RINI JOHN, RAJI S. PANICKER, and BINOD KUMAR B. v. ORIENTAL INSURANCE COMPANY LIMITED and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 21ST DAY OF JANUARY 2013/1ST MAGHA 1934** ## **WP(C).No. 35440 of 2010 (D)** ## **--------------------------------------** ## **PETITIONER(S):** - **-----------------------** **1. RINI JOHN, D/O. K.G.YOHANNAN,** - **AGED 37 YEARS, ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE NO.I, JEWEL ARCADE, LAYAM ROAD ERNAKULAM.** **2. RAJI.S. PANICKER, AGED 36 YEARS, D/O. K.S.N. PANICKER, ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE NO. II, RUKIYA BAGH, RAVIPURAM M.G.ROAD, ERNAKULAM.** **3. BINOD KUMAR.B., S/O. BHASKARAN, 36 YEARS THE ORIENTAL INSURANCE CO. LTD.,BRANCH OFFICE K.V.VARKEY MEMORIAL COMPLEX, NEAR KSRTC BUS STATION ANGAMALY-683 572.** **BY ADVS.SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ** ## **RESPONDENT(S):** - **--------------------------** **1. THE ORIENTAL INSURANCE COMPANY LIMITED, HEAD OFFICE, P.B.NO.7037 A-25/27, ASAF ALI ROAD, NEW DELHI-110 002.** **2. INSURANCE INSTITUTE OF INDIA, G-BLOCK, PLOT NO.C-46, BANDRA KURLA COMPLEX BANDRA(EAST) MUMBAI-400051.** **3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110001.** **R1 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R3 BY ADV. SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** ## **WP(C).No. 35440 of 2010 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT. P1: COPY OF NOTICE NO. PRM/III/NOTICE/OFFICER(SCALE 1)/2010 DATED 28.05.2010 ISSUED BY R1** - **EXT. P2: COPY OF COMMUNICATION DATED 25.10.2010 RECEIVED BY THE FIRST PETITIONER FROM R1** - **EXT. P3: COPY OF COMMUNICATION DATED 25.10.2010 RECEIVED BY THE SECOND PETITIONER FROM R1** - **EXT. P4: COPY OF COMMUNICATION DATED 25.10.2010 RECEIVED BY THE THIRD PETITIONER FROM R1** - **EXT. P5: COPY OF APPLICATION DATED 03.09.2010 SENT BY THE FIRST PETITIONER** - **EXT. P6: COPY OF APPLICATION DATED 03.09.2010 SENT BY THE SECOND PETITIONER** - **EXT. P7: COPY OF COMMUNICATION DATED 02.11.2010 SENT BY R1 TO THE SECOND PETITIONER** - **EXT. P8: COPY OF ORDER IN APPEAL NO. CIC/DS/A/2011/003152 DATED 20.06.2012 BY CENTRAL INFORMATION COMMISSION, NEW DELHI ISSUED TO THE 1ST PETITIONER** - **EXT. P9: COPY OF ORDER IN APPEAL NO. CIC/DS/A/2011/003261 DATED 20.06.2012 BY THE CENTRAL INFORMATION COMMISSION, NEW DELHI ISSUED TO THE 2ND PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P. (C) NO. 35440 OF 2010** ## **----------------------------------------** Dated this the 21[st] day of January, 2013 ## **JUDGMENT** Petitioners are presently working as Assistants in the Oriental Insurance Company Limited at its Kochi office. In respect of promotional examination conducted for Scale I Officers on 25.07.2010, petitioners also wrote the examination. Ext. P1 is the notice inviting applications which contains eligibility conditions and the manner in which the examinations are conducted. 2. As per Para 13.2 of Ext. P1 the competitive examination has to be written by the candidates and those successful in competitive examination will go for the next selection process. The competitive examination is in two parts, Part No. 1 is in relation to subjects which can be chosen by the candidates concerned and Part No. 2, English and General Knowledge. 3. It is submitted by the petitioners that they are writing the examination for the 3[rd] time whereas the maximum number of competitive examination that they can attempt is only 4 as per Ext. P1. For qualifying in the written examination the petitioners W.P. (C) NO. 35440 OF 2010 **2** have to obtain 60% of the marks. Ext. P2 is the mark obtained by the 1[st] petitioner for the examination conducted in terms of Ext. P1 which is 118. During 2009 also she got the same marks. Ext. P3 is the marks obtained by the 2[nd] petitioner in 2010 which is 112, in 2009 she got 118. Ext. P4 is the mark obtained by the 3[rd] petitioner in 2010 which is 118. The qualifying marks was 120 and therefore the petitioners did not qualify. Suspecting some foul play, they applied to the 1[st] respondent for supplying copies of the answer sheets. Since the answer sheets were not given the writ petition came to be filed. The petitioners relied upon the judgment of the Supreme Court in **Central Board of Secondary** **Education and another v. Aditya Bandopadhyay and others [(2011) 8 SCC 497]** and the judgment of this Court in **Treesa Irish v. Central Public Information Officer [2010 (3) KLT 965]** . 