Whether a writ proceeding is civil or criminal depends on the nature of relief claimed and grounds for such relief

Whether a writ proceeding is civil or criminal, depends on the nature of relief claimed and grounds for such relief. “Civil Proceedings” or “Criminal Proceedings” are not defined anywhere. The Constitution of India does not define the expression, “Civil Proceeding” nor does the General Clauses Act. The two proceedings are entirely different and distinct, though at times it may overlap to some extent. But the distinction between the civil proceedings and criminal proceedings is well defined.

In Halsbury’s Laws of England, Fourth Edition, Vol. 11, Criminal and Civil proceedings have been distinguished thus :-

“Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff: criminal proceedings have for their object the punishment of a person who has committed a crime. Criminal proceedings are not to be used as a means of enforcing a civil right. Whether conduct amounts to a crime may be determined by ascertaining whether the conduct in question is followed by criminal or civil proceedings. If the proceedings will result in the punishment of a party, the conduct in question will be a crime notwithstanding that it may be a matter of small consequence. Where an act is commanded or prohibited by statute, disobedience is prima facie criminal unless criminal proceedings manifestly appear to be excluded by the statute. An act may be prohibited or commanded by a statute in such a manner that the person contravening the provision is liable to a pecuniary penalty which is recoverable as a civil debt; in such an instance contravention is not a crime.”

 In State of U.P. v. Mukhtar Singh, AIR 1957 All 505, the Division Bench of the Allahabad High Court considered the nature of the proceedings under Article 226 of the HC-NIC Page 4 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Constitution of India. One of the Judges, Beg, J. explaining the nature of proceedings, held that whether a proceeding is civil or not, depends on the nature of the subject-matter of the proceeding and its object and not on the mode adopted or the form provided for enforcement of right. According to His Lordship, a proceeding which deals with the right of civil nature and otherwise of civil nature does not cease to be so just because the party chooses resort to Article 226 of the Constitution for enforcement of such right. The fact that a right has been created by the Constitution or the forum for its enforcement prescribed by it should not make any difference, if the subject-matter of the right sought to be agitated in the proceedings is itself of a civil nature, and the object of the proceedings is merely the enforcement of such a right, and not punishment of a wrong. On the other hand, Desai, J. constituting the Division Bench was of the view that a proceeding under Article 226 for a writ is not a civil proceeding. According to His Lordship, much confusion has resulted from the assumption, for which there is no warrant at all, that jurisdiction is either civil or criminal. There are several kinds of jurisdictions and there is no foundation for the view that civil and criminal jurisdiction exhaust the list of jurisdictions that can be conferred upon a High Court. According to Desai, J., Article 225 retains the civil, criminal, testamentary, intestate and matrimonial jurisdiction conferred upon the High Courts under the Letters Patent and Article 226 confers additional jurisdiction and since it is the additional jurisdiction, it must be different from the jurisdictions viz. civil or criminal. (see M/s Nagpur Cable Operators Association vs. Commissioner of Police, Nagpur, AIR 1996 Bombay 180)

The Division Bench of the Bombay High Court in J.P. Sharma v. The Phalton Sugar Works Ltd., AIR 1964 Bom 116, while dealing with the proceedings under Article 226 of the Constitution held as under :-

“The next argument of Mr. Joshi is that all proceedings under Article 226 are either civil or criminal. When a person asks for a writ of Habeas Corpus, that is a criminal proceeding. But when a person asks for any other writ than the Habeas Corpus, the proceedings are necessarily civil proceedings. The proceedings started under Article 226 are not proceedings under any Act, but are proceeding to quash the orders made under certain Acts, or for orders restraining the officers to take action under certain Acts. They are, therefore, civil proceedings and not proceedings under the Act. It is not possible to accept HC-NIC Page 5 of 46 Created On Tue Dec 01 01:12:36 IST 2015 the argument. Mr. Joshi admits that the proceedings for the issue of a writ of Habeas Corpus is a criminal proceeding. He admits that it is criminal proceeding because it is a relief asked against the arrest or retention of a person in contravention of the provisions of the criminal law. If that be so, we see no reason why we should hold that even though the relief asked is a relief against an order made under taxation laws or enforcement of the taxation laws against a person, the proceedings should not be revenue in nature. On the other hand, it would be logical to hold that the nature of the relief which is asked for in each case under Art.226 should be determinative of the nature of that proceeding. If the relief asked is against the exercise of powers under criminal law, the proceedings would be criminal proceedings. If the relief asked is for enforcement or in exercise of a civil right to prevent infringement of a civil right, the proceedings will be civil in nature. Similarly, if the relief is sought in relation to the enforcement of the taxation law, the proceedings would be revenue in nature. It is difficult to accept the contention of Mr. Joshi that proceedings under Art.226 are either civil or criminal in nature. On the other hand, we agree, with respect, with the view taken by the Patna High Court that the writ application may be a civil proceeding according to the nature of the application and the questions raised and decided in the proceedings. In the instant case, as already stated, the assessee sought to get quashed the notices issued under Section 34 of the Income-tax Act, and also prayed for an order restraining the Income-tax Officer from taking any action in enforcement of the notices. In other words, in the proceedings under the Income-tax Act, as already stated, are revenue in nature. The writ proceedings with which we were dealing, therefore, were revenue in nature.”

The question whether a writ proceeding under Article 226 of the Constitution of India is a civil proceeding or criminal proceeding is considered at great length in the judgment of the Apex Court in I.S.A. Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818. The Apex Court observed thus :-

“. . . . . The expression “civil proceedings” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A HC-NIC Page 6 of 46 Created On Tue Dec 01 01:12:36 IST 2015 criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts as civil and criminal. . . . . ”
The Supreme Court further observed in the said report as under :-

“. . . . .The character of the proceedings, in our judgment, depends not upon the nature of the Tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration – express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.”
9. The Supreme Court, in the case of Somabhai Mathurbhai Patel vs. New Shorrock Mills, 1983 GLH 273, has taken the following view;

While we are not inclined to grant special leave at this stage, we, however, record our disapproval of the way in which the learned Single Judge has dealt with the judgment of Hon. M. C. Trivedi, J which dealt with the identical point and which judgment was binding on the learned Judge. It is not open to a learned Single Judge to reject the ratio of the decision of another learned Single Judge of the same High Court by merely saying that attention of M. C. Trivedi J. was not invited to the decision of Supreme Court which may have an impact on the point under examination. Judicial comity demands and this Court has often reiterated that in that event the matter should be referred to a larger HC-NIC Page 7 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Bench. But in this case, learned Judge has observed that he is unable to agree with the view taken by M. C. Trivedi, J. because in his view the question was directly covered by an earlier decision of this Court, That aspect of the matter itself needs examination. Therefore, if the matter at any stage goes back to the High Court and the same question is raised in the interest of justice it should be heard by a Division Bench. Mr. Kaji, learned Advocate for the petitioner made another grievance that the relief was granted in the absence of a pleading in the plaint on the question of tenancy as covered by Section 13(1)(f) of the Bombay Rent Act as applicable in Gujarat. Mr. Arun Mehta, learned Advocate for respondent appearing on caveat conceded that as the matter be remanded to the District Judge, Nadiad, plaintiff will seek permission for appropriate amendment of the plaint. If such an application is made, learned Judge may deal with it according to law and it should not be understood that this Court has directed such an amendment being made.


Writ of certiorari- an Indian historical perspective

A writ of certiorari like the writ of prohibition is a judicial writ of antiquity and it is the ordinary process by which the Court of King’s Bench Division exercises control over the acts of bodies vested with inferior jurisdiction. The writ is intended to bring up before the High Court the records of proceedings or determinations of inferior tribunals and to quash them if the tribunals are found to have acted in excess of their jurisdiction.

