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Jharkhand High Court · body

2017 DIGILAW 1683 (JHR)

Rakesh Kumar v. State of Jharkhand

2017-09-19

RAJESH SHANKAR

body2017
JUDGMENT : The present writ petition has been filed for a direction upon the respondent-Jharkhand Public Service Commission for constituting a committee of subject matter experts for correct determination of the answer of the question Nos. 14, 64 & 94 of Code D of General Studies-I and question Nos. 16, 21 & 92 of Code D of General Studies-II alleging that the same are incorrect. It is further prayed that a direction may be given to the JPSC to allot 2 marks to the petitioner in respect of the question No. 21 of Code D General Studies-II, as has been done by the JPSC in the revised answer key, as the question was itself wrong. 2. The Jharkhand Public Service Commission (hereinafter referred to as ‘the JPSC’) had published an advertisement for Combined Civil Services Examination-2016 vide Advertisement No. 23/2016. The petitioner applied for the said examination and appeared in the Preliminary Examination conducted on 18.12.2016. After the examination, the JPSC published the answer key on its website and a notice was published inviting objection from the candidates, who had appeared in the examination for any discrepancy in the answer key. The candidates were informed that the objection can be submitted through Registered Post, Speed Post or by hand till 03.01.2017. Thereafter, several candidates raised objections to the answer key and the objections were placed before the panel of experts for verification of the answer key published by the JPSC on web-site. After getting the expert opinion, the answer of some questions were revised by the experts i.e. for General Studies Paper-1 Question No. 42 (Series-A) and Question No. 65 (Series-A) were found to be incorrect. In the General Studies Paper-II, model answer of question No. 25 of Series-A was also not found to be correct. So far as question No. 13 of Series-A of General Studies Paper-II is concerned, it was found by the experts that none of the options was correct and as such two marks were allotted to all the candidates and information to that effect was also given to the candidates by the JPSC by way of press communiqué. Thereafter, the OMR sheets of the candidates were evaluated and the result was published on 25.02.2017. Thereafter, the OMR sheets of the candidates were evaluated and the result was published on 25.02.2017. It is alleged by the petitioner that he raised detailed objection with regard to six questions (Paper-I and Paper-II) with valid proof and supporting documents, but the objection put forth by the petitioner was not considered by the expert committee. During the pendency of the writ petition, the JPSC published the result of the Preliminary Examination on 25.02.2017 and the result was brought on record by the petitioner. 3. The learned counsel appearing on behalf of the petitioner submits that the respondent-JPSC has acted in arbitrary, whimsical and illegal manner by not taking into consideration the objection of the petitioner. It is further submitted that the respondents have not given any receipt of the letter of objection submitted by the petitioner and have not taken into consideration the objections of the petitioner. It is further submitted that in the interest of justice, the objection of the petitioner with regard to six questions must be decided afresh by the expert committee. It is an admitted position that the respondents themselves corrected few answer key, which goes to show some flaw in the answer key published at the first stage. It is further submitted that the mentioning of date by the petitioner was a technical error and was corrected before giving the objection to the JPSC. It is also submitted that if the petitioner had any ill motive, he could have submitted new letter of objection before this Court. Even if it is assumed that the petitioner has not submitted any objection, three other candidates have also raised objection by speed post to various answer key including those raised by the petitioner, however, the respondents have not considered the objections of those candidates also. It is further submitted that the respondents have acted with malafide intention by not giving receipt of the objection submitted by the petitioner and are also not taking into consideration the objection of the petitioner as well as the objection of three other candidates. 4. The learned counsel for the petitioner, in support of his above contentions, has put reliance on the following judgments: i. Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. reported in (2010) 6 SCC 759 ii. Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. reported in (2011) 8 SCC 497 iii. 4. The learned counsel for the petitioner, in support of his above contentions, has put reliance on the following judgments: i. Himachal Pradesh Public Service Commission Vs. Mukesh Thakur & Anr. reported in (2010) 6 SCC 759 ii. Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. reported in (2011) 8 SCC 497 iii. Devesh Kumar Sharma Vs. Secretary, Rajasthan Public Service Commission, Ajmer & Anr. (S.B Civil Writ Petition No. 4867 of 2017) iv. Ashutosh Kumar Jha and Ors. Vs. The State of Bihar & Ors. (L.P.A No. 1235 of 2016) 5. The learned counsel appearing on behalf of the respondent-JPSC submits that the OMR sheet of the candidates were evaluated after inviting objection from the candidates and also taking into consideration the opinion of the subject experts and as such the petitioner is not entitled for the relief prayed. The petitioner has claimed that he had made an objection to the answer key vide letter dated 30.12.2016 without any valid proof and supporting documents, however, the actual fact is that the petitioner has not filed any objection to the answer key. It is further submitted that the candidates were given the last date of submission of objection till 03.01.2017 with a rider that the objection submitted after the last date shall not be entertained and since the petitioner has not submitted any objection within the stipulated time, he cannot raise objection at this stage when the respondent-JPSC is in the process of taking main examination. It is further submitted that re-sending of objection of the petitioner to the experts at this stage will consume a lot of time and will create hurdle in the examination process, which should not be allowed. It is further submitted that in the alleged objection of the petitioner (Annexure-4), the date was initially written as 31.12.2016, which was Saturday (non-working day) and thereafter the same was corrected as 30.12.2016, which raises suspicion on the conduct of the petitioner. It is further submitted that after publication of the press communiqué vide Annexure-B to the counter affidavit regarding the submission of suggestion/objection by the candidates, several candidates submitted their objections/suggestions to the model answer/answer key before the JPSC till the last date i.e. 03.01.2017. It is further submitted that after publication of the press communiqué vide Annexure-B to the counter affidavit regarding the submission of suggestion/objection by the candidates, several candidates submitted their objections/suggestions to the model answer/answer key before the JPSC till the last date i.e. 03.01.2017. It is also submitted that the JPSC after receipt of all objections/suggestions, placed the same before the committee of subject experts for verification of the model answers published by the JPSC in web-site. After getting experts' opinion on the model answer of the General Studies Paper-I and Paper-II of the Preliminary Test Examination, the valid OMR sheets of all the candidates were evaluated through scanning machine, as per the revised model answer of General Studies Paper-I and Paper-II. It is also submitted that the answer of some questions were revised by the experts i.e. for General Studies Paper-I, Question No. 42 (Series-A) and Question No.65 (Series-A) were found incorrect. It is further submitted that in General Studies Paper-II, model answer of Question No. 25 of Series-A was also found incorrect. So far as Question No. 13 of Series-A of General Studies Paper-II is concerned, it was found by the experts that none of the options is correct and as such two marks were allotted to all the candidates, so that no candidate should suffer on account of wrong question/answer and the information to the said effect was also given to the candidates by the JPSC by way of press communiqué. 6. The learned counsel for the respondent-JPSC puts reliance on the following judgments: i. Basavaiah (Dr.) Vs. Dr. H.L Ramesh & Ors. reported in (2010) 8 SCC 372 ii. Nitesh Kumar & Anr. Vs. The State of Jharkhand & Ors. in W.P.C No. 2410 of 2014 iii. Amrit Lal Berry & Ors. Vs. Collector, Central Excise Central Revenue & Ors. reported in AIR 1975 SC 538 iv. Neetu Jha Vs. State of Bihar & Ors. reported in 2001 (2) PLJR 266 7. Heard the learned counsel for the parties and perused the materials placed on record. 8. In the present writ petition, the petitioner has stated that he had appeared in the Preliminary Test Examination held pursuant to Advertisement No. 23/2016 and when the answer key was published, he filed objection personally at the office of the JPSC, but the objection has not been duly considered by it. 8. In the present writ petition, the petitioner has stated that he had appeared in the Preliminary Test Examination held pursuant to Advertisement No. 23/2016 and when the answer key was published, he filed objection personally at the office of the JPSC, but the objection has not been duly considered by it. The respondent-JPSC, on the other hand, has straightway denied the claim of the petitioner that he had submitted any objection to the answer key of the Preliminary Test. It has further been contended by the JPSC that after publication of the answer key, several candidates raised objections till the cut-off date i.e. on 03.01.2017 and thereafter the same were sent to the subject experts. After getting the expert opinion, the answers of some questions were revised and a press communiqué to that effect was also published. The petitioner, by way of this writ petition, has tried to justify his objection by way of placing the correct answers as per him. 9. In the case of Basavaiah (Dr.) Vs. Dr. H.L. Ramesh & Ors. (Supra), the Hon’ble Supreme Court has held as under: “38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fide has been alleged against the experts constituting the selection committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realize and appreciate its constraints and limitations in academic matters.” 