Court No. - 7
Judgment Reserved on 24.10.2018 Judgment Delivered on 29.10.2018
Case :- WRIT - A No. - 20227 of 2018
Petitioner :- Dhan Devi Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ramakant Singh
Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Manoj Kumar Singh
with
Case :- WRIT - A No. - 22304 of 2018
Petitioner :- Manish Kumar Sonkar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ramakant Singh
Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh
with
Case :- WRIT - A No. - 21087 of 2018
Petitioner :- Surendra Kumar Mishra
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shantanu Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Satendra Tripathi
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Ramakant Singh and Sri Shantanu Khare, learned counsel for the petitioner; Sri B.N. Singh, learned counsel appearing for the U.P. Higher Education Services Commission (hereinafter referred to as the 'Commission'), Sri Satendra Tripathi for the intervenors and; learned Standing Counsel for the State-respondents.
2. By means of the present writ petitions, individual petitioners have prayed to quash the final selection lists, against advertisement no.46 for the post of Assistant Professor, Zoology (Dhan Devi Mishra is the petitioner in writ petition no. 20227 of 2018 and Manish Kumar Sonkar is the petitioner in writ petition no. 22304 of 2018) and post of Assistant Professor, Physics (Surendra Kumar Mishra is the petitioner in writ petition no. 21087 of 2018). These appointments are to be made at different Degree/Post Graduate Colleges. Further relief has been sought to correct the select list by awarding full marks to the petitioners for certain answers tendered by them which according to the petitioners had been wrongly assessed to be wrong in the revised key answer sheet made available by the Commission.
3. Insofar as writ petition no. 20227 of 2018 is concerned, according to the petitioner- Dhan Devi Mishra the answers to the question nos. 49, 56 and 85 in the answer key for Booklet Series - C for the subject Zoology and; according to the petitioner- Manish Kumar Sonkar in writ petition no. 22304 of 2018 the answers to the question nos. 56 and 85 in answer key for Booklet series - C are wrong. Similarly, according to the petitioner- Surendra Kumar Mishra in writ petition no. 21087 of 2018, the answers to the question nos. 40, 62 and 91 in answer key for Booklet Series - B, are wrong.
4. Also, according to the petitioners Dhan Devi Mishra and Manish Kumar Sonkar, if their claim were to be accepted and the key answers were to be corrected as per the expert material relied upon by the petitioners, those petitioners would stand higher in merit and would get included in the select list released by the Commission. As on date these two petitioners stand excluded from the select list.
5. Insofar as the petitioner Surendra Kumar Mishra is concerned, his name is included in the select list. However, he claims if the key answers were to be corrected in his case (again according to the expert material relied upon by him), his merit position would improve and he would become entitled to allotment of a college higher in preference disclosed by him.
6. With respect to the dispute that has thus arisen, certain admitted facts need to be recorded first :
(i) on 19.3.2014, the Commission published the advertisement no.46 advertising numerous posts of Assistant Professor in different subjects, at various privately managed degree colleges inside the State of Uttar Pradesh.
(ii) the applicants had time until 24.4.2014 to fill up the application forms. All petitioners filled the forms.
(iii) written examination was held on 14.2.2015 with respect to the claim made by the petitioner Surendra Kumar Mishra (in the subject Physics) and; on 22.3.2015 with respect to other two petitioners Dhan Devi Mishra and Manish Kumar Sonkar (in the subject Zoology).
(iv) the answer key were first published on the website of the Commission on 21.2.2015 for the subject of Physics and on 28.3.2015 for the subject of Zoology.
(v) upon publication of the original answer key, objections were invited.
(vi) upon receiving objections the Commission referred the disputed answers to two independent committees of subject experts.
(vii) the revised answer key were published by the Commission on 20.8.2015 (for the subject Zoology) and on 21.8.2015 (for the subject Physics).
(viii) thereafter, final result of the written examination were published on 20.7.2016 (for the subject Zoology) and on 28.06.2018 (for the subject Physics).