A writ of certiorari lies against the Government of Bombay. Section 306, read with S. 176, Government of India Act, 1935, expressly preserves the right to sue in all cases where such a right could be exercised as against the East India Company. The learned Attorney General argued that the section was confined to suits and to actions and did not cover the case of writ of certiorari. It was said that there is no power to issue a command to the Sovereign. My simple answer is that the Provincial Government is not the sovereign and that the Government of India Act expressly says that there is a right to sue the Province. The expression “sue” means “the enforcement of a claim or a civil right by means of legal proceedings.” When a right is in jeopardy, then any proceedings that can be adopted to put it out of jeopardy fall within the expression “sue”. Any remedy that can be taken to vindicate the right is included within the expression. A writ of certiorari therefore falls within the expression “sue” used in S. 176, Government of India Act, 1935, and the remedy therefore is within the express terms of the statute. The immunity granted by S. 306 is to the Governor and not to the Province. It was argued that the word “Governor” in the section is synonymous with “Provincial Government” by reason of the definition of phrase “Provincial Government” given in S. 46 (3). General Clauses Act. In my opinion this definition cannot affect the interpretation of the Government of India Act. In that Act the Provincial Government and the Governor have been used in two different senses and not in one sense. Immunity from suits is given to the Governor and not to the Provincial Government, though the Governor may be one of the important component parts of the Provincial Government. Reference in this connection was made to the East India Company Act, 1780 (21 Geo. III C. vii) and to various statutes which eventually culminated in Ss. 306 and 176, Government of India Act, 1935. On the basis of the Act of 1780, it was contended that the High Court had no jurisdiction to issue a writ against the Governor. That statute, however, did not prohibit the issue of a writ against the East India Company. On the other hand, there are cases which show that such writs were being issued against the East India Company. In my opinion, the matter has to be decided exclusively under the terms of the Government of India Act, 1935, and not on the terms of any repealed statute. Clauses (4) and (13) of the Charter of the Supreme Court gave, the power to issue a writ of certiorari to the High Court against the East India Company and the same jurisdiction has been kept alive by the Government of India Act, 1935. ‘Reference was made to a number of Madras cases but, in my opinion, those cases have not been correctly decided inasmuch as they have placed the Governor on the same footing as the Provincial Government by a process of reasoning which to my mind is not correct.

“The procedure of certiorari” as has been observed by Flatcher-Moulton L. J. in Rex vs. Woodhouse, (1906) 2 K. B. 501 at p. 535:(75 L. J. K. B. 745) “applies in many cases in which the body whose acts are exercised would not ordinarily be called a ‘Court’ nor would its acts be ordinarily termed judicial acts. The true view of the limitation would seem to be that the term ‘judicial act’ is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law.”

58. There can be no doubt that originally the writ of certiorari was issued only to inferior Courts using the word ‘Court’ in its ordinary sense. As bodies of various types and denominations exercising semi-judicial functions came to be introduced, the writ was extended to these bodies also. There is a long line of decide cases showing that the writ of certiorari has been issued to rating authorities, licencing Justices, Electricity Commissioners, the Board of Education, the General Medical Council, the Inns of Court, Assessment Committees, the Commission of Taxation and various other authorities who could be regard as performing some sort of judicial or semi-judicial function though they have no authority to try case, or pass judgments in the proper sense of the word:Vide Halsbury’s Laws of England (2nd Edn.) vol. 26 p. 284. It would be interesting to note that in King vs. Postmaster General, (1928) 1 K. B. 291:(96 L. J. K B. 347) a writ of certiorari was issued to quash a disablement certificate granted by the Chief Medical Officer of the Post Office on the ground that he was not the certifying surgeon under the Workmen’s Compensation Act 1925, and the granting of certificate was held to be a judicial act. In Rex vs. Boykott, (1939) 2 K. B. 651:(105 L.J. K. B. 657) one Russel Keanely moved on behalf of his infant son Stanley for an order of certiorari to remove and quash medical certificate granted by the respondent to the affect that Stanley was incapable by reason of mental defect of receiving benefit from in striation in special school under S. 56, Education Act, and two other connected documents. The Court was of opinion that as doubts did arise as to whether the boy was inducible, it was a proper case to be determined by the Board of Education under S. 31. It was held in these circumstances that the three documents which were parts and parcel of one and the same transaction constituted the determination of a quasi-judicial authority, and “exhibited all the mischief which a writ of certiorari was intended and well fitted to correct.” The result was that all the three documents were directed to brought up and quashed. Even a report made by a Chief Gas examiner has been removed and quashed by a writ of certiorari R. vs. London County Council, (1895) 11 T. L. R. 337.

59. In the words of Banks L. J. the course of development of law on the subject demonstrated what has been the boast of English Common Law that it will, whenever possible and where necessary, apply existing principles to new set of circumstances:Vide Rex vs. Electricity Commrs., (1924) 1 K. B. 171 at p. 192 and it was in very general terms that opinion was expressed in Rex vs. Inhabitants of Glamorganshire, 1 Ld. Raym. 580 that the Court would examine the proceeding of all jurisdictions erected by Acts of Parliament and if under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants, the Court would send a certiorari to them to have their proceedings returned to the Court to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it, to restrain them. 59a. The whole law on the subject relating to issuing of writs of certiorari was thus summed up by Atkin L.J. in Rex vs. Electricity Commissioners, (1921) 1 K.B. 171 at p. 205:(93 L.J.K.B. 390):

“Whatever anybody or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in there writs.”

 

SC refused to interfere with the arrest of five activists by Maharashtra Police in Koregaon-Bhima violence case.

The three-judge bench of Supreme Court of India headed by Chief Justice Dipak Misra, in a 2:1 verdict, refused the plea seeking the immediate release of the activists.

Order : September 28, 2018

“Accordingly, this writ petition is disposed of with liberty to the concerned accused to take recourse to appropriate remedy as may be permissible in law. The interim order passed by this Court on 29th August, 2018 shall continue for a period of four weeks to enable the accused to move the concerned court. The said proceedings shall be decided on its own merits uninfluenced by any observation made in this judgment, which is limited to the reliefs claimed in the writ petition to transfer the investigation to an independent Investigating Agency and/or Court-monitored investigation. The Investigating Officer is free to proceed against the concerned accused as per law. All the accompanying applications are also disposed of in terms of this judgment”. [Read the Judgment] Continue reading

Maj. Amod Kumar Vs. Union of India & ANR. [ALL SC 2018 SEPTEMBER]

September 6, 2018-Writ Petitions under Article 32-Army Service Corps-The Officers belonging to the ASC, Army Ordinance Corps, and Electronic and Mechanical Engineers, i.e. the services stream, do not constitute a common cadre with those serving in the Arms, and Arms Support for the purposes of promotion.4 As a result, they were not entitled to be considered for promotion to the rank of Colonel against the vacancies created in pursuance of the implementation of the AVS Committee Report.

The Petitioners have contended that the Posting Orders passed by the Respondents posting them to operational areas/units is violative of their Fundamental Rights guaranteed by Articles 14 and 21 of the Constitution. The Petitioners have, however, failed to substantiate how their Fundamental Rights have been violated. Postings and transfers are a necessary incident of service. Hence, the grievance, if any, cannot be entertained under Article 32. Continue reading

M. K. Gopalan and another Versus The State of MADHYA PRADESH [ALL SC 1953 APRIL]

KEYWORDS:-SANCTION FOR PROSECUTION

AIR 1954 SC 362 : (1955) 1 SCR 168 : (1954) CriLJ SC 1012

(SUPREME COURT OF INDIA)

M. K. Gopalan and another Appellant
Versus
The State of MADHYA PRADESH Respondent

(Before : B. K. Mukherjea, S. R. Das, N. H. Bhagwati, B. Jagannadhadas And T. L. Venkatarama Ayyar, JJ.)

Petition No. 55 of 1954, Decided on : 05-04-1954.

Res judicata—Writ petition—The question raised before High Court under Article 226 of Constitution—No appeal made to Supreme Court from decision of High Court—Subsequent petition under Article 32 of Constitution raising the similar question is not maintainable.

