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Mohinder Kumar Sood Vs. H.P. Public Service Commission and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 338 of 1981
Judge
Reported inAIR1982HP78
ActsConstitution of India - Articles 15, 16, 29, 29(2), 226, 234, 309, 341 and 342; ;Himachal Pradesh Judicial Service Rules, 1973 - Rule 5(9); ;Ex-Servicemen (Reservation of Vacancies in H.P. Judicial Service) Rules, 1981
AppellantMohinder Kumar Sood
RespondentH.P. Public Service Commission and ors.
Appellant Advocate Kapil Dev Sood and; Deepak Gupta, Advs.
Respondent Advocate Inder Singh, Adv. General and; D.K. Khanna, Adv.
DispositionPetition partly allowed
Cases ReferredV. B. Singh v. State of Punjab
Excerpt:
service - ex servicemen - articles 16 and 234 of constitution of india - appellant challenged examination held for recruitment in state judicial services - contended that reservation made for ex-servicemen was illegal as no consultation was done between state government, high court as well as commission as required under article 234 - contended that reservation for schedule caste and schedule tribe belonging only to state cannot be done - further contended amended acts were not supplied in time during examinations - section 14, 15 (4) and 16 (4) show that government can make reservation without consulting any one - state has an undoubted obligation to provide employment to ex servicemen who has faithfully served interest of country's security and ready to risk their lives - state.....v.d. misra, c.j.1. the last examination for recruitment to the hima-chal pradesh judicial service (referred to as the service) was held by the himachal pradesh public service commission (referred to as the commission) in 1975. in this examination 12 candidates were selected and appointed to the service. thereafter from time to time the high court asked the state government for recruitment of more persons to the service to fill vacancies in the service. the commission issued an advertisement inviting applications for the competitive examination. the advertisement appeared in the newspapers on 1st january, 1980. as this advertisement was found to be defective, it was withdrawn by the commission. another advertisement in october, 1980 was issued by the commission for recruitment of 9 persons.....
Judgment:

V.D. Misra, C.J.

1. The last examination for recruitment to the Hima-chal Pradesh Judicial Service (referred to as the Service) was held by the Himachal Pradesh Public Service Commission (referred to as the Commission) in 1975. In this examination 12 candidates were selected and appointed to the Service. Thereafter from time to time the High Court asked the State Government for recruitment of more persons to the Service to fill vacancies in the Service. The Commission issued an advertisement inviting applications for the competitive examination. The advertisement appeared in the newspapers on 1st January, 1980. As this advertisement was found to be defective, it was withdrawn by the Commission. Another advertisement in October, 1980 was issued by the Commission for recruitment of 9 persons to the Service. As many as 8 seats were reserved for Scheduled Castes, Scheduled Tribes and Ex-servicemen. The examination was proposed to be held on 22nd December, 1980. Before the examination could be held, one Ravinder Singh Dhaulta challenged the reservation by C. W. P. No. 202 of 1980. The State conceded that there was a mistake in making reservation for the Ex-servicemen since there was no provision for such reservation. On 4th December, 1980, the examination was countermanded.

2. At the request of the High Court the State Government asked the Commission to hold the necessary examination for filling 12 posts in the Service. An advertisement was issued in August, 1981 by the Commission. Two vacancies were reserved for Scheduled Castes, two for Scheduled Tribes, and one for Ex-servicemen. The examination was announced for 5th, 6th and 7th November, 1981 at Simla. The examination has been held. As many as 500 persons are stated to have taken the examination. Mohinder Kumar, petitioner, is one of them. By this writ petition he challenges the reservation as well as the manner in which the examination was held.

3. Mr. Kapil Dev Sood, learned counsel for the petitioner, has raised three contentions. The first is that the reservation made for Ex-servicemen vide Ex-Servicemen (Reservation of Vacancies in Himachal Pradesh Judicial Service) Rules, 1981 (referred to as Rules of 1981) is illegal since there was no consultation in terms of Article 234 of the Constitution between the State Government and the High Court as well as the Commission. The second contention is that the reservation in respect of Scheduled Castes and Scheduled Tribes has been made only in respect of persons residents of the State of Himachal Pradesh which could not be done. The third contention is that the examination was not conducted properly inasmuch as bare Acts, which under the rules have to be supplied to the examinees, were not supplied in time, and that the Hindu Marriage Act supplied to the examinees was an out-datedone and did not have the latest amendments. We will now deal with each of these contentions.

