Court No. - 18
Case :- WRIT - A No. - 2045 of 2017 Petitioner :- Brijendra Kumar Respondent :- State Of U.P. And Anr.
Counsel for Petitioner :- Mukesh Kumar,Ashok Khare Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Mukesh Kumar Yadav, learned counsel for the petitioner and Shri B.B. Pandey, learned Addl. Chief Standing Counsel for State respondent. Shri A.K. Yadav appears for U.P. Secondary Education Services Selection Board, Allahabad.
Pleadings have been exchanged between the parties.
The petitioner is before this Court for a direction to respondents to forthwith revise the final result of selection for the post of Lecturer in Physics prepared in pursuance of Advertisement No.2 of 2013 by taking into account the correct answers of question nos.85 and 108, as indicated in the writ petition forthwith and for a further direction to the respondents to treat the petitioner as a duly selected candidate for appointment as Lecturer in Physics and allocate an institution for joining of the petitioner.
This much is reflected from the record in question that U.P. Secondary Education Services Selection Board, Allahabad issued Advertisement No.2/2013, whereby applications were invited for filling up a large number of teaching posts in privately managed recognized and aided Higher Secondary Schools in the State including the post of Lecturer in Physics. The petitioner belongs to OBC category and being fully qualified/ eligible also applied pursuant to aforesaid advertisement. The petitioner participated in written examination held on 22.2.2015. The written test comprised of multiple choice objective type questions with the correct answer required to be indicated in the OMR Sheet. The petitioner was issued Booklet Series 'A'. The aforesaid written examination carried 425 maximum marks. The respondent-Board proceeded to publish the key answers and invited objections. Against the key-answers so published, the petitioner filed his objections dated 13.3.2015, whereby the petitioner disputed the answer to 10 questions namely question nos.4, 17, 22, 63, 74, 91, 98, 101, 108 and 121 of Booklet Series-A. On 25.5.2015 the respondent- Board proceeded to publish a revised answer key and 5 of the questions disputed by the petitioner were accepted and the answers indicated by the petitioner were accepted to be correct. Against the revised answer key dated 25.5.2015 the petitioner filed his further objections dated 29.05.2015 disputing the answer to 4 questions namely question nos.4, 85, 108 and 121 of Booklet Series-A. Thereafter, a second revised answer key was published by the respondent-Board pertaining to two questions namely question nos.4 and 121 of Booklet-Series-A to which the petitioner had filed his objection. Finally the respondent-Board proceeded to publish the result of the written examination in which the petitioner stood selected and was called for interview. Finally result was declared on 15.12.2016, wherein the cut off aggregate of the last candidate selected under OBC is 387.54 and the petitioner had secured an aggregate of 385.62 and his name has been included in the waiting list of OBC candidates for the post of Lecturer in Physics. The petitioner has not been included in the select list by a difference of 1.92 marks. The petitioner is aggrieved with the evaluation of the answer sheets on the basis of incorrect answers pertaining to two questions namely question nos.85 and 108. It is contended that in case the correct answers to question nos.85 and 108 had been treated as basis for evaluation of the answer sheets, the petitioner would be amongst the selected candidates instead of being shown as wait listed candidate. For ready reference question no.85 is extracted below:-
"85. Which of the following is not a unit of magnetic field.
(A) Tesla (B) Gauss (C) N/kg-m (D) Weber"
According to the respondent-Board the correct answer to question no.85 is option no.(C) of Booklet Series-A, whereas as per the petitioner both the option nos. (C) and (D) to question no.85 are correct options and marks ought to have been allocated on both. In support of the aforesaid, the petitioner brings on record the extracts of Chapter I of "ELECTRO MAGNETIC INDUCTION", which is appended as Anneuxre No.11 to the writ petition.
