Avinash Singh v. State Of Chhattisgarh And ORS.
1Mm\mw\ w m wm \w r mmwr Q3 AMENDED PETITION
IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT
BILASPURLC.G.) Writ PetitionjS) No. jgJgof 2013 '.
Avinash Singh son f Shri Ramesh PET\TIONER o Si akur at ears, resident ngh Th, aged bou y behind us ta .
, jgi ice Satio-ag iil & Revenue Dirict-angr Old B Snd, Ward No Janr, Pol tnJnjir, Cv stJjiChampa (C.G) .
VERSUS
RESPONDENTS :1.
State of Chhattisgarh, Through Secretary, Deartment Revenue & p Disaster Management, Mantralaya Mahanadi Bhawan, New Raipur, P.S.-Rakhi, District-Raipur (C.G.) 2g The Cellector, Janjgir, Police Station-Janjgir, Civil & Revenue District-Janjgir-Champa (C.G.) 3.
The Additional Collector, Janjgir, Police Station-Janjgir, Civil & Revenue District-Janjgir-Champa (C.G.) 4.
The Sub~Divisional Magistrate, Janjgir, Police StationJanjgir, Civl & Revenue District-Janjgir-Champa (C.G.) i 5.
Sushma Singh daughter of Anil Singh, aged about years, 6.
Mohan Kumar Kaushik son of Shankar Lal, aged about 24 years, 7.
Hemchand son Khageshwar Prasad Tiwari, aged about 28 years, 8.
Gopal Prasad Rathore son of Udayram Rathore, aged about 41 years, 9.
Suryakant Sahu son of Budhram Sahu, aged about 37 years, Naval Kishore son of Vijay Kumar Chandra, aged about 34 years, 11.
Kamalkant Mahio son Shivkumar, aged about years, 12.
Amit Kumar Tripathi son of Avadhesh Prasad Tripathi, aged about 31 years, 13.
Bhanupratap Singh son of Rajaram Gabel, aged about 3O yeas, 14.
Prateek A. Rathore son of Kamal Kishore Rathore, aged about 27 years, 15.
Maniram Kashyap son of Jogiram Kashyap, aged about 27 years, 16.
Pramod Kumar son of Sukhiram Kashyap, aged about 27 years, 17.
Mehul Kumar son of Kumbh Prasad Vishwakarma, aged about 27 years, 18.
Ku.
Varsha Singh daughter Dhanatri Singh, aged about 25 years, 19.
Dharmendra Yadav son of Basant Kumar Yadav, aged about 24 years, 20.
Ajay Kumar Dewangan son Late Om Prakash Dewangan, aged about 24 years, 21.
Jaykumar Dewangan son Deepchand Dewangan, aged about 35 years,
@ 22.
Satish Kumar Rathore son of Devi Kumar, aged about 34 years, Arvind Kumar Rathore son of Surendra Singh Rathore, aged about 33 years, Bhaskar Chand Dewangan son Narayan Prasad Dewangan, aged about 33 years, Sanjay Kumar Gabe! son of Shantilal Gabel, aged about 31 years, 23.
24.
25.
26.
Harishankar Patel son of Lekhram Patel, aged about 31 years, Ku. Preeti Pawar daughter of Bhagwati Pra. Pawar, aged about 24 years, Preetibala Tiwari wife Radhashankar Tiwan, aged 27.
28.
about 33 years, Ku.
Toshiba Dewangan daughter Ramkumar Dewangan, aged about 29 years,'
Priyanka Dewangan wife Sureshchand Dewangan, 29.
30.
aged about 27 years, Richa Saraf wife Rajkumar Saraf, aged about 31, years, Ku. Pushpanjaii daughter of Gopal Prasad Tamboli, aged 3Q.
about 36 years, Ku.
Seema Rathore daughter N.R.
Rathore, aged 33.
about 38 years, Sher Singh Rathiya son of Babuiaf, aged about 26 years, Vinod Kumar Singh son of Laxman Singh, aged about 32 34.
35.
years, Jayshankar Sidar son of Sammelal Sidar, aged about 21 36.
years, Nitesh Singh Thakur son of late Teej Ram Singh Thakur, 37.
aged about 28 years, Ku. Ribha Thakur daughter of late Teejram Singh Thakur, 38.
aged about 26 years, Kalpana Sidar wife Beduram Sidar, aged about 25 39.
years, Suresh ,Kumar Kanwar son of Bholaram, aged about 27 40.
years, Shivnarayan Porte son of Peeiaram Porte, aged about 32 41.
years, Tikendra Kumar Diwan son of Purshottam Singh Diwan, 42.
aged about 28 years, Yogesh Kumar Sidar son of Tarachand Sidar, aged about 43.
22 years, Sangeeta Kanwar daughter of Late Narottam aged about 44, 24 years, Sahni Ram Sidar son of Guharam, aged about 35 years, Ankita Singh Kanwar daughter of Sharad Kumar Kanwar, 45.
46.
aged about 26 years, Jawahar Lat son of Bailuram Gond, aged about 25 years, Aktubar Singh Kanwar son of Dharam Singh Kanwar, 47.
48.
aged about 31 years, Mochan Singh son of S.R. Raj, aged about 24 years, Bairam Khairwar son of Heerasai Khairwar, aged about 49.
50.
