JUDGMENT Sabhajeet Yadav, J.
1. By this petition the petitioners have sought relief of certiorari for quashing the result of selection held on 11.7.96 including the select list, and a writ of mandamus commanding the respondents not to proceed with the final touch of the selected candidate and to consider the appointment of the petitioners on the marks originally secured by them and further not to give effect to the appointment and joining of the respondents No. 7 and 8 on the posts in question.
2. The petitioners have come forward with the case that an advertisement dated 29.4.1996 was published by the office of District Magistrate, (Bhoolekh Section), Saharanpur for holding written examination and interview for selecting candidates to be sent for training of Lekhpal There were as many as total 49 vacancies which were likely to be changed by increase or decrease in future. Being fully eligible and qualified for selection and appointment against the aforesaid vacancy the petitioners have applied for the same. The written examination for the purpose of said selection was held on 17th June, 1996 and the candidates who had succeeded in the written examination and were called for interview by the respondents fixing date of interview on 6th July, 1996. the petitioners have succeeded in written examination and called for and appeared in the interview. The result of final selection was declared after the said written examination and interview on 11th July, 1996. The petitioners' name did not find place in the final selection list. After lapse of some times the petitioners came to know that some manipulations have been done in the answer books of the petitioners on account of which they could not succeed in the final selection. Their marks in the written examination have been reduced so as to exclude them from the final select list prepared in the aforesaid selection. It is further alleged that the respondent No. 6 was one of the member of selection committee whose two sons namely the respondents No. 7 and 8 were also candidates of the aforesaid selection. In the process of the aforesaid selection the respondent No. 7 has been finally selected and sent for training. Therefore, the entire process of selection is vitiated on account of such manipulations and bias. Accordingly the select list prepared on 11.7.96 is liable to be quashed and consequently the further action of the respondents appointing selected persons are also liable to be struck down by this Court and the petitioners are entitled for selection and to be sent for training of Lekhpal.
3. On behalf of the respondents two counter affidavits have been filed in the writ petition one sworn by Sri Tabeer Singh Additional Tehsildar, Saharanpur and Anr. by Om Prakash the respondent No. 6 the then District Inspector of Schools, Saharanpur. wherein in para 6 and 11 of the counter affidavit sworn by Tabeer Singh Addl.Tehsildar, Saharanpur almost complete reply has been given. Virtually same and similar reply has also been given in para 6,7,9 and 11 of the counter affidavit sworn by Om Prakash respondent No. 6. For ready reference the averments made in the aforesaid paragraphs of counter affidavit are being reproduced as under :
6. That the contents of paragraph No. 15 and 16 of the writ petition are not admitted as stated. In reply it is necessary to submit here that certain oral complaints have been made by the candidates appearing in the test regarding valuation of marks and regarding appointment of examiner, therefore, selection committee after looking into complaints, decided to go through the marks allotted by the examiners. The members of selection committee had gone through the copies examined by examiners and members of selection committee found that certain copies of written test have been wrongly examined, therefore, a decision was taken by the committee to appoint another examiner for looking into the answer books. The Principal of the Government Industrial Training Institute (Sersawa), Saharanpur was appointed as examiner and he had examined all the answer books of 280 candidates. It is further to submit here that out of 12098, 280 candidates were called for interview, therefore, Principal was directed to re-examine the answer books of 280 candidates who had been called for interview After re-examination of answer books, the Principal found that marks allotted to the candidates of Roll No. 2, 4 and 5 are not correct therefore, correct marks were allotted by the Principal and accordingly earlier marks allotted to the petitioners have been changed.
7. That the contents of paragraph No. 17 of the writ petition are completely incorrect hence denied. As stated above, neither the respondent No. 4 nor any member of interview board, corrected the marks in answer books of the petitioners allotted to them by earlier examiner. After coming to know that certain answer books have not been correctly examined by the examiner, therefore, a decision was taken for re-examination of answer books and accordingly for that purposes, the Principal Government Industrial Training Institute Sarsawa, District Saharanpur was appointed as examiner and he had examined the answer books and corrected the marks accordingly.
9. That the contents of para 19 of the writ petition are not admitted as stated. It is relevant to point out here that after written test the marks allotted by examiners on answer books was feeded in computer for purposes of maintaining a list for calling the candidates for interview. As per marks allotted by earlier examiner a list was prepared and candidates were called for interview accordingly. As stated above, after interview, on the basis of complaints, answer books of the candidates appeared in interview were directed to be re-examined and after re-examination as stated above, certain corrections were made and final list was corrected on the basis of corrected marks.
