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2016 DIGILAW 559 (PAT)

Ashutosh Kumar Jha v. State of Bihar through Chief Secretary

2016-05-05

AJAY KUMAR TRIPATHI

body2016
JUDGMENT : A bunch of writ applications have been filed by various petitioners, who have failed to qualify in Preliminary Test of 56th to 59th Combined Competitive Civil Services Examination, which was conducted by Bihar Public Service Commission (hereinafter to be referred to as ‘BPSC’). They want quashing of the results, if not award of some more marks after re- evaluation, primarily on the ground that some of the model questions and answers continue to be wrong. 2. A broad consensus amongst the petitioners has emerged and the questions, which have been targeted, are Questions No.63, 79, 98, 124, 137 and 144. 3. In CWJC No.19225 of 2015 as well as 67 of 2016, the questions, which have been targeted, are Question No.52, 53, 80, 116 and 119. 4. The uncontroverted facts are that a Preliminary Examination was held of the eligible candidates to enable them to participate in the Mains Examination of what is known as 56th to 59th Combined Competitive Civil Services Examination. After evaluation, BPSC published the results on 21.11.2015 wherein 28308 candidates were declared successful and became eligible to participate in the Mains Examination. 5. As per the publication of the results by BPSC, the cut-off marks for General Category was fixed at 87, for SC 72, for ST 70, for EBC 76, for BC 82 and for the Backward Class Ladies and Disabled category the cut-off was fixed at 73. 6. Some of these petitioners have failed to make the cut by as little as one mark, therefore, besides other contention the thrust of the argument is to establish that despite the deliberation done by the experts, on the objections received from the candidates, mistakes still subsist. 7. After the conduct of the examination, BPSC invited objections from the candidates after publishing the model questions and answers on its website. There were almost 2,50,000 candidates, who appeared in the Preliminary Examination but only 581 objections were received by the BPSC on the model questions and answers. These objections were collated and expert committee was constituted by BPSC to deliberate and come forward with their response with regard to objectivity and validity of the objections. 8. 12 experts were invited from diverse fields to give their opinion on the model questions and answers in light of the objections. The experts opinion has been annexed as Annexure- D to the counter affidavit filed on behalf of BPSC. 8. 12 experts were invited from diverse fields to give their opinion on the model questions and answers in light of the objections. The experts opinion has been annexed as Annexure- D to the counter affidavit filed on behalf of BPSC. The details of the opinion of the experts are evident from perusal of Annexure- D. They recommended that because of the errors in the questions or the options, 11 questions were required to be deleted, meaning thereby that the final evaluation and declaration of result was made on only 139 questions out of 150, which was originally set for the said examination. 9. Counsels representing the petitioners made a valiant effort by relying on one kind of material or the other to show that the experts were wrong in ordering deletion of 11 questions or at least some of the 11 questions because there was no infirmity either in the model questions or answers. In addition to that, they also tried to prove before this Court that even in the left over 139 questions, with special focus on some of the questions, which have been noted in the earlier part of the order, the answers continue to be wrong. Therefore, there was no fair evaluation and since a fair and objective assessment should be the underlying objectivity in any of such examination, the results so declared by BPSC, on the methodology adopted, requires to be interfered with. Some of the petitioners counsel also wanted this Court to declare some of the questions and answers to be correct so that at least those candidates, who have lost out very narrowly by may be one mark, get a chance to participate in the Mains and prove their merit and mettle in the exercise for selection. 10. Learned senior counsel representing BPSC contests the position taken by the counsel representing the petitioners on the ground that only with the object of bringing objectivity in assessment and declaration of results of such competitive examination, BPSC started inviting objections by placing the model questions and answers on the website. Based on the nature of objections, a committee of experts was constituted. The experts did go through the entire set of questions and answers keeping in mind the objections received from the candidates. Based on the opinion expressed by such experts, the result was declared. Based on the nature of objections, a committee of experts was constituted. The experts did go through the entire set of questions and answers keeping in mind the objections received from the candidates. Based on the opinion expressed by such experts, the result was declared. It is the contention of the learned senior counsel that there cannot be a fairer method than what has been adopted by BPSC. But there are objections and some of these objections have been raised now after filing of the writ application because it is not even evident that any of these petitioners had filed any objection when the objections were invited and a window of opening was given to one and all. 11. It is also the stand of BPSC that based on the recommendation of the expert committee, 11 questions and answers, which were palpably wrong and could not be reconciled, was recommended to be deleted. BPSC does not sit in appeal over the recommendation of such experts and they abide by the opinion of the experts. Since 11 questions were deleted, the evaluation was done on the left over questions only. Such deletions cannot be termed to be arbitrary per se. The evaluation was done across the board on the left over questions and answers, as if the maximum number of questions on which the evaluation was required to be done was only 139. 