38 years, Shivraj Singh son of A.D. Singh, aged about 27 years, Ajay Singh Sidar son of Firtu Ram Sidar, aged about 26 51.
52.
years, Anita daughter of Mangai Singh, aged about 23 years, Preeti Singh wife Hardayat Singh, aged about 3O 53.
54.
years,
55.
Smt. Gayatri Shyam wife of Santcsh Kumar Shyam, aged about 26 years, 56.
Narendra Prakash Tandon son Dilip Kumar Tandon.
aged about 25 years, 57.
Harmendra Kumar son of Nirmal Prasad, aged about 28 years, 58.
Kumari Dev Anjali daughter of V.R'
Lohani, aged about 23 years, Respondents no.
all' setected for post Patwari and going through Training at Patwari Training Centre, Sarkanda, Police Station-Sarkanda, Civil & Revenue District-Bilaspur (C.G.) 59.
MD.
Diwan, EX-Additional Coiiector, Janjgir, resident of Viilage-Afrid, Poiice Station-Saragaon, Civil & Revenue District-Janjgir-Champa (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
@ , HIGH COURT OF CHHATTISGARH AT BILASPUR @ SB: HON'BLE SHRI PRITINKER DIWAKER J WRIT PETITION (S) No. 1815 of 2013 PETIT!ONER Avinash Singh
VERSUS
RESPONDENTS State of Chhattisgarh and others K Post for pronouncement of the order on I 7.03.2015 Sd/- Pritinker Diwakar Judge
HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI PRITINKER DIWAKER J WRIT PETITION (S) No. 1815 of 2013 PETITIONER Avinash Singh
VERSUS
RESPONDENTS State of Chhattisgarh and cthers «I Shri Prateek Sharma counsel for the petitioner. Shri Shashank Thakur GA for the State/respondents No. 1 to 4.
Shri Manoj Paranjape counsel for respondents 7,8,11,14,19,24,28,29 and 56.
None for other respondents.
ORDER
( 1 7 33.2015) On 9.8.2012 an advertisement (Annexure P-2) was issued from office respondent No.2 - Collector Janjgir Champa inviting applications from suitable candidates for vacant posts Patwari pursuant thereto petitioner as well as private respondents applied for the same. Thereafter, written examination was conducted on 11.11.2012 question paper contained questions O1 mark each there was no provision minus marking. The candidates were required to put tick mark (V) against the correct answer out of the 04 options given in the answer sheet. After examination, on 15.11.2012 and 27.11.2012 vide Annexures P-4 and P-5 model answers were published.
On 20.12.2012 impugned select list as well as the waiting list (Annexure P-1) was published.
Being dissatisfied with select list as many as candidates including (the petitioners herein) filed present writ petition challenging selection process, however, during its pendency 08 candidates out of 09 withdrew their writ petition and now the same is only with respect to petitioner Avinash Singh. 2.
Counsel for the petitioner submits as under:
(i) that the petitioner had also appeared in the examination but hisNname did not find place select list and this merely because unfair examination process was adopted by the State authorities;
(ii) that the entire selection process was carried out under the leadership respondent No.
namely M.D.
Diwan, then Additional Collector, Janjgir against whom several cases corruption were pending and his integrity was also doubtful; (iii) that respondent No. 59 was due to retire on 28.2.2013 and till the last moment of his retirement he had the firm mindset that petitioner should not get any document relating examination including answer sheets candidates which he ultimately could get after the retirement of the said person i.e. respondent No. 59;
(iv) that during examination and even thereafter a news was circulated some money transaction was made for selection of Patwari and the beneficiary thereof was respondent No. 59;
'
(v) that number of candidates who had bad academic record have been selected in the said examination;
@ @i (vi) that the candidates had left the place meant for answer blank and in fact it is the examiner who had checked the answer sheets of the candidates himself and put tick mark (\l) against the correct answer;
(vii) whiie citing examples seven answer sheets paragraph No. 8.12 of the writ petition it has been argued by the counsel for the petitioner that though number of questions were not answered by the candidates but tick marks (\l) have been put w against correct answer by examiner himself just facilitate the affluent and influential candidates; (viii) respect of respondent No.
namely Preetibala Tiwari it has been argued though she did not answer number questions but yet examiner has awarded marks to her, which is quite apparent from the answer sheets of the said candidate obtained by the petitioner under the Right to Information Act;
(ix) that according to the petitioner, the tick mark (\l) put by the examiner one said be put by candidates are almost same this makes stand of the petitioner further clear questions have been answered by examiner and not by the individual candidates; '
while referring report private handwriting (x) expert (Annexure P-7) it has been argued by the counsel for the petitioner that the allegation levelled by the petitioner has been duly supported wherein it is clearly stated that at least in seven answer sheets the questions have been answered by the same
~L¢__ person who had checked the answer sheets;
(xi) that when number irregularities have been noticed, entire selection process including issuance of impugned select list liable be quashed a fresh selection process required to be initiated in a fair and impartial manner; (xii) that after summoning the entire record a direction may be issued register a criminal case initiate departmental enquiry against the persons who are involved in the entire foul k play. Reliance is placed by the counsel for the petitioner on the decisions of the Apex Court in the matter of Kanpur University, Through Wce Chancellor and others v.
Samir Gupta and others reported in (1983) 4 SCC 309, in the matter of Krishan Yadav and another v. State of Haryana and others reported in AIR 1994 SC 2166, in the matter of Inderpreet Singh Kahlon and others v.
