HARKIRAT SINGH GHUMANversusPUNJAB & HARYANA HIGH COURT & ORS.

124                      [2022]REPORTS
               SUPREME COURT   11 S.C.R. 124               [2022] 11 S.C.R.


A                       HARKIRAT SINGH GHUMAN
                                        v.
               PUNJAB & HARYANA HIGH COURT & ORS.
                         (Civil Appeal No. 5874 of 2022)
B                              AUGUST 29, 2022
             [AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]
             Service Law – Punjab Superior Judicial Services Rules, 2007
      – Haryana Superior Judicial Services Rules, 2007 – Public
      employment – Fairness and transparency – Selection process
C
      initiated by the respondents for direct recruitment to Punjab Superior
      Judicial Service/Haryana Superior Judicial Service – Appellant,
      having not qualified in the written examination filed writ petition
      raising various objections, dismissed by High Court – Objections
      raised are in reference to the procedure adopted in holding written
D     examination which as per the appellant is neither fair nor transparent
      and many infirmities have been committed in the process of selection
      – Held: To keep transparency in the process of holding examination,
      particularly in cases where there is a multiple--choice question paper,
      it is advisable that for such question papers, there shall always be
      an OMR sheet which may be provided to the candidates so that the
E
      question paper can be retained by the participants – After the
      examination is held, a provisional answer key is to be uploaded
      inviting objections from the candidates to be furnished within a
      reasonable time and after collating such objections, the same be
      placed before a subject expert committee to be constituted by the
F     recruiting/competent authority and after the report is submitted by
      the expert committee, the same be examined by the recruiting
      authority and thereafter the final answer key is to be uploaded –
      No presumption is to be drawn that the result has to be declared,
      but at least the candidates may be provided the final answer keys to
      enable them to make their own assessment – Further, in cases where
G
      the written examination is followed with interview/viva-voce and
      the members in the interview board are made aware of the marks
      secured by the candidates in the written examination that may likely
      to form bias affecting the impartial evaluation of the candidates in
      viva-voce and it may always be avoided – On facts, respondents to
H     valuate the marks obtained of question nos. 1,2,3 and 5 of Paper V
                                        124
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                           125
                 COURT & ORS.

(Criminal Law) (out of total 160 marks) and thereafter, a fresh result   A
of the written examination be declared – Those who qualify and
fall in the zone of three times the number of vacancies may be called
for viva--voce and result of the selection process be finally declared
in accordance with the scheme of 2007 Rules – Impugned judgment
set aside.
                                                                         B
      Allowing the appeal, the Court
       HELD: 1.1 So far as Paper VI (General Knowledge) is
concerned, it is a multiple-choice question paper having 100
questions and all instructions were made available to the
candidates specifically indicated on the overleaf of the question        C
paper and all the candidates have attempted the paper including
the present appellant. That all the candidates who had appeared
in Paper VI (General Knowledge) had a common level playing
field and in the absence of any material on record in rebuttal, the
submission is not sustainable and deserves rejection. But to keep
transparency in the process of holding examination, particularly         D
in such cases where there is a multiple--choice question paper, it
is always advisable that for such question papers, there shall
always be an OMR sheet which may be provided to the candidates
so that the question paper can be retained by each of the
participants and after the examination is held, a provisional answer     E
key is to be uploaded inviting objections from the candidates
who had participated in the selection process, to be furnished
within a reasonable time and after collating such objections, the
same be placed before a subject expert committee to be
constituted by the recruiting/competent authority and after the
report is submitted by the subject expert committee, the same            F
be examined by the recruiting authority and thereafter the final
answer key is to be uploaded. It is made clear that no presumption
is to be drawn that the result has to be declared, but at least the
candidates may be provided the final answer keys to enable them
to make their own assessment. This is one of the mechanisms by           G
which fairness and transparency which is a sine qua non in the
public employment can be resorted to. [Paras 25, 26][136-A-F]
      1.2 So far as the other two objections in reference to Bare
Acts made available to the candidates and the apprehension of
haste in declaration of result are concerned, both the objections        H
126            SUPREME COURT REPORTS                       [2022] 11 S.C.R.


