VIKAS PRATAP SINGH AND ORS.versusSTATE OF CHHATTISGARH AND ORS.

                         [2013] 10 S.C.R. 1114


 A                VIKAS PRATAP SINGH AND ORS.
                                    v.
               STATE OF CHHATTISGARH AND ORS.
               (Civil Appeal Nos. 5318-19 of 2013 etc.)
                             JULY 9, 2013
 8
        [H.L. DATTU AND JAGDISH SINGH KHEHAR, JJ.]

         Service Law:

 c      Recruitment/Selection - Competitive examination -
   Appointment of successful candidates as per the merit list -
   Complaints regarding defects/mistakes in questions of main
   examination - Expert Committee found the defects - Selective
   re-evaluation of the answer-scripts of all the candidates -
 D Revised merit list drawn - In the revised list name of 26
   candidates who were appointed on the basis of first merit list,
   did not figure - Writ petition by the 26 candidates challenging
   validity of the revised merit list - Dismissed by High Court -
   Held: The decision of re-evaluation was valid and has not
   caused any prejudice either to the 26 candidates or to the
 E candidates selected in the revised merit list - But since the
   candidates have successfully completed their training and
   rendered 3 years service by virtue of the interim order passed
   by the High Court and also because the 26 candidates were
   not responsible for the irregularity, their appointment cannot
 F be cancelled - The 26 candidates would be put at the bottom
   of the revised merit list - They also will not be entitled to back
   wages, seniority or any other benefit on the basis of their
   appointment as per the first merit list.

 G     Chairman, J and K State Board of Education vs. Feyaz
   Ahmed Malik and Ors., (2000) 3 SCC 59: 2000 (1) SCR 402;
   Sahiti and Ors. vs. The Chancellor, Dr. N. T.R. University of
   Health Sciences and Ors., (2009) 1 SCC 599: 2008 (14)
   SCR 1032; Union of India and Ors. vs. M. Bhaskaran 1995
·H                            1114
  VIKAS PRATAP SINGH AND ORS. v. STATE OF               1115
          CHHATTISGARH AND ORS.

Suppl. (4) SCC 100: 1995 (4) Suppl. SCR 526; Vinodan T.         A
and Ors. vs. University of Caltcut and Ors. (2002) 4 SCC 726:
2002 (3) SCR 530; State of U.P. vs. Neeraj Awasthi and Ors.
(2006) 1 SCC 667: 2005 (5) Suppl. SCR 906; Girjesh
Shrivastava and Ors. vs. State of M.P. and Ors. (2010) 10
SCC 707: 2010 (12) SCR 839; Union of India (UOI) and Anr.       B
vs. Narendra Singh (2008) 2 SCC 750: 2007 (13) SCR 504;
Gujarat State Deputy Executive Engineers' Association vs.
State of Gujarat and Ors. 1994 Supp (2) SCC 591; Buddhi
Nath Chaudhary and Ors. vs. Akhil Kumar and Ors. (2001) 2
SCR 18; M.S. Mudhol (Dr.) and Anr. vs. S.D. Halegkar and        c
Ors. (1993) II LLJ 1159 SC Tridip Kumar Dingal and Ors. vs.
State of,West Bengal and Ors. (2009) 1 SCC 768: 2008 (15)
SCR 194 - relied on.

     District Collector and Chairman, Vizianagaram Social
Welfare Residential School Society, Vizianagaram and Anr.       D
vs. M. Tripura Sundari Devi (~ 990) 3 SCC 655: 1990 (2) SCR
559; P. Chengalvaraya Naidu vs. Jagannath and Ors. (1994)
1 sec 1: 1993 (3) Suppl. SCR 422 - referred to.

