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2015 DIGILAW 552 (UTT)

Aaftaab Aalam v. State of Uttarakhand

2015-12-07

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, J. 1. Appeals being connected, we are disposing of the same by a common judgment. Writ Petition (S/S) No. 367 of 2013 has given rise to the present appeals. The writ petitioner in the said writ petition is the appellant in Special Appeal No. 194 of 2015; whereas the 3rd respondent, namely, the Controller (Examination and Selection), G.B. Pant Agriculture & Technical University is the appellant in Special Appeal No. 208 of 2015. 2. Appellant in Special Appeal No. 194 of 2015 (herein after referred to as the writ petitioner) sought the following reliefs: "(i) A writ, order or direction in the nature of certiorari to quash the result declared by the respondent No. 3 for the post of J2-JE Junior Engineer (Trainee), Mechanical published vide advertisement dated 09.06.2011. (ii) A writ, order or direction for a relief in the nature of mandamus directing the respondent No. 3 to evaluate afresh the OMR answer sheet of the petitioner pertaining to the subject paper and all other candidates by calling the record and to declare the result afresh." 3. By an advertisement issued on 09.06.2011, applications were called for filling up 24 posts of J2-JE Junior Engineer (Trainee), Mechanical. A written test was held on 04.03.2012. Thereafter, an answer key was published. Still further, objections to the answer key were called for. The last date for filing objections was 10.04.2012. Writ petitioner filed objection on 03.04.2012 and the final answer key was published, on the basis of which the writ petitioner was not selected. Writ petitioner was an OBC candidate. He has secured 84.25 marks, whereas the last OBC candidate secured 102 marks. 4. The learned single Judge dismissed the writ petition, but at the same time, noting the "extreme negligence" by the 3rd respondent/examining body, who is also an appellant before us, awarded compensation/cost of Rs. 25,000/-. It is feeling aggrieved by the same that the appellants are before us. 5. We heard Shri Rakesh Thapliyal, learned counsel on behalf of the writ petitioner and Shri Rajendra Dobhal, learned senior counsel appearing on behalf of the 3rd respondent/examining body. 6. Shri Rakesh Thapliyal would submit that the examination was not conducted in a transparent view. He points out that as many as for eight questions, multiple answers are shown as correct. He posed the question, how is it possible? 6. Shri Rakesh Thapliyal would submit that the examination was not conducted in a transparent view. He points out that as many as for eight questions, multiple answers are shown as correct. He posed the question, how is it possible? Next he points out that in regard to five questions, the questions were themselves deleted under the final answer key. Still further, he points out that in his objections, which he had filed on 03.04.2012, he had pointed out the incorrectness of the answers, which were provided in the preliminary answer key and those questions have been left unanswered. He also points out that woeful lack of pleading in the counter affidavit, which he would enlist in support to contend that those queries which he has raised regarding the correctness of the answers remained unanswered. Therefore, it is a case, where he would submit that the court should grant relief to the appellant. In this connection, the writ petitioner points out that he is 47 years old. He has become age barred and so this is his last chance to get selection. He further submits that under the marking regime, there is provision for negative marking and, if the same is done, he will get relief. 7. Per contra, learned counsel for the respondents supported the judgment in regard to the refusal of relief to the writ petitioner. 8. Shri Rajendra Dobhal, learned Senior Counsel also submits that the appeal filed by the 3rd respondent University must be allowed, as such defects do occur in the holding of any exam and the petitioner having failed and without issuing notice to the party, the learned single Judge erred in granting Rs. 25,000/- as compensation. 9. We may notice that as far as question Nos. 59, 133, 134 & 179 are concerned, under the final answer key, they stand deleted. The effect of the deletion apparently operates across the board and its impact will be the same on all the candidates and it will have no material bearing on the fate of the writ petitioner. In fact, the learned counsel for the writ petitioner also does not lay emphasis on the said aspect. But he would point that under the final answer key question Nos. 25, 27, 65, 68, 71, 125, 168 and 170, more than one answer is shown as correct. In fact, the learned counsel for the writ petitioner also does not lay emphasis on the said aspect. But he would point that under the final answer key question Nos. 25, 27, 65, 68, 71, 125, 168 and 170, more than one answer is shown as correct. In some of the questions, in fact, more than two answers are shown as correct. He would show that this betrays complete lack of transparency and fairness in holding the exam. He would also submit that the correctness of the answers to twelve questions, which he has questioned, has not been dealt with. 10. In this connection, the