A     are completely baseless and deserve rejection. [Para 27][136-F-
      G]
             1.3 So far as the marks of the written examination not being
      supplied to the appellant under the Right to Information Act, 2005
      by communication dated 6th January, 2020, are concerned, this
B     position has been settled by a catena of judgments of this Court
      that as long as the process is not complete, the marks of the
      written examination are not to be uploaded or made available to
      the candidates and if it is being permitted, that will not be in the
      interest of the applicants. The disclosure of the marks in the
      main examination before it is finalised and the viva-voce is
C     conducted, would be against the principles of transparency, rather
      it will invite criticism of bias or favouritism. To clarify further, in
      such cases, where the written examination is followed with viva-
      voce, declaration of result of the written examination before
      conducting viva-voce may not be valid and justified but in cases
D     where determination of merit is based on written examination, it
      must be declared and made available to candidates without any
      loss of time and this Court can take a judicial notice of the fact
      that in such cases where the written examination is followed with
      interview/viva-voce and the members in the interview board are
      made aware of the marks secured by the candidates in the written
E     examination that may likely to form bias affecting the impartial
      evaluation of the candidates in viva-voce and it may always be
      avoided. [Paras 28, 29][136-G-H; 137-A-C]
            1.4 So far as the objection in reference to Paper V (Criminal
      Law) is concerned, there is substance in the submission made
F     and after this fact has not been disputed by the respondents as
      well that initially when the question paper was supplied, it
      contained only four questions (i.e. question nos.1, 2, 3 and 5),
      held on 1st December, 2019 from 9.00 a.m. to 12 noon and the
      question paper was distributed to all the candidates containing
G     four questions and question no.4 was found to be missing and
      this act cannot be said to be an inadvertent human error as being
      projected by the respondents and after the objection being raised
      by the candidates of question no.4 not made available, the
      Invigilators informed to the concerned authorities and a

H
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                          127
                 COURT & ORS.

supplementary sheet was made available to the candidates after          A
one hour of the main examination commenced i.e. by 9.00 a.m.
The respondents may substantiate in their defence that no
prejudice was caused to any of the candidates on account of the
inadvertent human error being committed, but this is a serious
lapse on the part of the recruiting authority and somebody must
                                                                        B
be held responsible for it and such kind of lapses certainly cannot
be countenanced by this Court but, at the same time, there is no
objection even of the present appellant in reference to the four
questions (nos.1, 2, 3 and 5) of Paper V (Criminal Law) which
was made available to the candidates even 5 minutes before the
scheduled time of the examination and even if a judicial notice is      C
taken of the lapses being committed by the respondents with
reference to question no.4, which was indeed missing from the
question paper and supplied to the candidates after one hour of
commencement of the examination, at least so far as the four
questions are concerned, since no objection has been raised by
                                                                        D
the appellant in reference to these questions, this Court has to
consider as to whether in such peculiar circumstances, the written
examination, as such, has to be cancelled or other option is
possible. In the given circumstances, the other option which is
left to this Court is either to conduct the examination of Paper V
(Criminal Law) afresh or let the valuation of the four questions        E
(question nos. 1, 2, 3 & 5) of Paper V (Criminal Law) of 160
marks may provide a common level playing field to all the
candidates. At this stage, the Court cannot be oblivious of the
fact that the Punjab/Haryana Superior Judicial Service
Examination, 2019 has been held after 4-5 years and since the
                                                                        F
fate of the examination 2019 is still sub-judice in this Court, fresh
selection process could not have been initiated and if this
irregularity pointed out can be possibly eliminated from the
process of selection, particularly in the written examination, the
endeavour of the Court should always be to salvage the selection
as possible and taking in totality of the matter, this Court is of      G
the view that it will serve the purpose to accept the latter option
and the respondents may be directed to valuate question nos.1,
2, 3 and 5 of Paper V (Criminal Law) of 160 marks and it is made
clear that question no.4 which was supplemented at a later stage
of 40 marks has to be excluded while valuating the marks secured
                                                                        H
128            SUPREME COURT REPORTS                        [2022] 11 S.C.R.