4. The main contention urged by the petitioners is that unless they are provided with the answer sheets of the competitive examination which they have written, it may not be possible to find whether there is any foul play or deficiencies in the assessment of their performance especially in a case when W.P. (C) NO. 35440 OF 2010 **3** their opportunities are very less. 5. Counter affidavit is filed by the 1[st] respondent inter alia contending that the examination was conducted through the second respondent. According to them proper valuation has been done by the institute and based on the marks obtained by the petitioners, the rank list was prepared. In regard to the availability of the answer sheet it was contended that written examination was conducted by an outside agency and the valuation is also conducted by them and mark sheet alone is sent to the 1[st] respondent. In Paragraph 6 of the counter affidavit it has been stated that the outside agency namely the 2[nd] respondent had refused to provide the answer sheet of the petitioners. 6. It is further submitted by the learned counsel appearing for the 1[st] respondent that though they have taken up the matter with the 2[nd] respondent, they were informed that the answer sheets were destroyed. Ext. P8 is an order passed by Central Information Commissioner (CIC) after hearing the 1[st] respondent. The CIC found that no steps were taken to preserve the information pertaining to the examination held on W.P. (C) NO. 35440 OF 2010 **4** 25.07.2010 and it was permitted to be destroyed in a routine fashion. The information as sought by the petitioners has not been granted and hence compensation had been awarded in favour of the petitioners. 7. Another counter affidavit is filed by the 1[st] respondent in terms of the orders passed by Central Information Commissioner. 8. The question to be considered in this writ petition is whether the petitioners are entitled for any reliefs as prayed for. 9. The 1[st] relief is to declare that the refusal of furnishing answer papers prepared by the petitioners in competent examination is violative of Articles 14, 16, 19 and 21 of the Constitution of India and the 2[nd] relief is to direct the respondents to provide the petitioners their own answer sheet for their own verification. 10. Heard the learned Senior Counsel Sri. K. Ramakumar for the petitioners and the learned counsel Sri. George Cherian appearing for the 1[st] respondent. 11. The fact remains that answer sheets have been destroyed and that this matter is now confirmed as evident from W.P. (C) NO. 35440 OF 2010 **5** Ext. P8 order passed by Central Information Commissioner. It is not in dispute that the petitioners have a legal right to verify their answer sheets as held by Supreme Court and this Court. In that view of the matter destruction of answer sheets immediately after declaration of results have affected the legal right of the petitioners to verify their answer sheets. The question now is for what relief the petitioners are entitled to. As argued by the learned Senior Counsel it is not possible for this Court to give a declaration that the petitioners have passed in the examination on account of the fact that an authority constituted for conducting the examination had informed the 1[st] respondent that the petitioners had not obtained the requisite marks for the competitive examination. But it cannot be disputed that not providing the answer sheets and destroying the same within a short period of time by itself had created a situation that the petitioners could not challenge the valuation as according to them on earlier occasions also they were not qualified as they were short only by a few marks. When it is considered that verification of answer sheet is a legal right available for petitioners, even in a case where the answer sheets have been W.P. (C) NO. 35440 OF 2010 **6** destroyed, this Court has to mould the reliefs and issue appropriate directions. 12. It might be true that it will be difficult on the part of the 1[st] respondent to conduct another examination for the petitioners alone, but the fact remains that if they are unable to provide the answer sheets to the petitioners for verification it has to be assumed that the petitioners legal rights had been infringed which also amounts to violation of their valid right to receive answer sheet for verification as held by the Supreme Court in the case mentioned above. Hence I am inclined to dispose of the writ petition as follows:- i) The 1[st] respondent shall conduct a competitive examination for the petitioners in terms with Para 13.2 of the Ext. P1 within a period of one month from the date of receipt of copy of the judgment. ii) If the petitioners qualify for the examination so conducted further selection process shall be conducted in terms of Para 13.2.1 and other procedure to be adopted for placing them in the necessary rank list for the promotion which is notified in Ext. P1. It shall have effect from the date when W.P. (C) NO. 35440 OF 2010 **7** similarly placed persons were qualified as per Ext. P1 selection process without affecting the appointment of persons already appointed. The entire process shall be completed within a period of three months from the date of receipt of copy of this judgment. Sd/- **A.M. SHAFFIQUE JUDGE** ## **DCS**