Sanction for prosecution—Defect—Effect of—Lacunae if any in the sanction can be remedied in the course of trial by leading specific evidence in this regard.

Jurisdiction of Court—Determination of—The provision under Section 197 Criminal Procedure Code, 1898 providing for sanction for prosecution also authorising the sanctioning authority to specify the Court for trial—Where no specification is made, trial is subject to other provisions of the Code.

Counsel for the Parties:

Mr. N. C. Chatterjee, Senior Advocate, (M/s. J. B. Dadachanji and Rajinder Narain, Advocates with him), for Petitioners

M/s. K. V. Tembe and I. N. Shroff, Advocates, for the State.

Judgment

Jagannadhadas, JThis is a petition under Article 32 of the Constitution and is presented to this Court under the following circumstances. Petitioner No. 1 before us was an Agricultural Demonstrators of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government.

He, as well as the second petitioner and 44 others are under prosecution before Shri. K. L. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. 1 of 1949 pending before him on charges of cheating, attempt to commit cheating, criminal breach of trust and criminal conspiracy, (i.e. for offences punishable under Section 420 read with Section 120-B or 109, I.P.C., Section 409 and Section 409 read with Section 120-B, (I.P.C.), and the allegation is that by reason of the acts committed by the accused, the Government of Madras had incur an expenditure of ` 3,57,147-10-0 in excess of the amount due.

The Special Magistrate before whom the case is now pending was appointed by the Madhya Pradesh Government under Section 14 of the Criminal Procedure Code, and as the first petitioner was a servant of the Govt. of Madras, the prosecution against him has been initiated by sanction given by the Government of Madras under Section 197 (1) of the Criminal Procedure Code.

2. The validity of the prosecution is challenged on various grounds, and the present petition is for quashing the proceedings on the ground of their invalidity. The three main points taken before us are:1. Section 14 of the Criminal Procedure Code, in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to constitute a special Magistrate for the trial of an individual case, violates the guarantee under Article 14 of the Constitution.

2. The sanction given under Section 197 (1) of the Criminal Procedure Code for the prosecution as against the first petitioner is invalid, inasmuch as the order of the Madras Government granting the sanction does not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority; nor does the sanction state the time or place of the occurrence or the transactions involved in it, or the persons with whom the offences were committed. This contention is raised relying on the Privy Council case in – Gokuchand Dwarkadas vs. the King AIR 1948 PC 82 (A).

3. Even if the sanction under Section 197(1) of the Criminal Procedure Code is valid, it is for the very Government which accords the sanction to specify also the court before which the trial is to be held under Section 197(2), and in the absence of any such specification by the said Government, the power under Section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government.

3. These points may now be dealt with seriatim. In support of the objection raised under Article 14 of the Constitution, reliance is placed on the decision of this Court in – ‘State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75(D). That decision, however, applies only to a case where on the allotment of an individual case to a special court authorised to conduct the trial by a procedure substantially different from the normal procedure, discrimination arises as between persons who have committed similar offences, by one or more out of them being subjected to a procedure, which is materially different from the normal procedure and prejudicing them thereby.

In the present case, the Special Magistrate under Section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure, and no discrimination of the kind contemplated by the decision in ‘Anwar Ali Sarkar’s case, (B)’ and the other cases following it, arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such, and is therefore not hit by Article 14 of the Constitution. There is, therefore no substance in this contention.

4. As regards the second ground which is put forward on the authority of the Privy Council case of – ‘Gokulchand Dwarkadas vs. The King, (A)’, it is admitted that the trial has not yet commenced. The Privy Council itself in the case mentioned above has recognised that the lacuna, if any, in the sanction of the kind contemplated by that decision can be remedied in the course of the rival by specific evidence in that behalf. Learned counsel for the State, without conceding the objection raised, has mentioned to us that evidence in that behalf will be given at the trial. It is, therefore, unnecessary to decide the point whether or not the sanction, as it is, and without such evidence, is invalid.

5. It is the third point that has been somewhat seriously pressed before us. The contention of learned counsel for the petitioners is based on sub-Section (2) of Section 197 of the Criminal Procedure Code, which runs as follows:

“The Governor-General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate, or public servant is to be conducted, and may specify the Court before which the trial is to be held.”

The argument is that it is for the very Government which sanctioned the prosecution under S. 197(1) to specify the court before which the trial is to be held and no other, and that consequently, in a case to which Section 197(1) applies, the exercise of any power under Section 14 is excluded. It is said that though the exercise of the power under Section 197(2) in so far as it relates to specification of the court is concerned is discretionary and optional, but if in an individual case, that power is not exercised, it must be taken that the appropriate Government did not feel called upon to allot the case to any special court, and that, therefore, such allotment by another Government under Section 14 would affect or nullify the power of the appropriate Government under Section 197(2).

It is also suggested that such dual exercise of the power by two Governments would be contrary to the policy underlying Section 197 which is for the protection of the public servant concerned, by interprosing the sanction of the Government between the accuser and as servants of the categories specified therein. This argument is far-fetched. In the first instance, there is no reason to think that Section 197(2) is inspired by any policy of protection of the concerned public servant, as Section 197(1) is. There can be no question of protection involved by an accused being tried by one court rather than by another at the choice of the Government.

The power under Section 197(2) appears to be vested in the appropriate Government for being exercised, on grounds of convenience, or the complexity or gravity of the case or other relevant considerations. The argument as to the implication of non-exercise of the power by the appropriate Government under Section 197(2) is also untenable. The power to specify a court for trial in such cases is a permissive power and there can be no such implication, as is contended for, arising from the non-exercise of the power.

6. This entire argument, however, is based on a misconception of the respective scopes of the powers under Section 197(2) and Section 14. The one relates to the “court” and the other to the “person”. Under sub-Section (2) of Section 197, the sanctioning Government may, specify a court for the rival of the case but is not bound to do so. When it does not choose to specify, the court, the trial is subject to the operation of the other provisions of the Code. But even when it chooses to exercise the power of specifying the court before which the trial is to be held, such specification of the court before which the trial is to take place. That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. The argument of learned counsel proceeds on treating the word “court” in sub-Section (2), of Section 197 as being the same as a “person” in sub-Section (1) of Section 14, for which there is no warrant. There is accordingly no substance in this connection.

7. In addition to the above three points, learned counsel for the petitioners has also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case, and to whose file on such appointment this case, was transferred, was later on appointed as acting Sessions Judge for some time and ceased to have this case before him. He reverted back form his position as acting Sessions Judge to his original post. The point taken is that without a fresh notification appointing him as Special Magistrate and transferring the case to him as such, he cannot be said to be seized of this case as Special Magistrate. Here again, learned counsel for the State informs us, without conceding the point so, taken that he is prepared to advise the Government to issue the necessary notification and have the case transferred. In view of that statement, it is unnecessary to pronounce on the objection so raised.

8. In the result, all the points raised on behalf of the petitioners fail, and this petition must be dismissed.

9. It is desirable to observe that the questions above dealt with, appear to have been raised before the High Court at previous stages by means of applications under Art. 226 and decided against. No appeals to this court have been taken against the orders therein. Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders, nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom.

The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal

In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta and another, (1975) 1 SCC 858, this Court held :

“The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts.”

33. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

“Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

“Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

35. In light of the aforesaid legal position concerning jurisdiction of the High Court under Article 227, which the High Court failed to keep in mind, it must be held that in the facts and circumstances of the case and the findings recorded by the Additional Rent Controller as well as the Administrative Tribunal, High Court was not justified in interfering with the concurrent orders of eviction based on the ground of sub-letting in exercise of its power under Article 227 of the Constitution of India.

Babhutmal Raichand Oswal vs. Laxmibai R. Tarta and Anr., (1975) 1 SCC 858, dealing with supervisory power of a High Court under Article 227 of the Constitution, Bhagwati, J. (as His Lordship then was) stated;

“If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts”.

In Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, again this Court while interpreting the provisions of the Act in question, held that the High Court, while exercising powers under Articles 226 and 227 of the Constitution, cannot act like an appellate Court and re-appreciate or re-evaluate the evidence while exercising certiorari or supervisory jurisdiction. Only a patent error which did not require establishment by lengthy and complicated arguments or by long drawn process of reasoning is amenable to certiorari jurisdiction. If two opinions were reasonably possible, the finding arrived at one way or the other by the appellate authority, cannot be disturbed.

 

Habeas corpus writ

Latin, meaning “you have the body.” A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way.

 

Where the Disciplinary Authority records a finding without any evidence or a finding which no reasonable person could have arrived at, the writ court would interfere

Supreme Court in the case of Allahabad Bank & Ors. v. Krishna Narayan
Tewari [Civil Appeal No.7600 of 2014], it was held that the though “it is true that a
writ court is very slow in interfering with the findings of facts recorded by a
Departmental Authority on the basis of evidence available on record”, “but it is
equally true that in a case where the Disciplinary Authority records a finding that is
unsupported by any evidence whatsoever or a finding which no reasonable person
could have arrived at, the writ court would be justified if not duty bound to examine
the matter and grant relief in appropriate cases. The writ court will certainly interfere
with disciplinary enquiry or the resultant orders passed by the competent authority
on that basis if the enquiry itself was vitiated on account of violation of principles of
natural justice, as is alleged to be the position in the present case. Non-application
of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons
in support of the conclusion arrived at by them are also grounds on which the writ
courts are justified in interfering with the orders of punishment.”

It was further held that “in cases where the High Court finds the enquiry to be
deficient either procedurally or otherwise the proper course always is to remand the
matter back to the concerned authority to redo the same afresh. That course could
have been followed even in the present case. The matter could be remanded back
to the Disciplinary Authority or to the Enquiry Officer for a proper enquiry and a fresh
report and order. But that course may not have been the only course open in a given
situation. There may be situations where because of a long time lag or such other
supervening circumstances the writ court considers it unfair, harsh or otherwise
unnecessary to direct a fresh enquiry or fresh order by the competent authority.”[2017]

United Air Travel Services through its Proprietor A.D.M. Anwar Khan Vs. Union of India through Secretary (Ministry of External Affairs) [ALL SC 2018 MAY]

KEYWORDS:-Private Tour Operators-Quota for the Hajj-Hajj policy-

supreme court of india 1

DATE:-May 07, 2018

“It was also emphasized that it is a sound policy to punish the wrongdoer and it is in that spirit that the courts have molded the relief by granting compensation in exercise of writ jurisdiction”.

SUPREME COURT OF INDIA

United Air Travel Services through its Proprietor A.D.M. Anwar Khan Vs. Union of India through Secretary (Ministry of External Affairs)

[Writ Petition (Civil) No.631 of 2016] [Writ Petition (Civil) No.636 of /2016]

[Writ Petition (Civil) No. 634 of 2016] [Writ Petition (Civil) No. 934 of 2016]

[Writ Petition (Civil) No. 941 of 2016] [Writ Petition (Civil) No. 938 of 2016]

[Writ Petition (Civil) No. 11 of 2017] [Writ Petition (Civil) No. 94 of 2017]

SANJAY KISHAN KAUL, J.

1. A batch of writ petitions raises the issue of Private Tour Operators (for short ‘PTOs’) who are, inter alia conducting the travel business for Hajj and Umrah being disqualified for grant of registration for the year 2016 for the Hajj pilgrimage. The prayer is for quashing the identical communications dated 27.7.2016 issued by the respondent rejecting the application of the petitioners for registration and allocation of quota for the Hajj 2016 on the ground that they have not complied with certain clauses of the policy for the PTOs as laid down by this Court.

2. The issue relating to the Hajj policy and the registration of these PTOs has resulted in two judicial pronouncements by this Court in Union of India v. Rafique Shaikh Bhikan1 and Al Ismail Haj Tour v. Union of India2. The policy presented on behalf of the Government was approved by this Court with slight modifications and was annexed as Appendix-I to the order in Union of India v. Rafique Shaikh Bhikan3 case referred to aforesaid to be called as ‘Policy for Private Tour Operators for hajj 2013 – 2017’.

The policy was to remain valid for a period of five years and was not to be questioned in any court or authority. The petitioners were all eligible to be qualified as PTOs for the year 2015 for Hajj pilgrimage but in the process of draw of lots dated 7.8.2015, luck did not favour them and they thus did not get quota. The relevant extract of the policy is as under:

“Appendix I

Ministry of External Affairs

(Gulf and Haj Division)

***

Registration of Private Tour Operators – Haj 2013

The Government of Saudi Arabia has notified that Private Tour Operators (PTOs) registered with the Government of India and involved in the preparation of the Haj Pilgrimage will be eligible for grant of Haj group visas subject to fulfilment of other terms and conditions as laid down by the Saudi Authorities.

2. Applications are invited from eligible PTOs for registration for Haj 2013. The eligibility criteria are at Annexures A and B. The applications must be submitted in the prescribed format (Annexure C) directly to MEA or any other agency appointed by it.

3. It is to be noted that the Government of Saudi Arabia has stipulated that effective Haj 2013, a PTO should facilitate at least 150 pilgrims. Accordingly, the PTO Policy has been reframed. For registration and allotment of quota of Haj seats for Haj 2013, interested PTOs may apply under the following two categories:

Category I

PTOs registered with MEA and facilitated Hajis at least for 7 Haj operations or more.

Category II

PTOs registered with MEA and facilitated Hajis for at least for 1 to 6 Haj operations and PTOs which have facilitated at least 50 umrah pilgrims in a year for any five years.

4. 70% of the overall quota of seats will be allocated to eligible PTOs under Category 3(I) and 30% to eligible PTOs under Category 3(II). Distribution of seats among qualified PTOs will be done as follows:

(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to eligible PTOs under Category 3(I) at the rate of 150 seats per PTO. In case the number of PTOs exceeds 210, the allocation of seats will be done on draw of lots. If the number of qualified PTOs is less than 210, each PTO will be allocated 150 seats and surplus seats, if any, will be distributed equally among them.

(b) 30% of Haj 2013 PTO seats (9000) will be allocated to eligible PTOs under Category 3(II) at the rate of 150 seats per qualified PTO. If the number of qualified PTOs exceeds 90, the allocation of seats will be done by draw of lots. In case the number of PTOs is less than 90, each PTO will be allocated 150 seats. Balance seats, if any, will be transferred to Category I and distributed equally among them. A qualified PTO which fails to get selected under the draw of lots in any year will be allocated 150 seats in the ensuing year without qurrah if it remains a qualified PTO.

5. This Policy is expected to remain valid for five years 2013- 2017 unless there are substantive developments which affect it. The allocation of seats to qualified PTOs in each category will be done every year on the basis of the overall quota of PTO seats specified in the Annual India-Saudi Arabia Haj Agreement and the number of qualified PTOs remaining in each category. The policy envisages cross-category upward movement of PTOs from Category II to Category I. A qualified PTO shall remain qualified unless it is otherwise disqualified either by the Government of India or by the Government of Saudi Arabia for valid reasons. It is to be noted that the PTOs who do not wish to take a minimum of 150 Hajis or are unable to do so, need not apply.

6. Last date for receipt of applications which should be addressed to the MEA or any other agency appointed by it.

(emphasis supplied)

3. In terms of the aforesaid policy since the qualified PTOs exceeded 90, a draw of lots was held. Further, since the petitioners were not successful in the draw of lots, they were entitled, under clause 4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing year without Qurrah if they remain qualified as PTOs. We may note at this stage that as per the submissions advanced, in view of certain changes in the policy of the Saudi Government, the number of seats to be allocated for 2016 would have been 50.

4. It is also apparent from the Press Release of 7.8.2015 giving the list of PTOs who have qualified but did not get quota, that the petitioners figured in the said list.

