Himachal Pradesh High Court
Sh. Dev Raj vs State Of Himachal Pradesh on 12 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 12th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:-
r to
CIVIL WRIT PETITION No.6960 of 2021
VIVEK SHARMA SON OF
SH. DEV RAJ, RESIDENT OF
VILLAGE UKHALA POST OFFICE
DHURKHARI, TEHSIL BALDWARA,
DISTRICT MANDI, H.P. ......PETITIONER.
(BY SH. DEVENDER K. SHARMA, ADVOCATE)
AND
1. HIMACHAL PRADESH PUBLIC SERVICE
COMMISSION, THROUGH ITS SECRETARY,
NIGAM VIHAR, SHIMLA-171002.
2. THE CHAIRMAN, EXPERT COMMITTEE
(HPAS PRE. EXAM 2020) H.P. PUBLIC
SERVICE COMMISSION, NIGAM VIHAR,
SHIMLA.
......RESPONDENTS.
(BY SH. VIKRANT THAKUR, ADVOCATE)
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2
This petition coming on for admission before
notice this day, Hon'ble Mr. Justice Tarlok Singh
.
Chauhan, passed the following:
ORDER
Notice. Mr. Vikrant Thakur, Advocate, appears and waives service of notice on behalf of the respondents.
2. The instant petition has been filed for grant of the following substantive reliefs:-
"1. That a writ of certiorari be issued and answers to questions No. 4, 18, 26 in paper-1 (General studies) be ordered to be corrected as per documentary proof submitted by the petitioner and the petitioner be awarded marks for correct answer in the interest of justice and fair play.
2. That the respondent commission be directed to consider the objections of the petitioner strictly in consonance with NCRT books, official website of Government of India and Map of world and the petitioner be awarded marks for correct answer accordingly and the petitioner be declared successful candidate in preliminary examination of HPAS 2020."
3. The respondent-Commission issued Advertisement No.11/5/2021 for recruitment to the H.P. Administrative Services. The petitioner being fully eligible ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 3 applied for the same and appeared in the preliminary examination held on 26.09.2021. The provisional answer .
key was displayed on 27.09.2021 to which the petitioner preferred the objections on 01.10.2021 vide Annexure P-4 (Colly). The respondent released the final answer key.
However, the grievance of the petitioner is that the answers to questions No. 4, 18 and 26 in Question Paper-1 (General Studies) under B Series are still incorrect, hence, this petition.
4. What would be the scope of judicial review in the given facts and circumstances of the case has recently been considered by this Bench in CWP No. 4999 of 2021, titled Upanshu Sharma vs. State of Himachal Pradesh and another and connected matter, wherein it was observed as under:-
"12. The powers of this Court to have opinion different to that of the experts, in the matter of evaluation of answers in competitive examination, is well defined. In this context, reference can be made to the judgment passed by the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others (1984) 4 SCC 27, wherein it has held as under:::: Downloaded on - 31/01/2022 23:16:43 :::CIS 4
"29. Far from advancing public interest and fair play to the other candidates in .
general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, r isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."
13. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur and another (2010) 6 SCC 759, 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 ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 5 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."
14. In Central Board of Secondary Education through Secretary, All India Pre-Medical/Pre- Dental Entrance Examination and others vs. Khushboo Shrivastava and others (2014) 14 SCC 523, the Hon'ble Supreme Court while noticing the judgment in Maharashtra State Board of Secondary and Higher Secondary Education case (supra) has held as under:
"11. In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters......."
15. A Division Bench of this Court in Rustam Garg and others vs. Himachal Pradesh Public Service Commission, ILR 2016 Vol. (2), 591, while dealing with an identical proposition has held as under:
"17. In view of the aforesaid exposition of law, we have no doubt in our mind that even when the revised key answers are impugned with respect to questions relating to the ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 6 subject of law, it is not permissible for this Court to examine the question papers and answer sheets itself, particularly when the .
Commission has assessed the inter se merit of the candidates. It is not for the Court to take upon itself the task of the statutory authorities and substitute its own opinion for that of the experts."
5. The similar reiteration of law can be found in another decision of the learned Division Bench of this Court, authored by one of us (Justice Tarlok Singh Chauhan) in Bhupinder Singh vs. State of Himachal Pradesh and another 2021 (1) Him. L.R. (DB) 6 and in CWP No. 5524 of 2021 titled Smt. Mamta Thakur vs. State of H.P. and Others, decided on 27.09.2021.