(ix) interview were held on different dates after declaration of those results.
(x) the final select list were published thereafter, on 25.8.2018 (for the subject Zoology), and on 24.08.2018 (for the subject Physics).
(xi) the present writ petitions have been filed on different dates thereafter, in September and October 2018 .
7. While, petitioners in writ petition nos. 20227 of 2018 and 22304 of 2018 namely Dhan Devi Mishra and Manish Kumar Sonkar claim to have filed their objections to the original answer key on 1.4.2015, however, the Commission contends no such objection was ever filed by those petitioners. The petitioner namely Surendra Kumar Mishra admittedly did not file any objection at that stage since he was not aggrieved at all by the original answer key released by the Commission with respect to the examination for the post of Assistant Professor, Physics.
8. Thereafter on 20.08.2015, the Commission published the revised answer key on its website. Here it may also be noted, while under Regulation 6 of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 2014 (hereinafter referred to as the 'Regulations'), there is no requirement to invite objections to the answer key, under the terms and conditions of the aforesaid selection examination the Commission had of its own, allowed for a protest procedure with respect to the original answer key. At the same time, the Commission did not contemplate or allow for a second protest to be raised to the revised answer key.
9. It is also on record that, in any case the correctness of the original answer key with respect to subject Zoology, specific questions being question nos. 31, 32, 34, 35, 37-42, 46, 49-50, 52-55, 57, 63, 65-
68, 72-74, 79, 81, 83-87, 89, 91-93, 99-100 of answer booklet series A which correspond to question nos. 86, 93 and 52 of answer booklet series C (being the questions in dispute in the present proceedings) were challenged by some other candidates and the Commission did refer the matter to an independent expert committee of subject experts. Thereafter, the revised answer key relevant to the subject exam for Zoology was released on 20.08.2015. These facts have been stated in the Short Counter Affidavit filed by the Commission in writ petition no. 20227 of 2018 (Dhan Devi Mishra).
10. While the petitioner Surendra Kumar Mishra did not file any protest petition to doubt the correctness of either the original answer key (for the subject Physics), he claims to be aggrieved with respect to the correctness of three answers accepted by the Commission, as correct in the revised answer key relevant to question nos. 40, 62 and 91 of the answer booklet series B. It is also on record that in any case the correctness of the original answer key with respect to subject Physics, specific questions being question nos. 33, 37-40, 45-46, 48, 52-53, 58, 60, 67, 70, 72-73, 76, 79-80, 83-86, 90, 95 and 100 of answer booklet series A were challenged by some other candidates and the Commission did refer the matter to independent expert committee of subject experts. Thereafter, the revised answer key relevant to the subject exam for Physics was released on 20.08.2015. These facts have been stated in the Short Counter Affidavit filed by the Commission in writ petition 21087 of 2018 (Surendra Kumar Mishra).
11. The petitioner Surendra Kumar Mishra claims to have first filed a protest petition to doubt the correctness of three three answers accepted by the Commission as correct, only on 1.6.2017 i.e. almost two years after declaration of the revised answer key. The other petitioners Dhan Devi Mishra and Manish Kumar Sonkar claim to have filed protest petitions to the original answer key on 1.4.2015 and a second protest petition on 22.08.2015, to the revised answer key.
12. Short counter affidavit has been filed by the Commission in the case of Dhan Devi Mishra and not in the case of Manish Kumar Sonkar. Also, a short counter affidavit has been filed in writ petition filed by Surendra Kumar Mishra. In those affidavits the claim made by both the petitioners as to filing of protest petition has been denied. Dhan Devi Mishra has filed the rejoinder affidavit to such counter affidavit annexing certain documents claimed to be postal receipts and copy of such applications made by hand and another document dated 02.09.2015 claimed to be a print of the electronic mail communication dispatched by that petitioner to the Commission has been attached. However Surendra Kumar Mishra has waived his right to file any Rejoinder affidavit.