For ready reference, question no.108 is extracted below:-
"108. A uniform string of length/ and mass m is fixed at both the ends under tension T, its frequency will be-
(A) 1/2l √T/m (B) 1/2 √T/m (C) 2l √T/m (D) 1/2 √T/ml"
With regard to question no.108 the respondent-Board has treated the correct answer to be option no.(A) of Booklet Series 'A', however, as per the petitioner the correct answer is option (D) of Booklet Series 'A'. In support of the fact that option (D) is the correct answer, the petitioner draws attention to the undernoted material:-
"i) Extracts from 'Madhyamik Bhautik Vigyan-1' appended as Annexure No.12 to the writ petition.
ii) Extracts from 'Nutan Madhyamik Bhautiki Chapter 30 appended as Annexure No.13 to the writ petition.
iii) Extracts from 'Physics Part-I, published by National Council for Educational Research & Training appended as Annexure No.14 to the writ petition.
iv) Extracts from 'Physics Champion' appended as Annexure No.15 to the writ petition"
In the aforesaid circumstances, it is contended by learned counsel for the petitioner that on account of aforesaid incorrect answers the petitioner has been shown as having failed to get selected and in case the aforesaid answers, as indicated above, are accepted, then the petitioner is a duly selected candidate entitled to be included in the main select list. Once the petitioner has brought into notice to the respondent-Board regarding aforesaid discrepancy with material, then in such situation the Board had to rectify such discrepancy and without any fault of the petitioner in arbitrary manner his candidature for the post in question had not been accepted and as such this Court should come for rescue and reprieve of the petitioner.
Shri B.B. Pandey, learned Addl. Chief Standing Counsel and Shri A.K. Yadav appearing for the Board have vehemently opposed the writ petition. Shri A.K. Yadav in support of his submissions has reiterated the averment contained in the counter affidavit. He submits that as per the objection raised by the petitioner regarding question nos.85 and 108 of Booklet Series 'A', the same were referred for expert opinion of the subject concerned from Allahabad University, Allahabad. The question nos.85 and 108 have been examined by the subject expert and after due examination he has opined the correct answer of Question No.85 as option (C). In support thereof he has appended the answer being rendered by Shri G.C. Agrawal, Vol.2 'Physics for Competition'. So far as question no.108 of Booklet Series 'A' is concerned, it was opined that the correct answer is option (A) and in this regard reliance has been placed on 'Madhymik Bhautiki Part-I' written by Kumar & Mittal. It is contended that once the petitioner has filed objection showing discrepancy regarding answers, the respondent-Board has immediately taken remedial measures and asked subject expert report and only on the basis of subject expert report the discrepancies were removed and final result was declared. In support of his submissions, he has placed reliance on the judgment passed in H.P. Public Service commission v.
Mukesh Thakur & Anr., 2010 LawSuit (SC) 332 and Central Board of Secondary Education v. Khushboo Srivastava & Ors., (2014) 14 SCC 523.
Heard rival submissions and perused the record.
As noticed above, after the written examination in question the respondent-Board proceeded to publish the key answers and invited objections. Against the key-answers so published, the petitioner filed his objections regarding 4, 17, 22, 63, 74, 91, 98, 101, 108 and 121 of Booklet Series-A. On 25.5.2015 the respondent-Board proceeded to publish a revised answer key and five of the questions disputed by the petitioner were accepted and the answers indicated by the petitioner were accepted to be correct. Against the revised answer key dated 25.5.2015 the petitioner filed his further objections dated 29.05.2015 disputing the answer to 4 questions namely question nos.4, 85, 108 and 121 of Booklet Series-A. Thereafter, a second revised answer key was published by the respondent- Board pertaining to two questions namely question nos.4 and 121 of Booklet Series-A to which the petitioner had filed his objection. Finally the respondent-Board proceeded to publish the result of the written examination in which the petitioner stood selected and was called for interview. Finally result was declared on 15.12.2016, wherein the cut off aggregate of the last candidate selected under OBC is 387.54 and the petitioner had secured an aggregate of 385.62 and his name has been included in the waiting list of OBC candidates for the post of Lecturer in Physics. The petitioner has not been included in the select list by a difference of 1.92 marks. The petitioner is aggrieved with the evaluation of the answer sheets on the basis of incorrect answers pertaining to two questions namely question nos.85 and 108. It is contended that in case the correct answers to question nos.85 and 108 had been treated as basis for evaluation of the answer sheets, the petitioner would be amongst the selected candidates.