   Maxim - 'frans et jus nunquam cohyabitant' -                 E
Applicability of.
                     Case Law Reference:
    2000 (1) SCR 402            relied on         Para 16
    2008 (14) SCR 1032          relied on         Para 16       F
    1990 (2) SCR 559            referred to       Para 20
    1993 (3) Suppl. SCR 422 referred to           Para 20
    1995 (4) .Suppl. SCR 526 relied on            Para 20
    2002 (3) SCR 530            relied on         Para 20       G
    2005 (5) Suppl. SCR 906 relied on             Para 20
    2010 (12) SCR 839           relied on         Para 21
    2007 (13) SCR 504           relied on         Para 22
                                                                H
    1116     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A        1994 Supp (2) sec 591        relied on           Para 23
         (2001) 2 SCR 18              relied on           Para 24
         (1993) II LLJ 1159 SC        relied on           Para 24
        2008 (15) SCR 194             relied on           Para 24
B       CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    5318-5319 of 2013.

         From the Judgment and Order dated 06.09.2011 of the
    High Court of Chhattisgarh at Bilaspur, in Writ Petition No. 4229
c   of 2009.
                                    WITH
    Civil Appeal Nos. 5318-5319 of 2013 (S.L.P. (C) Nos. 26341-
    26342 of 2011.

D C.A. No. 5320 of 2013 & Contempt Petition (C) No. 433 of
  2011 in C.A. No. 5320 of 2013.

      S.K. Dubey, Mukul Rohatgi, Sameer Shrivastava, Kunal
  Verma, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha,
E Apoorv Kurup (for C.D. Singh), Sanjeeb Panigrahi, L. Nidhiram
  Sharma (for Sidhartha Chowdhury) for the appearing parties.

        The Order of the Court was delivered by

         H.L. DATIU, J. 1. Leave granted in all the Special Leave
F   Petitions.

      2. These batch of appeals are directed against the
  common judgment and order passed by the High Court of
  Chhattisgarh in Writ Petition Nos. 3087, 3204 and 4229 of
  2009, dated 06.09.2011, whereby and whereunder the High
G Court has dismissed the Writ Petitions filed by the appellants
  herein and confirmed the revised merit list drawn after the
  selective re-evaluation of the answer scripts of all the
  candidates who had appeared in the Main Examination for the
  posts of Subedars, Platoon Commanders and Sub-Inspectors
H
   VIKAS PRATAP SINGH AND ORS. v. STATE OF                  1117
     CHHATTISGARH AND ORS. [H.L. DATTU, J.]

in the respondent-State of Chhattisgarh.                             A

     3. The appellants before us (in SLP (C) Nos. 26341-
26342 of 2011 and 26349 of 2011) are the 26 candidates
aggrieved by the cancellation of the first merit list and the
redrawal of the second revised merit list by the Chhattisgarh
                                                                     B
Professional Examination Board (for short "respondent-
Board"), whereby their appointments to the aforesaid posts
have been cancelled.

     4. The facts in a nutshell are as under:
                                                                     c
     On 18.09.2006, an advertisement inviting applications for
recruitment to 380 posts of Subedars, Platoon Commanders
and Sub-Inspectors in the respondent-State was issued by the
Police Headquarters, Chhattisgarh. For the said purpose, the
Preliminary Examination was conducted on 24.12.2006 and the          D
successful candidates thereat were called for the Main
Examination held in two parts as Paper I and II on 04.02.2007
and 05.02.2007, respectively. After conducting physical
examination and personal interviews, the final merit list of
candidates was published on 08.04.2008, whereby all the
                                                                     E
appellants herein were selected. Based on the said merit list,
the appointment letters were issued to the selected candidates
including the appellants on various dates between 21.08.2008
and 15.09.2008. In the meanwhile, the Inspector General of
Police and the respondent-Board received complaints in
respect of defects/mistakes in several questions of the Main         F
Examination Papers. The respondent-Board constituted an
Expert Committee to inquire into the complaints. Upon
examination of the two Papers, two sets of defects were
noticed: (a) eight questions in Paper II itself were incorrect and
(b) model answers for evaluation of answer scripts to another        G
eight questions of Paper II were incorrect. The respondent-
Board directed for deletion of the first set of eight questions in
Paper II and preparation of correct model answers key for
objective questions in Papers I and II and accordingly carried
out re-evaluation of the answer scripts of the candidates. On        H
    1118     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   27.06.2009 a new revised merit list was published wherein the
    names of twenty six appellants did not figure at all and
    accordingly, the appointment of the appellants were cancelled
    by the respondent-State.