CONSULTATION.

4. Before we consider the contention of the parties it is necessary to record some relevant facts. The Demobilized Indian Armed Forces (Reservation of vacancies in the Himachal Pradesh Judicial Service) Rules, 1975 were notified on 28lh April, 1975. These were to remain in force for a period of five years. These automatically lapsed in April, 1980. The advertisement issued in October, 1980 providing for reservation of the Ex-servicemen was withdrawn when the Government realised that there were no rules in force for making such a reservation. Since the State Government was interested in making reservation for Ex-servicemen, it wrote a letter (Annexure R-3/A) to the Registrar of the High Court, A similar letter was written to Secretary to the Commission. The relevant part of the letter reads:

'It is proposed to extend these rules up to 31st December, 1982, as per draft amendment (copy enclosed). It is requested that approval of the High Court/ Public Service Commission may kindly be obtained and conveyed to this department immediately.'

The proposed amendment was of Sub-rule (2) of Rule 1 of the aforementioned Rules of 1975. The amendment reads:

'(2) These shall come into force on the 28th day of April, 1975, and shall not remain in force after the 31st day of December, 1982.'

The matter was considered by the High Court which, after careful consideration of the existing reservations, opined 'that it would not be in the interest of Judiciary to agree to any further reservation.' However, the Commission expressed its approval for the reservation,

5. In order to consider the question of reservation for the Ex-servicemen, the Government held a meeting of some officers to which the Secretary to the Commission as well as the Secretary (Law) to the Government were invited. The meeting was held under the chairmanship of the Chief Secretary (Annexure R-1/H, dated 29th June, 1981). The additional affidavit dated 1st April, 1982 filed by the Commission reveals that in this meeting the opinion of the High Court, alreadyexpressed, was taken note of though no one from the High Court was invited to take part in the meeting. As a result of this meeting the Rules of 1981 were notified on 1st August, 1981. Copies of this notification were duly sent to the Registrar of the High Court as well as to the Secretary to the Commission. The High Court expressed its concern on the Government making further reservations despite the opinion expressed bv the High Court. The Secretary to the Commission vide letter dated 15th September, 1981 (Annexure R-1/J) wrote to the Government that 'the Commission has desired to know the circumstances under which the constitutional requirement of consultations with the Commission was dispensed with.' The Government vide letter dated 12th November, 1981 (Annexure R-1/K) informed the Commission that 'the decision to notify the Ex-servicemen (Reservation of Vancancies in the Himachal Pradesh Judicial Service) Rules, 1981 was taken in a meeting held on 2nd July, 1981 under the chairmanship of the Chief Secretary which was also attended by you. Since the aforesaid rules had to be notified immediately due to certain administrative reasons, formal concurrence of the Commission could not be obtained. I am, therefore, to request you that ex-post-facto approval of the Commission may now kindly be obtained in the matter.' By letter dated 15th December, 1981 (Annexure R-1/L) the Commission conveyed its ex-post-facto approval as desired by the Government,

6. Now the new Rules of 1981 are not an amendment to the previous Rules of 1975 as was proposed by the Government. Indeed, they are practically a new set of rules.

7. The stand of the Government on the question of consultation with the High Court, as disclosed in the additional affidavit dated 1st April, 1982 filed by the Government, is, as follows:

'As regards consultation with the High Court, since the High Court had already conveyed its disagreement to the Government's proposal to extend the Demobilized Indian Armed Forces (Reservation of Vacancies in the H. P. Judicial Service) Rules, 1975, the High Court was not again consulted when the Ex-Servicemen (Reservation Of Vacancies in the H. P. Judicial Service] Rules, 1981 were notified, as both thesesets of Rules had the same intention viz. the intention to provide reservation for ex-servicemen in the H. P. Judicial Service, and the views of the High Court on this matter had already been solicited.'