5. On 29.4.2016, the Ministry of External Affairs published the norms for registration of PTOs for Hajj 2016. Para 3 of this reads as under:

“3. All the terms and conditions laid down in Annexure A & B will also apply on PTOs that qualify under Category-II by virtue of facilitating a minimum of 50 Umrah pilgrims in a year for any 5 years, but with the exception of the terms and conditions contained under Clause (vii), (x), (xi) and (xii) of Annexure A. In addition, these PTOs are also required to submit the proof of payment made through banking or any other authorised channels towards purchase of tickets and hiring of accommodation in Makkah and Madinah in respect of Umrah pilgrims facilitated by them in support of their claim.”

6. The aforesaid, thus, provided that persons like the petitioners who had qualified for the year 2015 but were not successful in the draw of lots would have the benefit of exemption of terms and conditions contained in clauses (vii), (x), (xi) and (xii) of Annexure A.

7. For purposes of completion of record, we enumerate hereinbelow the said clauses of Annexure A:

“ANNEXURE-A

Terms and Conditions for Registration of Private Tour Operators (PTOs) for Haj-2016

Each PTO should establish that it is a genuine and established Tour Operator having experience in sending tourists/pilgrims abroad for which it should produce the following documents:

Sl. No.

Terms and Conditions

Vii

Proof of payment made through banking (Bank Statement) or other authorized channels towards purchase of tickets and hiring of accommodation in Makkah/Madinah for the financial year 2013-14 (Haj2013) or 2014-15 (Haj 2014).

Payments towards purchase of tickets, hiring of accommodation for pilgrims in Makkah/Madinah, by any other means, would not be accepted.

x

Copies of Registration Certificate issued to the PTO in support their aim-wise and PTO-wise.

Xi

Contract for hiring of buildings for pilgrims and “Tasreeh” together with English translations PTO category wise. (Please enclose rental receipts and a copy of lease deed, duly signed with the Saudi owners for Haj.

Xii

Copy of Munazzim Card and relevant Haj visa pages of the Passport of the Proprietor/Owner.

8. The petitioners, however, faced identical rejection letters of 26.7.2016 (sent through e-mail dated 27.7.2016), the contents of which are as under:

“Subject: Intimation regarding non-allocation of quota to Private Tour Operators (PTOs) for Haj-2016.

Dear Sirs,

This has reference to your application regarding registration for Haj 2016.

2. On scrutiny of your application submitted for Haj-2016, your firm has not been found eligible for registration and allocation of quota for Haj 2016 on the following grounds:

PTO has not complied with clause vii, x, xi and xii of Annexure A of PTO. Policy as laid down by Hon’ble Supreme Court for any one of the Haj year.

3. Your ineligibility for registration and allocation of quota for Haj 2016, however, does not prejudice your right to debar you from applying for registration for Haj 2017 on the basis of the required conditions for Haj 2017.”

9. A bare perusal of the aforesaid letter would show that the reason cited for disqualification was non-compliance of the very clauses of which exemption had been granted to the petitioners.

10. Learned Additional Solicitor General appearing for the respondents could not dispute the aforesaid position but sought to canvas that the reasons were wrongly communicated in the rejection letter, and there was actually, some other reason for the rejection. The aforesaid plea can hardly be countenanced in view of the reasons referred to and communicated.

11. Learned counsel for the petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi & Ors.4 to submit that such a plea cannot be accepted.

We may note that this is a well settled legal position in many judicial pronouncements of this Court, but it is not necessary to revert to the same. In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his inimitable style states as under:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad inthe beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.

We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji: “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.”

12. The aforesaid legal position, thus, makes the stand of the respondent unsustainable, resulting in the quashing of the impugned letters of rejection.

13. The question, however, rises what relief can be granted in such a situation. The passage of time has made certain reliefs infructuous. The time period for conducting Hajj tours for 2016 as well as 2017 is over. Thus, even the alternative relief prayed for 2017 has become infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016; 634/2016 & 636/2016, there is a specific alternative plea for compensation to the petitioners for the loss accrued due to non-grant of registration for the Hajj of 2016. While there is no such specific plea in the other writ petitions, given the identical situation, we are of the view that the same principle ought to be applied in all these cases. The petitioners cannot be left remediless.

The mindless action of the respondents in rejecting the eligibility of the petitioners for the year 2016 on the very grounds on which they were exempted necessitates that the petitioners should be entitled to damages in public law so that they are compensated, at least, to some extent for not having been able to carry on with their business on account of illegal action of the respondents.

14. The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa5, it was observed that public law proceedings serve a different purpose than private law proceedings. In that context, it was observed as under: “The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen.

The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

It was also emphasized that it is a sound policy to punish the wrongdoer and it is in that spirit that the courts have molded the relief by granting compensation in exercise of writ jurisdiction. The objective is to ensure that public bodies or officials do not act unlawfully. Since the issue is one of enforcement of public duties, the remedy would be available under public law notwithstanding that damages are claimed in those proceedings.

15. The aforesaid aspect was, once again, emphasized in Common Cause, a Registered Society v. Union of India6. We may also usefully refer to N. Nagendra Rao & Co. v. State of A.P.7 qua the proposition that the determination of vicarious liability of the State being linked with the negligence of its officer is nothing new if they can be sued personally for which there is no dearth of authority.

16. In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did not apply to them and for conditions, which had been specifically exempted. What could be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is consequent violation of the principles enshrined under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of compensation.

17. On a conspectus of the aforesaid facts including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be adequate compensation for the loss suffered by them and sub-serve the ends of justice. We are conscious of the fact that there is no quantification based on actual loss, but then the award by us is in the nature of damages in public law.

18. The amount for each of the petitioners be remitted by the respondents within two months from the date of this order failing which the amount would carry interest @ 15 per cent per annum apart from any other remedy available to the petitioners. It will be open to the respondents to recover the amount of damages and costs from the delinquent officers responsible for passing such unsustainable orders.

19. The writ petitions are allowed in the aforesaid terms with costs quantified at Rs.10,000 per petition.

………………………………J. [J. Chelameswar]

………………………………J. [Sanjay Kishan Kaul]

New Delhi.

May 07, 2018.

_____________________________

1 (2013) 4 SCC 699

2 (2016) 15 SCC 246

3 (supra)

4 (1978) 1 SCC 405

5 (1993) 2 SCC 746

6 (1999) 6 SCC 667

7 (1994) 6 SCC 205

Richal & Ors. Etc. Vs. Rajasthan Public Service Commission & Ors. Etc.[ALL SC 2018 MAY]

KEYWORDS:-Reexamination of Answer Sheet-Publication of key answers-

c

DATE:-MAY 03, 2018.

  • The key answers prepared by the papersetter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key answers is a step to achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process.

SUPREME COURT OF INDIA

Richal & Ors. Etc. Vs. Rajasthan Public Service Commission & Ors. Etc.

[Civil Appeal No.. 46954699 of 2018 arising out of SLP (C) No(s). 1430614310/ 2017] WITH [ SEE BELOW]

ASHOK BHUSHAN, J.

Delay Condoned.

1. Leave granted.

2. This batch of appeals questions the judgment delivered by Special Appeal Benches of the Rajasthan High Court. The Special Appellate judgment of Rajasthan High Court dated 08.03.2017 delivered at Jodhpur and Judgment dated 13.04.2017 delivered at Jaipur Bench, affirming the judgments of learned Single Judge dismissing the writ petitions filed by the appellants are under challenge.

3. The appellants had appeared in School Lecturer Exam – 2015 conducted by Rajasthan Public Service Commission (hereinafter referred to as “Commission”), in which they could not be declared successful. Brief facts giving rise to these appeals are:

(i) The Rajasthan Public Service Commission vide its advertisement dated 16.10.2015 advertised 13,000 posts of School Lecturers for various subjects under Secondary Education Department, Government of Rajasthan. The examination consisted of two papers – PaperI – General Awareness and General Studies, and PaperII of respective subjects. The examination was conducted on 17.07.2016. On 12.08.2016, answer keys were published inviting objections regarding the answer key. Many candidates submitted objections with regard to different subjects, with regard to PaperI as well as PaperII. On 22.09.2016, the Commission declared the result, against which several writ petitions were filed questioning various answers as per final answer key.