13. Again, in terms of Regulations 6(2) of the Regulations for the purpose of conducting an interview, candidates were required to be called in the ratio between 1:3 to 1:5 from amongst such candidates who had made the cut-off list. It is an admitted case of all the petitioners that they were called for interview that were held between 21-23.03.2017 and again on 31.07.2018 and 24.08.2018. The final results appear to have been declared on 25.08.2018 [for the post of Assistant Professor (Zoology)] and on 24.04.2018 [for the post of Assistant Professor (Physics)]. It is after the declaration of the aforesaid results that the present challenge has been made by the petitioners.
14. Learned Senior Counsel appearing for the petitioners submits that the whole purpose of an open competitive examination is to ensure that the best / most meritorious candidates are selected. The merit has to be assessed objectively in a transparent manner on the basis of most correct answers or highest marks awarded. That being the undisputed objective criteria, it has been further submitted, it is neither for the petitioners nor for the Court to reach any conclusion as to the correctness of the answers but that it would remain a matter of expert opinion. Though it has not been disputed that in the first place, the examining body such as the Commission had sufficient expertise to evaluate/determine the correct answers for the purpose of award of marks and consequential determination of inter-se merit of the competing candidates, however, since the petitioners in the present case have been able to show that there exists expert material to doubt the correctness of the answers as declared by the Commission, the matter be referred to independent experts so that the correct merit of the candidates may be assessed.
15. In this regard, reliance has been placed on a decision of the Supreme Court in the case of Vikas Pratap Singh and Others Vs. State of Chhattisgarh and Others 2013 (14) SCC 494. It has been submitted, the underlying principle in such cases has to be to uphold the fairness and correctness of the evaluation made to determine the correct merit. It is also submitted, since it was open to the Commission or the examining body to itself get a re-evaluation done, at its own instance, that too after issuance of an earlier select list and appointment letters, there can be no reason to not allow such re- evaluation or revision of the answer key at the instance of the person/candidate who is likely to be adversely affected by the incorrect answers. Again relying another decision of the Supreme Court in the case of Rajesh Kumar and Others Vs. State of Bihar and Others (2013) 4 SCC 690, it has been submitted in such cases the only way to ensure fairness and correctness in the selection process is to allow a reference to be made to independent experts and unless that procedure is adopted the selection process would continue to stand vitiated to the prejudice of the otherwise more meritorious candidates. Learned Senior Counsel has also relied on a division bench judgment of this Court in Writ-A No. 12344 of 2017 Niraj Kumar Singh and connected matters decided on 28.4.2017 wherein it was held as below:-
“From the above facts and circumstances and the legal position as discussed above the following situation emerges.
(i) In this highly competitive world today what to say of one mark even a fraction can alter the fate of a candidate.
(ii) Purity of examination has to be strictly maintained. Re- evaluation of correct answers is the right method to prepare the final result.
(iii) More meritorious candidate needs to be selected over and above the less meritorious candidate. A less meritorious candidate cannot in any way be given preference or priority or any other kind of advantage by taking a technical plea to non- suit a more meritorious candidate.
(iv) Merely because deletion of a question and then evaluating would be an easier task and would affect less number of candidates this suggestion cannot be accepted. The only correct remedy is to re-evaluate the answer-sheets and award marks to the correct answer and accordingly prepare the result afresh.
(v) In the present case, none of the selected candidates have been given appointment as such rights of none of the selected candidates can be said to be affected and therefore no notice need be issued to the selected candidates whose result could be affected. It is the fault of the Commission in not correctly evaluating the answer-sheets and therefore the Commission itself is the appropriate authority to correct its own mistakes by getting the answer-sheets re-evaluated on the two questions mentioned above.
(vi) The petitioners had objected to the wrong answer displayed by the Commission in the model answer uploaded on the website and therefore it cannot be said that the petitioners were careless or negligent.