8. We must record at this stage that the learned Advocate General straightway conceded, and in our opinion rightly, that there has been no consultation at all between the Government and the High Court in respect of the Rules of 1981. Indeed, what is 'consultation' is no more res integra. In a number of decisions the Supreme Court had occasions to refer to this question. In S. P. Gupta v. president of India, AIR 1982 SC 149, a Bench of seven Judges of the Supreme Court had occasion to consider, amongst others, the import of the word 'consultation' appearing in various Articles of the Constitution. The earlier decision of the Supreme Court in Chandera Mouleshwar Prasad v. Patna High Court, AIR 1970 SC 370 was inter alia reiterated. It was held that consultation is not a mere formality of asking the opinion of another but there has to be full and effective consultation by each party making their respective points of view known to each other and then discussing and examining their relative merits of the view.

9. The contention now raised by the learned Advocate General before us is that no consultation was necessary. It is submitted that the Government has the power to make the reservation under the Constitution without consulting the High Court. Reference is made to Sections 14, 15 (4) and 16 (4) to show that the Government can at any time make any reservation without consulting anyone. It is pointed out that unlike Article 309 read with Article 234, which requires consultation with the High Court as well as the State Public Service Commission before any rule relating to the appointments can be made. Articles 14 to 16 are not subject to other provisions of the Constitution. We need not test this contention in view of the next contention with which we are inclined to agree.

10. It is also contended by the learned Advocate General that in the Himachal Pradesh Judicial Service Rules, 1973 which were framed after consultation with the High Court, a provision has been made for making the reservations. Our attention has been drawn toClause (ii) of Sub-rule (9) of Rule 5, Part III-B. This sub-rule reads:

'9. (i) x x x x x x

(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the Commission in the list of those who have qualified under Sub-rule (8) of Part III-B.

Provided that the selection of candidates belonging to the Scheduled Castes/ Tribes and other backward classes in the order of merit inter se shall be made against the vacancies reserved for them and in the manner prescribed by Government from time to time.

x x x x x x.'

The proviso leaves no doubt that vacancies for Scheduled Castes, Scheduled Tribes, and other backward classes can be reserved. The manner of reservation has, however, been left to the Government. It can be prescribed from time to time.

11. It is contended by Mr. Sood that the proviso should be struck down as illegal since it amounts to abdication of the powers of the High Court in favour of the Government. We are not impressed by this contention. The High Court had been consulted and it had agreed that there should be reservation for Scheduled Castes, Scheduled Tribes, and other backward classes. This decision was in consonance with the principles enshrined in the Constitution for the up-liftment of these classes. The only discretion left to the Government was about the extent of reservation. This extent was likely to vary from time to time in view of the economic development of various communities with the passage of time. It is the State which has the means of finding out the extent of handicap suffered by various classes and, therefore, is in a position to fairly conclude the extent of reservation which may be required by each class. In this view of the matter it cannot be said that the High Court has abdicated its powers or functions.

12. In A. K. Roy v. Union of India, AIR 1982 SC 710 an Act was challenged on the ground of excessive delegation since it provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the maximum prescribed. Chief Justice Chandrachud, speaking for the majority while approving the Court's earlier decision in Sita Ram Bishamber Dass v. State of U. P., AIR 1972 SC 1168, quoted with approval the following observations of Hegde, J. :--

'However much one might deplore the 'New Despotism' of the executive, the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evolved in the 19th Century have become out of date.'

The observations of Khanna, J., in Gwalior Rayon Silk . v. Asstt. Commr. of Sales Tax. AIR 1974 SC 1660 were also quoted with approval. Khanna, J., had observed that the growth of the legislative power of the executive is a significant development of the twentieth century and that provision was, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation.

13. Mr. Sood then contends that ex-service-men by no stretch of imagination can be called a backward class and so no reservation can be made for them in terms of the said proviso to Clause (ii) to Sub-rule (9) of Rule 5, Part III-B.

14. It is Article 15 which prohibits discrimination on the ground of religion, race, caste, sex, place of birth or any of them. Its present Clause (4) was added by the Constitution (First Amendment) Act, 1951. This clause reads:

'Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.'