A     by the candidates in Paper V (Criminal Law) and this may serve
      the purpose and also salvage the examination process which was
      initiated by the respondents in 2019 but could not be finalised for
      one or other reason and cancellation or holding the examination
      afresh of Paper V (Criminal Law) will not be in the interest of
      either of the parties. The impugned judgment of the High Court
B
      is set aside and the respondents are directed to valuate the marks
      obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law)
      (out of total 160 marks) and after undertaking the process, a fresh
      result of the written examination be declared of the candidates in
      reference to Punjab/Haryana Superior Judicial Service
C     Examination, 2019 and those who qualify and fall in the zone of
      three times the number of vacancies may be called for viva-voce
      and result of the selection process, thereafter be finally declared
      in accordance with the scheme of Rules, 2007. The result of the
      intervenor, who had participated as an in--service officer in the
      selection process initiated under Punjab Superior Judicial
D
      Services shall be declared and further action may be taken in
      accordance with Rules, 2007. [Paras 30-32, 35][137-D-H; 138-
      A-F; 139-C-E]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5874
      of 2022.
E
            From the Judgment and Order dated 23.01.2020 of the High Court
      of Punjab & Haryana at Chandigarh in CWP No. 1769 of 2020 (O&M).
             Harkirat Singh Ghuman H.P.S. Ishar, Raunaq Dalal, Deepkaran
      Dalal, Advs. for the Appellant.
F           Petitioner-in-Person
             Rakesh Dwivedi, Rajiv Bhalla, Deepinder Singh Patwalia, Sr. Advs.
      Abhimanyu Tewari, Ms. Eliza Bar, Ms. Sanya Kaushal, Tushar Bathija,
      Sumeir Ahuja, Yajur Bhalla, Deepak S., Ashish Vajpayee, Ms. Akansha
      Gulati, Shubham Bhalla, Bikram Jit Arora, Raman G., Ms. Natasha
G     Dalmia, Rakesh Kumar Singh, Kartikaya Singh, Ms. Anubha Attray,
      Rakesh Kumar Singh, Ms. Kaveeta Wadia, Ms. Malvika Kapila,
      Ms. Shruti Venugopal, Ms. Tanwangi Shukla, Ajay Kumar Singh, Yatharth
      Singh, Divesh Kumar, Veer Vikram B., Aswani Upadhyay, Sunil Kumar
      Pandey, Jainendra Kumar, Aman Tiwari, Ashish Singh, Manoj Kumar
      Jha, Jay Savla, Jasdeep Singh Dhillon, Ms. Renuka Sahu, Prabhat K.
H
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                129
                 COURT & ORS.

Chaurasia, H.S. Johal, Prashant Bhushan, Ms. Alice Raj, Ms. Rashmi            A
Singh, Rahul Gupta, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      AJAY RASTOGI, J.
      1. Leave granted.                                                       B
      2. The instant appeal is directed against the judgment and order
passed by the Division Bench of the High Court of Punjab and Haryana
dated 23rd January, 2020, dismissing the writ petition at the motion stage.
       3. The appellant is one of the applicants who had participated in
the selection process initiated by the respondents holding selections for     C
direct recruitment to Punjab Superior Judicial Service/Haryana Superior
Judicial Service.
       4. That two separate advertisements came to be published for
holding competitive examination for direct recruitment for 8 vacancies
in the Punjab Superior Judicial Service and 11 vacancies in the Haryana       D
Superior Judicial Service, 2019 by notifications dated 30 th May, 2019
and 7th August, 2019 respectively and the recruitment was made in terms
of the procedure prescribed under the Punjab Superior Judicial Services
Rules, 2007/ Haryana Superior Judicial Services Rules, 2007.
       5. It may be relevant to note that the posts came to be separately     E
advertised under the Punjab/Haryana Superior Judicial Service Rules,
2007 but the process of selection is on the same standards except that
language paper is separate and the applicants have to first qualify the
written test followed with viva-voce with a restriction that candidate has
to secure 40% or more marks in each paper and such of the qualified
                                                                              F
candidates who fall within three times of the number of vacancies are
called for viva-voce but only such of the candidates will be considered
to have successfully qualified the Punjab/Haryana Superior Judicial
Service Examination unless in open category candidate obtains 50%
marks and in reserved category candidate obtains 45% marks in the
aggregate out of the total marks fixed for the written test and viva-voce.    G
The format/pattern of examination is the same for both the recruitments
held under the Punjab Superior Judicial Service Rules, 2007 and Haryana
Superior Judicial Service Rules, 2007.
      6. The appellant also applied pursuant to advertisement dated 30 th
May, 2019 and 7th August, 2019 with regard to Punjab/Haryana Superior         H
130                SUPREME COURT REPORTS                       [2022] 11 S.C.R.