B      5. At the time of publication of the revised merit list, the
  appellants were already undergoing training along with other
  candidates who were selected in the first list. The appellants
  aggrieved by the cancellation of the aforesaid appointment in
  the wake of revised merit list filed several Writ Petitions before
  the learned Single Judge inter alia challenging the validity of
C the revised merit list on the ground that decision of re-evaluation
  by the respondent-Board was arbitrary and irrational and
  therefore the said list requires to be quashed.

       6. The learned Single Judge while entertaining the Writ
D Petitions had issued an interim order directing the respondent-
  State not to take any coercive steps against the appellants and
  further to allow them to continue their training programme. The
  learned Single Judge has observed that a substantial question
  of public importance has arisen in the matter and therefore,
E referred the matter to the Division Bench with a request to
  consider and decide the following question of law of public
  importance:

        "Whether the VYAPM (respondent-Board) after publication
        of the select list and passing of the appointment orders
F       also on the basis of evaluation of questions, could have
        done the exercise of re-evaluating the answers after editing
        and reframing answers, and prepare the second select list
        for fresh recruitment of the candidates, cancelling the first
        select list?"
G
       7. The Division Bench has delved into merits of the matter
  at length and analyzed the arguments advanced by both the
  parties. The Division Bench has noticed the pattern of the Main
  Examination to include two separate papers: Paper I
H comprising of both objective and subjective type questions- 7
   VIKAS PRATAP SINGH AND ORS. v. STATE OF                    1119
     CHHATTISGARH AND ORS. [H.L. DATTU, J.]

and 4 in number in Hindi and English languages, respectively           A
and Paper II comprising of 150 objective-type questions of
General Knowledge. Further that the Expert Committee
constituted by the respondent-Board examined both Paper I
and II and found irregularities only in respect of the eight
incorrect objective questions of Paper II and model answers to         B
another eight questions in model answers key of Paper II,
pursuant to which the respondent-Board re-evaluated Paper II
and only objective questions of Paper I on basis of fresh model
answers key and in toto only sixteen questions and answers of
Paper II were interfered with upon such re-evaluation. The eight       c
incorrect questions were deleted and their marks were
distributed on the pro-rata basis in accordance with Clause 14
of the Examination Conduct Rules (for short "the Rules") of the
respondent-Board and the other eight questions, answers to
which were incorrect in the first model answers key were re-           D
evaluated on the basis of new model answers key and marks
were awarded accordingly. The Division Bench has observed
that since all the questions so re-evaluated were objective type
carrying fixed marks for only one correct answer, the possibility
of difference in marking scheme or prejudice during re~
                                                                       E
evaluation does not arise and therefore has concluded that no
irregularity or illegality could be said to have crept in the manner
and method of re-evaluation carried out by the respondent-
Board and that the said decision of re-evaluation was justified,
balanced and harmQnious and has not caused any injustice to
the candidates and therefore cannot be interfered with unless          F
found arbitrary, unreasonable or ma/afide which is not the case
at hand. In consequence of the aforesaid conclusion, the
Division Bench has thought it fit to uphold the cancellation of
appointments of the appellants qua the first list and accordingly
dismissed the writ petitions.                                          G

    8. It is the correctness or otherwise of the said judgmerit
and order passed by the High Court which is before us in these
appeals by special leave.
                                                                       H
    1120      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A        9. We have hea.rd Shri P.P. Rao and Shri Ravindra
    Srivastava learned Senior Counsels appearing for the
    appellants and Shri Mukul Rohtagi and Shri P.S. Patwalia
    learned Senior Counsels appearing for the respondents and
    have also carefully perused the documents on record.
B
       10. Shri Rao would submit that the decision of the
  respondent-Board to re-evaluate the answer scripts in the
  absence of any statutory provisions for the same and
  subsequent publication of a revised merit list cancelling the
  appointment of the appellants is arbitrary and has caused
C prejudice to the appellants. He would further submit that Clause
  14 of the Rules providing for procedure to be adopted in
  respect of erroneous objective questions is of a wider ambit
  and includes exigencies such as model answers to examination
  questions being incorrect and therefore, the respondent-Board
D instead of directing re~evaluation of answer scripts ought to
  have acted in compliance with the said statutory provision.