Clause (2) of Article 29 lays down:

'No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them.'

In other words, the connotation 'socially and educationally backward classes of citizens' applies equally to Article 15 as well as to Article 29 (2). Its import came to be considered in D. N. Chanchala v. State of Mysore, AIR 1971 SC 1762 at p. 1775. Shelat, J., speaking for the majority, observed:

'The principle underlying Article 15 (4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in anyway be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15 (4). It is on such a principle that reservation for children of Defence Personnel and Ex-Defence Personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not available.'

15. The term 'backward class of citizens has also been used in Clause (4) of Article 16 which guarantees equality of opportunity in matters of public employment. This Clause enables the State to make provisions to make reservations for appointment of posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. It will be noticed that the aforementioned proviso to Clause (ii) to Sub-rule (9) of Rule 5 uses the term 'other backward classes'. This term will cover all 'backward classes' referred to in Article 15 (4) and Article 16 (4). In Jagdish Rai v. State of Haryana, (19771 1 Serv LR 77 : (AIR 1977 Punj and Har 56), the Full Bench of the Punjab and Haryana High Court was called upon to determine whether the reservation of vacancies for ex-armed forces personnel is constitutionally valid or not. After reviewing the existing case law, the Bench up-held the reservation with the following observations: (at p. 61):

'...it must be said that while the best and the most meritorious of those seeking appointment under the State should be selected, it is also equally fair and equitable that a just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped. It would be an extension of the principle of Article 16 (4) to those that do not fall under Article 16 (4). Defence Personnel who on account of their service with the Army, the Navy and theAir Force over the years have lost opportunities for entering Government service and have also lost contact with ordinary civilian life, may find it extremely difficult, on demobilisation, to compete with civilians for civilian jobs, despite the qualities of discipline, sacrifice, sense of public duty, initiative, loyalty and leadership which they would have undoubtedly acquired as members of the Defence Forces. The State has an undoubted obligation to provide employment to Ex-Servicemen who have faithfully served the interests of the country's security, ready to risk their lives. The State has an obligation to protect them from the competition of civilian applicants against whom they may not stand a chance for reasons already mentioned. The State is, therefore, justified in classifying them separately as a source of recruitment and reserving posts for them.'

We are in respectful agreement with this decision.

RESERVATIONS.

16. Mr. Sood submits that according to the advertisement reservations have been made for Scheduled Castes and Scheduled Tribes belonging to the State of Himachal Pradesh only. It is contended that no such reservation could be made since the reservations, if any, should have been made for Scheduled Castes and Scheduled Tribes generally.

17. It is not the case of the petitioner that any person belonging to Scheduled Castes or Scheduled Tribes of other States has been prevented from taking the examination. Indeed no difference has been made between the Scheduled Castes and Scheduled Tribes of this State and of other States as regards the concession in the examination fee. The results have not yet been announced and it cannot be said whether any Scheduled Caste/Scheduled Tribe candidate belonging to other States has qualified and has got more marks than the Scheduled Caste/Scheduled Tribe candidates belonging to the State of Himachal Pradesh. The question, therefore, seems to us to be hypothetical only.

18. Admittedly Scheduled Castes and Scheduled Tribes have been declared by the president under Articles 341 and 342 of the Constitution with reference to each State. The Constitution (Scheduled Castes) Order, 1950 lays down the various castes which have been declared as Scheduled Castes in respect of each state. Similarly the Constitution (ScheduledCastes) (Union Territories) Order, 1951 specifies the castes declared as Scheduled Castes in respect of each Union Territory. Similar order has been made with regard to Scheduled Tribes. Our attention has been drawn to a circular dated 17th August, 1981 issued by the State Government of Himachal Pradesh. It records that an opinion has been formed by the State Government that proper weightage for the Scheduled Castes and Scheduled Tribes of Himachal Pradesh has not been given in this State. It is also pointed out that various States have confined the reservation in their services to the Scheduled Castes and Scheduled Tribes belonging to them only. For these reasons the Government of Himachal Pradesh decided that the reservation for Scheduled Castes and Scheduled Tribes in Himachal Pradesh shall be confined only to persons belonging to Scheduled Castes and Scheduled Tribes of this State.