6. We may, at this stage, refer to a fairly recent judgment rendered by three Judges of the Hon'ble Supreme Court in Vikesh Kumar Gupta and another vs. State of Rajasthan and others (2021) 2 SCC 309 wherein the Hon'ble Supreme Court held that though re-evaluation can be directed, if rules permit, however, deprecated the practice of re-evaluation and scrutiny of the questions by the Courts which lack expertise and it was further held that it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 7 the Commission had assessed the inter se merit of the candidates. Courts have to show deference and .
consideration to the recommendations of the Expert Committee, who have expertise to evaluate and make recommendations. It shall be apposite to refer to the relevant observations as contained in paragraphs 13 to 17 which read as under:-
"13. The point that arises for the consideration of this Court is whether the revised Select List dated 21.05.2019 ought to have been prepared on the basis of the 2nd Answer Key. The Appellants contend that the Wait List also should be prepared on the basis of the 3rd Answer Key and not on the basis of the 2nd Answer Key. The 2nd Answer Key was released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019. When the Division Bench was informed that the selections have been finalized on the basis of the 2nd Answer Key, it refused to interfere with the Select List prepared on 17.09.2018. However, the Division Bench examined the correctness of the questions and Answer Keys pointed by the Appellants therein and arrived at a conclusion that ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 8 the answer key to 5 questions was erroneous. On the basis of the said findings, the Division Bench .
directed the RPSC to prepare revised Select List and apply it only to the Appellants before it.
14. Though re-evaluation can be directed if rules permit, this Court has deprecated the practice of re- evaluation and scrutiny of the questions by the courts which lack expertise in academic matters. It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates (Himachal Pradesh Public Service Commission v. Mukesh Thakur (2010) 6 SCC 759. Courts have to show deference and consideration to the recommendation of the Expert Committee who have the expertise to evaluate and make recommendations (See- Basavaiah v. H.L. Ramesh (2010) 8 SCC 372.
15.Examining the scope of judicial review with regards to re-evaluation of answer sheets, this Court in Ran Vijay Singh v. State of U.P. (2018) 2 SCC 357 held that court should not re-evaluate or scrutinize the answer sheets of a candidate as it has no expertise in the matters and the academic matters are best left to academics. This Court in the said judgment further held as follows: (Ran Vijay Singh case9, SCC pp. 369-70, paras 31-32) "31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re- evaluation of an answer sheet. If an error is committed by the examination authority, the ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 9 complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are .
disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse -- exclude the suspect or offending question.
32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination -- whether they have passed or not; whether their result will be ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 10 approved or disapproved by the court; whether they will get admission in a college or university or not; and whether they will get .
recruited or not. This unsatisfactory situation does not work to anybody's advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers."
16. In view of the above law laid down by this Court, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019. Reliance was placed by the Appellants on Richal v. Rajasthan Public Service Commission (2018) 8 SCC 81. In the said judgment, this Court interfered with the selection process only after obtaining the opinion of an expert committee but did not enter into the correctness of the questions and answers by itself. Therefore, the said judgment is not relevant for adjudication of the dispute in this case.
17. A perusal of the above judgments would make it clear that courts should be very slow in interfering with expert opinion in academic matters. In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 11 appointments is the continuance of those appointed on temporary basis and their claims for .
regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel."
7. Keeping in view the aforesaid exposition of law, the reliefs, as claimed by the petitioner cannot be granted, already been considered r to more particularly, when objections of the petitioner have by a panel of Experts. The petitioner has not been able to show any provision governing the process of selection from which he may derive the reliefs as claimed. The reliefs as claimed in this petition are not permissible and cannot be granted to the petitioner.
8. However, before parting, in order to be fair to the petitioner, strong reliance is placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in Uttar Pradesh Public Service Commission, through its Chairman and Another vs. Rahul Singh and Another (2018) 7 SCC 254. However, even this judgment does not in any way advance the case of the petitioner as it is a reiteration of the principles, as noticed ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 12 above. Rather, the Hon'ble Supreme Court has gone a step ahead by concluding that the onus is on the candidate to .
not only demonstrate that key answer is incorrect, but there is a glaring mistake and no inferential process or reasoning is required to show that key answer is wrong. It has further been held that the constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. It shall be apt to reproduce the relevant observations as contained in paras-12 to 15 of the judgment, which read as under:-
"12. The law is well settled that the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. In Kanpur University case (supra), the Court recommended a system of:
(1) moderation;
(2) avoiding ambiguity in the questions; (3) prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.::: Downloaded on - 31/01/2022 23:16:43 :::CIS 13
13. As far as the present case is concerned even before publishing the first list of key answers the .
Commission had got the key answers moderated by two expert committees. Thereafter, objections were invited and a 26 member committee was constituted to verify the objections and after this exercise the Committee recommended that 5 questions be deleted and in 2 questions, key answers be changed. It can be presumed that these committees consisted of experts in various subjects for which the examinees were tested. Judges cannot take on the role of experts in academic matters. Unless, the candidate demonstrates that the key answers are patently wrong on the face of it, the courts cannot enter into the academic field, weigh the pros and cons of the arguments given by both sides and then come to the conclusion as to which of the answer is better or more correct.
14. In the present case we find that all the three questions needed a long process of reasoning and the High Court itself has noticed that the stand of the Commission is also supported by certain text books.
When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts.
15. In view of the above discussion we are clearly of the view that the High Court over stepped its ::: Downloaded on - 31/01/2022 23:16:43 :::CIS 14 jurisdiction by giving the directions which amounted to setting aside the decision of experts in the field. As .
far as the objection of the appellant - Rahul Singh is concerned, after going through the question on which he raised an objection, we ourselves are of the prima facie view that the answer given by the Commission is correct."
9. Accordingly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 12th November, 2021.
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