(vii) The objection taken by the respondent-Commission and the learned counsel for the private respondents that this petition suffers from laches/delay/principle of estoppel and acquiescence ca nnot be accepted for the reason that the Commission for its own mistakes cannot get away on hyper technical objections and play with the life and fate of more meritorious candidates.
(viii) Both the petitioners are losing their selection by fraction of marks. They have attempted the right answer. It would be unjust to non-suit them on hyper technical grounds. They are more meritorious and deserve to be selected over and above the candidates who had given wrong answers and have been selected.
(ix) The objection taken by the respondent-Commission that it has already forwarded the result to the State Government as such it cannot proceed any further in the matter and has become functus officio cannot be accepted. The examining body is the Commission and it is the Commission and Commission alone which has to correct its mistakes. The State Government has still not issued any appointment letters. The State will not have any role to play in the re- evaluation as it is the Commission which has conducted the examination.”
16. Sri B.N. Singh, learned counsel appearing for the Commission has first raised a preliminary objection that the challenge to the selection process is wholly belated and that the writ petition hit by a serious laches. He would submit that in the first place no objections whatsoever were filed by any of the petitioners. No material has been filed with the writ petition by way of evidence to establish that any objection had been filed by any of the petitioners either to the original answer key or to the revised answer key .
17. Next, it has been submitted that though the present writ petition has been filed within reasonable time from declaration of the select list (in August 2018), the advertisement itself is of the year 2014 where against written examination was admittedly conducted in March, 2015. The original answer key were published and thus made known to the petitioners in March 2015 and the revised answer key were published and thus made known to the petitioners in August 2015. He then submits, in the first place second protest procedure was never available to the petitioners against revised answer key and in any case if the petitioners were aggrieved by the revised answer key the only remedy available to them was to have challenged the same by means of filing a writ petition at the relevant time i.e. within reasonable time from declaration of the revised answer key in the month of August, 2015. More than three years have passed since then. The present petitions have been filed in the month of September and October 2018.
They are therefore stated to be hit by incurable delay and laches.
18. In this regard, reliance has been placed on a decision of the Supreme Court in the case of Union of India and Others Vs. Trasem Singh reported in (2008) 8 SCC 648, wherein it has been held as under:-
“ 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”
19. Then, it has been submitted, the petitioners wholly acquiesced to the revised answer key inasmuch as not only the petitioners did not challenge the revised answer key by filing any writ petition at the relevant time but they willingly participated in the interview process. They allowed the selection process to be completed. Only upon being declared unsuccessful in the final select list, the petitioners have now sought to challenge the revised answer key, on account of the fact that they have not been able to achieve the desired result. The petitioners have taken a chance in having participated in the entire selection process over a long period of four years. They cannot now turn around and seek to challenge any part of it.
20. It has also been submitted, even it were to be held there is a continuing cause of action and therefore exceptions could be made on account of delay and laches, even in that case a further exception would arise preventing intervention at this stage since rights of numerous persons who have already been selected would necessarily be affected. He therefore submits, the petitioners cannot be heard to question the correctness of the revised answer key as that may lead to indefinite delay in the already delayed selection process.
21. On merits, it has been submitted the Commission has acted with due diligence and utmost care in these matters. Upon publication of the original answer key, objections had been invited and received by the Commission to ensure transparency and fairness. Upon such objections, the matters were referred to a Committee of three experts being Professor K.P. Singh, Professor Aneeta Gopesh and Professor U.C. Srivastava all Professors in the Department of Allahabad University (for the subject Zoology) and to another two member expert committee of Sri K.N. Uttam, Associate Professor, Department of Physics Allahabad University, Anil Kumar Singh, Associate Professor, Department of Physics, Ewing Christian College Allahabad. Reference has already been made to the reports submitted by such expert committees. They are found annexed to the short counter affidavits filed by the Commission, noted above. It is thus submitted that based on the unanimous opinion of the subject experts, the revised answer key were published by the Commission. Therefore, there exists sufficient and credible expert material on the basis of which the correctness of the answers submitted by the candidates had been evaluated. The questions in respect of which protest has been sought to be raised in the present writ petitions being included in the questions referred to the two subject expert committees and that dispute having been thus resolved, the objection now raised lacks substance and is superfluous, besides being belated.