11. That the contents of para 21 of the writ petition are completely incorrect hence denied. The answering respondent was nominated as member of selection committee by order dated 4.7.1996 passed by District Magistrate The respondent No. 7 and 8 are sons of the answering respondent. They had applied for entrance test and they appeared in the said examination. It is relevant to submit here that the respondent No. 8 was not succeeded even in written test, therefore, question does not arise for appearing before selection committee. So far as the respondent No. 7 is concerned, he is meritorious student. The respondent No. 7 qualified the written test therefore he appeared before selection committee. It is necessary to mention here that at the time of interview of respondent No. 7, the answering respondent was not present in selection committee. Only 3 members were present at the time of interview of the respondent No. 7. The marks allotted to respondent No. 7 was only by 3 members of selection committee and average was also concluded from the marks allotted by the three members of selection committee. A chart prepared by selection committee shall be produced at the time of hearing. The allegation levelled in para under reply against the respondent No. 6 is completely baseless and without any substance. Non selection of the respondent No. 8 is sufficient proof of fairness of selection committee and particularly of the respondent No. 6 .So far as decision rendered by Apex Court on this issue is concerned , the same is legal, hence can suitably be replied at the time of hearing.
4. I have heard learned Counsel for the petitioners and learned standing Counsel for the respondents . Having gone through the rival submission of the Counsel of the parties and from the perusal of record, the first question arises for consideration as to whether entire process of selection is vitiated on account of alleged bias affecting the selection and other manipulations in the process of selection ? In this regard it is necessary to point out that it is not in dispute that the respondent No. 6 was appointed as Member of selection committee and his two sons namely the respondents No. 7 and 8 have participated in the process of selection and one son has secured his selection and send for training and appointed on the post in question thus the question arises for consideration as to whether whole selection would be vitiated or only one selected candidate who was son of the respondent No. 6 alone can be excluded from select list and consequently can be directed to vacate the post held by him? At this juncture it is necessary to be pointed out that similar question has received consideration of Hon'ble Apex Court and other High Courts to be discussed herein after.
5 In A.K. Yadav v. State of Haryana Hon'ble Apex Court has dealt with the issue at length in para 15,16,17 and 18 of the decision as under :-
15. But the question still remains whether the selections made by the Haryana Public Service Commission could be said to be vitiated on account of the fact that Sri R.C. Marya and Sri Raghubvar Dayal Gaur participated in the selection process, though Truilok Nath Sharma who was related to Shri Raghubar Dayal Gaur and Shakuntala Rani and Balbir singh both of whom were related to Sri R.C.Marya, were candidates for selection. It is undoubtedly true that Sri Raghubar Dayal Gaur did not participate when Trilok Nath Sharma came up for interview and similarly Sri R.C.Marya did not participate when Shakuntala Rani and Balbir Singh appeared for interview at the viva voce examination. But according to the petitioners, this was not sufficient to wipe out the blemish in the process of selection for two reasons: firstly because Shri R.C.Marya and Shri Raghubar Dayal Gaur participated in the interviews of the other candidates and that gave rise to a reasonable apprehension in the mind of the candidates that Shri R.C.Marya and Shri Raghubar Dayal Gaur might tend to depress the marks of the other candidates with a view to ensuring the selection of the candidates related to them and secondly, because there could be reasonable apprehension in the mind of the candidates that the other members of the Haryana Public Service Commission interviewing the candidates might, out of regard for their colleagues, tend to give higher marks to the candidates related to them. The argument of the petitioners was that the presence of Shri R.C.Marya and Shri Raghubar Dayal Gaur on the interviewing committee gave rise to an impression that there was reasonable likelihood of bias in favour of three candidates related to Shri R.C.Marya and Shri Raghubar Dayal Gaur and this had the effect of vitiating the entire selection process. This argument was sought to be supported by the petitioners by relying on the decisions reported in D.K. Khanna v. Union of India Surinder Nath Goel v. State of Punjab (1973) 1 Serv. LR. 690, (Punj) and M. Ariffudin v. D.D. Chitaley (1973)2 Ser.L.R. 119. We do not think this argument can be sustained and for reasons, which we shall presently state, it is liable to he rejected.
16. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question as to whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must a/so appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the Courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision making process of a selection committee constituted for selecting officers to the Indian Forest Service in A.K. Kraipak v. Union of India . What happened in this case was that one Naquishbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir, Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J speaking on behalf of the Court countered the argument that Naquishbund did not take part in the deliberations of the Selection Board when his name was considered by saving :
But then the very fact that he was a member of the Selection Board must have its own impact on the decision of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals ...were considered. He was also party to the preparation of the list of selected candidates in order of preference. At very stage of his participation in the deliberation of the Selection Board there was a conflict between his interest and duty.... The real question is not whether he was biased It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased.... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
This Court emphasised that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection.
17. The High Court of Himanchal Pradesh in D.K. Khanna's case (supra) drawing inspiration from A.K.Kraipak's case, held that where one of the members of the committee constituted for selecting members of the State Civil Service for promotion to the Indian Administrative Service, was the son-in-law of a candidate who was competing for inclusion in the list of selected candidates, the entire selection process was vitiated by the presence of such member, though he did not take any part in the consideration of his father-in-law. The High Court observed that the degree of relationship in this case was so close as to reasonably give an impression to the other candidates that there was a real likelihood of the son in law espousing the cause of his father in law as his own. So also in Surinder Nalh Goel's case (1973) 1 Serv LR 690 (supra), the High Court of Punjab and Haryana took the same view where it was found (hat two of the candidates appearing for selection were the candidates appearing for selection were related to one of the members of the selection committee. The same approach was adopted by the High Court of Andhra Pradesh in M. Ariffudin 's case (1973) 2 Serv LR 119 (supra) where one of the members of the Andhra Pradesh Public Service Commission and participated in the selection for the posts of Professor and Lecturer in the Andhra Pradesh Technical Education Service, was a partner with some of the candidates appearing for the selection and it was held that the entire selection process was vitiated, because there was clearly reasonable likelihood of bias in favour of those candidates on the part of such member of the Commission. We may point out that so far as this last decision is concerned, it does not appear that the member of the Commission who was a partner with some of the candidates, withdrew when those candidates came to be interviewed and did not participate in the consideration of their candidature.
18. We must straightway point out that A.K. Kraipak's case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the selection committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdrew altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made not by any selection committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution. It is a commission which consists of a Chairman and a specified number of members and is a Constitutional Authority. We do not think that the principle which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a Constitutional Authority like the Public Service Commission , whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission . Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. Chinappa Reddy, J. observed to the same effect in Javid Rasool Bhat v. State of J and K. >while dealing with a similar question which arose before him for consideration :
The procedure adopted by the selection committee and the member concerned was in accord with the quite well-known and generally accepted procedure adopted by the Public Service Commission everywhere. It is not unusual for candidates related to members of the Service Commission or other selection committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this Court in the case of Nagarajan v. State of Mysore where it was pointed out that in the absence of mala fides it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the selection committee who had abstained from participating in the interview of that candidate. Nothing unusual was done by the present selection committee . The girl's father was not present when she was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed'....In the case before us, the Principal of the Medical College, Srinagar, dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice." We wholly endorse these observations. Here in the present case it was common ground between the parties that Shri Raghubar Dayal Gaur did not participate at all in interviewing Trilok Nath Sharma and likewise Shri R.C. Marya did not participate at all when Shakuntala Rani and Balbir Singh came to be interviewed and in fact both of them retired from the room when the interviews of their respective relatives were held. Moreover, neither of them took any part in any discussion in regard to the merits of his relatives nor is there anything to show that the marks or credits obtained by their respective relatives at the interviews were disclosed to them. We are therefore of the view that there was no infirmity attaching to the selections made by the Haryana Public Service Commission on the ground that though their close relatives were appearing for the interview. Shri Raghubar Dayal Gaur and Shri R. C.Marya did not withdraw completely from the entire selection process. This ground urged on behalf of the petitioners must therefore be rejected.
