JUDGMENT
Pradip Mohanty, J.
1. The petitioners were the applicants for the direct recruitment test held in the year 1992-93 for the post of S.I. of Police. Since they were not selected, they approached the Orissa Administrative Tribunal, Cuttack Bench in O.A. No. 2798 (C) of 1994 challenging the entire recruitment process. The above O.A. came to be disposed of by the Tribunal by judgment dated 8.11.1996 alongwith three other O.As. By that judgment, the Tribunal directed to reduce the marks fixed for viva vocetest notionally and to proportionately arrive at marks secured by the candidates in the viva vocetest accordingly. Since there was non-compliance of the order, the petitioners filed I.P. No. 133 (C) of 1997, but the same was dismissed by order dated 21.11.1997. Aggrieved by the said order, the petitioners preferred a writ application before this Court, which was registered as OJC No. 173 of 1998. On 3.2.2005, the above OJC was disposed of with the direction to implement the judgment of the Tribunal considering the cases of all the candidates who had appeared in the viva vice test.
2. As it appears, the opposite parties did not consider the case of the petitioners for which they again approached the Tribunal in O.A. No. 2033 (C) of 2005, which was dismissed by the Tribunal by order dated 6.10.2005. Being aggrieved by the said judgment and order of the Tribunal, the present writ application has been filed.
3. During the course of hearing, learned Addl. Government Advocate was directed to file counter affidavit and produce the relevant records. No counter affidavit has been filed. This Court, during the course of hearing passed the following orders on 7.2.2006:
Learned Additional Government Advocate with much difficulty produced the so-called record, i.e. President’s copy in respect of Direct Recruitment of S.I. of Police held in the year 1993. There is only tabulation work and in that too we have found over writings in the viva voce marks as below the signature at the bottom the year appears to be 97.
The result sheet of the viva voce test has not been produced.
Therefore, we direct the Director General of Police, Orissa to ensure that the original result sheet of the viva voce test of the candidates appeared in the interview may be produced before this Court on 15.2.2006.
List this case on 15.2.2006 for further orders.
A copy of this order shall be supplied to the learned Additional Government Advocate within twenty-four hours.
Despite the above direction, no further records, except which has been referred to in the order dated 7.2.2006, were made available to this Court. Thereafter, although specific orders were passed to produce further records, the same were not made available. This Court perused carefully the President’s copy of the Central Selection Board for direct recruitment of S.I. of Police. It is noticed that some over-writings/ interpolations have been done in the result sheet. From the said result sheet, it is also noticed that signatures of the Members of the viva voce board are also available. This goes to indicate that the written test marks were available to the board before the viva voce test which is highly illegal and not in accordance with law. The apex Court time and again has deprecated adoption of such method in public employment. From the above, it can safely be inferred that in order to favour their own candidates, the above method has been adopted. In view of the above reason, this Court could have quashed the entire viva voce test, since it is not a test in the eye of law. But since in the meantime 14 years have been elapsed from the date of interview and the selected candidates are continuing in service and they are not parties here, this Court refrains itself from doing so.
4. It is pertinent to mention here that in the case of Lila Dhar v. State of Rajasthan and Ors. ; and Madan Lal and Ors. v. State of J & K and Ors. , the Hon’ble Apex Court has made scrutiny of the fact whether there was arbitrariness in allotting marks in the interview on the ground as to whether the marks obtained by the candidates in the written test were available to the Members of the Interview Committee or not and in both the cases the Hon’ble Apex Court found that the marks of the written examination were not made available to the Members of the Interview Committee. In the case of Lila Dhar (supra), the Hon’ble Apex Court has observed:
We may add here that it has been made clear by the Chairman, Rajasthan Public Service Commission on whose behalf a counter affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the Interview Board either before or at the time of the interview….
In the case of Madan Lal (supra), the Hon’ble Apex Court has observed as follows:
….In this connection, we may also profitably recapitulate what is stated in para 2 of the affidavit in reply of Dr. Girija Dhar. She has clearly stated that as a matter of fact the particulars furnished by the candidates in their applications in pursuance of the advertisement only had been placed before the Members of the Interview Board. The results of the candidates at the written examination were not placed before the Members of the Interview Board. These averments could not be successfully challenged by the learned Counsel for the petitioners. Consequently, it must be held that the members of the Interview Committee were not knowing as to what marks were obtained by the candidates at the written test. Therefore, there would be no occasion for them to manipulate the marks of any candidate at the oral interview so as to bring them in the light of the marks obtained by him in the written test, to a total which would make him eligible to be included in the select list of first 11 candidates as there were only 11 clear vacancies….
5. In the instant case, the fact is just reverse to the above. Records show that the marks obtained by the candidates in the written examination were placed before the Members of the Interview Committee and they had awarded marks to the candidates in the interview mentioning the same below the marks secured by them in the written examination and that too by pencil and thereafter over writing was made by ink and as such, in the instant case, the presumption of manipulation of the marks at the interview cannot be overruled.
6. The next question that falls for consideration is whether the petitioners are entitled to any relief. Petitioners 1 and 2 in the written test have secured 82 and 88 marks respectively. It is seen that the candidates securing 82 marks in the written test have been selected and appointed taking into consideration the higher marks secured by them in the viva voce test. Since the viva voce marks have no value, due to the reasons ascribed in the previous paragraph, instead of quashing the entire selection we direct the opposite parties to appoint both the petitioners in the post of S.I. of Police. Since the petitioners are pursing their relief for a quite long period, i.e. 14 years and in the meantime they have crossed their upper age limit, in the peculiar facts and circumstances of the case, we direct the opposite parties to give direction to the concerned authorities to relax their upper age limit. This order, however, cannot be cited as precedent.
7. In the result, the writ petition is allowed and the impugned order of the Tribunal is set aside. There shall be no order as to cost.
I.M. Quddusi, J.
8. I agree.