22. As to the expert material relied upon by the petitioners, it has been submitted, if such plea are entertained by the Court it may result in an endless litigation and debate since in matter of academics it is not uncommon that more than one opinion may co-exist on certain issues, in certain circumstances. In so far as the answer key accepted by the Commission are found to be based on relevant and credible material backed by unanimous opinion of independent committees of subject experts and there is no material to doubt the credibility of the same, the selection process concluded on the basis of such material does not call for any interference. Reliance has been placed on a judgment of the Supreme Court in the case of Ran Vijay Singh and Others Vs. State of Uttar Pradesh and Others (2018) 2 SCC 357, wherein it has been held as below:-
“ 30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:
30.1. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;
30.2. If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed;
30.3. The court should not at all re-evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics;
30.4. The court should presume the correctness of the key answers and proceed on that assumption; and
30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.
31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not; whether their result will be approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.”
23. Further, reliance has been placed on another decision of the Supreme Court in the case of U.P. Public Service Commission Vs. Rahul Singh and Another (2018) 7 SCC 254, wherein after relying upon the decision in the case of Ran Vijay Singh and Others (supra) the Supreme Court further held :-
“12. The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The constitutional courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University case [Kanpur University v. Samir Gupta, (1983) 4 SCC 309] , the Court recommended a system of:
(1) moderation;
(2) avoiding ambiguity in the questions;
(3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.
13. As far as the present case is concerned, even before publishing the first list of key answers the Commission had got the key answers moderated by two Expert Committees. Thereafter, objections were invited and a 26- member Committee was constituted to verify the objections and after this exercise the Committee recommended that 5 questions be deleted and in 2 questions, key answers be changed. It can be presumed that these Committees consisted of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answers is better or more correct.
14. In the present case, we find that all the three questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain textbooks. When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.”
24. Sri Satendra Tripathi, learned counsel who has allowed to address the Court in Writ-A No. 21087 of 2018 on behalf of some of the selected candidates, by way of intervenor, has supported the submission advanced by Sri B.N. Singh and has emphasized that there is no provision and therefore it is not permissible to the petitioners to file a second protest or to now raise an objection to the correctness of the revised answer key released by the Commission in the year August, 2015. He therefore submits the delay that has been sought to be explained on account the petitioner having filed protest to the revised answer key, is a wholly fallacious plea set up by the petitioners. He further submits that the petitioners having participated in the interview process and the select list having been finalized thereafter, it is too late in the day and it is otherwise impermissible to the petitioners to lay challenge to the written examination that had been done conducted and completed in the year 2015 itself.
25. By way of rejoinder affidavit, Sri Ashok Khare, learned Senior Counsel would submit that the protest filed by the petitioners by way of speed post have been annexed with the writ petition and in any case the electronic mail communication dated 02.09.2015 annexed with the rejoinder affidavit clearly brings out specific objection with respect to answers key for the subject Zoology.
26. Having considered the argument so advanced by learned counsel for the parties, in the first place, it requires to be determined whether the petitioners had any right to file a second protest. There is neither any enabling regulation nor any binding precedent that may oblige the Commission to entertain a second protest petition. In fact, these being matters of public examination, to fill up teaching faculty posts at higher education institutions, a higher level of efficiency is necessary to be enforced in larger public interest. Therefore, the matter of challenge raised as to correctness of answer key cannot be allowed to drift or linger and thus transform into an academic debate to determine the empirical truth. The test as to the correctness must remain confined to objective material to be examined by experts. It is not the same as an academic exercise to research and discover whether the answer key is correct.