A     Judicial Service Examination, 2019 and a common written examination
      was held for both the States of Punjab and Haryana, except Language
      Paper separately conducted from 29th November, 2019 to 1st December,
      2019 and it reveals from the record that 118 candidates appeared in the
      State of Punjab and 230 in the State of Haryana.
B            7. Thus, in total 348 candidates participated in the selection process
      and appeared in the common written examination. The result of the
      written examination was declared on 18th December, 2019. In Punjab
      Superior Judicial Service, 3 candidates from open category and 1
      candidate from backward category cleared the examination and qualified
      for viva-voce. At the same time, under the Haryana Superior Judicial
C     Service, 11 candidates from open category out of which 3 candidates
      were common who qualified in both the States for viva voce.
             8. The appellant, being disappointed of not being qualified in the
      written examination declared on 18th December 2019, filed a writ petition
      before the High Court of Punjab and Haryana at Chandigarh under Article
D     226 of the Constitution with his three-fold grievance :
            (i)      That in Punjab/Haryana Superior Judicial Services Rules,
                     there is no condition regarding securing minimum marks in
                     the main written examination and the condition in the
                     advertisement of securing minimum 40% or more marks in
E                    each paper for qualifying for viva-voce is contrary to the
                     Scheme of Rules;
            (ii)     Paper V (Criminal Law) was of 200 marks but at the
                     commencement of the examination, the question paper
                     handed over to the candidates was incomplete and it
F                    contained only 4 questions whose aggregate came out to
                     be 160 marks instead of 200 marks as shown on the overleaf
                     of the question paper, but when the candidates made
                     complaint of the alleged discrepancy to the notice of the
                     invigilator, after approx. one hour of the commencement of
G                    examination, question no.4 was handed over as
                     supplementary question paper to all the candidates and apart
                     from this being a procedural defect, it created a panic among
                     the candidates and no extra time was given for answering
                     the additional question and this was one of the manifest
                     procedural defect in Paper V (Criminal Law) and has caused
H                    grave prejudice to the appellant.
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                  131
         COURT & ORS. [AJAY RASTOGI, J.]

      (iii)   Despite repeated demands, the respondents have failed to          A
              provide the marks obtained by the appellant in the written
              examination. Even the application filed by the appellant
              under the Right to Information Act came to be rejected.
      9. All the three objections raised by the appellant were repelled
by the High Court at the motion stage, without calling for the written          B
response from the respondents under the judgment and order impugned
dated 23rd January, 2020, which is the subject matter of challenge in
appeal before us.
       10. It will be relevant to note that while entertaining the present
appeal and calling upon the respondents for their written response, this        C
Court permitted the respondents by an Order dated 26th February, 2020
to continue with the process of interview with a further direction that the
result would not be declared in the meantime. It is informed to this Court
that in terms of the liberty granted by this Court, respondents held the
interview, but result has not been declared because of the interim order
of this Court.                                                                  D

       11. The appellant, who appeared in-person before us, has primarily
raised four objections in reference to the procedure adopted by the
respondents in holding written examination by the respondents pursuant
to the advertisements for Punjab/ Haryana Superior Judicial Service
Examination, 2019, as follows:                                                  E

      (i)     Criminal Law Paper (Paper V), which was of 200 marks
              contained only four questions (1,2, 3 and 5) and question
              no.4 was missing and it was of 160 marks which was made
              available to the candidates and after the discrepancy was
              brought to notice of the Invigilator, a supplementary question    F
              paper was supplied indicating question no.4 in the midst of
              examination calling upon the candidates to attempt question
              no.4 and objection of the appellant is that the procedure
              which has been adopted by the respondents itself creates a
              doubt in the process of selection that from where this question   G
              no.4 was generated and how it was made available to the
              candidates in the midst of the examination is a mystery and
              no justification has been tendered by the respondents even
              in the counter affidavit filed before this Court and this fact
              has not been disputed that question no.4 of Paper V
                                                                                H
132                 SUPREME COURT REPORTS                       [2022] 11 S.C.R.