State of Punjab and others reported in AIR 2006 SC 2571 and in the matter of Joginder Pal and others v. State of Punjab and others reported in (2014) 6 SCC 644. 3.
Replying to the arguments of the counsel for the petitioner, it has been submitted by the counsel for the respondents/State as under: (l) that the entire selection has been made in accordance with law and there is no illegality in the same; (ii) that the petitioner has not prayed for any relief for himself and as such this petition is in the nature of PIL though in service law no such PIL can lie thus on this ground alone petition is liable to be dismissed;
(iii) merely on basis answer sheets seven
candidates it cannot be said that all other candidates who have been declared successfui are not meritorious and are the tainted Ones;
(iv) it is merely a presumption of the petitioner that the question paper of number of candidates have been answered by the examiner and not by the candidates;
v (v) report private hand writing expert (Annexure P-7) is based on the xerox copy of the document "k by the petitioner to her and therefore the said report supplied has no evidentiary value in the eye of law;
'
that it is a settled position of taw that the report of private (vi) hand writing expert is just an opinion and cannot be made basis to arrive at any final conclusion unless the person giving such report comes in the witness box;
(vii) that from the report of the private hand writing expert it is not clear as to what document was supplied by the petitioner to her. Merely the word written by the hand writing expert that she had seen seven answer sheets cannot lead to any conclusion it answer sheets of these candidates which were produced before her;
(viii) hand writing expert could not have given report unless specimen signature or tick mark (\l) examiner and the candidates were made available to her; (ix) that if such allegations are allowed to stand and the report (based on xerox copy documents taken into consideration, in every examination such allegations would be
%<>g@ made by the unsuccessful candidates and thereby sanctity of the examination would be doubted;
(x) that the allegations made against respondent No. 59 are bald ones based on the newspaper clipping which has no value in the eye of law;
(xi) that even if respondent No. 59 was subjected to charge sheet in relation to other cases, same cannot be connected with the selection of Patwaris;
x (xii) that the selected candidates have already undergone the training but on account of pendency this petition posting orders could not be issued whereas the State Government is in dire need of Patwaris in Janjgir district as number of posts are lying vacant there.
4.
Counsel for the private respondents submits that the relief prayed for by the petitioner cannot be granted as the pleadings taken in the present petition are vague and that too are in relation seven candidates only being so other meritorious candidates cannot be made to suffer because of filing of instant petition.
He submits bald allegation made by petitioner is the self made statement on the basis of assumption. According'to him, the opinion of the hand writing expert based on the xerox copy of some document has no evidentiary value. ln
matter of Girjesh Shrivastava and others v. State of M.P. And others reported AIR SCW matter Inderpreet Singh Kahlon and others v. State of Punjab and Others reported in (2006) 11 SCC 356.
5.
Main ground for challenge this writ petition petitioner after obtaining the answer sheets of seven candidates had sent the same to the hand writing expert who in turn gave her report stating she had noticed fraudulent (V) tick mark seven «t answers sheets said to be sent to her. Strengthening his case on the basis of opinion of the hand writing expert petitioner has elaborately pleaded that once in the answer sheets (\l) tick mark has been put by the examiner, the very examination of Patwari becomes doubtful and therefore the same required be cancelled.
The petitioner has given reference of the answer sheets, seven in number obtained by him under the Right to Information Act. According to the petitioner, roll number of respondent No. 28 namely Preetibala Tiwari is 10625 and though this candidate has not answered questions No. 4,5 and 8 to 15, 19,21,22, 99 and 100 but yet the marks have been awarded to her.
Further, question No.
has been answered incorrectly as per the model answer but even then the mark has been awarded to her for that question. According to the petitioner, at least 16 additional marks have been awarded to this candidate though she is not entitled for the same. He submits that if 16 marks are taken away from this candidate then her total marks would come to 66 and therefore she would be out of the select list.
In relation to respondent No.7 namely Hemchand Tiwari whose roll number is 11602 it has been argued by the counsel
@g@ g5, M for the petitioner that questions No. 4, 5, 49, 56, 63, 64, 65, 85, 87, 90 and 92 have been tick marked by the examiner himself. Likewise, the case of respondent No.6 Mohan Kumar Kaushik whose roll No. 11216, questions No.1, 3, 4, 5, 7, 8, 9, 10 to 20, 23, 24, 25, 28, 34, 36, 37, 38, 39, 40, 42, 43, 46, 47, 48, 49, 51, 53, 54, 55, 56, 59, 60, 62, 63, 64, 65, 66, 67, 71, 74, 76 have been tick marked by the examiner himself and questions No. 80 and 84 have been tick marked twice. ln respect respondent No.
12 Amit Kumar Tripathi having roll No.
s.
10774, according to the counsel for the petitioner, questions No. 3, 8, 11 to 15, 17 to 24, 26, 28, 3O to 38, 40 to 49 have been tick marked by examiner himself.
As regards respondent No.
Prateek A.
Rathore whose roll No. is 11419, questions No. 9, 43, 94 and 97 have been tempered with razor whereas question No. 24 has been been tick marked by examiner himself.
Similar allegation against respondent No.5 Sushma Singh having roll No. 10290 that questions No.
1, 3, 4, 5, 10,11 and 19 have been tick marked by the examiner. In respect of respondent No.