27. There is no provision in the regulations obliging the Commission to entertain any protest even in relation to the original answer key released by it. However, the Commission rightly did allow and entertain protest as to the first answer key released by it in the interest of transparency and fairness. The petitioners do not dispute the same and in fact two of the petitioners claim to have availed that opportunity though again the Commission denies this fact. Nevertheless, it remains undisputed that the answers (doubted as correct), by each petitioner were in fact referred by the Commission to two independent subject expert committees and the revised answer key were released thereafter, in August 2015 itself.
28. Once, the protest had been invited by the Commission and the answers that are being sought to be questioned now had also been examined by independent expert committees of subject experts, the matter of protest to the Commission had to be allowed to rest there. As a matter of principle, a candidate who appears in the competitive examination to secure an admission to a course or a job as in the present case, offers his merit to be tested by the expert examining body and to be ranked in relation to others who choose to take that exam. It remains in the exclusive domain of the examining body to devise the test, frame the questions and test the accuracy of the answers submitted by the examinees to those questions, to assess the merit of each candidate and to rank their inter-se merit.
29. It is only to ensure transparency, fairness and to address glaring mistakes that the procedure on one protest may have been devised. It allows for genuine grievances to be quickly redressed before the final result is declared and its consequences are visited on the candidates. That opportunity having been availed or being offered, it is unacceptable and a complete anti-thesis to allow a disgruntled candidate to continue to protest the correctness of the answers (on the basis of which his merit has been tested), by continuing to raise repeated protests with the examining body. As noted above, it is the merit of the candidates that is to be tested in such examination and not the merit of the examining body that is under scrutiny by the unsuccessful or dissatisfied examinee.
30. Therefore, in the first place, the petitioners did not have any right whatsoever to file a second protest to the revised answer key published by the Commission. Neither under the governing law on the subject nor on a matter of principle such a course was permissible or available to the petitioners. Once the examining body had, after entertaining the protest made known its final stand, no further debate or discussion could have arisen or been allowed to persist between the examiner and the examinee. The only course that may have remained open to the petitioners would have been to question the correctness of such revised answer key by filing a proper writ petition.
31. The petitioners chose not to approach this Court at that stage i.e. within any reasonable time from August 2015 and have approached this Court after more than three years from the revised answer key being published by the Commission. It, therefore, remains to be examined whether the writ petition is barred by laches or another defect as may render it not maintainable.
32. In this regard, it is seen that the petitioners do claim continuing cause of action, inasmuch as final select list has been declared recently. They also rely on the decision of the Supreme Court in the case of Rajesh Kumar and others Vs. State of Bihar and others (supra), Vikas Pratap Singh and Others Vs. State of Chhattisgarh and Others (supra) and Division Bench judgment of this Court in Writ- A No. 12344 of 2017 and connected matters, to submit even if the appointment letters have been issued, such mistake as have been made by the Commission cannot be allowed to exist so as to overlook the paramount consideration of merit.
33. While it may be true that the correctness of the answers may be examined even after issuance of appointment letters, however in the case of Vikas Pratap Singh and Others Vs. State of Chhattisgarh and Others (supra) the revision of the answer key had been made after complaints had been received by the Inspector General of Police and not by way of suo-motu action of the Commission. Thus, there were existing complaints against the correctness of the original answers as disclosed at the relevant time, which had not been redressed. Here, it may also be noted that in that case the examination was conducted on 24.12.2006; the final merit list was prepared on 08.04.2008 and; appointment letters were issued thereafter. It is at that stage that complaints that were pre-existing were acted upon by the examination board that constituted an expert committee to inquire into those complaints. On such inquiry, the revised merit list was released on 26.07.2009. Therefore reference made to that decision is inapposite inasmuch as the re-evaluation was first revaluation based on complaints.