reasoning of the learned single Judge is that the writ petitioner was, in fact, awarded 5 marks for the questions with multiple correct answers. Apparently, in regard to those eight questions, where multiple answers to questions are given, more than one answer is shown as correct. This means, the marks which he has obtained, namely, 84.25 partly comprised of 5 marks, which he has been awarded for the eight questions, where multiple answers have been shown as correct. Therefore, even if out of the remaining three questions (it is not in dispute that for each question one gets one mark for every correct answer) and there is negative mark of 1/4th for every wrong answer, the writ petitioner would end up getting 87.25 marks for the total of eight questions, but the candidate, who has been selected under OBC category, has secured 102 marks. Therefore, things may not improve for the appellant to the extent that would warrant the overturning of the judgment of the learned single Judge. 11. We must further notice the contours of this Court's jurisdiction in dealing with such matters. The jurisdiction of the writ court is essentially one of judicial review. It is not an appeal and being not an appellate jurisdiction, the writ court will not re-appreciate matters and grant relief like an appellate body does and added to this is another principle which is that the writ court normally defers to the views of an expert body. In this case, it is not as if the procedure was unknown to the writ petitioner. The procedure was that on the basis of the written test, a preliminary answer key would be published, and thereafter, the time would be fixed for filing objections. In this case, it is not as if the procedure was unknown to the writ petitioner. The procedure was that on the basis of the written test, a preliminary answer key would be published, and thereafter, the time would be fixed for filing objections. The objections would then be considered by the body (whom we presume to be experts) and thereafter the final answer key is published and the selection is made accordingly. This is a procedure which cannot be treated as either unusual or unfair. An opportunity is provided to the persons concerned to point out any error in the preliminary answer key, which is published to enable the body to correct any mistake, which may have crept in. Once the stage is reached where the final answer key is published, normally the court would defer to the view of the experts. 12. In this connection, learned counsel for the writ petitioner, however, emphasized the aspect of non-consideration of objections to twelve questions. We notice that some of the material, which the writ petitioner has produced, is comprised of the contents of Wikipedia. While contents of Wikipedia can be looked into by the Courts and are being looked into by the Courts, it is to be remembered that there is scope of error in the contents of Wikipedia. Secondly, when as against the contents of Wikipedia, we must presume that the authorities would have the benefit of reference to recognize works in the field, besides the fact that they are themselves experts, we stand fortified in our belief that interference must not be light-heartedly done. We would think that we may not be justified in interfering with the process of selection. We must notice that there is a case, where nearly 9088 candidates participated and the sole protester in the form of the writ petitioner is the appellant before us. Not that, that by itself would have deterred us, if a clear case was made out, but we have already noticed the facts and we would think that in the circumstances of this case we should endorse the view taken by the learned single Judge. 13. The learned counsel for the writ petitioner would point out that though there was a direction to keep one post vacant, but that was filled up during the pendency of the writ petition. 13. The learned counsel for the writ petitioner would point out that though there was a direction to keep one post vacant, but that was filled up during the pendency of the writ petition. In fact, the learned counsel for the writ petitioner sought an opportunity to implead him as party. Apart from the fact that we see no merit as such, we would think, it will be unjust to give an opportunity at this juncture to the appellant to bring the person on the array of parties, which he should have at least done at the time the appeal was filed. In fact, he should have immediately impleaded the party during the pendency of the writ petition itself. The affected parties are also not before us. In the totality of the circumstances, we are constrained to dismiss the appeal, i.e., Special Appeal No. 194 of 2015. No order as to costs. As far as Special Appeal No. 208 of 2015 is concerned, we notice that the Court has awarded cost of Rs. 25,000/- on the basis of the extreme negligence, but we would think that the learned single Judge himself found that the writ petition is to be dismissed. In such circumstances, on the reasoning of the learned single Judge, we would not think that the award of compensation, as it were, could be sustained. Accordingly, Special Appeal No. 208 of 2015 will stand allowed and the award of compensation of Rs. 25,000/- will stand vacated. The appeal will stand allowed as above. Appeal Allowed.