        11. Per contra, Shri Rohtagi, learned Senior Counsel would
  submit that the re-evaluation of answer scripts affected three
E genre of objective questions: firstly, the eight questions in Paper
  II which were found incorrect; secondly, the eight questions in
  Paper II answers to which were found to be incorrect in the
  model answers key and thirdly, the questions in Paper I to
  which no model answers were provided for prior to the
F appointment of the Expert Committee. He would submit that the
  first set of eight questions was deleted and marks were
  awarded on a pro-rata basis in accordance with Clause 14 of
  the Rules. The second set of eight questions were re-evaluated
  on the basis of corrected model answers key and the third set
G of questions in Paper I, all being objective type, were re-
  evaluated with the aid of model answers key prepared by the
  Expert Committee. He would submit that the decision of the
  respondent-Board to re-evaluate the answer scripts has not
  caused any prejudice to the appellants-herein but in fact
  identified and rectified the irregularities in the earlier evaluation
H
   VIKAS PRATAP SINGH AND ORS. v. STATE OF                   1121
     CHHATTISGARH AND ORS. [H.L. DATTU, J.]
of answer scripts of the candidates and therefore, such               A
decision cannot be termed as arbitrary, vindictive and
whimsical.

     12. In these appeals what falls for our consideration is
whether the decision of the respondent-Board in directing re-         B
evaluation of the answer scripts has caused any prejudice to
the appellants appointed qua the first merit list, dated
08.04.2008.
     13. At the outset, before delving into .the merits of the
submissions made by the learned Senior Counsels, the relevant         C
statutory provisions and the re-evaluation scheme requires to
be noticed.

     14. It is not in dispute nor it can be disputed that for the
purposes of re-evaluation, the eight questions found incorrect        D
were deleted and their marks were rightly allotted on a pro-rata
basis in accordance with Clause 14 of the Rules which reads
as under:

    "Clause 14. Wrong (Defective) objective type question, its
    cancellation and marks to be allotted in lieu of it.              E

    After the exams, the Chhattisgarh Professional
    Examination Board (VYAPAM) gets each question
    examined by the subject expert. If, upon examination by the
    subject experts, the questions are found defective/ wrong,        F
    it is rejected. Questions may be rejected on the following
    reasons:

     (i) if the structure of the question is wrong;

    (ii) out of the options given as answers, if more than one        G
    options are correct.

    (iii) If no option is correct.

    (iv) If there is difference in Hindi and English translation of   H
    1122    SUPREME COURT REPORTS                 (2013) 10 S.C.R.


A       any question because of which different meaning is drawn
        from both and one correct answer could not be
        ascertained.

        (v) If any other printing mistake is there because of which
        correct answer is not ascertainable or more than one
B
        option is correct.

        On such rejection of question upon the recommendation
        of Subject Expert Committee, on such questions the marks
        would be awarded by the Chhattisgarh Professional
c       Examination Board (VYAPAM) to the candidates in
        proportion to their marks obtained in the particular question
        paper. Whether the rejected question has been or not been
        attempted. The question papers in which the questions
        have been rejected, their evaluation procedure would be
D       as follows, if in any question papers out of 100 questions
        two questions are rejected and after evaluation candidate
        secures 81 marks out of 98 questions then in such case
        calculation of marks would be done as (81*100)/100-2=
        82.65. On which basis merit would be determined."

E   The other eight questions whose answers were found incorrect
    in the earlier model answers key were re-evaluated on the
    basis of revised model answers ~ey. In Paper I, only the
    objective type questions were re-evaluated with the aid of
    model answers key prepared and provided to the examiners
F   for the first time after the inquiry by the respondent-Board.