19. Mr. Sood relies on P. M. Muni Reddy v. Karnataka Public Service Commission, (1982) 1 Sery LR 170 : (1981 Lab IC 1345), a judgment of a single Judge of the Karnataka High Court, in support of the contention that no such reservation could be made. In that case the petitioner belonged to a 'Konda Reddies' tribe of Tamil Nadu. Posts of lecturers were advertised by the Karnataka Public Service Commission. One of the posts was reserved for Scheduled Tribes. However, no one was appointed against that post. The petitioner contended that he was entitled to be appointed. According to the stand taken by the State Public Service Commission, the petitioner was entitled to be appointed. However, the Government did not take any specific stand in their reply but at the time of arguments supported the contention of the private respondent that a Scheduled Tribe of an outside State could not be appointed. Reliance was placed on the provisions of Articles 341 and 342 of the Constitution. It may be noticed that the State Government had not restricted the reservation to Scheduled Castes and Scheduled Tribes belonging to that State only. In these circumstances it was held that the petitioner was entitled to be selected against one of the posts in the service reserved in favour of Scheduled Tribes. The learned single Judge, after holding that as far as the Union Government is concerned there could be no doubt (and it was notdisputed) that as regards eligibility for selection against posts reserved in favour of Scheduled Castes and Scheduled Tribes, the eligibility could not be restricted in favour of Scheduled Castes and Scheduled Tribes belonging to any particular State or region, observed :

'In my view, the position in the States would not be different, unless any State chooses to restrict the reservation of posts in the services of that State to persons declared as belonging to Scheduled Castes or Scheduled Tribes for the State only if it is possible for the State to do so without violating the provisions of Articles 14, 16 (1) and 16 (2) which prohibit discrimination on the ground of residence etc. and Article 16 (3) which empowers only the Parliament to prescribe residence as one of the qualifications; on which I do not express any opinion as such a question does not arise for consideration in this petition, the benefit of reservation of posts made in favour of persons belonging to Scheduled Castes and Scheduled Tribes in one Slate without any restrictive clause is available to all persons belonging to Scheduled Castes and Scheduled Tribes, irrespective of the State to which they belong.'

This judgment is obviously of no help to the petitioner. On the other hand our attention has been drawn to a Division Bench judgment of Punjab and Haryana High Court reported in ILR (1976) 1 Punj and Har 769, V. B. Singh v. State of Punjab, wherein it was held that any reservation of appointments made in favour of Tribes specified in the Schedule to the Scheduled Castes Order in relation to any particular State is not violative of Article 16 (2). Such a provision was held to be protected by Article 16 (4) even if it be discriminatory on the basis of place of birth or residence.

20. Clause (1) of Article 16 guarantees equal opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) of this Article prohibits discrimination between citizens on grounds only, inter alia, of places of birth or residence. However, Clause (4) of this Article is a proviso and creates an exception. This clause reads:

'(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of theState is not adequately represented in the services under the State.'

As already pointed out, the State has issued a circular dated 17th Aug., 1981 pointing out for proper weight-age in the State services being not given to the Scheduled Castes and Scheduled Tribes. Therefore, the order restricting the reservations to the Scheduled Castes and Scheduled Tribes belonging to this State only is saved by Article 16 (4) of the Constitution and cannot be struck down.

EXAMINATION.

21. One of the grievances of the petitioner is that on 5th Nov., 1981 the candidates were not given the bare Acts to which they were entitled. It is stated that the examination was due to start at 10-30 A. M. The petitioner was required to take the examination at S. D. School, Simla, which was centre No. 2. At this centre the number of the candidates was 105. The candidates demanded bare Acts but the Superintendent of the examination announced that he did not have the same. Candidates refused to' sit for the examination and a pandemonium resulted. The question papers had been taken out of the sealed cover at 10-25 A. M. and given to the invigilators. Some of the students are stated to have got up from their seats and came out of the examination hall. It was at 12 noon when the examination started. During this interval, it is alleged, some of the candidates had the opportunity to prepare the answers. The Commission does not dispute that the examination was to start at 10-30 A. M. at centre No. 2 but in fact it started at about 12 noon. It is stated that there were 103 candidates. The report of the Superintendent of the examination (Annexure R-1/A) records what happened. It states that it was at 10-25 A. M. that the question paper packets were opened and question papers handed over to the invigilators for distribution. As the question papers were about to be distributed a few candidates got up from their seats and asked for complete set of books first before the question papers were handed over to them. They also instigated others to walk out of the examination hall. The Superintendent immediately reported the matter to the Secretary of the Commission who came to the centre with additional stock of books. Thereafter the examination was conducted late by 1 1/4 hours.