After perusal of record, the Court finds that after the objection made by the petitioner, the same was referred for expert opinion of the subject concerned from Allahabad University, Allahabad. The referred questions were examined by the subject expert and after due examination the experts have given their opinion and on the basis of their opinion the result were published. It is also apparent that the answer sheets of all the candidates including the petitioner have been universally evaluated on the basis of modified/ revised answer keys pursuant to the recommendation of the subject expert after thoroughly examining and considering the objections raised by the petitioner. The Court is of the considered opinion that once the expert, who holds the field on the subject, had given an opinion, then at this stage the Court cannot substitute its own finding regarding the correctness of the questions.
Similar controversy has come up before a Division Bench of Madras High Court in M.A. Ravivarma vs. The Secretary, Tamil Nadu Public Service Commission, Chennai in Writ Appeal No.649 of 2009 and other connected appeals decided on 18.9.2009. Relevant paragraphs 50, 51, 57, 58 are reproduced hereinafter:-
"50. As far as proportionality is concerned, it is stated that if the entire examination is set aside, the whole clock will be turned back by two years and successful candidates who have waited for all these long years to write the examination will be driven back to square one for no fault of theirs. According to the learned senior counsel, such successful candidates should not be made to become victims of this exercise.
(C) Impleading Petitions with a prayer in the nature of Cross Appeal:
51. As the above narration denotes the unsuccessful candidates in the TNPSC examination went on filing petitions after petitions, and prior to these matters coming to this Division Bench, the cause of successful candidates was essentially defended by the Public Service Commission. The submission of the unsuccessful candidates was that there were certain errors in the questions that had been set up for the examination and that some of the answers were also erroneous and therefore, they had suffered in the preliminary examination. Accepting their submission, an Expert Committee was directed to be appointed in the first round of litigation under the judgment of N.Paul Vasanthakumar, J. The number of candidates who were granted the benefit of the opinion of the Expert Committee got increased in the second round of litigation under the judgment of P.Jyothimani, J, and ultimately the number went up to 125 and odd.
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57. The TNPSC fairly accepted that 8 questions were confusing in nature and they are Questions Nos. 40, 45, 68, 82, 102, 127, 130 and 173. Out of these 8 questions, Question No.45 is the only one on Science, whereas the rest were on humanities. Thus, for example, Question No.130, was as follows: -
The Pallava rulers believed in A) Jainism B) Buddhism C)Hinduism D) Shaivism The Public Service Commission in its key answers gave Jainism i.e., (A) as the correct answer, whereas we are pointed out on authority that the Pallava Kings were earlier Jains and later on their Queen converted to Shaivism. It is, therefore, difficult to say that a particular answer is correct and the other one is wrong. As stated above, out of these 8 questions, only Question No.45 is the one, which deals with Science, and which is to the following effect: -
45. The plant which possesses anticancerous acivity is A) Seetha B) PolyalthiaC) Teak D) Murungai The Service Commission in its key answers gave A as the correct answer, whereas according to the Expert Committee either A or B can be the correct answer.
58. Mr.Somayaji therefore submits that assuming that there were errors in the eight answers, seven answers were on humanities on which perhaps there were two different answers, and the unsuccessful candidates have been given the benefit of the answers given by the Expert Committee, whereas the successful candidates have marked the answers on the basis of the key answers. According to Mr.Somayaji, no serious prejudice has been caused in this process."
Hon'ble Supreme Court has time and again pointed out that it is for the bodies entrusted with the task of holding an examination to determine what policy should be adopted and it is not for the candidates appearing at the examination to dictate what particular policy should be adopted. In this connection, reference needs to be made to the decision of the Supreme Court in Maharashtra State Board of Secondary and Higher Education & Anr, Vs. Paritosh Bhupesh Kurmarsheth, etc. etc,. AIR 1984 SC 1543 in which the Supreme Court examined the scope of interference in policy matters and observed :-
"It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute.
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The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw-backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution."
