview for those unsuccessfulcandidates who have already attended the interview and who would begetting additional marks.(v)The respondents are directed to consider the candidateswho would become eligible to be selected in view of the directions ofthis Hon'ble Court by adding the marks due to them in the availablevacancies, in the respective categories, as on the last date of theinterview conducted. (vi)For the future examinations, the second respondent isdirected to verify the key answers immediately after the writtenexamination is over and publish the same in the website of the secondrespondent as well as in anyone of the newspapers. (vii)The second respondent is also directed to publish themarks obtained by the candidates in the written examination after theevaluation of the written examination in the website of the secondrespondent. (viii)In so far as the petitioner in W.P.No.9189 of 2009 isconcerned, the respondents are directed to consider the seniority ofthe petitioner based upon the revised mark by taking intoconsideration of the marks to be awarded for the right answers inaccordance with law.25.With these observations, the writ petitions are allowedaccordingly. The respondents are directed to complete the process of selection in accordance with the directions given above and publish https://hcservices.ecourts.gov.in/hcservices/ the results within a period of three months from the date of receiptof a copy of this order. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarsriTo1.The Secretary to Government Home (Police IV) Department Fort St.George Chennai – 600 009.2.The Director General of Police / Chairman, Tamil Nadu Uniformed Services Recruitment Board Anna Salai, chennai – 600 002.3.The Director General of Police Dr.Radhakrishnan Salai Mylapore Chennai – 600 004.4. Public Information Officer, Superintendent of Police, TamilNadu Uniform Services Recruitment Board, Chennai-600 002.5. The Secretary to Government, Government of India, Ministry of External Affairs, South Block, New Delhi-110 001.6. The Joint Secretary to Government (Gulf & Haj) Ministry of External Affairs, South Block, New Delhi-110 001.7. The Deputy Secretary to Government (Haj) Ministry of External Affairs, South Block, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/

8. The Chairman, Haj committee of India (CHC) Haj House, 7A-M.R.A.Marg, Palton Road, Mumbai.9. The Attache (Haj) Ministry of External Affairs, South Block, New Delhi-110 001.10.The Secretary to Government, Government of India, Ministry of External Affairs, South Block, New Delhi.11.Additional Secretary to Government, (Gulf & Haj) Ministry of External Affairs, South Block, New Delhi.12.The Deputy Secretary to Government, Director of Haj, Ministry of External Affairs, Akbar Bhavan, Chanakyapuri, New Delhi.13.The Chairman/CEO Haj Committee of India (CHC) 7A MRA -Marg, Mumbai-400 001.+4 cc to M/s.G.Bala & Daisy, Advocate, SR.No.58815+1 cc to Mr.AR.M.Arunachalam, Advocate, SR.No.58827+1 cc to Mr.V.Manohar, Advocate, SR.No.58868+1 cc to Mr.P.I.Thirumoorthy, Advocate, SR.No.589491 cc To The Government Pleader, SR.58994+2 cc to Mr.T.Ayngaraprabhu, Advocate, SR.No.58881+4 cc to Mr.G.Sivakumar, Advocate, SR.No.59002+2 cc to Mr.A.Jenasenan, Advocate, SR.No.59166+11 cc to Mr.G.Srinivasan, Advocate, SR.No.59213,59214+1 cc to Mr.K.Ravi Anantha Padmanaban, Advocate, SR.No.59422+1 cc to Mr.P.Athiveera Rama Pandian, Advocate, SR.No.59462 https://hcservices.ecourts.gov.in/hcservices/ ORDER IN W.P.NOS.4509,4510,4511,4512,4513,4514,4515,4516,4517,4518,7411, 7412,7413,7414,7415,7416,7417,7418,8874,8938,9181,10752,10753, 10754,10755,10756,10757,10758,10759,10760,10761,10762,10763,10764,11224,11807,12032,12870,13130,13367,13490,13491,13492, 13493,13494,13495,13496,13497,14463,14487,14888,15667,17196, 17197,17198,17472,18226,18227,18228,18229,18230,18231,18232, 18351,18538, 18539, 18659,19469,19470,19471,19472,19473,19510, 19587,19821,20280,20281,20282,20283,20284,20285,20470 OF 2009,21924,22976 OF 2008 and 15874 of 2009TS,LA {CO}TP/EM 20.11.2009.