22. Now the reply of the Commission as well as the report of the Superintendent is completely silent about the fact whether any bare acts were available with the Superintendent at 10-30 A. M. It is also not stated as to how the Superintendent tried to meet the demand of the candidates. It may be clarified that it is not the case of the Commission that the demand was unjustified. Indeed, it is conceded that according to the rules the candidates were entitled to the bare Acts. Though during arguments Mr. Khanna, learned counsel for the Commission, submitted that there were some Acts available but we cannot accept his word since there is nothing on the record before us to support his submission.

23. We may also at this stage point out that it is the Secretary, Mrs. Asha Sarup, of the Commission who has filed the reply affidavit on behalf of the Commission. She is completely silent as to what happened at centre No. 2 which she had to visit on 5th Nov., 1981 because of the situation created by the candidates. In the reply complete reliance is placed on the report (Annexure R-A1/A) of the Superintendent. This report is of 7th Nov., 1981, that is two days after the examination. Why this report was submitted on 7th Nov. and not on 5th Or 6th Nov., 1981 is not clear from the record. We had inquired from Mr. Khanna whether Secretary had submitted any report to the Commission about the incident of 5th Nov., 1981 or had made a record of what she had seen at centre No. 2. We are informed that no such record was made nor any report submitted to the Commission by the Secretary. We would have expected from a very responsible person like the Secretary of the Commission to give us as to what she had done at centre No. 2 and what were the reasons for the delay in starting the examination.

24. It is not denied that the examination at the other centres at Simla started at 10-30 A. M. It is, however, submitted that according to the rules no candidate was allowed to leave the examination hall before half of the time of the examination was over. Our attention has been invited to the instructions issued to the Superintendents as well as the invigilators on this aspect. We have, therefore, no reason to conclude that any candidate from the other centres was able to come to centre No. 2 with the question paper and inform some of thecandidates about the questions. The petitioner alleges: 'The petitioner learns that some of the question papers were already with the candidates along with answer books and they had attempted some of the questions between 10-30 A.M. and 12 P.M. outside the examination hall with the help of commentaries,' This indeed is a vague allegation. Evidently the petitioner did not see any candidate writing any answer outside the examination hall. The petitioner's learning about it only amounts to perhaps some rumours which might have become current because of the pandemonium. We may at this stage record that the Commission in its reply, as well as the Superintendent in its report, have unnecessarily cast aspersions on the candidates asking for the bare Acts by suggesting that they had all conspired and had pre-planned to disturb the examination to get it postponed. The Commission forgets that it was the right of each candidate to have the bare Acts according to the rules and it was the duty of the Commission to ensure that these were available to the candidates by the time the question papers were distributed. The laxity of the Commission is evident from their admission that the copy of the Hindu Marriage Act supplied to the candidates did not have the amendments affected by the Marriage Laws (Amendment) Act, 1976. It is indeed surprising that in a competition for the recruitment of future judicial officers the Commission did not even bother to ensure that they were supplied bare Acts containing all the amendments up-to-date. The facts speak for themselves and we make no further comments.

25. Now the stand taken by the Commission be better reproduced verbatim from its reply. It reads:

'However, the Hindu Marriage Act supplied to the candidates did not contain the amendments of 1976. The candidates in all the centres were, therefore, asked to answer the relevant questions either with the help of the bare Acts as supplied to them or in accordance with the amended law on the basis of their memory. It was made clear that in either case their answer would be taken as correct by the Examiner who would be instructed accordingly. This announcement was made at all the centres and a copy of the instructions issued to the Examiner is annexed hereto as Annexure R-1-F.'

