1. This bunch of writ petitions are at the instance of unsuccessful candidates who had applied for appointment to the post of Trained Graduate Teacher (Male) in Sanskrit against advertisement no.01/2016, issued by the U.P. Secondary Education Service Selection Board, Allahabad (hereinafter referred to as 'Board'). They assert that their merit has not been correctly evaluated as answers relied upon by Board to some of the questions are wrong and consequentially the select list suffers from patent illegality. A prayer is also made to direct the Board to reassess or re-evaluate questions on the basis of correct answers.
2. It is contended that most of the petitioners have fallen short by one (1) or two (2) marks and since large number of vacancies are still available, therefore, the Board be directed to award them correct marks for the answers given by the petitioners in light of the materials placed before the Board and also this Court.
3. Respondent Board, on the other hand, has filed an affidavit in the leading writ petition annexing a chart as Annexure-1 to contend that model answers have been worked out on the basis of opinion of experts and, therefore, the award of marks to candidates in the examination suffers from no illegality.
4. Answers to fourteen (14) questions in the examination are disputed by the petitioners on the ground that they are wrong. To the extent of seven (7) out of these fourteen questions the Board has found substance in the challenge laid and those questions are deleted on the basis of expert opinion obtained and marks for these seven questions have been equally distributed to all candidates. Grievance, therefore, survives only in respect of seven questions.
5. At the outset, it would be worth noticing that written examination was conducted for the recruitment on 09.03.2019 and the first answer key was published on 26.03.2019. Objections were invited from the candidates between 27.03.2019 and 03.04.2019. After considering the objections raised a revised answer key was published on 25.10.2019. It appears that the corrected answer key published on 25.10.2019 was questioned in Writ Petition No.19059 of 2019, wherein a counter affidavit was invited from the Board. The Board appears to have called for a fresh opinion of experts in respect of the disputed questions and final answer key has been published on 12.02.2020, which is the basis of award of marks to the candidates.
6. Out of the seven (7) disputed questions it transpires that no objections were filed in respect of three of them, namely question nos.28, 73 and 80 of Booklet Series A despite opportunity given in that regard by the Board. Challenge to correctness of model answers in these three questions need not be entertained, directly in writ proceedings, when no such challenge was laid before the Board. The first of the remaining four disputed questions is question no.46 of the Booklet Series A. Option (D) was disclosed to be correct answer in the first answer key but after the candidates objected to it the Board declared the answer to be wrong and proposed to delete the question. However, without there being any fresh opportunity of objection to the candidates or any order of the Court the Board unilaterally proceeded to change the answer to this question as option (A). Question no.46 of the Booklet Series A correspondes to question nos.16, 105 and 73 of the Booklet Series B, C and D respectively, and is quoted below:
46& fuEufyf[kr esa ls 'kq) okD; gS ¼,½"iq=% ekrja Lejfr ¼ch½ iq=% ek=a Lejfr ¼lh½ iq=% ekrkja Lejfr ¼Mh½ iq=% ekrq Lejfr
7. The next disputed question is question no.8 of Booklet Series A, corresponding to question nos.103, 67 and 35 of the Booklet Series B, C and D respectively. The Board consistently held option (B) to be the correct answer in all the model answers. Petitioners, however, submit that correct answer is option (C). Question no.8 of the Booklet Series A reads as under:
10. In the affidavit filed by the Board the opinion of experts has been annexed alongwith materials, which have been placed before the Court, for arriving at its conclusion. In respect of question no.46 initially options (A) and (D) were both found to be correct but as per the revised expert opinion the correct answer is option (A). The experts report is also annexed alongwith the affidavit. With reference to question no.8 the experts have referred to the commentary on Kalidas Granthawali by Dr. Rewa Prasad Dwivedi published by Kashi Hindu Vishwavidyalaya, and Acharya Sitaram Chaturvedi published by Chaukhamba Granthmala to arrive at the conclusion that Priyamvada is the author of the quoted sentence. It is with reference to the above materials that the Board contends that its answer (B) Priyamvada as author of statement is correct. As against it the petitioners rely upon Abhigyan Shakuntlam written by Dr. Kapil Dev Dwivedi in which this very statement is attributed to Anusuiya. To similar effect are the commentary on Abhigyan Shakuntalam by Dr. Shiv Balak Dwivedi as also Abhigyan Shakuntalam published by Bhartiya Vidya Santhan, Varanasi. It is stated that in class 11th Sanskrit also the statement is attributed to be of Anusuiya. The petitioners, moreover, contend that the Board itself in 2009 and 2021 examination has held Anusuiya to be the author of statement and, therefore, a different answer to the same question by the same Board in a different exam would be impermissible. It is alleged that this creates confusion and also discourages sincere students as despite having given correct answer they are not awarded marks.