34. In the division bench decision of this Court in Niraj Kumar Singh (supra), though an objection as to delay was taken by the Commission, the Court repelled that objection on the reasoning that the Commission cannot get away on hyper technical objections and play with the life and fate of more meritorious candidates. In this regard, it is seen, in that case the written examination was held on 22.3.2015; upon the answer key being published objections were also invited; the petitioners (in those cases) submitted their objections; the objections were rejected; those petitioners were called for interview and; final result was declared thereafter in January/February 2017.
35. The nature of mistakes claimed in that case were patent and to a large extent obvious. They were such as may not require deep academic exercise to resolve inasmuch as the two questions in dispute in that case involved (i) who was the brand ambassador of BSNL (Bharat Sanchar Nigam Limited) ? and (ii) what is the age of consent for a lady for the purpose of commission of offence under section 376 I.P.C. The questions were such as may require reference to an academic expert or a committee of experts. Those questions were such as could be resolved with reference to objective material. Also, in that case the Commission, does not appear to have established from any expert or the other material the correctness of its stand. On the contrary, the division bench recorded its finding that from the instructions received by the Commission in that case, "it is apparent that the facts stated in the writ petition are correct and are not disputed".
36. In the instant case the questions giving rise to the dispute are as under:
“Q. 40. The Clebsch-Gordon coefficient is (j1 j2 m1m2 | JM), which of the following is identically zero?
(a) (½ |½ 0|³/2 0) (b) (½ ½ ½ ½ |1 1)
(c) (1 1 1 – 1|1 0)
(d) (1 ½ |- ½| ½ ½ )
Q. 49. The following statements are concerning types of cancer ?
(a) Sarcoma are the cancers of cartilages, bones and muscles, which are mesodermal in origin.
(b) Carcinomas are the cancers of brain, breast and skin, which are ecto or endodermal in origin.
(c) Lymphomas are the cancers of blood cells.
Which of the following is correct for above statements ?
(a) Statements A is correct, while B and C are incorrect.
(b) Statement B is correct, while A and C are incorrect.
(c) Statement A and B are correct, but C is incorrect.
(d) Statement A and B are incorrect, but C is correct.
Q. 56. Desmosomes are associated with which one of the following junctions ?
(a) Tight.
(b) Anchoring.
(c) Adherens.
(d) Communicatings.
Q. 62. In He-Ne laser the most favourable ratio of He to Ne is :
(a) 1 : 4
(b) 4 : 1
(c) 1 : 7
Q. 85. Bohr effect is related with:
(a) Reduced oxygen level in hemoglobin.
(b) Reduced CO 2 level in blood.
(c) Reduced carbon level in lymph.
(d) Oxidized phosphorus level in blood.
Q. 91. A particle (mass m) is moving with velocity v towards a stationary target (mass M) as observed in the laboratory. What is the velocity of the particle in the centre of mass frame ?
(a) mv m+M
(b) Mv m+M
(c) mv M
(d) (m+M)v M
37. Thus, here the questions involved are of pure science that may not be attempted to be answered by anyone except who has deep knowledge of the subject. They are such as the Court itself is not a position to record its opinion as to the correctness or otherwise of the answer thereto, on the basis of any objective material produced before it. Then, in this case, the Commission has specifically disputed the challenge raised by the petitioners and in fact it has brought on record the resolution made by the two independent subject expert committees in support of its stand. Perusal of those reports reveal the challenge raised to certain other answers (in the original answer key), was sustained and corrections were made. However, those experts found the answers (disputed in the present petitions) to be correct. Thus there is nothing on record as may lead to a conclusion that the disputed answers are apparently wrong. In fact, the material suggests otherwise. Thus in addition to the presumption as to the correctness of the original answer key, there exists further material to accept the same as correct in view of the two independent and unanimous opinions of subject experts. A heavy burden lay on the petitioners to promptly dislodge the presumption of correctness of the revised answer key offered by the Commission in August 2015.
