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Himachal Pradesh High Court · body

2018 DIGILAW 1443 (HP)

Suresh Kumar v. University Grants Commission

2018-08-03

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This writ petition has been filed with the following prayers: “(i) That a writ in the nature of mandamus may very kindly be issued directing the respondent No.2 to rectify the answer of questions No. 29 of 60 of paper III (Law) of National Eligibility Test (NET) by further directing them to grant 4 marks to the petitioner. (ii) That further a writ of mandamus may very kindly be issued thereby directing the respondents to declare the petitioner qualified in the National Eligibility Test (NET) (Law) held in the month of December, 2014.” 2. The petitioner is a post-graduate having done LLM (Masters in laws) and, as such, qualified for opting teaching as his profession. One of the eligibility conditions, however, is to qualify the National Eligibility Test (NET). Respondent No.2, Central Board of Secondary Education is conducting the test on All India Basis. The eligibility criteria for appearing in the test is that the candidate must have obtained atleast 55% marks in the post graduation. The petitioner having 55% marks in LLM, was eligible for appearing in the test in question and ultimately appeared in the test, which took place in December, 2014. The result was declared by the 2nd respondent in June, 2015. The petitioner secured 210 marks out of 350 i.e. 60% of the total marks. The result is Annexure P-1. According to the petitioner, in order to declare successful in the test, the cut-off marks were 212 out of 350. Since the petitioner secured only 210 marks, therefore, fell short only by two marks. The print-out of cutoff marks/merit is Annexure P-2. The 2nd respondent after declaration of the result had given option to the candidates to raise objections to the result so declared subject to deposit of Rs. 5000/- as fee. The petitioner availed the option so granted and consequently on payment of Rs. 5000/- to the said respondent by way of draft, he raised objections, Annexure P-3. He objected to the answer to the question Nos. 24, 29 and 60 of paper III, which according to him were wrongly given in the answer key. It is only due to this reason, the petitioner failed to qualify the National Eligibility Test. According to the petitioner, had the questions been rightly answered in the answer key, he would have been declared successful in first go itself. 3. 24, 29 and 60 of paper III, which according to him were wrongly given in the answer key. It is only due to this reason, the petitioner failed to qualify the National Eligibility Test. According to the petitioner, had the questions been rightly answered in the answer key, he would have been declared successful in first go itself. 3. The petitioner after making objections kept on waiting for revised result for pretty long time i.e. above five months, but of no avail. It is in the month of December, 2015, the result was uploaded by the 2nd respondent again, which remained as it is. According to the petitioner, the 2nd respondent has not made any effort to find out the correct answers to the above-said questions and declared the result again with wrong answers thereto. As per his further case, though he is not sure about the answer to question No.24, however, as regards answers in the key to question Nos. 29 and 60, according to him are 100% incorrect. In order to substantiate the submissions so made, he has placed on record the abstract from the Standard Book of Indian Penal Code written by Rattan Lal and Dheeraj Lal, Annexure P-5 and with respect to question No. 60, the abstract of Article 1A “Convention Relating to the Status of Refugees” held in 1951, Annexure P-7. He has also annexed to the writ petition, the answer key, Annexure P-6. 4. Respondent No.1 initially was ordered to be proceeded against ex-parte, however, later on joined further proceedings in the writ petition. Any how, the said respondent has not opted for filing reply and while granting adjournment for the purpose on 01.04.2017, it was observed that in case reply is not filed within the time granted, it shall be presumed that no response is intended to be filed on behalf of the said respondent. 5. Respondent No.2, in reply to the writ petition has supported the answers to each and every question of paper-III as correct and come forward with the version that correct answers to question No. 29 is option (C), whereas, to question No. 60 option (D). The answers i.e. option (D) to question No. 29 and option (A) to question No. 60 according to the said respondent were wrong. The answers i.e. option (D) to question No. 29 and option (A) to question No. 60 according to the said respondent were wrong. The OMR sheet with respect to examination paper-III Law stream of petitioner is Annexure R-2/3, whereas, the revised result declared on the basis of report of the Expert Committee is Annexure R-2/4. In, nut-shell, the response of respondent No.2, is that the answers in the key of each and every question are correct and the same were even found as correct after seeking opinion of the Expert Committee, which allegedly was constituted to consider the objections raised by the candidates including the petitioner to certain questions after declaration of the result. 6. On hearing Mr. Sanjeev Bhushan, learned Senior Advocate assisted by Ms. Abhilasha Kaundal, Advocate on behalf of the petitioner and Mrs. Ritta Goswami, learned counsel on behalf of respondent No.2 as well as taking into consideration the pleadings of the parties, a short question that answers to question Nos. 29 and 60 of paper-III-Law in the answer key are incorrect or not, arise for determination. 