A                     (Criminal Law) was made available to the candidates during
                      course of the examination. Thus, according to him, the
                      procedure followed by the respondents is neither transparent
                      nor fair and the written examination may be cancelled or at
                      least this question paper deserves to be cancelled and the
                      respondents be directed to hold Paper V (Criminal Law)
B
                      afresh and only thereafter the merit list be declared of the
                      candidates who qualified the main examination.
             (ii)     The second objection of the appellant is that in the question
                      paper of General Knowledge (Paper VI), which was of
                      multiple choice/objective type paper, there were no
C                     instructions on the overleaf of the examination paper as to
                      how and in what manner the paper has to be attempted by
                      the candidates and the OMR sheet was not supplied and
                      the candidates were called upon to make a circle out of the
                      four multiple choices, which according to them is correct
D                     option and the question paper supplied has to be returned
                      back to the Invigilators.
              12. The submission of the appellant-in-person is that in absence
      of the multiple-choice question paper being made available to the
      candidates to retain, it may not be possible to respond as to which option
E     out of the four options, is the correct option. According to him, the question
      paper, for the first time, is made available to the appellant along with the
      counter affidavit filed before this Court and it reveals to him that there
      are discrepancies in eight questions and in some questions either of the
      four options are not correct.

F            13. His submission is that even till today, the provisional answer
      key has not been uploaded to make the candidates aware of the right
      option out of the four options available and the candidate has no liberty
      to raise any objection and if the answer key is uploaded after the final
      result is declared, obviously after the viva-voce is over, no one is going
      to entertain the objection, if any, to be raised at the later stage and that
G     became fait accompli.
             (iii)    Further objection of the appellant is that Bare Acts were
                      made available to the candidates but this fact was not
                      indicated in the advertisement, which, according to him, is
                      contrary to the Scheme of Rules.
H
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                 133
         COURT & ORS. [AJAY RASTOGI, J.]