Gopal Prasad Rathore having roll No.
10255 it has been submitted by the counsel for the petitioner that questions No. 30, 42, 43, 45 and 63 had been encircled which was not permissible said exam but even then marks have been awarded treating the same as correct.
In respect of respondent No. 19 Dharmendra Yadav having roll No. 10474 it is argued by the counsel for the petitioner that questions No. 40 and 78 were tick marked twice but even then the marks have been awarded to him and this apart 94 questions were tick marked by the examiner himself. 6.
Before looking at the further case of the petitioner, it appears
w i.3: .- appropriate for this Court reproduce the reliefs sought for petition which are as under:
"10.1 That this Hon'bie Court may kindly be pleased to setaside entire selection process along with impugned order/selection list dated 20.12.2012 with all consequential orders & actions pursuance advertisement dated 09.08.2012 and further be pleased to direct the respondent State to conduct fresh selection process for selection in the post of Patwari, though statutory selection agency fair and transparent manner.
10.2 That, this Hon'bie Court may kindly be pleased direct for both criminal and departmental inquiry with regard criminal conduct misuse authority by responsible authorities as weli as the candidates, by a fair investigating agency, preferably by the Central Bureau Investigation submit action report before this Hon'ble Court within specified period.
10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case, including cost petition may kindly be awarded petitioners."
A bare reading of the relief clause makes it clear that the petitioner has not sought for any relief for himself and merely seeking relief quashment of examination thinking that the answers have been given by the examiner and not by the candidate.
7.
The first question which arises for consideration before this Court is whether on basis of report of the hand writing expert (Annexure P-7) which is the only basis of averment and pleading made by the petitioner, this Court can hold that the questions have been answered by the examiner or by the candidate. lt is settled position of law that the hand writing expert's report is merely an opinion and is not a conclusive piece of evidence.
With respect to the admissibility report of the hand writing expert, it has been heid by the Apex Court in matter Ramesh Chandra Agrawal v.
Regency Hospital Limited and others reported in (2009) 9 SCC 709 as under:
a}Q._ "16.
The Iaw of evidence is designed to ensure that the court considers only that evidence which wiii enable it to reach a reliable conclusion.
The hrst foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge.
Thus cases where science involved, highly specialized perhaps even esoteric, central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are: i) "the expert must be within a recognized field expertise ii) that the evidence must be based on reliable principles, iii) that the expert must be qualified in that discipline. [See Errors, Medicine Law, Alan Merry Alexander McCall Smith, ed., Cambridge University Press, p.178] 17.
Section Indian Evidence Act speaks expert evidence.
lt reads as under:
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as identity hand writing or finger-impressions, opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or nnger impressions, are relevant facts. Such person called experts. illustrations (a) The question is, whether the death of A was caused by poison.
The opinions experts as symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness
of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do either wrong or contrary to Iaw, are relevant.
(c) The question is, whether a certain document was written by A. Another document produced which proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by same person or by different persons are relevant."
18. tihe importance of the provision has been explained the case of State of H.P. v. Jai Lal and Ors., [(1999) 7 SCC 280].
It is heid, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign Iaw, or of science, or art, or as to identity of handwriting or finger impressions, opinions upon point persons specially skilled such foreign law, science or art, or questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or other words he skilled and has adequate knowledge of the subject. 19.
lt is not the province of the expert to act as Judge or Jury.
it is stated in Titli v. Jones (AIR 1934 All237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
20. An expert is not a witness of fact and his evidence really an advisory character.
The duty an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application these criteria facts proved by evidence of the case.
The scientific opinion evidence, if intelligible, convincing tested becomes a factor often an important factor for consideration along with other evidence case.
The credibility such a witness
6% -- I2depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
(See Malay Kumar Ganguly vs.
Dr.
Sukumar Mukherjee and Others) SCC p.249, 34 21.
case State Maharashtra v.
Damu slo Gopinath Shinde and others, [AIR 2000 SC 1691 at page 1700], it has been laid down without examining expert as a witness in Court, no reliance can be placed on an opinion alone.
In this regard, it has been observed The State (Delhi Administration) v. Pall Ram, [AIR 1979 SC 14] "no expert would claim today he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of questions put to him.
22.
In the Article "Relevancy Expert's Opinion"
it has been opined that the value of expert opinion rests on the facts on which it is based and his competency for forming a reliable opinion.
The evidentiary value opinion expert depends on the facts upon which it is based and also validity process by which conclusion reached. Thus the idea that is proposed its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting opinion so its accuracy can be cross checked.
Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference:
"Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance arriving at the correct value."
The aforesaid view has also been reiterated by the Apex Court in the matter of Malay Kumar Ganguli v.
Dr.
Sukumar Mukherjee and others reported in (2009) 9 SCC 221.
Further, while dealing with credibility and evidentiary value of the expert's opinion, it has been held by the Apex Court in the matter of-Magan Bihari Lal v. The State of Punjab (1977) 2 SCC 210
42w as under:
8. In the mst place, it may be noted that the appellant was at material time a Guard employment of-the Railway Administration with his headquarters at Agra and he had nothing to do with train by which wagon No.
SEKG 40765 was despatched from Munda to Bikaner nor with train which carried wagon from Agra Ludhiana. He was not a Guard on either of these two trains. There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station. lt is indeed difficult to see how the appellant, who was a small employee Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any titne.