The learned Single Judge vide its judgment and order dated 08.11.2016 in Writ Petition No. 15028/2016 Arvind Kumar & Ors. Vs. RPSC & Ors. disposed of the writ petition with various directions. One of the directions was to upload the revised answer key along with report of Experts on the website within one week. In pursuance of directions of learned Single Judge dated 08.11.2016, final answer key was published on 18.11.2016 and 18 questions in PaperI were deleted. Second round of litigations was started by filing various Writ Petitions by the candidates raising various objections to the answer key. The learned Single Judge vide its judgment dated 08.02.2017 at Jodhpur dismissed the bunch of writ petitions after considering the objections raised by several writ petitioners. Learned Single Judge accepted the Expert Committee’s report on various answers.

(ii) Against the judgment dated 08.02.2017, writ appeals were filed by various candidates at Jodhpur. The Division Bench vide its judgment dated 08.03.2017 dismissed the writ appeals confirming the judgment of learned Single Judge. While dismissing the writ appeals, various directions were issued by the Division Bench to the Commission with regard to preparation and publication of answer key and action to be taken against those who are entrusted with the preparation of key answers. At Jaipur also, writ petitions were dismissed, against which writ appeals were filed and vide judgment dated 13.04.2017, following the judgment dated 08.03.2017 delivered at Jodhpur, the Division Bench also dismissed the different writ appeals.

(iii) Following judgment dated 08.03.2017, the Division Bench both at Jodhpur and Jaipur dismissed several other writ appeals. Before us, the appeals filed against the judgment dated 08.03.2017 and judgment dated 13.04.2017 and various other judgments following earlier judgments have been filed. The judgment dated 08.03.2017 delivered at Jodhpur Bench is the main judgment which has been followed by the High Court in several judgments for deciding this batch of appeals. It shall be sufficient to refer to and consider the Division Bench judgment dated 08.03.2017 giving rise to the Civil Appeal arising out of SLP (C) Nos. 1430614310 of 2017 – Richal & ors. etc.etc. Vs. Rajasthan Public Service 6 Commission & ors. etc. etc. for deciding this batch of appeals.

4. In this batch of appeals, various applications for impleadment and intervention have been filed. We allow all the impleadment and intervention applications. This Court after hearing the matter on 16.01.2018 passed the following order:” The Rajasthan Public Service Commission (RPSC) had issued an advertisement for filling up of more than 13,000 posts of school lecturers in the State of Rajasthan. The written test was conducted pursuant thereto. The key to the answers was also published. Some of the candidates questioned that the aforesaid key does not give correct answers to some of the questions. It was mentioned that few questions were not even correctly framed. On that basis, a writ petition was filed in the High Court.

Learned Single Judge after going into the said grievances of those candidates gave a direction for constituting the Expert Committee to examine as to whether the key to the answers is correct. The Expert Committee gave its report recommending deletion of 18 questions which according to the Expert Committee were not correctly framed and, therefore, needed to be deleted. It also corrected the answers to some other questions.

This led to second round of litigation as the petitioners herein (who were the writ petitioners in the High Court) submitted that even the aforesaid report of the Expert Committee was not correct. It was submitted that 13 questions were wrongly deleted. In support of this, the petitioners refer to the text books of the NCRT as per which those questions were rightly framed and there was no question to delete them. It was also submitted that five questions were still wrongly framed, which needed to be deleted or correct answers as suggested by the Expert Committee be corrected.

The High Court has dismissed this writ petition. It has inter alia observed that the matter be given quietus inasmuch as it would be in the public interest not to delay the appointment of 13,000 teachers in the State of Rajasthan. We are informed that after declaration of the result, successful candidates have already been given appointment. It is pointed out by the learned counsel for the petitioners that many posts are still lying vacant.

They further submit that they have no objection if the candidates who have already been appointed, their appointment is not disturbed and at the same time the grievances as pointed out by the petitioners be looked into by the Expert Committee again and if it finds justification in the claim of the petitioners, fully or partially, only cases of other candidates who have not been appointed be reexamined on the basis of the report that would be given by the Expert Committee’s recommendations on these aspects. The learned counsel for RPSC wants some time to take instructions in this behalf. List the matters on 06.02.2018.”

5. In pursuance of our directions dated 16.01.2018, an Expert Committee was appointed to reexamine the grievances of writ petitioners/appellants. An affidavit  dated 14.04.2018 sworned by Ramdev Siroya has been filed by the Commission. It is stated in the affidavit that on the basis of reports of Experts, overall 22 answers in all the nine subjects for which these Experts were appointed has been reexamined and the answers were revised. It shall be useful to extract Paragraphs 5 and 6 of the affidavit, which is to the following effect:”

5. On the basis of reports of Experts, overall answers in all the nine subjects for which these experts were appointed to reexamine claims of petitioners, were reported to be revised. 6. In the subjects of General Knowledge (PaperI) answers to five questions were required to be revised; in PaperII (subject) in commerce answers of three questions were required to be revised; three questions in subject Geography, Two Questions in subject Hindi (Teaching method); in subject History one question; in subject Political Science four question; and in subject Rajasthani three questions were reported to be revised.

A chart showing question numbers subject, answer in final key and new Expert Report is being filed herewith and marked as ANNEXURE A1 (Pages 5) True and correct copies of reports of Experts in nine subjects is being filed herewith and marked as ANNEXURE A2 (Pages 646). It is stated that identity of Experts is not being disclosed. That on the basis of reports of the experts the result of candidates who have not been appointed 9 was revised by the Rajasthan Public Service Commission.”

6. In the affidavit, it has also been stated that out of total number of posts in all the subjects, 729 candidates who were offered appointment did not join. Further, 316 candidates who were although selected but their candidature were rejected. Thus in all 1045 posts remained vacant. A detailed chart subject wise showing all the details of posts advertised, candidates selected and recommended and appointments, number of candidates who did join and such candidates whose candidatures were rejected etc. has also been annexed alongwith the affidavit. It has been further stated in the affidavit that in the present batch of appeals, there are in all 311 candidates. It is stated in the revised results prepared after Report by Experts Committee 48 petitioners from all the Special Leave Petitions are found to be in merit for selection, which candidates are spread over in nine subjects.

7. A reply affidavit to the affidavit filed by Commission dated 14.04.2018 has also been filed in Civil 10 Appeal of Richal & Ors. In the reply affidavit, it has been stated that the Commission has not disclosed the actual marks secured by the last selected candidate in terms of the first selection in various categories. It was stated that the Commission is required to prepare a Revised Notional Select List of candidates presently selected in light of the revision undertaken by Experts based on actual marks secured by the last selected candidates in various categories. The appellants have also brought on record the copy of representation dated 23.01.2018 submitted by them after the order of this Court dated 16.01.2018.

8. We have heard the learned counsel for the appellants at length as well as learned counsel appearing for the Commission, learned counsel appearing for the State of Rajasthan and learned counsel seeking impleadment and intervention.

9. Learned counsel for the appellants submits that although substantial grievances raised by the appellants in these appeals stand satisfied by the Expert Committee Report, which was appointed in pursuance of direction, there are still few grievances after revision carried out by the Experts. It is submitted that in revision also, certain mistakes have not been corrected. Learned counsel for the appellants in support of their submission has referred to few questions of PaperI including question No. 58 and certain other questions.

10. One of the submissions raised by the learned counsel for the appellants is that the marks of 18 questions which were deleted from paper No.1 were redistributed in the rest of the questions whereas the marks should have been allocated to only those candidates who have attempted such questions. Those candidates, who even did not attempt those questions, were allocated the marks which was not in accordance with law. The marks should have been allocated only to those candidates who attempted deleted questions, in alternative, it is submitted that full marks with regard to 18 deleted questions ought to have been given to all the candidates.