      (iv)   Further apprehension of the appellant is that the answer          A
             scripts were examined by the examiners in haste and the
             reason to support is that, the last examination was held on
             1st December, 2019 and within a short period of 17 days,
             the result was declared of the written examination on
             18th December, 2019 which was not humanly possible and
                                                                               B
             to support his submission, the appellant submits that when
             he applied for obtaining the marks which he had secured in
             the written examination, under the right to information, that
             was declined and his application came to be rejected by the
             competent authority under the right to information by an
             order dated 6th January, 2020.                                    C
        14. Noticing the four objections indicated above to its logical
conclusion, the appellant submits that the procedure followed by the
respondents is neither fair nor transparent and so many infirmities have
been committed in the process of selection and the only inevitable solution
is to cancel the written examination held by the respondents pursuant to       D
the advertisements issued by the States of Punjab and Haryana holding
common selection for Punjab/Haryana Superior Judicial Service
Examination, 2019 and to hold the written examination afresh in
accordance with the Scheme of Rules 2007.
       15. To sum up further, the appellant states that the High Court has     E
even noticed his submission so far as the manifest discrepancy pointed
out in Paper V (Criminal Law) is concerned, but still non-suit the claim
of the appellant for the reason that he has not raised any objection during
the interregnum period after the written examination was held and the
result was declared on 18th December, 2019.
                                                                               F
       16. The appellant further submits that the advertisement is
completely silent of the mechanism to be adopted if the candidate who
had participated in the selection process is having any grievance, no in-
house remedy is provided in the advertisement which is available to the
candidates. In the given circumstances, the reason assigned by the High
Court to non-suit the claim of the appellant is not sustainable and needs      G
to be interfered with by this Court.
       17. Various applications were filed by such other candidates who
had qualified the written examination and appeared for viva-voce under
the interim order of this Court, but since the result has not been declared,
                                                                               H
134             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A     they are also under dilemma as to what will be their fate, this Court by
      various orders permitted all of them to intervene in the proceedings.
             18. Per contra, counsel for the respondents while supporting the
      finding recorded by the High Court under the impugned judgment submits
      that Paper V (Criminal Law) was held on 1st December, 2019 from 9.00
B     a.m. to 12 noon and the paper was distributed to the candidates 5 minutes
      before time and immediately thereafter, it was noticed that question no.4
      was missing from the question paper. Within one hour and before 10.00
      a.m., question no.4 was made available to all the candidates by way of
      supplementary question paper and as such, no prejudice was caused to
      any of the candidates due to inadvertent human error committed by the
C     respondents. Counsel further submits that such a discrepancy certainly
      cannot be countenanced, but as the level playing field was the same for
      all, no prejudice has been caused to either of the candidates who had
      participated in the process of selection.
             19. Learned counsel further submits that so far as the grievance
D     in reference to Paper VI of General Knowledge is concerned, no such
      objection was raised by the appellant before the High Court, but the fact
      is that it is a multiple-choice question paper and instructions are made
      available to all the candidates on the overleaf indicating the manner in
      which the questions have to be attempted. It was specifically mentioned
E     that the correct answer has to be encircled with a pen and encircling
      more than one option or any over-writing/cuttings etc. would entail
      cancellation of the said question with no negative marking and to be
      answered in two hours duration and there is no reason for the appellant
      of making complaint to this Court for the first time and in support thereof,
      counsel further submitted that the result was declared after almost 17
F     days on 18th December, 2019, but neither he made any representation
      nor filed any complaint either to the Registry of the High Court or being
      a lawyer was aware of this fact that the remedy is available to him to
      approach the High Court under Article 226 of the Constitution, but no
      grievance was raised and he was awaiting for outcome of the written
G     examination, and when he could not succeed, all sorts of complaints are
      filed by him of filing a writ petition which cannot be permitted to be
      raised at a belated stage and this what the High Court has observed in
      the judgment impugned.
            20. So far as the objection with regard to his application submitted
H     under the Right to Information Act, 2005 is concerned, learned counsel
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                  135
         COURT & ORS. [AJAY RASTOGI, J.]