It is true that B.
Lal, handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings EX. PW 27/37 to 27/57, is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on strength of opinion evidence of a handwriting expert.
lt is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of law.
lt was held by this Court in Ram Chandra v.
State of UP.
thatit unsafe treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items internal and external evidence. This Court again pointed out in Ishwari Prasad Mishra v. Md.
Is that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, this view was reiterated Shashi Kumar Banerjee v. Subodh Kumar Banerjeeg where it was pointed out by this Court experts evidence as handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable consider whether it corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v.
State of MPand it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert before acting upon such evidence, court must always try see whether it corroborated by other evidence, direct or circumstantial.
lt interesting note same view also echoed the judgments English and American courts. Vide Gurney v. Langlands_and
1 L; _ Matter of Alfred Foster's Wi/I_6_.
The Supreme Court Michigan pointed out in the last-mentioned case: "Every one knows how very unsafe it is to rely upon any one's opinion concerning niceties of penmanship - Opinions are necessarily received, and may be vaiuabie, but at best this kind of evidence is a necessary evil." We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by its very nature, weak and infirm and cannot of itself from the basis for a conviction.
We must, therefore, try see whether, present case, there is, apart from evidence handwriting expert B.
Lal, any other evidence connecting the appellant with the offence. 8.
Opinion'given by the hand writing expert reads as under: "(B) Examination - l have carefully examined available document of comparative and questioned signatures. l have examined document using minor scientific instrument as well as Photoshop computer, photographs were taken using digital camera and enlargement were obtained its true reproduction.
(C) Opinion -- my opinion the Answer sheet Patwari Chayan Examination 2012 are having fraudulent Right tick mark in Roll No. 10024 (Q1) with 94%, Roll No. 10278 (Q2) with 83%, Roll No. 10774 (Q3) with 70%, Roll No.
11196 (Q4) with 99%, Roll No.
11216 (Q5) with 83%, Roll No. 11267 (Q6) with 93%, and Roll No. 11414 (Q7) with 82% and the writer of fraudulent right tick mark is the same person, who is examiner of the respective Answer Sheet. This is opinion is based on examination of certified Xerox copies obtained through right information treated as they are true reproduction of their respective originals."
9.
Once the hand writing expert herself has stated that she has given the opinion on the basis of xerox copy of the answer sheets, her opinion becomes doubtful.
Moreover, unless the hand writing expert comes witness box proves said document opportunity given to the candidates for cross examination of the hand writing expert, this Court finds it difficult to accept the report of
the hand writing expert. Dealing with the question of evidentiary value of a handwriting expen, it has been conclusively held by the Apex Court in the matter of Keshav Dutt (supra) as under: 15.
In the instant case, the report of the handwriting expert who had not been examined indicates a specimen writing had been given by appellant on a comparison of the same with the writings Ext.
PR, handwriting expert had come to the conclusion that they had been written by the same person. The trial court skirted the issue by holding that the defence counsel could have examined their defence rebut findings Assistant Director, Forensic Science Laboratory, Haryana.
The High Court also skirted the issue by observing that the science of handwriting being imperfect and inaccurate, it is very difficult, if not impossible, to give the opinion that the writings were in the hand of one and the same person. The High Court went on to observe that the appellant did not have the courage to examine any counter expert in rebuttal report.
The High Court recorded report having gone unrebutted could be relied upon withoiJt any demur.
16. We are afraid that we cannot concur with the views either of the trial court or of the High Court in the above regard. When the trial court chose to rely on the report of the handwriting expert (Ext. PR), it ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross-examine the said expert.
There nothing on record show appellant and other respondents had admitted to the report of the handwriting expert.
17.
In our view, trial court ought to have allowed appeiiant an opportunity to cross-examine the expert and both the trial court and the High Court erred in denying him such opportunity and shifting the onus on the accused disprove Ext. PR which had not been formally proved by the prosecution. The decision cited on behalf of the appellant regarding reliance on the opinion of an expert who had not been examined as a witness, however, includes an Assistant Director of the State Forensic Science Laboratory in clause (e) of sub-section (4) of Section 293 CrPC. 18.
Section 293(4)(e), which is relevant for our purpose extracted below:
"293. Reports of certain government scientific experts-(1) Any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted him for
examination or analysis and report the course of any .
proceeding under this Code, may be used as evidence any inquiry, trial or other proceeding under this Code. (2H3) * * * (4) This section applies following Government scientinc experts, namely- (a)_(d * * * (e) The Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
~k * *l'
(f) 19.
ln instant case, it only report handwriting expert, Ext.
PY, which connects the appellant with the offence On account of Ext. PR which is said to be in his h ndwriting. Since the appellant had neither received the mon y nor was he present at the spot from where the other accused were apprehended, his case has be treated on a different footing and since his complicity has not been established beyond doubt on the basis of Ext. PR and Ext. PY, he must be given the benefit of doubt. Without, therefore, going into other questions which have been raised this appeal, we are of the view the same should be allowed on the aforesaid ground alone. 10.
Pursuant to the order passed by this Court the State counsel has produced answer sheets all selected candidates including those seven candidates whose reference has been given by the petitioner in the pleadings and whose copies have also been filed by the petitioner obtained under the Right to lnformation Act.
State counsel has also produced the answer sheet of the petitioner.