11. Learned counsel for the Commission refuting the submissions of the appellants submitted that almost all 12 the grievances having been taken care of by the Expert Committee and the result of nonselected candidates having been revised, nothing more needs to be considered in these appeals. It is submitted that Experts having revised the key answers and having now submitted a Report, which has been accepted by the Commission, this Court shall not permit the appellants to rechallenge the decision of Expert Committee. It is submitted that out of all the Special Leave Petitioners, only 48 have been found selected.

12. We have considered the submissions of the learned counsel for the parties and perused the records.

13. The issue which has been canvassed in this batch of appeals relates to correctness of final key answers as uploaded by the Commission after considering objections thereto. The appellants’ case is that the treatment of the objections by the Expert Committee was not based on authoritative text books on the subject and several errors crept into the answer key vitiating the merits of the candidates affecting the entire selection.

14. The issue pertaining to scope of judicial review of correctness of key answer had been considered by this Court time and again. This Court had entertained such challenges on very limited ground and has always given due weight to the opinions of subject experts. A three Judge Bench of this Court in Kanpur University, through ViceChancellor and others vs. Samir Gupta and others, 1983 (4) SCC 309, had occasion to consider a case where challenge was made to the key answers supplied by the papersetter with regard to multiple choice of the objective type test for admission in medical courses through combined PreMedical Test.

The High Court while considering the challenge of the candidates to various key answers accepted the challenge to different questions. With regard to some of the questions the High Court held that the key answer is not the correct answer. This Court repelling the challenge made the following observations in paragraphs 15 and 16:

“15. The findings of the High Court raise a question of great importance to the student community. Normally, one would be inclined to the view, especially if one has been a papersetter and an examiner, that the key answer furnished 14 by the papersetter and accepted by the University as correct, should not be allowed to be challenged. One way of achieving it is not to publish the key answer at all. If the University had not published the key answer along with the result of the Test, no controversy would have arisen in this case. But that is not a correct way of looking at these matters which involve the future of hundreds of students who are aspirants for admission to professional courses. If the key answer were kept secret in this case, the remedy would have been worse than the disease because, so many students would have had to suffer the injustice in silence. The publication of the key answer has unravelled an unhappy state of affairs to which the University and the State Government must find a solution.

Their sense of fairness in publishing the key answer has given them an opportunity to have a closer look at the system of examinations which they conduct. What has failed is not the computer but the human system.

16.Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men wellversed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect.”

12. Following the above judgment in Kanpur University (supra) this Court in Manish Ujwal and others vs. Maharishi Dayanand Saraswati University and others, 2005(13) SCC 744, reiterated the principle in following words in paragraphs 9 and 10:

“9. In Kanpur University v. Samir Gupta considering a similar problem, this Court held that there is an assumption about the key answers being correct and in case of doubt, the Court would unquestionably prefer the key answers. It is for this reason that we have not referred to those key answers in respect whereof there is a doubt as a result of difference of opinion between the experts. Regarding the key answers in respect whereof the matter is beyond the realm of doubt, this Court has held that it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong. There is no dispute about the aforesaid six key answers being demonstrably wrong and this fact has rightly not been questioned by the learned counsel for the University. In this view, students cannot be made to suffer for the fault and negligence of the University.

10. The High Court has committed a serious illegality in coming to the conclusion that “it cannot be said with certainty that answers to the six questions given in the key answers were erroneous and incorrect”. As already noticed, the key answers are palpably and demonstrably erroneous. In that view of the matter, the student community, whether the appellants or intervenors or even those who did not approach the High Court or this Court, cannot be made to suffer on account of errors committed by the University. For the present, we say no more because there is nothing on record as to how this error crept up in giving the erroneous key answers and who was negligent. At the same time, however, it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason.

We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in  favour of the students. If this attitude of casual approach in providing key answers is adopted by the persons concerned, directions may have to be issued for taking appropriate action, including disciplinary action, against those responsible for wrong and demonstrably erroneous key answers, but we refrain from issuing such directions in the present case.”

13. To the same effect, this Court in Guru Nank Dev University vs. Saumil Garg and others, 2005(13) SCC 749, had directed the University to revaluate the answers of questions with reference to key answers provided by CBSE. This Court also disapproved the course adopted by the University which has given the marks to all the students who had participated in the entrance test irrespective of whether someone had answered questions or not.

14. Another judgment which is referred to is Rajesh Kumar and others vs. State of Bihar and others, 2013 (4) SCC 690, where this Court had occasion to consider the case pertaining to erroneous evaluation using the wrong answer key. The Bihar Staff Selection Commission invited applications against the posts of Junior Engineer(Civil). Selection process comprised of a written objective type examination. Unsuccessful candidates assailed the selection. Single Judge of the High Court referred the “model answer key” to experts. Based on the report of the experts, Single Judge held that 41 model answers out of 100 are wrong.

The Single Judge held that the entire examination was liable to be cancelled and so also the appointments so made on the basis thereof. The Letters Patent Appeal was filed by certain candidates which was partly allowed by the Division Bench of the High Court. The Division Bench modified the order passed by the Single Judge and declared that the entire examination need not be cancelled. The order of Division Bench was challenged wherein this Court in paragraph 19 has held:

“19. The submissions made by Mr Rao are not without merit. Given the nature of the defect in the answer key the most natural and logical way of correcting the evaluation of the scripts was to correct the key and get the answer scripts reevaluated on the basis thereof. There was, in the circumstances, no compelling reason for directing a fresh examination to be held by the Commission especially when there was no allegation about any malpractice, fraud or corrupt motives that could possibly vitiate the earlier examination to call for a fresh attempt by all concerned.

The process of reevaluation of the answer scripts with reference to the correct key will in addition be less expensive apart from being quicker. The process would also not give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the reevaluation was and is a better option, in the facts and circumstances of the case.”

15. The key answers prepared by the papersetter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key answers is a step to achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process. The objections to the key answers are to be examined by the experts and thereafter corrective measures, if any, should be taken by the examining body. In the present case we have noted that after considering the objections final key answers were published by the Commission thereafter several writ 20 petitions were filed challenging the correctness of the key answers adopted by the Commission. The High Court repelled the challenge accepting the views of the experts. The candidates still unsatisfied, have come up in this Court by filing these appeals.

16. This Court while hearing the appeals found substance in some of the submissions raised before us and appellants having satisfied this Court that certain questions need reexamination by experts, this Court issued directions on 16.01.2018. As noted above, pursuant to the directions of this Court the Expert Committee reexamined the questions with regard to which objections were raised in these appeals. After the order of this Court dated 16.01.2018 the Commission adopted Expert Committee Report which reexamined the questions with regard to which objections were raised before us in these appeals. An affidavit dated 17.04.2018 has been filed by the Commission. The affidavit contains the following statements:

(i) on the basis of the Report of Experts, Answers to 22 Questions across subjects were corrected and revised. [p.23 pr.6 of Affidavit ] [Chart has been annexed at p.5]

(ii) A perusal of the Revision conducted by Experts w.r.t. Questions in Paper I (General Awareness & General Studies) as per Chart [p.5 of Affidavit] reveals that:

(a) Experts accepted Petitioner’s Representation and retained 3 questions (Q Nos. 53, 57, 60) of 18 earlier deleted questions.

(b) Experts accepted Petitioners’ Representation and corrected the answer of 1 question (Q.No.3) in the remaining 57 questions.

(c) Experts rejected Petitioners’ Representation seeking correction of answer of 5 questions (Q. Nos. 25, 28, 33, 49, 58).