submits that the marks of the written examination could not be made             A
available until the process of selection is finalised and that was the reason
which was communicated to him by the Public Information Officer (PIO)
by a communication dated 6th January, 2020 taking recourse to Rule
4(2) of the High Court of Punjab and Haryana (Right to Information)
Rules, 2007 and, if at all, he is aggrieved by the communication made
                                                                                B
dated 6th January, 2020, inbuilt mechanism has been provided under the
Right to Information Act, 2005 and even if the marks are not made
available, it would, in no manner, defeat the process of selection held by
the respondents.
       21. Counsel further submits that so far as the apprehension of
undue haste in declaring the result of written examination is concerned,        C
the alleged apprehension has no legs to stand and the answer sheets
have been examined by the examiners authorised by the High Court and
evaluated within a reasonable time, no adverse inference can be drawn
and such like objections deserve to be outrightly rejected.
       22. Ms. Kaveeta Wadia, counsel for one of the intervenors, Aashish       D
Saldi s/o Hans Raj Saldi, brought to our notice that the applicant is in-
service officer who is presently serving as Additional Civil Judge (Senior
Division) and had participated in the limited competitive examination
against 10% of quota reserved for in-service officers and he had
participated in the selection process initiated by the State of Punjab under    E
the limited competitive examination for the eligible judicial officers held
by the respondents in terms of Rule 7(3)(b) of the Punjab Superior Judicial
Service Rules, 2007 and he was the only candidate who qualified in the
written examination and was called for viva-voce but the final fate is not
known to him and the fact is that he is not even remotely concerned with
the present grievance which has been raised by the appellant in the             F
instant proceedings and despite been appeared in the interview, his result
has been withheld under the interim orders of this Court.
       23. Learned counsel submitted that at least the respondents be
directed to declare the result of the applicant who is not even remotely
concerned with the complaint in reference to which the present appellant        G
has approached this Court and this fact has not been disputed by either
of the parties.
      24. We have heard counsel for the parties and with their assistance
perused the records of the case.
                                                                                H
136             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A            25. We deal with the first objection later and would like to observe
      that so far as Paper VI (General Knowledge) is concerned, it is a multiple-
      choice question paper having 100 questions and all instructions were
      made available to the candidates specifically indicated on the overleaf
      of the question paper and all the candidates have attempted the paper
      including the present appellant.
B
             26. That all the candidates who had appeared in Paper VI (General
      Knowledge) had a common level playing field and in the absence of any
      material on record in rebuttal, the submission is not sustainable and
      deserves rejection. But to keep transparency in the process of holding
      examination, particularly in such cases where there is a multiple-choice
C     question paper, it is always advisable that for such question papers, there
      shall always be an OMR sheet which may be provided to the candidates
      so that the question paper can be retained by each of the participants
      and after the examination is held, a provisional answer key is to be uploaded
      inviting objections from the candidates who had participated in the
D     selection process, to be furnished within a reasonable time and after
      collating such objections, the same be placed before a subject expert
      committee to be constituted by the recruiting/competent authority and
      after the report is submitted by the subject expert committee, the same
      be examined by the recruiting authority and thereafter the final answer
      key is to be uploaded. We make it clear that no presumption is to be
E     drawn that the result has to be declared, but at least the candidates may
      be provided the final answer keys to enable them to make their own
      assessment. This is one of the mechanisms by which fairness and
      transparency which is a sine qua non in the public employment can be
      resorted to.
F           27. So far as the other two objections in reference to Bare Acts
      made available to the candidates and the apprehension of haste in
      declaration of result are concerned, both the objections are completely
      baseless and deserve rejection.
            28. So far as the marks of the written examination not being supplied
G     to the appellant under the Right to Information Act, 2005 by
      communication dated 6th January, 2020, are concerned, this position has
      been settled by a catena of judgments of this Court that as long as the
      process is not complete, the marks of the written examination are not to
      be uploaded or made available to the candidates and if it is being
H     permitted, that will not be in the interest of the applicants. The disclosure
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                 137
         COURT & ORS. [AJAY RASTOGI, J.]