6. Now coming to the facts of the case it is not in dispute that the respondent No. 6, was nominated as member of selection committee and his two sons the respondents No. 7 and 8 participated in the said selection process. The respondent No. 8 was not succeeded in written test. The only excuse, the respondents have pleaded in the counter affidavit that the applications were invited for selection of candidate vide advertisement dated 29.4.1996 in pursuance thereof the respondent No. 7 and 8 have appeared in the said examination. The respondent No. 6 was nominated as Member of selection committee vide order of District Magistrate dated 4.7.1996. The selection committee was constituted according to the existing rules and G.O. It is averred that at the time of interview of the respondent No. 7, the respondent No. 6 has not participated in the interview and selection process and he withdrew himself at that moment. Thus in view of law laid down by Hon'ble Apex Court as indicated herein before I have no hesitation to hold that such course was not proper where selection was held by statutory selection committee as in present case, it would not be enough for such member of statutory selection committee merely to withdraw from participating in interview of candidate closely related to him but he must withdraw altogether from entire selection process and ask the authorities to nominate another person in his place in the selection committee, because otherwise all the selection made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. This excuse is permissible only in case of selection made by Union Public Service Commission and State Public Service Commissions constituted under the provisions of Article 316 of the Constitution for simple reason that the replacement of member of commission except by other available member of commission is not legally permissible. In case where two members or more members of commission are holding the interview, they are functioning not as individual member but under the rules of business of commission they are doing so as public service commission as a whole and when a close relative of any member of Public Service Commission is appearing for interview, such member must withdraw from participation in interview of that candidate and even the marks or credits given to such candidate should not be disclosed to such member and he shall not take part in discussion of merits of the candidate. Accordingly whole process of selection is vitiated on account of bias affecting the selection and not sustainable in the eyes of law, but petitioner did neither place the whole select list on record sought to be quashed by this Court nor impleaded all the selected candidates either in individual capacity or in representative capacity and only the respondents 7 and 8 have been impleaded in the writ petition since the respondents No. 8 could not succeed in written examination and only respondent No. 7 alone has succeeded in selection, therefore, it would be unjust and unfair to quash the selection and appointment of the respondents 7 alone when the selection and appointment of all the selected candidates have been fond illegal and invalid on the ground of bias affecting the aforesaid process of selection but while doing so I should not be understood to say that the illegalities committed in the aforesaid process of selection have been intended to be legalized by this Court.
7. Now next question arises for consideration as to whether selection committee was justified in reducing the marks of written examination secured by the petitioners after the result of written examination and interview was finally prepared in the garb of oral complaints made against allocation of marks given to the candidates in written examination without any proper inquiry held in this regard? In this connection it is necessary to point out that it is not in dispute rather as admitted in counter affidavits that on account of oral complaints made by certain candidates appearing in the test, the selection committee decided to go through the marks allotted by the examiners, thereupon it was found that in certain copies of answer books much more marks were awarded by the examiner therefore a decision was taken to appoint another examiner to look into answer books .The Principal of the Govt. Industrial Training Institute Saharanpur was appointed as examiner and he examined all answer books of 280 candidates who were called for interview out of 12098 candidates appeared in the written test. After re-examination the Principal found that marks awarded to the candidates of Roll No. 2, 4 and 5 are not correct therefore correct marks were allotted them after re-evaluation of their answer books of written examination accordingly marks secured by them have been reduced and after re-examination of answer books certain corrections were made and final list was corrected on the basis of corrected marks.
8. In this connection it is necessary to point out that it is not in dispute that the petitioner No. 1 was allotted Roll No. 4 and the petitioner No. 2 was allotted Roll No. 5 in the aforesaid selection process therefore it is admitted case of the respondents that the petitioners marks in written examination were reduced by selection committee not only after result of written examination was declared and interview was over but after preparation of final result of selection. Admittedly this exercise was undertaken by selection committee on alleged oral complaints of certain candidates According to the respondents out of answer books of 280 candidates only 3 candidates including the petitioners were allocated more marks in written examination. It was not a case of scrutiny of marks whereby mistakes in computation of marks were discovered by selection committee no such averments have been made in any of the counter affidavit rather it was a case of re-evaluation of answer books and on reevaluation by another examiner out of 280 candidates marks of only 3 candidates were varied from their original marks. The marks secured by remaining 277 candidates remained intact. It is also not the case of the respondents that re-evaluation was permissible under rules. It is also not clearly mentioned in the counter affidavit that re-evaluation was made on alleged complaint of candidates who were qualified in written examination or the candidate who have not qualified in the written examination. No other sort of manipulation were pointed out in the written examination. In absence of expertise of examining the answer books of candidates the selection committee can not examine answer book of 280 candidates who were called for interview. Another examiner was appointed to re-evaluation of answer books of 280 candidates who were called for interview, therefore, it seems very doubtful how the selection committee had come to this conclusion that marks awarded to certain candidates are not correct and high prior to re-evaluation of answer books of written examination of 280 candidates made by second examiner. Admittedly this exercise was undertaken by selection committee when the interview was over and final select list was prepared. The aforesaid facts leads towards an irresistible conclusion that the aforesaid exercise undertaken by selection committee was just to accommodate its own persons by excluding the petitioners from the final select list. The story of alleged oral complaints in given facts and circumstances of the case calling upon alleged inquiry made by selection committee appears to be concocted and after thought to save the selection in question. Thus whole process of selection is held to be arbitrary and illegal and not sustainable in the eye of law.