11. In respect of question no.68 the Board has found option (B) to be the correct answer whereas petitioners submit that option (A) and (B) both are the correct answers inasmuch as the Kadambari's character is distinct before and after marriage. It is urged that before marriage she is Swakiya and after marriage she is Parkiya and since marital status is not disclosed in the question, therefore, options (A) and (B) both are correct. In respect of such contention petitioners rely upon Kadambari written by Shri Krishna Mohan Thakkur; Kadambari Kathamukham written by Dr. Anurag Shukla; and Shuknasopdesh published by Ram Narayan Lal Vijay Kumar.
"
12. The correct answer to question no.101 as per the Board is option (C), whereas according to petitioners correct answer is option (B) as per the book Sanskrit Vyakaran Praveshika written by Dr. Babu Ram Saxena and Kiratararjunoyam written by Dr. Ram Sewak Dubey.
13. Question nos.18, 32, 33, 58, 66, 70 & 118 of Booklet Series-A have already been deleted.
14. Learned counsel for the respondent Board points out that after declaration of result of written examination the panel for interview has prepared on 16.01.2021 and the final select list has also been forwarded to the concerned District Inspector of Schools for issuing appointment to the selected candidates. It is also pointed out that selected candidates are otherwise not represented and, therefore, no interference in the matter is called for.
15. On behalf of petitioners it is urged in response to the above objection that more than 150 vacancies are still available and, therefore, petitioners' claim can be considered against such vacant posts even without disturbing the selected candidates.
16. Hearing in this bunch of petitions was concluded on 16.08.2021 and the matter was posted for orders on 19.08.2021. Learned counsel for the respondent Board on 17.08.2021 placed before the Court a communication as per which recommendations for appointment had been made against all advertised vacancies. However, on behalf of the petitioners a letter of State dated 13.08.2021 was produced to contend that certain vacancies are still available with the respondents. In order to ascertain the correctness of such assertion the proceedings were adjourned with an intent to obtain specific instructions from State as to whether any vacancy still remains or not?
17. Written instructions have been produced by Sri Sharad Chandra Upadhyaya, learned State Counsel, dated 26.08.2021, as per which 552 posts of Trained Graduate Teacher in Sanskrit (Male Category) and 35 posts in Female Category, totalling 587 posts were advertised vide advertisement no.01/2016. After holding of the written test and interview select list of 587 candidates was published on 06.01.2021. Panel of selected candidates, institution-wise, was also sent to District Inspector of Schools on 15.01.2021. It has been stated that as of now no vacancy survives as selected candidates have been adjusted against all vacancies. It has further been stated that the select penal has been drawn in excess of the advertised vacancy in accordance with rules and in the event any selected candidate does not join, the vacancy is supposed to be filled from the list of surplus candidates already provided by the Board. The Special Secretary of the State, accordingly, has informed that no vacancy is now available against which petitioners' claim could be considered.
18. It is in the context of above factual scenario that the issue needs to be resolved by this Court.
19. I have heard Sri Shivendu Ojha, Sri Brijesh Dubey and other learned counsels for the petitioners, Sri Sharad Chandra Upadhaya, learned State Counsel, Sri A. K. S. Parihar, Sri Akash Rai and Sri Anil Kumar Singh for the respondent Board and have perused the materials brought on record.
20. Before proceeding to discuss the rival submissions advanced it would be appropriate to bear in mind the note of caution indicated by the Supreme Court in various judgments restricting the scope of enquiry by the Writ Court in a case where correctness of experts' opinion is questioned before it. This would help the Court in appreciating the scope of arguments advanced before the Court regarding correctness of the answer key.
21. In Ran Vijay Singh and others vs. State of Uttar Pradesh and others, (2018) 2 SCC 357, the Supreme Court observed as under in paragraph nos.30 to 32:
"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."
(Emphasis supplied)
22. In Rishal and others vs. Rajasthan Public Service Commission and others, (2018) 8 SCC 81, the Supreme Court again observed as under in paragraph nos.19, 24 and 26:
"19. The key answers prepared by the paper-setter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key answers is a step to achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process. The objections to the key answers are to be examined by the experts and thereafter corrective measures, if any, should be taken by the examining body. In the present case, we have noted that after considering the objections final key answers were published by the Commission thereafter several writ petitions were filed challenging the correctness of the key answers adopted by the Commission. The High Court repelled the challenge accepting the views of the experts. The candidates still unsatisfied, have come up in this Court by filing these appeals.