       15. The submission made by Shri Rao in respect of
  Clause 14 being an inclusive provision and thus providing
  ample room for inclusion of similar irregularities that may occur
G in conduct of competitive examinations fails to convince us.
  Clause 14 contemplates and enlists five specific instances
  wherein the question in the examination paper itself is wrong
  and thus could not possibly be evaluated to have any correct
  answer. It is in such circumstances that it provides for deletion
H of such incorrect questions and the consequent pro-rata
    VIKAS PRATAP SINGH AND ORS. v. STATE OF                     1123
      CHHATTISGARH AND ORS. [H.L. DATTU, J.]

 distribution of the marks allocated to them. The said Rule is           A
 clear and only provides for the procedure in case of
 discrepancies in questions only. It does not leave any room for
 inclusion of the exigency such as errors in answers/model
 answers and therefore, the respondent-Board has rightly re-
 evaluated only eight incorrect questions as per Clause 14.              B

        16. In respect of the respondent-Board's propriety in taking
  the decision of re-evaluation of answer scripts, we are of the
  considered view that the respondent-Board is an independent
  body entrusted with the duty of proper conduct of competitive
  examinations to reach accurate results in fair and proper              C
  manner with the help of Experts and is empowered to decide
  upon re-evaluation of answer sheets in the absence of any
  specific provision in that regard, if any irregularity at any stage
  of evaluation process is found. (See: Chairman, J & K State
  Board of Education v. Feyaz Ahmed Malik and others, (2000)             D
  3 SCC 59 and Sahiti and Ors. v. The Chancellor, Dr. N. T.R.
  University of Health Sciences and Ors., (2009) 1 SCC 599).
  It is settled law that if the irregularities in evaluation could be
  noticed and corrected specifically and undeserving select
  candidates be identified and in their place deserving candidates       E
  be included in select list, then no illegality would be said to have
  crept in the process of re-evaluation. The respondent~Board
· thus identified the irregularities which had crept in the evaluation
  procedure and corrected the same by employing the method
  of re-evaluation in respect of the eight questions answers to          F
  which were incorrect and by deletion of the eight incorrect
  questions and allotment of their marks on pro-rata basis. The
 ·said decision cannot be characterized as arbitrary. Undue
  prejudice indeed would have been caused had there been re-
  evaluation of subjective answers, which is not the case herein.        G

      17. In view of the aforesaid, we are of the considered
 opinion that in the facts and circumstances of the case the
 decision of re-evaluation by the respondent-Board was a valid
 decision which could not be said to have caused any prejudice,
                                                                         H
    1124     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A whatsoever, either to the appellants or to the candidates
  selected in the revised merit list and therefore, we do not find
  any infirmity in the judgment and order passed by the High Court
  to the aforesaid extent.
       18. It is brought to our notice that in view of the interim
B orders passed by the learned Single Judge the appellants have
  now completed their training and have been in service for more
  than three years. Therefore the only question which survives for
  our consideration and decision is whether after having
  undergone training and assumed charge at their place of
C posting the 26 appellants be ousted from service on the basis
  of cancellation of their appointment qua the revised merit list.
          19. Shri Rao would submit that the· case of these appellants
    requires sympathetic consideration by this Court, since the
0   appointment of appellants on the basis of a properly conducted
    competitive examination- cannot be said to have been affected
    by any malpractice or other extraneous consideration or
    misrepresentation on their part. The ouster of 26 appellants
    from service after having successfully undergone training and
    serving the respondent-State for more than three years now
E   would cause undue hardship to them and ruin their lives and
    careers. He would further submit that an irretrievable loss in
    terms of life and livelihood would be caused to eight appellants
    amongst them who ·have now become over aged and have -
    also lost the opportunity to appear in the subsequent
F   examinations. He would place reliance upon the decision of this
    Court in Rajesh Kumar and Ors. v. State of Bihar and Ors.,
    2013(3) SCALE 393 wherein this Court has directed the
    respondent-State to re-evaluate the answer scripts on the basis
    of correct model answers key and sympathetically considered
G   the case of such candidates who, after having being appointed
    in terms of erroneous evaluation and having served the State
    for considerable length of time, would not find place in the fresh
    merit list drawn after re-evaluation and directed the respondent-
    State against ousting of such candidates and further that they
H   be placed at the bottom of the fresh merit list.
  VIKAS PRATAP SINGH AND ORS. v. STATE OF                  1125
    CHHATTISGARH AND ORS. [H.L. DATTU, J.]