9. In a slightly different situation in Umesh Chandra Shukla v. Union of India certain equal number of marks were added to each candidates, under the garb of moderation to enable the certain candidates to secure qualifying marks in competitive examination was held illegal. In para 13 of the decision the Hon'ble Apex Court held as under :-
13. The question for consideration is whether the High Court in the circumstances of this case had the power to add two marks to the marks obtained in each paper by way of moderation. It is no doubt, true that the High Court is entrusted with the duty of conducting the competitive examination under Rule 13 of the Rules. It is argued on behalf of the High Court that the power to conduct an examination includes the power to add marks either by way of moderation or by way of grace marks if it feeIs that it is necessary to do so and reliance is placed by the High Court on its own past practice, and the practice prevailing in a number of universities in India, where marks are awarded either as moderation marks or as grace marks. It is true that in some educational institutions marks are awarded by way of moderation at an examination if the examining body finds any defect in the examination conducted by it such as inclusion of question in the question papers which are outside the syllabus, extremely stiff valuation of the answer books by an examiner or any other reason relevant to the question papers or the valuation of the answer books . The reason given by the High Court for adding the moderation marks has nothing to do either with the question papers or with the mode of valuation. The High Court approved the list of 27 candidates who had secured the required qualifying marks which would enable them to appear at the viva voce test as prescribed in the Appendix. Thereafter the High Court resolved to add two marks to the marks obtained in each paper by way of moderation on the ground that a few candidates who had otherwise secured very high marks may have to be kept out of the zone of consideration for final selection by reason of their having secured one or two marks below the aggregate or the qualifying marks prescribed in the particular paper. The resolution does not show the names of the particular candidates considered at the meeting in whose case such a concession had to be shown. The affidavit filed on behalf of the High Court, of course, refers to certain hard cases which persuaded the High Court to add additional marks by way of moderation. The question for decision is whether such a resolution can be passed by the High Court which is entrusted with the duty of conducting the examination. The High Court had not found any defect in the question papers or any irregularities in the valuation of the answer books. It may be hat some candidates had obtained high marks in some papers and by reason of their not obtaining the required marks in the other papers or 60% and above in the aggregate they may not have become qualified for the viva voce test. In our opinion this alone would not be sufficient to add any marks by way of moderation. It is relevant to note the mandatory character of Clause (6) in the Appendix to the Rules which says only such candidates will be called for viva voce who have obtained 50% marks in each written paper and 60% in the aggregate except in the case of candidates belonging to the Scheduled Castes. Tribes in whose case the qualifying marks will be 40% in each written paper and 50% in the aggregate. Addition of any marks by way of moderation to the marks obtained in any written paper or to the aggregate of the marks in order to make a candidate eligible to appear in the viva voce test would indirectly amount to an amendment of Clause (6) of the Appendix. Such amendment to the Rules can be made under Article 234 only by the Lt. Governor (Administrator) after consulting the High Court in that regard. In the instant case the resolving to add two marks to the marks obtained in each answer book by a candidate has virtually amended the Rules by substituting 48% in the place of 50% which is required to be secured in each written paper and 58% in the place of 60% which is required to be secured in the aggregate in the case of candidates not belonging to Scheduled Castes. Tribes and 38% in the place of 40% in each written paper and 48% in the place of 58% in the aggregate in the case of candidates belonging to Scheduled Castes Tribes. The adverse effect of the moderation on the candidates who had secured the required qualifying marks at the examination in question is quite obvious since four candidates whose names were not in the list of 27 candidates published on the first occasion have been included in the first list of candidates chosen for appointment from out of the final list of successful candidates in preference to some of the candidates who had obtained the qualifying marks in the written papers and they would have been appointed as Sub-Judges but for the interim order made by this Court. These four candidates were also tog et into the list of persons to be appointed as Sub-Judges because of the high marks they were able to secure at the viva voce test for which they were not eligible but for the moderation marks. The area of competition which the 27 candidates who had been declared as candidates eligible to appear at the viva voce examination before such moderation had to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the viva voce test should be the basis for selection. On reading Rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the selection committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The case pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court has no such power under the Rules. We are of the opinion that the list prepared by the High Court after adding the moderation marks is liable to be struck down. The first contention urged on behalf of the petitioners has, therefore, to be upheld. We, however, make it clear that the error committed by the High Court in this case following its past practice is a bonafide one and is not prompted by any sinister consideration.