of the marks in the main examination before it is finalised and the viva-      A
voce is conducted, would be against the principles of transparency, rather
it will invite criticism of bias or favouritism.
        29. To clarify further, in such cases, where the written examination
is followed with viva-voce, declaration of result of the written examination
before conducting viva-voce may not be valid and justified but in cases        B
where determination of merit is based on written examination, it must be
declared and made available to candidates without any loss of time and
this Court can take a judicial notice of the fact that in such cases where
the written examination is followed with interview/viva-voce and the
members in the interview board are made aware of the marks secured
by the candidates in the written examination that may likely to form bias      C
affecting the impartial evaluation of the candidates in viva-voce and in
our considered view, it may always be avoided.
       30. So far as the objection in reference to Paper V (Criminal
Law) is concerned, we find substance in the submission made and after
this fact has not been disputed by the respondents as well that initially      D
when the question paper was supplied, it contained only four questions
(i.e. question nos.1, 2, 3 and 5), held on 1st December, 2019 from 9.00
a.m. to 12 noon and the question paper was distributed to all the
candidates containing four questions and question no.4 was found to be
missing and this act cannot be said to be an inadvertent human error as        E
being projected by the respondents and after the objection being raised
by the candidates of question no.4 not made available, the Invigilators
informed to the concerned authorities and a supplementary sheet was
made available to the candidates after one hour of the main examination
commenced i.e. by 9.00 a.m.
                                                                               F
       31. The respondents may substantiate in their defence that no
prejudice was caused to any of the candidates on account of the
inadvertent human error being committed, but in our view, this is a serious
lapse on the part of the recruiting authority and somebody must be held
responsible for it and such kind of lapses certainly cannot be
countenanced by this Court but, at the same time, there is no objection        G
even of the present appellant in reference to the four questions (nos.1, 2,
3 and 5) of Paper V (Criminal Law) which was made available to the
candidates even 5 minutes before the scheduled time of the examination
and even if we take a judicial notice of the lapses being committed by
the respondents with reference to question no.4, which was indeed missing      H
138             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A     from the question paper and supplied to the candidates after one hour of
      commencement of the examination, at least so far as the four questions
      are concerned, since no objection has been raised by the appellant in
      reference to these questions, this Court has to consider as to whether in
      such peculiar circumstances, the written examination, as such, has to be
      cancelled or other option is possible. In our view, in the given
B
      circumstances, the other option which is left to this Court is either to
      conduct the examination of Paper V (Criminal Law) afresh or let the
      valuation of the four questions (question nos. 1, 2, 3 & 5) of Paper V
      (Criminal Law) of 160 marks may provide a common level playing field
      to all the candidates.
C             32. At this stage, the Court cannot be oblivious of the fact that the
      Punjab/Haryana Superior Judicial Service Examination, 2019 has been
      held after 4-5 years and since the fate of the examination 2019 is still
      sub-judice in this Court, fresh selection process could not have been
      initiated and if this irregularity pointed out can be possibly eliminated
D     from the process of selection, particularly in the written examination, the
      endeavour of the Court should always be to salvage the selection as
      possible and taking in totality of the matter, this Court is of the view that
      it will serve the purpose to accept the latter option and the respondents
      may be directed to valuate question nos.1, 2, 3 and 5 of Paper V (Criminal
      Law) of 160 marks and we make it clear that question no.4 which was
E     supplemented at a later stage of 40 marks has to be excluded while
      valuating the marks secured by the candidates in Paper V (Criminal
      Law) and this, in our view, may serve the purpose and also salvage the
      examination process which was initiated by the respondents in 2019 but
      could not be finalised for one or other reason and cancellation or holding
F     the examination afresh of Paper V (Criminal Law) will not be in the
      interest of either of the parties.
              33. A request was made to this Court that since those candidates
      who had qualified in the written examination and had appeared in the
      viva-voce and whose result has been withheld under the interim orders
G     of this Court, at least they may not be called upon to appear for interview
      afresh. We find it difficult to uphold the submission made for the reason
      that the interview board which conducted the viva-voce of the candidates
      who qualified in the written examination was different, there are hardly
      candidates who had qualified against the number of vacancies and it
      would be advisable that there should be one common board to evaluate
H
HARKIRAT SINGH GHUMAN v. PUNJAB & HARYANA HIGH                                 139
         COURT & ORS. [AJAY RASTOGI, J.]

the performance of all the candidates who may now qualify in the revised       A
declaration of the result of written examination and that, in our view,
would do justice to the candidates.
       34. We would like to note that so far as the intervenor Aashish
Saldi is concerned, he appeared in the written examination against 10%
quota reserved for in-service officers and he had participated in the          B
selection process initiated under Punjab Superior Judicial Services in
terms of Rule 7(3)(b) of the Punjab Superior Judicial Services Rules,
2007 and who has no lis with the present process, at least the final fate
of participation of the officer be declared by the respondents and may
be processed further in accordance with the Rules.
                                                                               C
       35. The appeal accordingly succeeds and the impugned judgment
of the High Court dated 23rd January, 2020 is hereby set aside and we
direct the respondents to valuate the marks obtained of question nos.
1,2,3 and 5 of Paper V (Criminal Law) (out of total 160 marks) and after
undertaking the process, a fresh result of the written examination be
declared of the candidates in reference to Punjab/Haryana Superior             D
Judicial Service Examination, 2019 and those who qualify and fall in the
zone of three times the number of vacancies may be called for viva-
voce and result of the selection process, thereafter be finally declared in
accordance with the scheme of Rules, 2007.
       36. We further direct that the result of the intervenor (Aashish        E
Saldi), who had participated as an in-service officer in the selection
process initiated under Punjab Superior Judicial Services shall be declared
and further action may be taken in accordance with Rules, 2007.
       37. The directions be complied with within a period of two months.
                                                                               F
       38. Pending application(s), if any, shall stand disposed of.

Divya Pandey                                                 Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)

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