24. The learned counsel for the appellants have also pointed out several other questions in Paper 1 which according to the learned counsel for the appellants have not been correctly answered by the Expert Committee. We have considered few more questions as pointed out and perused the answers given by the Expert Committee and we are of the view that no error can be found with the answers of the Expert Committee with regard to three more questions which have been pointed out before us. The Expert Committee, constituted to validation of answer key, has gone through every objection raised by the appellants and has satisfactorily answered the same. The Commission has also accepted the report of the Expert Committee and has proceeded to revise the result of 311 appellants before us. We, thus, are of the view that report of the Expert Committee which has been accepted by the Commission need to be implemented.
26. The questions having been deleted from the answers, the question paper has to be treated as containing the question less the deleted questions. Redistribution of marks with regard to deleted questions cannot be said to be arbitrary or irrational. The Commission has adopted a uniform method to deal with all the candidates looking to the number of the candidates. We are of the view that all the candidates have been benefited by the redistribution of marks in accordance with the number of correct answers which have been given by them. We, thus, do not find any fault with redistribution of marks of the deleted marks (sic questions). The High Court has rightly approved the said methodology."
23. Yet, again in Uttar Pradesh Public Service Commission through its Chairman and another vs. Rahul Singh and another, (2018) 7 SCC 254, the Apex Court reiterated the principles laid down in Kanpur University vs. Samir Gupta, (1983) 4 SCC 309 to observe as under in paragraph nos.12 to 14:
"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."
(Emphasis supplied)
24. On behalf of the petitioners reliance is placed upon judgment of this Court in Ranjeet Kumar Singh and others vs. State of U.P. and others, 2012 (30 ADJ 242, wherein following observations have been made in paragraph nos.55, 56 and 59:
"55. The aforesaid observations apply with full force to the cases in hand also. For the fault of Selection Board in selecting Papers Setters, who have not discharged their duties efficiently, honestly and by meticulous care and caution by framing paper sets of questions and answers, the studious and meticulous intelligent students cannot be made to suffer sheer on account of their capacity and intelligence of having correct information and knowledge. Can it be said that an examining body even if ask a question and treat a patently perverse answer to be correct as a model answer, yet the Court would not interfere on the sheer pretext that it would amount to crossing the border line of Experts' opinion in academic matters. For example, if a question is asked as to when the Constitution of India was adopted and enforced by the people of India and instead of 26.1.1950, the correct answer is taken as 15.8.1947, shall Court refuse to interfere only for the objection raised by Examining body that it is the opinion of Subject Experts in the matter and in such academic matter, the Court should not interfere. The answer would be obviously "No". Such a preliminary objection is bound to be rejected. If this kind of fault committed by Selection Board is allowed to remain untouched, this Court would be failing in its Constitutional obligation to prevent arbitrariness, illegality in the matter of right of consideration for employment as it would amount to an arbitrary kind of selection denying equal opportunity of employment to all concerned and would be infringing Article 14 and 16 read with Article 21 of Constitution.
56. Now remains the question as to how and in what manner, relief is to be granted. It is true that while entertaining this writ petition, this Court directed that any further action by the respondents would be subject to result of this writ petition. (See order dated 7.10.2010 passed by this Court in Writ Petition No. no 61659 of 2010), the fact remains that these writ petitions were filed after declaration of final result when petitioners were declared unsuccessful. The appointment of all selected candidates have already been made as told in para 16 of counter affidavit. The appointment and selection, though already made, have not been questioned. The persons already appointed are not before this Court. Petitioners, after appearing in written test, were well aware about the alleged mistakes and inaccuracies in multiple choices given in respect to above questions. It cannot be assumed that they could not have visualised that on account of wrong choice or wrong answers or wrong questions, they may suffer in preparation of ultimate merit list. They chose to wait not only till interview is held but even till final result is declared. It is true that normally a candidate does not come to file an academic litigation or a futile litigation and it is only when a cause of action arises, he comes to the Court to challenge an illegality which has already been committed but then all other attending circumstances have to be seen.
59. Looking to over all factors and circumstances and discussion as above, in my view, the ends of justice would meet by disposing of all these writ petitions with the following directions:
(i) Petitioners' answer-sheets in respect to above seven questions shall be examined in the manner as adjudicated above (summarised in para 41) and their marks in written test would be determined accordingly.
(ii) In case, it is found that petitioners or any one or more of them have secured total marks more than last selected and appointed person, they shall be given appointment.
(iii) The above appointments will be made against the advertised vacancies on the post of Trained Graduate Teachers. The persons already appointed in service shall not be made to suffer in any manner, except to the extent one or more of the petitioners on account of increase in his total marks is required to be appointed and in that case, persons last in merit would have to suffer and their appointments, if already made, shall be terminated. I am constrained to give this direction for the reason that vacancies of Teachers advertised for selection are pursuant to requisitions received from the individual secondary institutions and, therefore, only those vacancies which were requisitioned and advertised in the above selection can be made to be governed by this judgment and the subsequent and other vacancies not included in the above selection cannot be taken into consideration to give benefit to any of petitioners by protecting the appointments already made.
