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Allahabad High Court · body

2024 DIGILAW 665 (ALL)

Shubham Pandey v. State of U. P.

2024-03-01

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

body2024
JUDGMENT : 1. Delay in filing of the special appeals has been explained to the satisfaction of the Court. Applications are allowed. Delay in filing of appeal is condoned. 2. These appeals have been preferred alongwith application for grant of leave to challenge the judgment of learned Single Judge, whereby the challenge laid to the answer to question no. 79 of answer series ‘B’ was rejected. It transpires that during pendency of this bunch of appeals the Commission has taken a decision to cancel question no. 79 of ‘B’ series and other questions in the corresponding series and award one mark, uniformly, to all appellants, who had appeared in the exam. It is submitted by Sri Seemant Singh that the answer given by the appellants to question no. 79 was correct, and while this Court was seized of the matter, the respondent Commission has arbitrarily cancelled the question itself. Reliance is placed upon an order passed by the Division Bench in Special Appeal Defective No. 429 of 2023, on 23.8.2023, which reads as under: “1. The submission of the learned counsel for the appellants is that the State Grant for 1800 watt (2 HP) surface solar pump admissible to small and marginal farmers as per Government Order dated 28 April 2022 was 30%. Therefore, correct answer was option ‘B’ for question No. 79 and not 45% as is the stand of the Recruitment Body. 2. Shri Siddharth Singhal, learned counsel appearing for the Recruitment Body submits that Clause 19 of the Government Order shows that the Government Order dated 28 April 2022 was subject to further approval by the State Government. He submits that the approval was never granted and therefore the earlier Government Order dated 6 June 2018 whereunder grant of State Government was 45% was rightly taken as correct answer. 3. It is highly doubtful on a plain reading of Clause 19 of Government Order dated 28 April 2022 to accept that the Government Order was subject to any further approval. Prima facie, it appears that Clause 19 only provides for mode of implementing the Government Order. It states that as soon as the Central Government share is received, the proposal for release of matching grant by the State Government be made available. Prima facie, it appears that Clause 19 only provides for mode of implementing the Government Order. It states that as soon as the Central Government share is received, the proposal for release of matching grant by the State Government be made available. However, we are of the view that since the Government Order in question has been issued by the State Government and therefore its stands should be obtained, as also suggested by Shri Singhal, appearing for the Recruitment Body. 4. Shri Rajiv Gupta, learned Addl. Chief Standing Counsel prays for three weeks’ time to clarify the stand of the State Government. 5. Accordingly, matter is adjourned for three weeks. Let the State Government clarify its stand on the above aspect by filing affidavit of Principal Secretary, Irrigation. 6. List as fresh on 13 September 2023.” 3. On behalf of Commission, on the other hand, it is pointed out that the selfsame controversy earlier came before this Court in Special Appeal Defective No. 60 of 2024, which has been disposed of vide following orders passed on 8.2.2024: “Delay in filing of the appeal has been explained to the satisfaction of the Court. Application is allowed. Delay in filing of appeal is condoned. Learned Single Judge dismissed the writ petition filed in by the present appellants, after holding that the answers indicated by the Board on the basis of recommendation made by the experts ought not to be interfered with. The appeal, however, has been filed with reference to Question No. 79 of Answer Booklet Series ‘D’, stating that the answer in the published answer key of the Board was incorrect. Learned Counsel representing the respondent Commission has produced before us an order passed by the Controller of Examination dated 2.12.2023, according to which all the applicants have been granted one mark against Question No. 79 of Answer Booklet Series ‘D’. One mark has also been given against equivalent question of other answer series. It is stated that the appellants have also been allowed one mark against Question No. 79 of Answer Booklet Series ‘D’. Since the grievance raised in the appeal is confined to Question No. 79 of Answer Booklet Series ‘D’ and the Commission has already awarded marks for such question to the appellants, no further grievance survives. Appeal is disposed of, accordingly.” 4. Since the grievance raised in the appeal is confined to Question No. 79 of Answer Booklet Series ‘D’ and the Commission has already awarded marks for such question to the appellants, no further grievance survives. Appeal is disposed of, accordingly.” 4. On behalf of appellants, an attempt is made to seek further adjudication of the cause in view of the fact that negative marks were to be awarded for any wrong answer. Submission is that the Commission has acted arbitrarily in uniformly granting correct marks to all students including those, who had given a wrong answer. Candidates, who had not attempted the question, were also extended benefit. It is, therefore, submitted that the Commission with an intent to avoid adjudication of cause, on merits, has cancelled the question, which manifests arbitrariness. 5. The appeals are opposed by Sri H.N. Singh and Sri G.K. Singh, learned Senior Counsels, appearing for selected candidates and Sri Siddharth Singhal, learned counsel for the Commission, who state that the decision of the Commission to cancel the question and award marks equally to all does not cause any prejudice to any of the candidates. It is submitted that the Commission having realized that the question itself was capable of two possible answers took a bona fide decision to cancel the question and award marks against it uniformly to all. The Commission has submitted that there were two plausible conflicting answers, which were being pressed by the candidates, and therefore instead of dwelling any further into merits of such claim the Commission thought it proper to cancel the question itself. This was particularly so as sufficient time has lapsed and the recruitment had to finalized early. 6. Having considered the respective submissions, we find that the examining body has acted in an uniform manner, inasmuch as by cancelling the question all candidates have been allowed marks against Question No. 79 of Answer Booklet ‘D’. Certain discretion has to be extended to the Commission in conduct of such examinations. Very often different answers to the same question can be given depending upon the difference in perception or on account of existence of diverse literature on the point. The Commission faced with such exigency can always take an appropriate decision to deal with the situation. Certain discretion has to be extended to the Commission in conduct of such examinations. Very often different answers to the same question can be given depending upon the difference in perception or on account of existence of diverse literature on the point. The Commission faced with such exigency can always take an appropriate decision to deal with the situation. One of the course available in such a situation would be to cancel the question where it is found that there are more than one plausible answer. 7. In the facts of the present case, the decision by the Commission to cancel the question itself would clearly be a course available to the examining body. We would not like to arrogate the jurisdiction of a subject expert, so as to hold that answers given by the appellants alone are correct and to direct the Commission to reverse its decision. Since no prejudice is otherwise caused to any of the appellants, we are not inclined to enter any further on the issue relating to correctness of the answer to the question itself. 8. In refusing to examine the correctness of answer to question no. 79 we are conscious of the words of caution expressed by the Supreme Court in a series of judgments requiring the courts to show restraint in the decision of expert bodies like Public Service Commission. In Secretary (Health) Department of Health & F.W. vs. Dr. Anita Puri, (1996) 6 SCC 282 , the Supreme Court observed as under: “9.........It is too well settled that when a Selection is made by an expert body like Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala-fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation.....” 9. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation.....” 9. In Ran Vijay Singh and Others vs. State of Uttar Pradesh and Others, (2018) 2 SCC 357 , the Supreme Court observed as under: “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. 30.5. In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.” (Emphasis supplied by us) 10. The above principle has been reiterated by the Supreme Court in Bihar State Selection Commission and Others vs. Arun Kumar and Others, (2020) 6 SCC 362 and Tajvir Singh Sodhi and Others vs. State of Jammu and Kashmir and Others, 2023 SCC Online SC 344. 11. In view of the discussions and deliberations held above, we find that the decision of the Commission to cancel the question no. 79 and award marks equally to all candidates in all series of answers merits no interference. This bunch of special appeals are, accordingly, disposed of in terms of the order dated 8.2.2024, passed in Special Appeal Defective No. 60 of 2024.