      · 20. The pristine maxim of fraus et jus nunquam A
cohabitant (fraud and justice never dwell together) has never
lost its temper over the centuries and it continues to dwell in
spirit and body of service law jurisprudence. It is settled law that
no legal right in respect of appointment to a said post vests in
a candidate who has obtained the employment by fraud, B
mischief, misrepresentation or malafide. (See: District
 Collector & Chairman, Vizianagaram Social Welfare
Residential School Society, Vizianagaram and another v. M.
 Tripura Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya
Naidu v. Jagannath and others, (1994) 1 SCC 1 and Union C
of India and others v. M. Bhaskaran, 1995 Suppl. (4) SCC
100). It is also settled law that a person appointed erroneously
on a post must not reap the benefits of wrongful appointment
jeopardizing the interests of the meritorious and worthy
candidates. However, in cases where a wrongful or irregular D
appointment is made without any mistake on the part of the
appointee and upon discovery of such error or irregularity the
appointee is terminated, this Court has taken a sympathetic
view in the light of various factors including bonafide of the
candidate in such appointment and length of service of the
candidate after such appointment (See: Vinodan T. and Ors. E
v. University of Calicut and Ors.,(2002) 4 SCC 726; State of
 LJ_.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667).

      21. In Girjesh Shrivastava and Ors. v. State of M.P. and
 Ors., (2010) 10 SCC 707, the High Court had invalidated the        F
rule prescribing selection procedure which awarded grace
marks of 25 per cent and age relaxation to the candidates with
three years' long non-formal teaching experiences as a
consequence of which several candidates appointed as
teachers at the formal education institutions under the said rule   G
stood ousted. This Court while concurring with the observations
made by the High Court kept in view that upon rectification of
irregularities in appointment after a considerable length of time
an order for cancellation of appointment would severely affect
economic security of a number of candidates and observed as
                                                                    H
    1126       SUPREME COURT REPORTS              [2013] 10 S.C.R.


A   follows:

         "28 .... Most of them were earlier teaching in Non-formal
         education centers, from where they had resigned to apply
         in response to the advertisement. They had left their
         previous employment in view of the fact that for their three
B        year long teaching experiences, the interview process in
         the present selection was awarding them grace marks of
         25 per cent. It had also given them a relaxation of 8 years
         with respect to their age. Now, if they lose their jobs as a
         result of High Court's order, they would be effectively
c        unemployed as they cannot even revert to their earlier jobs
         in the Non-formal education centers, which have been
       · abolished since then. This would severely affect the
         economic security of many families. Most of them are
         between the age group of 35-45 years, and the prospects
D        for them of finding another job are rather dim. Some of
         them were in fact awaiting their salary rise at the time of
         quashing of their appointment by the High Court."

  Therefore, mindful of the aforesaid circumstances this Court
E directed non-ouster of the candidates appointed under the
  invalidated rule.

         22. In Union of India (UO/) and Anr. v. Narendra Singh,
    (2008) 2 SCC 750 this Court considered the age of the
    employee who was erroneously promoted and the duration of
F   his service on the promoted post and the factor of retiring from
    service on attaining the age of superannuation and observed
    as follows:

        "31. The last prayer on behalf of respondent, however,
G       needs to be sympathetically considered. The respondent
        is holding the post of Senior Accountant (Functional) since
        last seventeen years. He is on the verge of retirement, so
        much so, that only few days have remained. He will be
        reaching at the age of superannuation by the end of this
        month i.e. December 31, 2007. In our view, therefore, it
H
   VIKAS PRATAP SINGH AND ORS. v. STATE OF                1127
     CHHATTISGARH AND ORS. [H.L. DATTU, J.]

    would not be appropriate now to revert the respondent to       A
    the post of Accountant for very short period. We, therefore,
    direct the appellants to continue the respondent as Senior
    Accountant (Functional) till he reaches the age of
    superannuation i.e. upto December 31, 2007. At the same
    time. we hold that since the action of the Authorities was     B
    in accordance with Statutory Rules, an order passed by
    the Deputy Accountant-General canceling promotion of the
    respondent and reverting him to his substantive post of
    Accountant was legal and valid and the respondent could
    not have been promoted as Senior Accountant, he would          c
    be deemed to have retired as Accountant and not as
    Senior Accountant (Functional) and his pensionary and
    retiral benefits would be fixed accordingly by treating him
    as Accountant all through out.