38. Insofar as the facts of the present case are concerned, it is seen whatever complaints had been invited and made after publication of the original answer key had been entertained and dealt with in terms of the resolution made by independent expert committees of subject experts and a revised answer key was released thereafter on 20.8.2015. As stated above, there did not survive any other or further protest procedure before preparation of the merit list of written examination. In fact result was also published in August 2015; list of successful candidates was prepared; the petitioners were invited for interview and; they participated in the same. The fact that the list of successful candidates (in written exam of subject Physics) was published in June 2018, is of no consequence to test the delay and laches on part of that petitioner.
39. Delay would also be fatal to the challenge now raised in view of the fact, even if it is assumed that the claim of the petitioners were to be adjudged as correct then, it would not only result in upsetting the select list qua the three petitioners, but, if such challenge were to be accepted the entire merit list of the written examination would have to be redrawn in a utopian search for the most meritorious candidate. Necessarily, it may involve fresh round of interviews to be held by inviting such other persons as well who may make the cut-off (if the answers were to be revised), besides excluding some others who may have been called for interview on the basis of revised answer key. That again is a consideration that dissuades the court to entertain the present petition at such belated stage as it promotes inertia at the cost of public time and money. A progressive society and its members must be predisposed to motion and dynamism rather than inertia that leads to despondence and indifference.
40. Therefore, on a wholesome consideration, once, the revised answer key had been published way back in 2015 and the petitioners did not challenge the same in writ jurisdiction at the relevant time, they thereby earned a disqualification of serious laches to maintain the present writ petition, later. The challenge now raised by means of the present petition is wholly belated and incurably barred by laches. The Court must repel the belated challenge in larger public interest.
41. In the facts of the present case, the objection as to the delay and laches is not hyper technical, but it is found to be substantive. In the facts of the present case, the Court cannot close its eyes to all relevant facts and conduct of the parties and offer a blinkered view of the facts presented by the petitioner. The now disputed answers being not such as may be tested by any prudent person on the strength of objective material produced before him; the correctness of the disputed answers having been tested by committees of independent subject experts and; those results having been made known in August 2015, the delay of three years in bringing the challenge to such decision of subject experts, is held to be fatal to the cause.
42. Then, in the facts of this case, the further conduct of the petitioners is also relevant inasmuch as undisputedly each petitioner participated in the interview process and thus acquiesced to the action taken by the Commission in publishing the final answer key. They cannot now turn around and seek to disturb the result of the written exam so as to cause benefit to themselves merely because no rights may have crystallised in favour of any individual. Reliance is placed on the decision of the Supreme Court in Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan & Ors (2016) 1 SCC 454.
43. Even otherwise, as to the merits, first, the revised answer key is based not only on the original expert material that may have been considered by the Commission but on the basis of the unanimous report submitted by independent expert committees. Therefore, there exits a presumption as to the correctness of the answers and objective and credible criteria on the basis of which relative merit of the candidates qua similarly situated candidates has been assessed by the Commission. Doubt if any, as to the correctness of the answer key as raised by the petitioners, if at all, may remain a matter to be considered and deliberated upon within the confines of academic forum to the exclusion of these proceedings.
44. Insofar as the assessment of the relative merit of the petitioners and similarly situated candidates is concerned, the Court may not seek to enforce such absolute empirical accuracy as that may involve embarking on an academic research to determine whether a particular answer offered to be correct by the Commission, was or was not absolutely correct according to all academic opinion. In absence of mala fide and or a glaring mistake, latitude has to be allowed to exist with the expert bodies such as the Commission to test the individual and relative merits of all candidates for the purpose of selecting the most suitable. The alternative course is neither desirable nor permissible nor perhaps feasible. If accepted and followed, it may defeat the paramount public interest that lies in making timely appointments.
45. Accordingly, the present writ petitions are held both to be wholly barred by laches and even otherwise devoid of merits. They are accordingly dismissed. No order as to costs.
Order Date :- 29.10.2018 Lbm/-