7. Now, if coming to question No.29, the same reads as follows:- “Which of the following properties could not be held to be an offence of theft, when committed/taken by a person? (A) Durga Idol (B) Cooking Gas (C) Running Electricity (D) Forgotten Umbrella 8. It is a matter of common sense that Durga Idol (option A) Cooking gas (option B) Running Electricity (option C), if stolen or taken by a person, offence of theft can be said to be committed. The respondents also agree that option (A) and option (B) are not the correct answers, however, as per the answer key and the opinion of the Expert Committee, referred to hereinabove, the correct answer to this question according to them is option (C) viz., taking running electricity by someone is not an offence of theft. The respondents also agree that option (A) and option (B) are not the correct answers, however, as per the answer key and the opinion of the Expert Committee, referred to hereinabove, the correct answer to this question according to them is option (C) viz., taking running electricity by someone is not an offence of theft. This is, however, not the correct answer for the reason that abstract from the Standard Book on Indian Penal Code written by Rattan Lal and Dheeraj Lal, Annexure P-5 to the writ petition, amply demonstrates that irrespective of electricity is not a movable property within the meaning of Section 378 IPC and as such, its dishonest abstraction cannot be regarded as theft under the Section ibid, yet by a legal fiction created by Section 39 of the Indian Electricity Act, 1910, the abstraction of running electricity is deemed to be an offence of theft punishable under Section 379 IPC read with Section 39 of Electricity Act, 1910. The only difference is that the prosecution in the cases of theft of electricity can only be launched at the instance of a person specified in Section 50 of the Electricity Act, as is held in Avtar Singh v. State of Punjab, AIR 1965 SCC 666. Therefore, dishonest abstraction of running electricity also amounts to an offence of theft. The correct answer, therefore is option (D) “Forgotten Umbrella” for the reason that the person who takes away a ‘forgotten umbrella’ had no dishonest intention to deceitfully remove the same from the custody of ‘its true owner as he/she is not knowing as to who is the owner of such umbrella’. Therefore, the ingredients of offence of theft under Section 378 IPC are not established hence having taken away a ‘forgotten umbrella’ cannot be said to be an offence of theft. The petitioner, as such, has given the right answer to question No.29 and the answer to this question in the key as well as in the opinion of the Expert Committee is not correct. 9. Now if coming to question No.60, the same reads as follows:- “60. Read Assertion (A) and reasons (R) and answer using codes given below. Assertion (A): A refugee means any person who, owing to well-founded fear of being prosecuted for reason of face, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality. Read Assertion (A) and reasons (R) and answer using codes given below. Assertion (A): A refugee means any person who, owing to well-founded fear of being prosecuted for reason of face, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality. Reasons (R): Because the United Nations Convention on the Refugees 1951 in its Article 1A says so. Codes: (A). Both (A) and (R) are right and (R) is right reason of (A). (B). (A) is wrong and (R) is right. (C ). (A) is right and (R) is wrong. (D). Both (R) and (A) are wrong. 10. The petitioner has given the answer i.e. option (A) “Both (A) and (R)” are right and (R) is right reason of (A).” Options (B) “(A) is wrong and (R) is right”, option (C) “(A) is right and (R) is wrong” and option (D) “Both (R) and (A) are wrong” are according to him wrong answers. As per answer key and the opinion of the Expert Committee, option (D) “Both (R) and (A) are wrong” is the correct answer. However, the answer key and for that matter expert opinion with respect to this question is again wrong for the reason that Article 1A(2) of paper Annexure P-7, an abstract of ‘CONVENTION RELATING TO THE STATUS OF REFUGEES (1951)”, answer this question correctly. The same reads as follows:- “(2). As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-found fear, he has not availed himself of the protection of one of the countries of which he is a national.” 11. The recital hereinabove clearly demonstrate that option (A) is the correct answer to question No. 60. In the answer key and in the opinion of the Expert Committee, option (D) is, therefore, wrong answer. 12. In view of what has been said hereinabove, the petitioner has clearly demonstrated that in the key the answers of question Nos.29 and 60 are wrong. The report of the Expert Committee constituted by the 2nd respondent re-affirming the answers to these questions to be correct is, non speaking as no reason therefor has been assigned. As a matter of fact, in order to disagree with the objections qua answers given by the petitioner, the Expert Committee should have recorded reasons. Merely to say that option (C) and option (D) are the correct answers to questions No. 29 to 60 without any supporting reason therefor, is not sufficient nor such report/opinion of the Expert Committee can be taken as legal and valid. Therefore, the answers to questions No.29 to 60 given by the petitioner are correct answers and such he is entitled to award of marks for these questions. 13. For all the reasons discussed hereinabove, this petition succeeds and the same is accordingly allowed. Consequently, the 2nd respondent is directed to revise the result of the petitioner and declare the same. 14. Before parting, while taking note of the fact that the examination was conducted long back in the year 2014 and the result declared in the month of June, 2015, the relief granted in this writ petition is restricted only to the petitioner and this judgment shall not be treated as a precedent so that the matter which stands closed is not re-opened.