(Mohan M. Shantanagoudar and Ajay Rastogi, JJ.)
B.P.S.C. and Others _______________________________ Appellant(s);
v.
Baldeo Choudhary and Others _____________________ Respondent(s).
Civil Appeal No. 3307 of 2015, decided on October 23, 2019
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties.
2. We decline to interfere in the conclusion reached by the learned Single Judge1 as well as the Division Bench2 inasmuch as we also find that the underlining in the answer sheets seems to have been made in the natural flow of writing and not with a view to get any undue favour. However, we make it clear that this order should not be meant that the candidates should make mark on the papers contrary to the instructions issued to them. Ultimately, it is left to the Public Service Commission whether to initiate action on case to case basis. We also observe that this order should not be meant that the Commission should condone such markings under all circumstances. It depends upon facts and circumstances of each case. In this matter, as mentioned supra, the marking seems to have been made in natural flow of writing. Hence, the courts have rightly condoned the lapse.
3. Accordingly, the appeal stands dismissed. There shall be no order as to costs.
4. It is brought to the notice of the Court by learned counsel for the respondent that had the respondent been selected in the examination in question, he would have been ranked second. The same is, however, disputed by learned counsel appearing for the Commission. Be that as it may, it is brought to the notice of this Court that the respondent is already working in the Sales Tax Department of the State. Having regard to the totality of facts and circumstances of the case, interest of justice would be met in case the respondent is declared qualified to be appointed from the date of the judgment of the Division Bench, i.e., from 29-11-20122. From that day onwards, the respondent should be given notional benefits of service such as continuity of service, increments etc. Since the respondent is already in service, he is not awarded any salary. Since, now he stands qualified for appointment, the State shall consider the respondent’s case for appointment on a suitable place and pay him salary. The process shall be completed within a period of three months from this day and the salary will be paid from the date of his joining the duty.
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1 Baldeo Choudhary v. State of Bihar, CWJC No. 8449 of 2008, order dated 19-3-2012 (Pat)
2 Bihar Public Service Commission v. State of Bihar, LPA No. 981 of 2012, order dated 29-11-2012 (Pat)