This Court has carefully gone through the original answer sheets of all the candidates which reference has been given above paragraphs but except respondent No.
28 namely Preetibala Tiwari whose roll number is 10625 it did not hnd anything objectionable on their face value to the extent which may require to doubt the credibility of the entire examination and to reach the final conclusion that there is some foul play in the examination. There may be few mistakes while checking the answer sheets of one or two candidates but merely on
that basis interference with the result would not be proper specially when this Court is not the subject expert or the hand writing expert. In relation respondent No.
Preetibaia Tiwari from her original answer sheet of which photocopy has been filed by the petitioner and State, it is apparent that she has been awarded marks against questions No. 4,5 and 8 to 15, 19,21,22, 99 and 100 though she has not answered same.
Likewise she may also not be entitled for answering question No. 2 as the same did not tally with the model «l answer. Considering this aspect of the case this Court deems it proper to direct the State for revaluation of the answer sheet of respondent No. 28 and then refix her placement on basis of calculation marks obtained by her afresh and then see whether she is selected or not.
This Court however does not find any illegality the answer sheets of the other candidates referred to above. 11.
Another point required for consideration is that the petitioner has not prayed for any relief for himself and has sought the relief as if it is a PIL and on this ground alone the petition liable to be dismissed.
While dealing with the similar point in the matter of Girjesh Shrivastava and others M State of MP. & others (supra) it has been held by the Apex Court as under:
"14.
However, main argument by appellants against entertaining WP (C) 1520/2001 and WP (C) 63/2002 on ground a PIL a service matter not maintainable.
This Court opinion there considerable merit in that contention.
15.
it is common ground that dispute in this case is over selection and appointment which is a service matter. case of Dr.
Duryodhan Sahu others v.
Jitendra Kumar Mishra and others (1998) 7 SCC 273 : (AIR 1999 SC 114 : 1998 AIR SCW 3467), a three Judge Bench
@Wa this Court held a PIL not maintainable service matters'
This Court, speaking through Srinivasan, J.
explained purpose of administrative tribunals created under Article 323-A backdrop extraordinary jurisdiction of the High Courts under Articies 226 and 227. This Court held "if public interest litigations at the instance strangers are allowed be entertained by (Administrative) Tribunal, very object disposal service matters would get defeated"
(para 18).
Same reasoning applies here as a Public interest Litigation has been filed when the entire dispute relates to selection and appointment.
17.
ln B.
Srinivasa Reddyv.
Karnataka Urban Water Supply & Drainage Board Employees'
Association others, reported in (2006) 11 SCC 731 (ll) : (AIR 2006 SC : 2006 AIR SCW 4515), this Court held that in service matters only the non-appointees can assail the legality of appointment procedure (See para 51, page (of SCC) : (Para 49 ofAlR, AIR SCW) of the report).
18.
This view was very strongly expressed by this Court Dattaraj Nathuji Thaware v.
State of Maharashtra others, reported in (2005 ) 1 SCC 590 : (AIR 2005 SC 540 :
2005 AIR SCW 46), by pointing out that despite the decision Duryodhan Sahu (AIR 1999 SC :
1998 AIR SCW 3467) (supra), PILs in service matters 'continue unabated'.
This Court opined that High Courts should 'throw out' such petitions in view of the decision in Duryodhan Sahu (supra) (Para 16, page 596) (of SCC) : (Para 13 ofAIR, AIR SCW).
19.
Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349, at : (AIR 2004 SC 280 : 2003 AIR SCW 6105) (Para 16).
20.
In a recent decision this Court delivered on 30.8.2010 (reported in AIR 2010 SC 3515 : 2010 AIR SCW 5567, In Hari Bansh Lal v.
Sahodar Prasad Mahto others, (MANU/SC/9654/2010), it has been held that except in a case for a writ of 'Quo Warranto', PIL in a service matter is not maintainable (See paras 6 and 7).
24.
From these facts it can be concluded that the alleged participation of near relatives in the selection process was not such a factor vitiate entire selection process.
Even if there were some illegal beneticiaries from selection process, they should have been weeded out instead striking down entire selection process.
ln Charanjit Singh and others v.
Harinder Sharma and others [(2002) 9 SCC 732 : (AIR 2002 SC 2397 : 2002 AIR SCW 2610)] a similar situation had arisen.
In that case, while not approving the interference of the High Court in the selection process, this Court held that merely because some of the candidates selection process happened be
"l3 relatives of the members of the selection committee, it did not mean all candidates were relatives members of the selection committee and had been illegally selected.
lt was also held that since the petition was not made by any of the candidates who had appeared in the selection process and was in stead filed as a Public Interest Litigation, it was improper for the High Court to interfere in the matter.
25.
On a more detailed analysis of this issue, in Union of India others v.
Rajesh P.U.
Puthuvainikathu another, [ (2003) 7 SCC at p.
:
(AIR 2003 SC : 2003 AIR SCW 3916), paragraph 6) this Court held "In the light of the above and the absence of any specific or categorical 0nding supported by any concrete relevant material that widespread infirmities of an all pervasiVe nature, which could be really said have undermined the very process itself its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justincation law to deny appointment to the other selected candidates whose selections were not found to be in any manner, vitiated for any one or other reasons.