26. We find that the verification of this affidavit by the Secretary is 'true to my personal knowledge derived from the official record.' We asked Mr. Khanna to produce the official record which show that the announcements, as deposed to by the Secretary, were in fact made at each examination centre. We also inquired from him as to who had made the announcements, and at what time and under what authority were these made. Mr. Khanna was unable to show us any record containing these facts. Of course, an announcement could be made either by the Secretary of the Commission or by the Superintendents of each examination centre. But before such an announcement could be made the Commission has to authorise it. It would indeed be necessary for the Commission to first realise that the bare Acts supplied to the students did not contain the necessary amendments and only then a decision could be taken to make the announcements. Annexure R-1/F, which is referred to in the reply, is only a letter addressed by the Secretary to the examiner on 18-11-1981, that is about 11 days after the examination. The relevant part of the letter reads:

'Some of the candidates pointed out that there had been major amendments in 1976 and that the latest Act had to be provided to the candidates. It was, therefore, decided by the Commission that the replies given by the candidates according to the Act provided by us, may be treated as correct. Also, if the candidates have, on the basis of their memory, replied correctly in accordance with the amendments having taken place after 1963, the same may please also be treated as correct for the purposes of evaluation.'

27. There is nothing in this letter to show that any announcement, as stated by the Secretary in her affidavit, was ever made. We may at this stage record that after we had reserved the judgment, affidavits of S/Shri P. B. Sharma, Under Secretary to the Commission, T. N. Ganju, Headmaster S. D. High School, Simla and R S. Kataria, Headmaster D. A. V. High School, Simla, were filed. Before we deal with these affidavits we may record that Shri P. B. Sharma had filed an additional affidavit on 1st April, 1982. In that affidavit no mention was made about the facts deposed to in the present affidavit. However, we would not hold anything against him on that score. Thelatest affidavit shows that it was the Chairman of the Commission who 'took verbal decision that those who could answer the questions on the basis of their memory should be allowed to do so. Others should attempt on the basis of the Acts provided and that the answers in both the cases would be taken to be correct. The Chairman also desired to address the Examiner in the matter'. Strangely enough, the decision was not recorded by either the Chairman or the Secretary or the Under Secretary. Even the Superintendents did not record the exact phraseology of the announcement made by them in each centre. Apparently the present affidavit by Shri P. B. Sharma is based on his memory of what he was told as well as about the announcement made by him. There is an apparent contradiction between the letter written to the examiner and the affidavit. The letter shows that if the answer given by a candidate on the basis of his memory is correct in accordance with the amendment only then he was to get the marks. The present affidavit does not show any such condition. We do not expect that the Commission, which is a very responsible body and is entrusted with important competitive examinations for recruitment to various services, should leave such important matters to the memory of the persons concerned who would come out after five months to say as to what was the announcement made,

28. We may repeat that it has not been explained to us that though the announcement was made on 6th Nov., 1981, why it took about 11 days before a letter was written to the examiner since, ordinarily, the answer books are sent to an examiner immediately after the examination is over. The decision conveyed in the letter is indeed strange. If a candidate knew about the amendments and was not willing to answer the questions with reference to the unamended Act supplied, he had entirely to depend on his memory. According to the aforementioned instructions given to the examiner, it was only if the answer was correct according to the memory of a candidate that the candidate was to get the marks. If the memory of a candidate was to play a trick on him, he was to suffer. And this for no fault of his. And why should he suffer for the fault of the Commission which seems to be oblivious to the difference between amended and unamendedActs. We cannot under any circumstances hold that the examination of the candidates in the paper relating to Hindu Marriage Act was fair in any sense of the term. We are, therefore, constrained to hold that the examination relating to Hindu Marriage Act being not fair has to be quashed.

29. The petition is, therefore, partly allowed. The examination in Hindu Marriage Act is quashed, The Commission is directed to hold fresh examination in paper Civil Law-II since Hindu Marriage Act is one of the parts of that paper. The parties are left to bear their own costs.


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