12. Such deletions and evaluations on the left over questions has found approval earlier by a decision rendered by Patna High Court in its order dated 19.5.2009 passed in the case of Bihar Public Service Commission v. Mukesh Kumar Singh, reported in 2009 (3) PLJR 878 . The decision of the Division Bench was upheld even by the Hon’ble Apex Court since SLP was dismissed on 28.8.2009. Same was the fate to similar challenge in respect of result of 53rd to 55th Common Combined Competitive Examination in the Preliminary Test held in the year 2011 and such matter was dismissed by a Division Bench again reiterating the position vide order dated 16.1.2012 in the case of Manoj Kumar v. State of Bihar, 2012 (1) PLJR 579. Yet another judgment which has been pressed into service by BPSC is the case of Ganesh Prasad Yadav v. State of Bihar, reported in 1995 (2) PLJR 170 . Yet another judgment which has been pressed into service by BPSC is the case of Ganesh Prasad Yadav v. State of Bihar, reported in 1995 (2) PLJR 170 . That was a Division Bench judgment which opined that some mistakes here and there cannot be a ground for cancellation of the examination in toto etc. etc. 13. Giving anxious consideration to the various submissions urged on behalf of the contesting parties to the dispute the basic question which arises for consideration is whether the Court will go by the submissions and objections, which are sought to be raised as an afterthought by certain candidates, who are naturally an interested party or would go by the opinion of the experts, which has formed the basis for evaluation and declaration of results. 14. Every candidate was given an opportunity to raise objections on the matter by inviting objections in an open ended manner. It is the stand of the BPSC that all such objections had been collated. The diverse field of experts numbering 12 reached a consensus with regard to the model questions and answers keeping in mind the objections. The opinion is required to be respected because the 12 experts are/were very senior Professors, come from diverse fields and they bring along their rich experience and knowledge. No objection has been raised with regard to the competence or otherwise of any of the experts or their capability to help and assist the BPSC in forming an opinion against the objections of the candidates. 15. Though it feels nice to hear not as a proposition of law, but a clever piece of advocacy, verging on flattery, that judges are expert of experts but this Court would not venture to substitute its wisdom by sitting in appeal over and above the opinion of the experts. Some kind of finality is required to be given to the decision so taken unless there is something glaring which emerges in such opinion of the experts. 16. In a competitive examination there are some very close questions, which are also tricky questions, and it is a uniform practice adopted in all such competitive examination. Some kind of finality is required to be given to the decision so taken unless there is something glaring which emerges in such opinion of the experts. 16. In a competitive examination there are some very close questions, which are also tricky questions, and it is a uniform practice adopted in all such competitive examination. The Court, therefore, will not be unmindful of the fact that there will be different opinions obtained from diverse sources, may be even from a pool of talent, which is available in diverse kind of Coaching Institutes, which too have a vested interest in such racking up of disputes. The Court always comes across issues where two views are expressed and may be possible but there is always one view, which is consensus view and correct view, which is required to be treated as a dominant view. Since in the present writ application, the 12 experts have together applied themselves to the issue and decided to recommend that 11 questions were worthy of deletion and there were no mistakes in the remaining 139, this Court will not allow a re-evaluation of either those deleted questions or the left over 139 questions as to their correctness or otherwise. 17. The Court can very well sympathize with the candidates or some of the petitioners, who have lost out very narrowly but that is nothing unusual in a competitive examination especially when such examination is an exercise of elimination from a large pool of participants so that the only serious kind are allowed to take the examination, which is the Mains Examination, based on which the final selection and appointments are made. 18. In totality, therefore, the Court would not like to interfere in any of these writ applications by getting into the nitty-gritty of the correctness or otherwise of some of the questions which are sought to be targeted or with regard to any of the deleted questions, on the recommendation of the expert committee. Writ applications, therefore, are required to be dismissed and are dismissed.