10. In the aforesaid case, the Hon’ble Supreme Court has circumscribed the extent of Court's interference with the recommendation of the expert committee. It has been explicitly held that the Court should be slow in interfering with the decision of the expert committee. The decision of the expert committee may require interference only when malafide have been alleged against the experts constituting the Committee. 11. It has been explicitly held that the Court should be slow in interfering with the decision of the expert committee. The decision of the expert committee may require interference only when malafide have been alleged against the experts constituting the Committee. 11. Thus, before coming into the very details of any of the objections of the petitioner, It would be appropriate to deal with the issue as to whether the petitioner has any valid cause of action for filing of the present writ petition or whether the conduct of the respondent-JPSC shows any arbitrariness, which could incline this Court to interfere with the decision of the JPSC. The petitioner has not filed any evidence in support of the claim that he had filed any objection in view of the notice published the JPSC with regard to filing of objection against the answer key. Once the respondent-JPSC has controverted the claim of the petitioner on affidavit stating that it did not receive any objection from the petitioner, the onus to prove that the petitioner filed objection shifts on him, however, the petitioner has failed to produce any document to discharge his burden. The petitioner has also contended that even if he had not made any objection, three candidates had also made objections by Speed Post raising the same discrepancies in the answer key, but that fact has been narrated without any supporting document as to who are the said candidates, what objections they had raised and whether their objections were received by the JPSC, so as to shift burden on the respondent-JPSC to respond to the stand of the petitioner properly. Even if some candidates had raised objections, the same do not give valid cause of action to the petitioner to file the present writ petition. 12. In the case of Amrit Lal Berry (Supra), the Hon’ble Supreme Court has held as under: “25. In the petition of K.N. Kapur and others, we do not even find an assertion that any representation was made against any violation of a petitioner's right. Hence, the rule recognised by this Court in Kamini Kumar Das v. State of West Bengal, AIR 1972 SC 2060 at p. 2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners.” 13. Hence, the rule recognised by this Court in Kamini Kumar Das v. State of West Bengal, AIR 1972 SC 2060 at p. 2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners.” 13. In the aforesaid case, the Hon’ble Supreme Court has held that right of filing a writ accrues only when a person has raised his grievance and the same has been refused by the authority. 14. In the present case, since the petitioner has failed to prove that he had filed any objection alleging any wrong committed by the JPSC, no right accrues in favour of the petitioner. On the other hand, it is an admitted fact that the JPSC, after the Preliminary Test, published answer key and invited objections and after receiving the objections, sent the same to the committee of subject experts and further, on receipt of their opinion, amended the answer key and published the result. Thus, no any prima facie irregularity is found in the conduct of the respondent-JPSC. The opinion of experts was called for by this Court which has been received in a sealed cover. Having perused the experts' opinion, it is found that after inviting objections all the answer key were sent to committee of the experts, which was thoroughly examined by them and thereafter the opinion was given. Thus, the ground of the petitioner that his objection was not considered is also not tenable. Although, the petitioner has alleged malafide against the respondent-JPSC, it is a settled position of law that a person who alleges malafide against the administrative agencies, must prove the same by some cogent evidences, which the petitioner has failed to do. No other candidate who had validly raised objection before the respondent-JPSC, has come forward to allege any irregularity against the respondents. The judgments relied upon by the learned counsel for the petitioner rendered in the case of Devesh Kumar Sharma (Supra), a Bench of Rajasthan High Court has not entertained the objection raised against