10. Thus in view of the admissions made in the counter affidavit and above discussion it is clear that after evaluation of answer book in written examination and completion of interview when result of final selection was prepared, a novel device has been adopted by the respondents to re-examine the answer books by way of reevaluation of only 280 candidates who had been called for interview after their interview was over. Such practice cannot be found fair and free from doubt regarding the process of selection. Such exercise is likely to create feeling of distrust in the process of selection to public appointment which is intended to fair and impartial. It may also result in violation of principle of equality and may lead to arbitrariness as held by Hon'ble Apex Court in case referred herein before. Therefore, in given facts and circumstances of the case the selection held by the respondents cannot be held to be fair and free from doubt and I have no hesitation to hold so. Now further question arises for consideration before this Court that in given facts and circumstances of the case what would be future course of action?
11. In this connection it is necessary to point out that in some what slightly different situation in case of H.C. Puttaswamy and Ors. v. The Hon'ble the Chief Justice of Karnataka High Court , while taking note of earlier decisions rendered by Hon'ble Apex Court in para 13, 14 and 16 of decision held as under :-
13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.I.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the mid stream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection (See Lila Dhar v. State of Rajasthan .
14. We may briefly touch some of the decisions referred to us by Counsel for the appellants. A.K. Yadav v. State of Haryana was concerned -with the selection made by the Haryana Public Service Commission for appointment to the cadre of the Haryana Civil Service by allocating 33.3 per cent for viva voce. The selection was challenged before this Court on the ground that the marks awarded for the interview was high as it would open door for arbitrariness. This Court upheld that contention and held that the marks for viva voce test would not exceed 12.2 per cent. However, the Court did not set aside the appointments, instead, directed the Public Service Commission to give one more opportunity to the aggrieved candidates to appear at the competitive examination. In State of U.P. v. Rafiquddin , the validity of selection made by the Public Service Commission of Uttar Pradesh to the cadre of Munsifs came for consideration. Here again the Court refused to quash the appointment even though the selection was found to be contrary to the Rules of recruitment. In Miss. Shainda Hasan v. State of U.P. , the legality of appointment of a principal of a minority college was in question. The principal was averaged for appointment, but she was given age relaxation which was held to be arbitrary. Yet the Court has declined to strike down her appointment. On the contrary, the Chancellor was directed to grant the necessary approval for her appointment with effect from the date she was holding the post of the Principal. Her continuous working as Principal in the College seems to be the only consideration that weighed with this Court for giving that relief.
16. The precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy. We also take note of the fact that the writ petitioners also would be appointed in the High Court as stated by learned Advocate General of the State.