    32. For the foregoing reasons, the appeal is partly allowed.   D
    Though the respondent is allowed to continue on the post
    of Senior Accountant (Functional) till he reaches the age
    of retirement i.e. December 31, 2007 and salary paid to
    him in that capacity will not be recovered, his retiral
    benefits will be fixed not as Senior Accountant (Functional)   E
    but as Accountant. In the facts and circumstances of case,
    there shall be no order as to costs."

    23. This Court in Gujarat State Deputy Executive
Engineers' Association v. State of Gujarat and Ors., 1994          F
Supp (2) sec 591 although recorded a finding that
appointments given under the 'wait list' were not in accordance
with law but refused to set aside such appointments in view of
length of service (five years and more).

    24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar G
and Ors., (2001) 2 SCR 18, even though the appointments
were held to be improper, this Court did not disturb the
appointments on the ground that the incumbents had work~d
for several years and had gained experience and observed:
                                                                   H
    1128     SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A        "We have extended equitable considerations to such
         selected candidates who have worked on the posts for a
         long period."

    (See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors.,
    (1993) II LLJ 1159 SC and Tridip Kumar Dinga/ and Ors. v.
8
    State of West Bengal and Ors., (2009) 1 SCC 768)

        25. Admittedly, in the instant case the error committed by
  the respondent-Board in the matter of evaluation of the answer
  scripts could not be attributed to the appellants as they have
C neither been found to have committe.d any fraud or
  misrepresentation in being appointed qua the first merit list nor
  has the preparation of the erroneous model answer key or the
  specious result contributed to them. Had the contrary been the
  case, it would have justified their ouster upon re-evaluation and
D deprived them of any sympathy from this Court irrespective of
  their length of service.

       26. In our con.sidered view, the appellants have
  successfully undergone training and are efficiently serving the
E respondent-State for more than three years and undoubtedly
  their termination would not only impinge upon the economic
  security of the appellants and their dependants but also
  adversely affect their careers. This would be highly unjust and
  grossly unfair to the appellants who are innocent appointees
  of an erroneous evaluation of the answer scripts. However, their
F continuation in service should neither give any unfair advantage
  to the appellants nor cause undue prejudice to the candidates
  selected qua the revised merit list.

       27. Accordingly, we direct the respondent-State to appoint
G the appellants in the revised merit list placing them at the bottom
  of the said list. The candidates who have crossed the minimum
  statutory age for appointment shall be accommodated with
  suitable age relaxation.

        28. We clarify that their appointment shall for all intents and
H
  VIKAS PRATAP SINGH AND ORS. v. STATE OF               1129
    CHHATTISGARH AND ORS. [H.L. DATTU, J.]
purpose be fresh appointment which would not entitle the        A
appellants to any back wages, seniority or any other benefit
based on their earlier appointment.

    29. The order passed by the High Court shall stand
modified to the above extent. Appeals disposed of.
                                                                B
    30. There shall be no order as to costs.

Contempt Petition No. 433 of 2011 in Civil Appeal No.5320 of
2013 (@ S.L.P. (C) No. 26349 of 2011)

    In view of the orders passed in Special Leave Petition (C) · C
Nos. 26341-26342 of 2011 and Special Leave Petition (C) No.
26349 of 2011, riothing survives in this Contempt Petition for
our consideration and decision. The Contempt Petition is
accordingly dismissed as having become infructuous.
                                                                 D
    Ordered accordingly.

K.K.T.            Appeals & Contempt Petition disposed of.