(iii) RPSC has stated that out of the total number of Advertised posts(13,098) 1045 vacancies in the post of School Lecturers still exist. [p.3 pr.7 of Affidavit] [Chart has been annexed at p.47]

(iv) RPSC has stated that 48 of 311 Special Leave Petitioners before this Hon’ble Court are within merit for selection as School Lecturers after revision of their answer scripts.[p.34 pr.8 of Affidavit]

17. By our order dated 02.04.2018, we have directed to supply the Report of the Expert Committee to all the parties. The copies of the Report have been supplied. During the course of hearing, learned counsel for the appellants submitted that substantial grievances raised in these appeals have been redressed by the Expert Committee. The representations made by the appellants have been substantially accepted as noted above. However, learned counsel for the appellants have contended that certain answers given by the Expert Committee are still not correct. Before us certain questions have been pointed out which according to the appellants have not been satisfactorily dealt with by the Expert Committee. It shall suffice to refer to the question No.58 of paper No.1.

Learned counsel for the appellants submit that the Expert Committee has accepted option No.4 as correct option whereas correct option is option NO.3. Learned counsel for the appellants has to make his point home has placed before us the following chart: Question No.58 Option Answers RPSC Answer Expert Report (p.15) Petitioner Answer Evidence in support Minimum Number of Working Hours per week for the teacher (1) 35 Teaching Plus Preparation Hours (2) 40 Teaching plus Option 4 Option 4 Option 3 1. The RTE Act specifies that “Minimum number of working hours per week for the teacher :

Forty Five including preparation hours” in RTE Act, 2009 is preparation hours (3) 45 Teaching Hours (4) 45 Teaching plus preparation hours 2. RPSC asked same question in School Lecturer Exam 2013 and considered “45 Teaching Hours” as correct Answer.

Expert Committee has itself at p.15 quoted the RTE Act, 2009 quoted the minimum teaching hours as “45 Teaching including Preparation Hours”

18. At the time of hearing on 24.04.2018, at the first blush, we also observed that there may be substance in what is contended by the learned counsel for the appellants with regard to question No.21, however, when we thoroughly examined the question and its answer given by the Expert Committee, we are inclined to agree with the answer given by the Expert Committee. The reason for our accepting the opinion of the Expert Committee is as follows: The question No.58 which was asked was:”Minimum Number of Working Hours per week for the teacher in RTE Act, 2009 is”.

19. Thus answer had to indicate the number of working hours. Notification has been issued under the RTE Act 24 where minimum teaching hours for a week is mentioned as : “45 Teaching including Preparation Hours”. Thus minimum number of working hours per week has been provided as 45 which figure includes both teaching and preparation hours.

The statutory provision uses the word teaching including preparation hours whereas answer uses the words teaching plus preparation hours. There is no dispute that figure 45 is a correct figure only issue is with regard to whether option No.3 is correct or option No.4. Option No.3 mentions “45 Teaching Hours”. The answer No.3 is obviously not according to the statutory prescription which provides “45 Teaching including Preparation Hours”. Correct answer, thus, is option No.4 which mentions “45 Teaching plus preparation hours”. Instead of using the word including as used in statutory provision the answer uses word plus. When the figure 45 includes teaching as well as preparation hours the use of word teaching plus preparation hours connotes the same meaning.

We, thus do not find any substance in the above submission.

20. Learned counsel for the appellants have also pointed out several other questions in paper No.1 which according 25 to the learned counsel for the appellants have not been correctly answered by the Expert Committee. We have considered few more questions as pointed out and perused the answers given by the Expert Committee and we are of the view that no error can be found with the answers of the Expert Committee with regard to three more questions which have been pointed out before us. The Expert Committee, constituted to validation of answer key, has gone through every objection raised by the appellants and has satisfactorily answered the same. The Commission has also accepted the Report of the Expert Committee and has proceeded to revised the result of 311 appellants before us. We, thus, are of the view that Report of the Expert Committee which has been accepted by the Commission need to be implemented.

21. One of the submissions raised by the appellants is that marks of deleted questions ought not to have been redistributed in other questions. It is submitted that either all the candidates should have been given equal marks for all the deleted questions or marks ought to 26 have been given only to those candidates who attempted those questions.

22. The questions having been deleted from the answers, the question paper has to be treated as containing the question less the deleted questions. Redistribution of marks with regard to deleted questions cannot be said to be arbitrary or irrational. The Commission has adopted a uniform method to deal with all the candidates looking to the number of the candidates. We are of the view that all the candidates have been benefited by the redistributed of marks in accordance with the number of correct answers which have been given by them. We, thus, do not find any fault with redistribution of marks of the deleted marks. The High Court has rightly approved the said methodology.

23. In the affidavit filed by the Commission it is mentioned that the result has been revised of only 311 appellants who are before this Court. We are of the view that key answers having been corrected, merit of all the candidates except those who have already been selected needs to be redetermined. In our order dated 16.01.2018 it is mentioned that this exercise shall not affect those who have already been selected. We, thus, are of the view that the Commission should revise the entire result of all the candidates except those who have been selected on the basis of the report of Expert Committee and publish revise result of all the candidates.

When the key answers are correct of the candidates who appeared in the examination, they are entitled for revision of their result, since, fault does not lie with the candidates but lies with the examination body. It shall not be equitable to not extend the benefit to those candidates who have not come to the Court being satisfied with the steps taken by the Commission and its earlier Expert Committee which was given the task of revising the key answers.

24. In view of the foregoing discussions, we dispose of these appeals with the following directions:

(1) The Rajasthan Public Service Commission is directed to revise the result of all the candidates including all the appellants on the basis of Report of the Expert Committee constituted in pursuance of our order dated 16.01.2018 and publish the revised result.

(2) While carrying the above exercise the Commission need not revise the result of all those candidates whose names were included in the Select List earlier published. We having already pointed out that the appointments shall not be affected by this exercise, there is no necessity to revise their result. Thus, this exercise shall be undertaken excluding all the candidates who are included in the Select List.

(3) The Commission shall also publish the cut off marks of the last selected candidates in the respective categories who were included in the Select List on the basis of which appointments have been made by the Commission.

(4) On the basis of the revised result, those candidates who achieve equal or more marks in their respective categories shall be offered appointments against 1045 vacancies as has been mentioned by the Commission in paragraph 7 of the affidavit, noted above.

(5) The entire exercise of revising the result and making recommendations for appointments shall be completed by the Commission within a period of three months from today. The State shall take necessary consequential steps thereafter.

……………………..J. (A.K. SIKRI)

……………………..J. (ASHOK BHUSHAN)

NEW DELHI,

MAY 03, 2018.

____________________________

[Civil Appeal Nos. 47224725 of 2018 arising out of SLP(C) Nos. 1915119154/ 2017]

[Civil Appeal No. 4702 of 2018 arising out of SLP(C) No. 14481/2017]

[Civil Appeal Nos. 47004701 of 2018 arising out of SLP(C) Nos. 1435614357/ 2017]

[Civil Appeal Nos. 47114712 of 2018 arising out of SLP(C) Nos. 1459314594/ 2017]

[Civil Appeal Nos. 47074710 of 2018 arising out of SLP(C) Nos. 1458114584/ 2017]

[Civil Appeal No. 47034706 of 2018 arising out of SLP(C) No. 1452214525/ 2017]

[Civil Appeal No. 4726 of 2018 arising out of SLP(C) No. 19157/2017]

[Civil Appeal Nos. 47134720 of 2018 arising out of SLP(C) Nos. 1494714954/ 2017]

[Civil Appeal No. 4721 of 2018 arising out of SLP(C) No. 18982/2017]

[Civil Appeal No. 4727 of 2018 arising out of SLP(C) No. 21506/2017]

[Civil Appeal No. 4730 of 2018 arising out of SLP(C) No. 29556/2017]

[Civil Appeal No. 4728 of 2018 arising out of SLP(C) No. 24264/2017]

[Civil Appeal No. 4729 of 2018 arising out of SLP(C) No. 28724/2017]

[Civil Appeal No. 4731 of 2018 arising out of SLP(C) No. 32467/2017]

[C.A.No.4754 of 2018 arising out of SLP(C) No.11674/2018 (Diary No(s). 9579) 2018]