The Constitution Bench of the Supreme Court in University of Mysore Vs. C.D. Govinda Rao & Anr., AIR 1965 SC 491, held that in academic matters, where the decision under challenge has been taken by the Committee of Expert "normally the Courts should be slow to interfere with the opinion expressed by the experts" unless there are allegations of mala fide against any of the Members of the Expert Committee. The Court further observed as under:-
" It would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than courts. "
Similar view has been taken by the Supreme Court in State of Bihar & Ors. Vs. Dr. Asis Kumar Mukherjee & Ors., AIR 1975 SC 192; Dr. M. C. Gupta & Ors. Vs. Dr. Arun Kumar Gupta & Ors., (1979) 2 SCC 339; Rajendra Prasad Mathur Vs. Karnataka University & Anr., AIR 1986 SC 1448; Dr. Uma Kant Vs. Dr. Bhika Lal Jain & Ors., AIR 1991 SC 2272; The Chancellor & Anr. Vs. Dr. Bijay Nanda Kar & Ors., (1994) 1 SCC 169; State of Orissa & Ors. Vs. Prajnaparamita Samanta & Ors., (1996) 7 SCC 106; Chairman, J & K State Board of Education Vs. Fayaz Ahmad, (2000) 3 SCC 59 and The Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., AIR 2001 SC 215.
In Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. (2010) 6 SCC 759 Hon'ble Supreme Court observed as follow:-
"In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
The Apex Court in the case of Subash Chandra & Ors. Etc. vs. State of Bihar & Ors., Etc. reported in 1995 Suppl. (1) SCC 325, has explained that normally the High Court should appoint an expert body and obtain its opinion in the matter of confusing or controversial nature of questions. Relevant paragraph reads as follows:
"Normally speaking, the High Court should have appointed an expert body and obtained its opinion about the confusing or controversial nature of questions. For reasons best known, it was not done. It has merely chosen to accept the version of the writ petitioners before it. The reason why this Court has repeatedly pointed out such matters being referred to an expert body and its opinion sought, is that in academic matters like this, courts do not have the necessary expertise."
It is also worthwhile to refer to paragraph-25 of the Judgment of the Apex Court in the case of Subhash Chandra (Supra), which provides that if controversial questions have been set and in relation to some questions, there could be more than one answer. In an objective type of test, more than one answers are given. The candidate is required to tick mark the answer, which is the most appropriate out of the plurality of answers. For ready reference relevant portion of paragraph-25 of the judgment of the Apex Court in the case of Subhash Chandra (supra) is being quoted herein below:
"25. ....................................................................
3. Several controversial questions were set and in relation to some questions, there could be more than one answer: In an objective type of test, more than one answer are given. The candidates are required to tick mark the answer which is the most appropriate out of the plurality of answers. The questions and answers were prescribed by the experts in the field with reference to standard books. Therefore, it is incorrect to say that a question will have more than one correct answer. Even if the answers could be more than one, the candidates will have to select the one which is more correct out of the alternative answers. In any event, this is a difficulty felt by ail the candidates.
. "
From the side of the petitioner, reliance has been placed on the judgement passed by Hon'ble Apex Court in Rajesh Kumar and ors vs. State of Bihar and ors (2013) 4 SCC 690 in which Hon'ble Supreme Court has directed for re-evaluation, when the selection process/procedure was held to be erroneous evaluation (using wrong answer key). It is in this background the direction was issued by Apex Court for re-evaluation whereas in the present matter, I do not find that any erroneous evaluation had been made by the examiners and as such it is not warranted that the re-evaluation is required in the matter. The petitioner has also relied upon judgement of Hon'ble Supreme Court in Vikash Pratap Singh vs. State of Chhatisgarh (2013) 14 SCC 494.
In view of aforesaid facts and circumstances, the Court find that once the objections had been filed by the candidates; the Commission has proceeded to constitute the expert and on the recommendation of the expert body, they have proceeded to publish the result in question and as such the Court does not find any good ground to interfere in the matter. The writ petition sans merit and is accordingly dismissed.
Order Date :- 27.3.2018 SP/