Applying an unilaterally rigid arbitrary standard cancel entirety of the selections despite the nrm positive information except such selected candidates, no infirmity could be found with reference others, nothing but total disregard relevancies allowing be carried away be irrelevancies, giving a complete go bye to contextual considerations throwing winds the principle of proportionality going farther than what was strictly reasonably required meet situation In short, the CompetentAuthority misdirected itself taking such an extreme unreasonable decision cancelling entire selections, wholly unwarranted unnecessary even on the factual situation found too, totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision be irrational."
Here also the matter relates to selection and appointment on the post of Patwari and the disputes of like nature are redressable by taking recourse to service law jurisprudence.
If the tenor of this petition seen its entirety, it appears be nothing more than a Public Interest Litigation as the entire selection process has been asked to be cancelled.
Even if there are some illegal beneficiaries from
<w selection process, they at best, can be weeded out in stead of striking down entire selection process which unfortunately has been sought for by the petitioner in this petition. it is a settled legal position as referred to above if the PIL at the instance of strangers allowed be entertained by the Court, very object of disposal service matters would be defeated.
12.
So far as allegation levelled against respondent No.
x namely M.D.
Diwan is concerned, no material has been brought on record to show that it is on account of respondent No. 59 the entire examination was bad and some money transaction was also there.
Merely on the basis of bald altegation of the petitioner it cannot be held that the entire examination was managed by respondent No. 59 and considering his past record the entire examination is required to be cancelled.
If any complaint is made against respondent No. 59 - M.D. Diwan, it is for the State authorities to act in accordance with law. 13.
State counsel has produced the original document pertaining to the examination from which it is apparent that though respondent No.
59 was the Head of the Selection Committee but there were four other members in the said committee also and all these four persons were of different departments holding higher responsibility. Thus merely on the basis of allegation against respondent No. 59 it cannot be said that the entire examination was fauity.
Furthermore, for evaluation purpose of answer sheets 12 responsible officers from various departments were deputed excluding respondent No. 59 and it is these ofhcers who had done the evaluation and not respondent No. 59. Considering ali these
@@ ,3;{~ aspects of the case mereiy on the basis of allegation of the petitioner it cannot be held that the examination was not conducted fairly by the State.
14.
Another important aspect of the case is that during hearing of case State counsel has produced merit list candidates and out of 29 unreserved candidates (20 male 9 female) last candidate who at serial No.
has secured marks whereas thexpetitioner has secured marks.
ln between last candidate who had secured 89 marks and the petitioner, there are 16 candidates also who are above petitioner.
Thus even if appointment of seven persons referred to in the petition is cancelled, then also petitioner would not be entitled for appointment and merely for the sake of the petitioner the entire examination cannot be cancelled.
It is a settled legal position that in case of allegation of mass irregularity in the examination process this Court has to see as to who is the meritorious candidate and who is a tainted one. Even if there are some tainted candidates but for them meritorious candidates cannot be made to suffer. While laying down the guidelines in a matter of similitude, it has been elaborately expounded by the Apex Court in the matter of Inderpreet Singh Kahlon (supra) as under: 41.'
if the services of the appointees who had put in few years service were terminated, compliance with three principles at the hands of the State was imperative viz. (1) to establish satisfaction regard to the sumciency of the materials collected so as to enable the $tate to arrive at its satisfaction that the selection process was tainted;
(2) determine the question that the illegalities committed go to root matter which vitiate entire selection process.
Such satisfaction as also sufficiency materials were required be gathered by reason a
,Mv :2 2 .- thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State to arrive at a satisfaction officers majority have been found be part of the fraudulent purpose or the system itself was corrupt.
43. Apart from inferences drawn on certain facts particular the circumstances enumerated by the High Court which have been repeated by the learned counsel for the State before us, it difficult accept it was demonstrated by the State that it was abs0lutely impossible for it to separate the innocent people from the tainted ones. 44'
It is also not a case where all the relevant records have been destroyed.
The Vigilance Bureau does not say so.
Questio papers, answer sheets and other documents are available. Reports made by the Bureau were prepared upon examination of the materials collected by it. The High Court itself has noticed that what is not available is the records relating procedure adopted regard appointment paper-setters.
It may be true such records could be destroyed only after a period of five years but it has not been pointed out by the State as to how by reason of the non-availability thereof, it became difHcult for the authorities to arrive at the correct facts. We have not been informed connecting materials were also destroyed.
lt has been noticed by the High Court that all relevant information was available submitted court.
It cannot, therefore, be said that a fair investigation into whole affair was an impossible task or despite availability of all such records a thorough investigation had been made so as to arrive at a satisfaction that the entire selection process suffered from a large-scale fraud. It has also not been found that all appointments were made on extraneous considerations including monetary consideration.
49. Yet again in S.P. Biswas v. State Bank of India the Court refused to interfere with the result of the examination as it was shown that there had been neither any mass copying nor was the final result shown to have been influenced by unfair means by any candidate.
53.
It is now well settled that a decision is an authority for what it decides not what can logically be deduced therefrom.
It is also well settled that a ratio of case must be understood having regard fact situation obtaining therein.
(See P.S.
Sathappan v. Andhra Bank Ltd., MP.
Gopalakrishnan Nair v. State of Kerala and Haryana State Coop. Land Deve/opment Bank v. Nee/am).
59.
In a case this nature, thus, question which requires serious consideration is as to whether due to the misdeed some candidates, honest meritorious candidates should also suffer.