(iv) The appointment, if any, made pursuant to this order of petitioners, for the purpose of actual payment of salary shall take effect from the date of appointment but for the purpose of pay fixation, seniority etc. it shall relate back from the date the person lower in merit to the respective petitioner was appointed. If there is no person lower in merit to petitioner(s) and he/they are last in merit, then this date would the same as the person next above these petitioner(s).
(v) Petitioners shall be entitled to cost which I quantify to Rs. 10,000/- for each set of writ petition against U.P. Secondary Education Service Selection Board.
(vi) Selection Board, respondent no. 2, is directed to find out the person(s) responsible for committing the aforesaid errors/ mistakes/ blunders in setting of question papers with multiple choice answers and to take appropriate action against them in accordance with law. It shall be at liberty to recover the amount of cost it has to pay under this judgement from such persons found responsible as above. "
25. In the facts of the present case the records reveal that the Board had initially published its answer key on 26.03.2019 against which objections were invited from the candidates. These objections were considered and revised answer key was published on 25.10.2019. It appears that after the Writ Petition No.19059 of 2019 was filed before this Court, in which reply was called for, the Board undertook a fresh exercise to get its answers verified by a team of specialists on the subject. Vide affidavit filed before this Court on 15.08.2021 the Board has placed on record the opinion of experts in respect of each disputed question. Elaborate arguments have been advanced and various materials have been placed on behalf of the petitioners to contend that opinion expressed by experts is at variance with the authentic text/materials available on the subject.
26. On behalf of the petitioners it was extraneously urged by the petitioners that correct answer to question no.8 of Booklet Series A is option (A) whereas according to experts' opinion the correct answer is option (B). Materials have been placed in the form of various texts to show that conclusion drawn by the experts on the subject is incorrect. The Board alongwith its affidavit has relied upon ''Kalidas Granthawali published by Kashi Hindu Vishwavidyalaya' as also the publication namely ''Kalidas Granthawali written by Acharya Sitaram Chaturvedi'. On behalf of petitioners also various texts have been produced.
27. Similarly, in respect of question nos.46, 68 and 101 of Booklet Series A also the experts have taken a particular view for which various materials have been placed before the Court by the petitioners.
28. It has also been urged on behalf of the petitioners that in different examinations the Board has given different answers to the same questions. Attention of the Court has not been invited to any factual plea in that regard in the writ petitions and such arguments have been raised only during the course of arguments. Factual aspects raised at the time of hearing need not be examined in the absence of any specific pleading and opportunity to the Board to submit its reply in the matter. However, it would be appropriate to observe that such aspects are required to be carefully scrutinized by the Board while accepting correctness of the answer to a particular question. The Board must remain consistent and its answers cannot vary to a question in different examinations. Greater care ought to be taken for ensuring its credibility as a recruitment body. Sanskrit is otherwise a scientific language and does not admit of scope for confusion and that the opinion of experts must be based on authentic texts.
29. In the facts of the present case the recruitment has concluded and selected candidates have apparently joined against the advertised vacancies. The selected candidates have otherwise not been noticed in the instant writ proceedings nor are they represented. Any interference in the matter, at this stage, may otherwise adversely effect the cause of dispensation of education in large number of institutions where the selected candidates may have joined by now and are working. In such view of the matter this Court is not inclined to arrogate to itself the role of expert in the subject so as to judge whether the opinion expressed by team of experts is correct or not. While taking such view, this Court is conscious of the caution sounded by the Supreme Court in such matters according to which judges cannot take on the role of experts in academic matters. It is otherwise settled that unless candidate demonstrates that the key answers are patently wrong, on the face of it, the Court ought not to enter into academic field by weighing the pros and cons of the arguments advanced by both sides and then come to the conclusion as to which of the answers is better or more correct. This caution gets clearly attracted in the facts of the present case inasmuch as opinion of experts is based on credible material and cannot be said to be absolutely without any basis. Which author is correct on the subject is not for the Court to determine, at the first instance. Unless the answers relied upon by the Board are found to be patently erroneous or without any basis the interference on part of the Court would clearly not be warranted.
30. In such circumstances, this Court is not inclined to evaluate merits of the respective arguments advanced by counsels for the parties, with reference to the literature placed on the subject so as to determine whether or not the model answer key contains correct answers.
31. In view of the deliberations and discussions made above, all the writ petitions fail and are dismissed. No order is passed as to costs.
Order Date :- 21.09.2021 Ashok Kr.