12. In Sri Ashok alias Sommana Gowda and Anr. v. State of Karnataka and Ors. only two candidates have challenged the process of selection, where large number of persons included in the select list contrary to the dictum of Apex Court, but while protecting the selected candidates who were appointed long back, Hon'ble Apex Court granted relief to only two persons who have challenged the process of selection. In para 2 of the decisions Hon'ble Apex Court has held as under :-
2. Sri Ashok alias Somanna Gowda appellant No. 1 is a Bachelor of Engineering (Civil) having secured first class with distinction getting 69.96% marks from Karnataka University, Shri Rajendra appellant No. 2 is a Bachelor of Engineering (Mech.) from Karnataka University and secured 66.40% marks in the qualifying examination. The Govt. of Karnataka by notification dated 4th April, 1985 invited application for recruitment of Asstt. Engineers (Civil) and (Mech.) for the Public Works Deptt. The selection were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview, in accordance with the K.S.C.S. (direct Recruitment by Selection) Rules, 1973 (hereinafter referred to as the Rules). According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview. Thus the marks allotted for interview amounted to 33.3% of the total marks. Applications were invited for 300 posts of civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 civil Engineers and 10 Mechanical Engineers, thus in all 450 Civil engineers and 110 Mechanical Engineers. Both the appellants applied for the posts of their choices in the Public Works Department, Government of Karnataka. Appellant No. 1 secured 29.50 marks out of 50 marks in the interview and 69.96 marks in the qualifying examination thus in all 99.46 marks out of 150. The 2nd appellant obtained 24.83 marks in the interview and 66.40 marks in the qualifying examination thus in all 91.23 marks out of 150. Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants The appellants filed a petition before the Karnataka Administrative tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 33.3 were excessive and in violation of the decisions of this Court. The Tribunal by its order dated 24th May, 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave. It is not necessary to examine the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav v. State of Haryana and Mohindr Sain Garg v. State of Punjab . On a direction given by this Court on 4th September, 1991 the record of the selection committee was produced before this Court at the time of hearing. From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose. Thus it is an admitted position that if the marks for interview were kept even at 15% of the total marks and merit list is prepared accordingly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. In view of the fact that the result . of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground. Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any mala fides in the matter of the impugned selections. However, the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kepi say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
13. Thus from a close analysis of observations made by Hon'ble Apex Court in H.C. Puttaswamy case (supra) and Ashok alias Sommana Gowda case (supra) it is clear that while taking note of earlier decisions rendered by Hon'ble Apex Court referred in the aforesaid cases Hon'ble Apex Court has held that although selections made which were under considerations were in either violation of existing statutory rules or against dictum of Supreme Court, thus were invalid but persons who were selected and appointed in pursuance of aforesaid selections their appointments were protected and services were saved by the Hon'ble Apex Court on humanitarian ground on account of fact that in pursuance of said selection they have continued in service for quite long time and they were over aged for entering into any other service. Under the existing rules most of them could not get age relaxation. At that stage they could also not be asked to face fresh selection and asking them to vacate the office in the mid stream of their life, when they have to bear their family burden on their shoulder it would be unjust and inequitable to dislodge them from service. It is true that such observation made by Hon'ble Apex Court in peculiar facts and circumstances of the case cannot be treated to be ratio of the decision having effect of binding precedents as held by Apex Court itself in several reported decisions need not to be referred to avoid bulkiness of the judgment yet the same can furnish sufficient light and guidelines to decide cases like present one. This Court is further conscious about the distinguishing feature of the aforesaid cases referred herein before and present one but fact remains as held earlier that the petitioners did not bring the select list on record nor impleaded the selected persons, who were appointed pursuant to the selection and they might have completed more than nine years service, therefore, on humanitarian considerations it would not be just and proper and equitable to dislodge them from service on the ground of such unfair selection at this belated stage.
14. Admittedly the petitioners have secured 53 marks and 51 marks respectively in their written examination, which were reduced to 42 and 44 marks respectively. Thus the subsequent reduced marks of written test may be ignored and excluded from consideration. The original marks secured by them in written test and in interview would form the select list. However, in given facts and circumstances of the case it would be appropriate to direct the authorities to redress the grievances of the petitioners by taking into account their original marks secured in written examination prior to re-evaluation of their answer books , and after adding the marks of their interview, if it is found that their performance on merits comes to at par with any last selected candidate lowest in merit in the selection in question, in their respective category, they shall also be selected and sent for training of Lekhpal forthwith without causing any further delay in the matter but they shall not be entitled for payment of any back wages or other service benefits prior to their selection and appointment.
15. Thus in view of aforesaid discussion and observation the respondents are directed to declare the result of the petitioners on the basis of original marks allotted by the examiner in their written examination and interview ignoring reevaluation of their answer books and marks allocated by another examiner. The Commissioner, Meerut Division Meerut, and District Magistrate/Collector, Saharanpur are directed to undertake this exercise within a period of 2 months from the date of production of a certified copy of this order before them.
16. With the aforesaid observations and direction the writ petition succeeds and is allowed to the extent indicated in the body of judgment.
17. There shall be no order as to costs.