124. The High Court has not considered the case in the proper perspective.
The consequences en masse cancellation would carry a big stigma particularly on cancellation of the selections which took place because of serious charges of corruption. The question arises whether for misdeeds of some candidates, honest good candidates should also suffer on en masse cancellation leading termination their services?
Should those honest candidates be compelled suffer without there being any fault on their part just because the respondents find it dimcult to segregate the cases of tainted candidates from the other candidates? The task may be difficult for the respondents, but in my considered view, in the interest of all concerned particularly interest honest candidates, State must undertake this task.
The unscrupulous candidates should not be allowed to damage the entire system in such a manner where innocent people also suffer great ignominy and stigma.
127.
in somewhat similar circumstances, in which initially it looked that it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, from the others, even then in Union of .India v. Rajesh P.U.this Court observed competent authority completely misdirected itself taking such an extreme unreasonable decision of cancelling the entire selections. The legal position in the matter of lnderpreet Singh (supra) has further been approbated by the Apex Court in the matter of Joginder Pal and others (supra), relevant portion of which reads as under:
42. There is yet another reason to hold that these persons who have come up clean, meaning thereby, who have entered service by passing examination on their own merits, should be allowed continue government service. We have already mentioned earlier part of the judgment, while discussing the case lnderpreet Singh Kahlon, that the Court had not approved recommendation of the High Court, on basis which the Government had acted, in respect of the judicial officers whose services were also terminated.
It not necessary to state in detail the reasons given by the Court while condemning the action of terminating the services of
@@ '2C{_.
- the judicial emcers, which was taken in undue haste. The Court had also remarked that all these judicial ofhcers were subjected viva voce/interview test as well, which was conducted as per Rule 17(a)(iii) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, no breach the said Ruie had been pointed out. The Committee which interviewed these judicial officers included a Judge of the High Court as well. The Court categorically observed that there may be some cases where marks had been given for extraneous considerations, but only because there was such a possibility, same by itself,vwithout analysing more, may not be a ground for arriving at a conclusion that the entire selection process was vitiated. The direction was, accordingly, given to consider the entire matter afresh.
43. After remand the writ petitions of these judicial officers were decided by High Court case titled as Sirandip Singh Panag v.
State of Punjab. The High Court had allowed those petitions. The said judgment of the High Court was challenged before this Court High Court of Punjab and Ha/yana v.
State of Punjab.
This Court, by means of the aforesaid judgment, upheld the decision of the High Court.
The Court specifically noted after directions in Inderpreet Singh Kah/on, a Committeeof three Judges was constituted which undertook this exercise and submitted its report.
It was a fractured report where two learned Judges of the Committee were of the view entire selection process was vitiated and one Judge had .
appended his dissent thereto on the ground that only those who were found to be tainted and were segregated by the Committee should be dismissed from service and not the non-tainted omcers.
No doubt, while upholding directions of the High Court, this Court made it clear that it was not to be construed as giving seal of approval to the judgment of the High Court. At the same time, the Court also stated, in so many words, that in order to work out the equities and to do complete justice, it was proper to allow those judicial officers to continue in service who were found to be untainted.
44.
it would be apposite to quote the following portion of the said judgment this behalf:
(High Court of Punjab Haryana case, SCC pp. 692-93, paras 26-27) "26.
it is not in dispute any more that the candidates were given fresh opportunity to appear for selection for the aforesaid post in the exams exclusively held for them in the year 2004. Out of 57 such candidates, 20 candidates were reselected and they were given benefit original appointment. As many these candidates are the respondents and have worked as judicial officers for some period and it has also not been proved or established completely against them they had indulged malpractice
examinations, we are of the view that they should also be given reappointment and posting orders the existing vacancies in the State of Punjab and if no vacancy exists, Mr Sharan has assured the court State will create supernumerary posts for them but they would not be entitled get all benents as have been granted them vide impugned judgment.
27.
However, it should not be construed our judgment is giving seal of approval to the judgment of the Full Bench of the Punjab and Haryana High Court but with an intention to work out the equities and to do complete justice between the parties and in view of the earlier judgment of this Court in Kahlon case that tainted candidates be separated from untainted, meaning thereby that this Court did not accept the submission that it was not practically possible to do so;
further this Court had taken note reselection held in 2004 in para 92 of the judgment, but held that the effect thereof would be subject to this case, this is the only via media, through which respondents could also be granted relief as it could not be established that even otherwise, they would have been declared as unsuccessful candidates.
Precisely, reason we have moulded reliefs granted respondents by High Court as our order not likely affect seniority any judicial omcers, who had already been working prior to the respondents. .We are conscious of the fact that by this procedure, there is no likelihood of any offshoots of the said order and hopefully the whole controversy triggered in the year 1998, would stand settled for all times to come." 15.
The decisions cited by the petitioner in support of his case are of no heip to him because the facts of those cases are distinguishable with the case in hand. As already stated, entire case of the petitioner is based on the report of the hand writing expert given on the basis of xerox copy of certain documents supplied to her by the petitioner and being so same cannot be said be a conclusive piece evidence.
16.
ln view of above, this Court doesn't find any merit in the present
@@ petition and the same is accordingly dismissed except in relation respondent No.
for whom direction has already been given paragraph No. 10 of this judgment.
5d!- Pritinker Diwakar Judge l