question No. 95 after holding that the petitioner had not raised objection earlier when the answer key was uploaded and as such the said judgment will be of no help to the petitioner. The learned counsel for the petitioner has also cited a judgment of the Patna High Court in the case of Ashutosh Kumar Jha & Ors. (Supra) in which the petitioner had sought an interference in the deletion of some questions as per the opinion of the expert body, but the same was declined by the Court holding that he has failed to make out a case of prejudice, warranting interference by the said Court under Article 226 of the Constitution of India. This case will also not help the petitioner, as he failed to make out a case of prejudice at the instance of the respondent-JPSC. 15. In the case of Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. (Supra), the Hon'ble Supreme Court has held as under: “42. The duty of examining bodies is to subject the candidates who have completed a course of study or a period of training in accordance with its curricula, to a process of verification/examination/testing of their knowledge, ability or skill, or to ascertain whether they can be said to have successfully completed or passed the course of study or training. Other specialized Examining Bodies may simply subject candidates to a process of verification by an examination, to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest.” 16. In the aforesaid case, the Hon’ble Supreme Court has held that an examining body must act fairly, reasonably, uniformly and consistently for public good and in public interest. However, in the present case, the petitioner has failed to prove any arbitrariness on the part of the respondent-JPSC. Otherwise also, the interference in the examination matter is rarely exercised by the Court under Article 226 of the Constitution of India when the petitioner by way of some unsubstantiated facts alleges unfairness, arbitrariness and unreasonableness. However, if the Court sits as an expert body and examine all the objections of the writ petitioner, it will become an endless process opening a Pandora box for all unsuccessful candidates. Such an exercise should sparingly be done in most deserving cases, otherwise the examination process would never conclude. 17. However, if the Court sits as an expert body and examine all the objections of the writ petitioner, it will become an endless process opening a Pandora box for all unsuccessful candidates. Such an exercise should sparingly be done in most deserving cases, otherwise the examination process would never conclude. 17. From the judgment relied upon by learned counsel for the respondents rendered in the case of Nitesh Kumar & Anr. (Supra), it appears that a Bench of this Court has not interfered in the matter in absence of any arbitrariness on the part of the resdpondent-JPSC. 18. In another judgment relied upon by the learned counsel for the respondent-JPSC in the case of Neetu Jha (Supra), a Division Bench of Patna High Court held that even if the allegation is true, its advantages and disadvantages have accrued to all the candidates and as such no direction can be given for re-evaluation. 19. In the case of Himachal Pradesh Public Service Commission (Supra), which has been relied upon by learned counsel for the petitioner, the Hon’ble Supreme Court has held as under: “20. In view of the above, it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter-se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for respondent no.1 only. It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.” 20. In the aforesaid case, the Hon’ble Apex Court has held that the High Court cannot sit to examine the question paper or the answer-sheet, particularly when the Commission had assessed the inter-se-merit of the candidates. In the present case also, if there is any discrepancy in the framing of question, the advantages or disadvantages have accrued to all the candidates. In the aforesaid case, the Hon’ble Apex Court has held that the High Court cannot sit to examine the question paper or the answer-sheet, particularly when the Commission had assessed the inter-se-merit of the candidates. In the present case also, if there is any discrepancy in the framing of question, the advantages or disadvantages have accrued to all the candidates. On perusal of the report/opinion of the expert committee, it appears that the answer provided by the Commission was found to be correct in 98 questions out of total of 100 in General Studies Paper-I (Series-A) and General Studies Paper-II (Series-A). 21. In view of the above discussions and the judicial pronouncements, I find no reason to entertain the prayer of the petitioner for constituting another committee of experts for redetermination of the key answers of the questions. 22. The writ petition being devoid of merit is, accordingly, dismissed. 23. Consequently, I.A. Nos. 1836/2017 & 3894/2017 also stand disposed of. 24. Office is directed to return the opinion/report of the expert committee in sealed envelope to the learned counsel for the respondent-JPSC.